Employees should carefully consider their actions before taking this careless approach for a few reasons.
First, employers are entitled to have work performed during all the hours for which employees are paid. That means that any significant time spent during working hours preparing application materials or attending interviews could ultimately amount to time fraud which, depending on unionization status and the prior disciplinary history of that particular employee, could be grounds for termination with cause. In other words, your employer could walk you to the door with no further obligation.
Second, employees owe a duty of loyalty and good faith to their employers. This does not mean that employees are married to their jobs for life, never allowed to job hunt or look around for better opportunities. It does mean that employees are required to devote their full time, attention and energy to proper performance of their duties, regardless of whether this term is codified in an employment agreement. Depending on the “personal use” language of any applicable contracts or policies, employees may also be prohibited from using company property for job seeking activity.
Third, certain employees known as fiduciary employees — key, valuable and trusted employees, often but not necessarily in managerial positions — owe a duty of full disclosure to their employer where their actions might be contrary to the best interests of the organization. In 2000, the Ontario Court of Appeal held that Kurt Felker, a former employee of Electro Source, was such a fiduciary employee. Felker was largely responsible for daily operations in a key revenue region, and as a result, the court found that he was a key employee. Kurt had used company time and resources at Electro Source to create a PowerPoint pitch for a new opportunity at Microchip, resulting in a conflict of interest ultimately punished by the court as termination for cause.You might be thinking: “So what? My employer will never find out that I updated my CV on my Lenovo or used my work cell to complete a screening application or took a 2:30 p.m. Zoom call on my personal computer last Tuesday.” Surely you would know if your “Big Brother” employer had been tracking your online activities, right? Not necessarily.
Employers will recall that earlier this year, the Ontario government announced changes to employment legislation requiring employers with 25 or more employees to have a written policy on electronic monitoring of employees in place by Oct. 11 — now just around the corner.
