The U.S. National Transportation Safety Board has reported that, at the time of a recent mid-air collision between an airplane and a helicopter, the air traffic controller was making a personal telephone call. The crash killed nine people and is an example of what can happen when an employee is engaged in personal business rather than focused on work duties.

According to the N.T.S.B. report, the air traffic controller on duty cleared the airplane for takeoff. He then made a personal telephone call. He apparently did not notice, or warn the plane’s pilot, that there were several aircraft immediately ahead of the plane.

Air traffic controllers at another airport noticed the potential for a mid-air collision and alerted the first controller. He then, while reportedly still on the telephone, unsuccessfully attempted to alert the plane’s pilot. Moments later, the plane crashed into the tour helicopter above New York’s Hudson River.

Employers have long fought the battle to keep employees’ attention on work rather than on their personal affairs. The employers’ refrain has been that “paid time is our time”.

As cellular telephone technology evolves ever more rapidly, many people are carrying their own telephones to work. It’s no longer just simple telephone calls – voice messages, texting, internet access, and a whole range of phone-based “apps” are a source of distraction for employees and a headache for employers.

Employees chatting on the phone – whether a cellular phone or a land line – can definitely strain the boundaries of safe workplace behaviour. Some statistics indicate, for instance, that people are several times more likely to be involved in an accident if talking on the telephone while operating a vehicle.

Can the employer simply ban on non-work related telephone activity in the workplace? While such a drastic measure may be called for in some safety-sensitive circumstances, I recommend a dose of reason when developing a solution.

There is no doubt that the employer has the right to restrict employees’ use of telephones, blackberries, etc. while on duty. Much of the technology may be new but the employer’s entitlement to demand that its employees focus on their work is not.

The first step towards regulation is the implementation of a workplace policy emphasizing employees’ duty to be attending to their work obligations while on company time. It should clearly state that the use of telephones, blackberries, etc. for personal purposes is prohibited during working hours.

It should also provide a clear warning of disciplinary measures if employees are violating the rules.

The dose of reason comes at the enforcement stage. Employers need to realize that employees will always have a need to deal with some personal matters while at work. It may not be reasonable, for instance, to prevent employees from receiving emergency calls from family members.

Employers probably should not start imposing disciplinary measures at the first glimpse of a cellular telephone or an overheard personal call. But, verbal and written warnings should be issued and the employer should be prepared to move to more severe measures if the conduct continues.

When the misuse of these devices occurs in a safety-sensitive context, the employer should move quickly to more significant disciplinary measures. Operating a company vehicle, for instance, not only places the operator and the public in danger, it creates a significant risk of liability for the employer.

The key is to impose rules which are reasonable and appropriate to the work context. The time to implement a solution is now, not later.

Robert Smithson is a partner at Pushor Mitchell LLP in Kelowna practicing exclusively in the area of labour and employment law. For more information about his practice, log onto www.pushormitchell.com. Past “Legal Ease” columns, may be viewed at http://www.pushormitchell.com/law-library/publication/legal-ease. This subject matter is provided for general informational purposes only and is not intended to be relied upon as legal advice.

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