Written by Stephanie Henry and John Gilmore
In a recent labour arbitration decision, TELUS v United Steelworkers, Telecommunications Workers Union National Local 1944 (Heywood), Arbitrator Jolliffe, Q.C., upheld the termination of a long-service, unionized employee for cause owing to her interference with the employer's (TELUS) virtual file/cloud based storage system (a Google Drive). Specifically, the allegation against the grievor was that she intentionally and maliciously interfered with TELUS' drive by surreptitiously removing manager access to over a thousand live documents stored on the same.
Throughout both the employer's investigation and the grievance arbitration, the grievor denied all culpability. Instead, she alleged that her actions on the drive were mistaken and/or undertaken in a haphazard effort to assist the employer. No one was present to observe the grievor's actions on the drive. Aside from the grievor herself, no one was able to provide evidence of the grievor's intentions at the relevant time. At issue in the proceedings was whether the circumstantial evidence led by the employer sufficiently established intentional wrongdoing to justify termination for cause. In making its case, the employer relied heavily on expert evidence.
The grievor was a member of the TELUS team responsible for servicing TELUS customers with copper cable lines. This team stored their files virtually on the Google Drive. On September 18, 2019, TELUS management announced that the work completed by the team would be offshored. The very next day, September 19, 2019, the grievor performed a number of operations on the Google Drive almost exclusively directed at removing manager access. The grievor commenced a medical leave of absence on October 10, 2019.
TELUS did not discover the employee's conduct until November 2019 when an affected manager attempted to access the drive and was denied. Upon review of the drive's activity log, TELUS discovered that the day following the offshoring announcement, the grievor had very clearly deleted management access.
Following the grievor's return from sick leave on December 10, 2019, TELUS convened an investigative meeting. During this meeting, TELUS presented the September 19 activity log to the grievor and sought an explanation. The grievor was evasive, refused to take any accountability and provided no credible explanation for her actions. TELUS terminated her employment.
During the hearing, the Union advanced the argument that the grievor's conduct on the drive was a mistake. The grievor's evidence was that her actions (as clearly reflected in the drive's activity log) were simply an attempt to: innocently rearrange files; delete surplus information; remove users who should not have access; and change ownership of the files and folders on the drive in order to give the new employees (offshore) access to the materials. In addition, through expert evidence, the Union attempted to advance the theory that the totality of the grievor's conduct on September 19, 2019 could have been accomplished in a mere "five clicks," i.e., inadvertently and without much thought.
To meet its onus the employer was required to refute each of the grievor's alleged explanations, advanced for the first time in the hearing. To do so, months after the conduct took place, the employer relied on a Google Service Partner to provide expert evidence on the functioning of the Google Drive. The Google Expert was able to lead compelling evidence as follows:
- The grievor had editor level access on the drive and as such, she could easily provide access to documents on the same, without needing to change the ownership of the document at issue.
- For each manager she targeted, the grievor would have had to complete five mouse clicks to remove the manager at issue, including completing a confirmation click to save the access removal.
- The grievor deleted manager access to a total of 1097 files and folders. The majority of her actions were targeted against her direct supervisor and the manager responsible for offshoring the work.
- The removal steps (i.e., the five clicks) were completed at least seven times to accomplish the task, and involved at least 49 mouse clicks. There were 69 activity log entries for the grievor's handle on the Google Drive on September 19, 2019 almost exclusively directed at removing manager access.
- Contrary to the grievor's assertions, a detailed review of the history of the drive for the period of time at issue revealed absolutely no attempt by her to give anyone access to the documents, to delete redundant documents, or move files around to prepare for the offshoring of the work. There was no innocent clean-up of the drive as alleged.
The Employer also led evidence on the grievor's proficiency on the drive (as recognized by her peers) in order to undermine her explanation that this was all a fumble.
In light of the foregoing, Arbitrator Jolliffe concluded that the grievor's alleged explanations lacked credibility and that the employer had established that the grievor "acted with wrongful intent to disrupt corporate operations." Arbitrator Jolliffe further concluded that the employment relationship was destroyed after the employee denied access, did not forthwith correct her transgression, denied all wrongdoing through the investigation process and thereafter "continued the charade" by providing "knowingly misleading testimony during the arbitration hearing."
Significance for Employers
Here, the employer was required to rely on circumstantial evidence to prove that the employee's conduct on its drive was malicious, intentional and not a mere fumble. In the age of remote work, employers will increasingly be relying on expert and circumstantial evidence to shed light on employee conduct happening at home, behind a computer screen and away from direct supervision. This case provides a useful reminder of the importance of preserving digital evidence and the benefits of engaging experts to establish employee conduct and intention behind computer screens. The full decision can be found here.