Date: 2008
Author: Daniel A. Lublin
Publication: Metro

Breach of trust can amount to dismissal

With positive performance reviews and regular salary increases, 14-year company veteran Gregory Backman had nowhere to go but up.  But life can be lonely at the top. Having admitted to viewing pornography on his workplace computer, Backman was immediately fired.  He wasn’t about to go easily.
Supervising employees at the Saint John, New Brunswick premises of Maritime Paper Products Ltd., Backman had run into problems with Internet pornography before.  He had been caught viewing inappropriate websites in 2002 and 2005. When a computer audit revealed that Backman had been surfing pornographic web sites for more than 10 hours in October 2006, Maritime Paper’s response was swift.  Backman was shown the door.
Backman, however, believed that the company’s response to his online habits was merely an excuse to avoid paying him severance.  He had received good performance reviews before, and rather than dismissing him after he was caught viewing pornography in 2005, the company gave him a raise instead.
Arguing, therefore, that his employer had condoned his online habits by its decision to award him a raise in 2005, Backman sued his company for wrongful dismissal, seeking one year’s severance and his legal costs.  Recently, a New Brunswick judge disagreed.
Finding that Backman’s repeated viewing of pornography at work had not been condoned by his employer and that it had destroyed his employer’s trust in him as a supervisor, the judge upheld Backman’s dismissal. Interestingly, however, the judge also found that Backman’s conduct was tantamount to sexual harassment because the female IT manager who performed the audit on his computer found the websites he visited “offensive”.
Canadian courts will not be eager to respect privacy rights when employees access inappropriate websites at work.  As well, given the unusual finding that viewing pornography on your own computer may amount to sexual harassment, employers now have a greater arsenal for dealing with Internet misuse.  But it’s not just viewing pornography at work that can land you in my offices seeking legal advice. Employees who spend an inordinate amount of time on the web at work can be viewed as “stealing an employer’s time,” which can also be cause for dismissal.
If you want to ensure that your job is safe, review any computer use policies that are in place and remember that employers maintain the right to monitor your online habits, especially where they provide the computers and Internet access.