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Supervisor circulated pornography, damaged employment relationship, terminated for cause

When a workplace supervisor accessed pornographic, racist and other inappropriate material via a work computer and circulated it to employees and employer contacts, the employer had just cause to dismiss him. The employee claimed he was wrongfully dismissed, but the Alberta Court of Queen’s Bench was not convinced and acceded to the employer’s request to dismiss the employee’s claim without trial.

All employees of the company were subject to policies on general conduct, computer use and harassment and discrimination. The code of conduct required employees to report “any evidence of improper practice of which they are aware.” The system usage policy prohibited “the sending or forwarding of inappropriate (i.e., offensive or disruptive) or confidential information.” The harassment policy stated the employer’s commitment to “an environment free from unlawful harassment.” Failure to comply with these policies would lead to discipline.

In November 2009, the employer connected the computers in the electrical shop to the Internet. At that time, the chief electrician received a notice that the employer would discipline anyone abusing their Internet access. In early 2010, the chief electrician received another notice that he was in charge of supervising his subordinates’ computer use, and he must report anything unrelated to work.

In January 2011, the employer held a safety workshop for employees. The presenter showed a demonstration video in which two women wearing lingerie performed CPR on each other. The video was clearly inappropriate and the employer conducted an investigation, which revealed that the video came from one of the electrical employees. Examination of the computers in the electrical shop uncovered pornographic pictures and other inappropriate material on all three, but most of all among the chief electrician’s email messages.

The employer put the chief electrician on a paid administrative suspension.

The investigation “determined that a number of employees were engaged in sending and receiving inappropriate email messages, which included material the company determined was pornographic, contained nudity, or was discriminating and harassing. It was also determined that [the chief electrician] sent messages externally to personal and business addresses.”

The employee sent 37 messages containing inappropriate content to third parties who did business with the employer.

Most of the distribution of inappropriate material involved employees under the chief electrician’s supervision.

The employer terminated the chief electrician for cause, gave one employee a five-day suspension and handed out 14 warning letters.

The chief electrician claimed wrongful dismissal. He argued that the employer never told him, and the policies did not explicitly state that, “off colour emails of a humorous and adult nature would result in termination of his employment.” He assumed that the employer was directly monitoring employees’ computer use and that the employer would warn him if he “stepped over the mysterious line of what was not acceptable or was too many [images/jokes].” He received no warnings. Moreover, he argued, the company culture was such that a certain amount of “off-colour” material was accepted. That the safety coordinator felt it appropriate to show the questionable CPR video in a training session demonstrated that.

The employer asked for a summary dismissal of the employee’s claim. The employee asked for a trial at which he could present evidence. He suggested that a summary judgment was “an oppressive action taken by a multi-national company trying to financially ruin him so he cannot pursue his claim.”

The Court noted that to grant a summary judgment, it “must be satisfied that it is plain and obvious that the action cannot succeed. There must be no genuine issue for trial…no reasonable prospect of success.” The facts and law must be clear, and credibility must not be an issue. In this case the Court had to determine whether was “a genuine issue for trial” that might lead the Court to find the employee was wrongfully dismissed.

The employee’s arguments did not persuade the Court. The policies were clear, whether or not they explicitly mentioned that termination might result from inappropriate behaviour. It was irrelevant whether the employer was monitoring his and other employees’ computer use because he had been directly charged with the task of supervising his staff’s use. This served as sufficient warning that the behaviour was inappropriate. And his evidence of a culture that permitted such inappropriate behaviour was not strong enough to support the assertion or his defence.

The Court found that:

[The employee] undertook behaviour that: set an inappropriate standard for his subordinates; could poison the work environment; could leave the company vulnerable to bona fide claims of discrimination and harassment; could affect the company’s reputation in the community; could expose the computer system to threats; and, may have meant that he was not spending his time on his work.

[He] did not act in his employer’s best interests and, in fact, with his dissemination of pornography and racist material, he placed those interests at risk. His employer relied on [the employee] to enforce its policies and lead his team. His behaviour violated the faith inherent in the employment relationship. [His] behaviour, when considered as a whole, and in context, constituted a fundamental breach of the employment contract and justified dismissal.

As a result, the Court decided there was no genuine issue for trial and granted the summary judgment. The employer did not wrongfully dismiss the employee.

Adam Gorley
First Reference Human Resources and Compliance Editor

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Adam Gorley

Adam Gorley is a copywriter, editor and researcher at First Reference. He contributes regularly to First Reference Talks, Inside Internal Controls and other First Reference publications. He writes about general HR issues, accessibility, privacy, technology in the workplace, accommodation, violence and harassment, internal controls and more. Read more
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