It’s a question we hear often – Can we fire an employee for viewing pornography on a workplace computer. The answer? Not necessarily. A recent decision of the New Brunswick Court of Appeal shows the importance of a contextual and proportional analysis required on the part of employers when considering termination for cause.
Asurion Canada Inc. v. Brown involved two call centre employees at the Moncton branch of a California-based wireless communication provider. Mr. Brown was a vendor payables specialist with 9 years’ service and Mr. Cormier was a Supervisor with 8 years’ service. Both were fired after it was discovered that they had received unsolicited emails containing pornographic images from a mutual friend. The emails were viewed on the employer’s computer but were then either deleted or sent to a personal email address and none were shared with other employees or circulated in the workplace.
The employer maintained that the conduct of the employees violated Asurion’s workplace internet acceptable use in the employee handbook and irreparably damaged the trust in the employment relationship. The trial judge held that both had been terminated without just cause, that the employer was required to prove deceitful misconduct to justify termination, noting that dismissal was a disproportionately severe penalty for the misconduct at issue. Each were awarded over $30,000 damages in lieu of notice.
The employer appealed on the basis that the trial judge erred in finding that the employer was required to prove deceitful misconduct. The Court of Appeal found that the trial judge was justified in finding that dismissal was a disproportionally severe penalty in the circumstances.
Key factors relied on by the Court include:
- The emails had neither been requested nor circulated;
- The images did not involve any criminal conduct and were examples of “perfectly legal adult pornography” as recently defined by the Supreme Court of Canada;
- The employees had previously unblemished records.
- Neither employee had been clearly warned about the zero tolerance approach to pornography in the workplace – the employee’s written acknowledgement of the internet-use policy; agreement to ensure those under their supervision abided by the policy; and their acceptance of the policy via the automatic log-in prompt did not constitute sufficient warnings in the circumstances.
- The contents of the images were not outside the range of “legal adult pornography” so as to suggest any violation of the Criminal Code.
What this means for employers:
Context and proportionality are key to finding of just cause and always depends on the facts. The presence of pornography is not compatible with the values in most workplaces and employers have a right and obligation to ensure safe, harassment-free working environments. The case underscores the importance of ensuring that policies that can support termination must be clearly communicated to employees – if the policy and the effect of any breach is not regularly communicated to employees, termination may not be upheld.