Access to the Internet is now a fixture in Canadian workplaces. Whereas accessing pornography was once limited to obtaining physical copies of magazines and videos, today, pornography can be accessed in seconds by a few keystrokes and the click of a mouse.
This has created unique problems for employers, who are faced with making decisions about employees caught electronically accessing, storing or distributing pornography at work or on employer-owned devices. These cases are on the rise, and it seems to be those in which the pornography in question is of a legal or arguably non-offensive nature that are the most challenging.
The fact is, the employer’s moral stance on these issues often heavily influences or dictates the consequences for the employee. Many believe that immediate dismissal for just cause is warranted in any such situation. While the jurisprudence is rather sparse (more so in the civil realm than the arbitral one), there are at least several appellate-level decisions to guide us. Like other cases in which an employer alleges cause for dismissal, a contextual analysis is mandated, requiring the penalty be proportional to the act(s) or behaviour in question.
In Backman v. Maritime Paper Products Limited (2009 NBCA 62), the New Brunswick Court of Appeal agreed with the trial judge’s decision upholding the summary dismissal of an employee caught accessing pornography from his work computer. The employer had an “Acceptable Use Policy” and had warned the employee on two occasions. He was dismissed for cause when caught accessing pornography for a third time.
Although the Court of Appeal agreed with the trial judge’s conclusion (summary dismissal was justifiable), it took issue with the description of Mr. Backman’s behaviour as being “illegal” and her suggestion of “illegal sexual harassment”. Nonetheless, the Court of Appeal confirmed that it was Mr. Backman’s pattern of breaching policies after warnings and insubordinate behaviour that destroyed the trust in his relationship with his employer.
Asurion Canada Inc. v. Brown and Cormier (2013 NBCA 13) is also instructive. Asurion summarily dismissed two employees who had received numerous emails containing pornographic content on their work email accounts from a non-employee. The emails were not distributed to other employees. In dismissing them for cause, the employer alleged they should have taken action to prevent the receipt of the emails.
The Court of Appeal had no trouble agreeing with the trial judge that, applying a contextual approach, that the actions of the employees in question did not merit dismissal for cause. The employees were not short service and they otherwise had unblemished personnel files. They worked in a call centre so were not “morality instructors”. Furthermore, the pornography in question was of a legal nature. The Court held: “…nothing in the nature of Asurion’s business warranted a “puritanical” or “absolutist” approach to discipline for an employee’s receipt and in solo viewing of sexually-explicit material in the relative privacy provided by his or her cubicle.
The outcome was different in a recent Alberta Court of Appeal decision, Poliquin v. Devon Canada Corp., 2009 ABCA 216. In that decision, the Court took a hard line with a Senior Production Manager of an oil and gas company. Mr. Poliquin was found to have distributed emails with pornographic content to several others, in contravention of company policy (after a previous warning); however, he was also found to have distributed a racist email and breached conflict of interest guidelines. While the case does not seem to turn on the pornographic emails alone, the court found it to be at least a serious error in judgment for a manager to distribute pornography, thereby putting the business at risk of complaints by employees and at risk of reputational damages. The Court of Appeal agreed with the employer that summary judgment was appropriate.
Outside of the civil realm, the cases also require a contextual approach. In one adjudication decision, Andrews v Deputy Head (Department of Citizenship and Immigration), 2011 PSLRB 100, the employee’s online pornography viewing was found to be excessive, but the evidence showed that he completed his projects and he did not distribute pornography to others. While the adjudicator found that his behaviour was inappropriate, she ultimately reinstated him but denied him over a year’s worth of back pay.
These cases will only get more interesting as the lines between our work lives and private lives become increasingly blurred. The Supreme Court of Canada came to this conclusion in a recent criminal matter ( R. v. Cole, 2012 SCC 53): “Workplace computers are increasingly given to employees for their exclusive use, and employees are allowed — and often expected — to use them away from the workplace for both work-related and personal use. And as more data is stored in the cloud and accessed on both workplace and personal computers, the ownership of the device or the data, far from being determinative of the reasonable expectation of privacy, becomes an increasingly unhelpful marker. …. (emphasis added).”
Accordingly, employers should not be trigger-happy when confronted with an employee who has accessed, stored or distributed pornographic materials at work or on work devices. Whether an employer has the right to dismiss an offending employee for cause must be analyzed like other summary dismissal cases – a contextual approach must be followed and the penalty must be proportional to the impugned behaviour. The courts will not support “puritanical” approaches to these cases.
The following factors are relevant to the inquiry:
- The nature of the pornography (e.g. legal?)
- Whether coworkers also viewed the material
- The position of the employee (e.g. manager, teacher, etc.);
- Whether there was a loss of productivity;
- Whether the employer was at risk of reputational damage;
- Whether the behaviour constituted harassment;
- Workplace policies;
- Whether the employee had received previous warnings; and
- The employee’s length of service and service record.
These cases are bound to be messy both from a staff relations point of view and for lawyers advising on them. Being reminded that employers are not the morality police and must fully assess the situation before making decisions might go a long way in arriving at a decision that would be supported by our judiciary.
For more questions, contact our Employment Law Group.
This article originally appeared on The Lawyer’s Daily website on March 3, 2017, published by LexisNexis Canada Inc.