The Internet can be an extremely valuable source of information for legitimate
business related purposes in the workplace. By the same token, the internet can
be an almost irresistible diversion to employees during business hours.

The recent decision of the New Brunswick Court of Appeal in Backman v.
Maritime Paper Products Ltd. provides a timely example of an employee being
terminated for cause due to the viewing of pornographic material on the internet
during business hours.

In Backman the plaintiff was terminated after more than 14 years of service.
At the time of his termination, Mr. Backman was employed as a Structural Design
Supervisor.

At or about the time that Mr. Backman was hired in June of 1992, he was
informed of Maritime Papers’ “Acceptable Use Policy” relating to
electronic mail and internet use. The policy states that “transmitting,
viewing or storing inappropriate or unprofessional harassing, offensive, obscene
or slanderous material using Maritime Paper Products’ computer resources is
strictly prohibited” and that “such actions could result in
disciplinary action up to and including dismissal”.

On September 12, 2002, the employer met with Mr. Backman to discuss the
results of audits conducted in June through to August of that year, in which it
was revealed that Mr. Backman had made inappropriate use of the internet on
Maritime Papers’ computer. One week later, Mr. Backman was advised, in writing,
that his behaviour was contrary to the company’s policy and unacceptable. In
addition, he was informed that the letter would be kept in his personnel file
and that “any further incidents of this nature could result in discipline up
to and including termination”.

Despite the warning he received in September 2002, Mr. Backman continued to
access inappropriate sites from his employer’s computer. By letter dated April
11, 2003 Mr. Backman was, once again, reprimanded for continued excessive and
inappropriate use of the internet that was discovered as a result of an audit
that had then been recently completed. Mr. Backman was warned, once again, that
“any further incidents of this nature will result in immediate termination
of your employment with Maritime Paper Products”.

In the fall of 2006, another audit revealed more inappropriate activity on
Mr. Backman’s office computer. It disclosed that on October 23, 2006 Mr. Backman
had accessed inappropriate and pornographic websites for almost three hours. The
audit further confirmed that Mr. Backman had done the same on October 24, 2006
for approximately 1.5 hours and also on eight other occasions for periods
ranging between 45 to 90 minutes.

On November 9, 2006, Maritime Paper dismissed Mr. Backman from his employment
for having made unacceptable use of the company’s computer. Mr. Backman then
commenced a wrongful dismissal action, claiming that he had been dismissed
without just cause and requesting damages for wrongful dismissal.

At trial, Mr. Backman did not deny accessing pornographic websites from his
employer’s computer. Rather, he maintained that his behaviour had been condoned.
He also alleged that his employer had decided to relocate his position to
Dartmouth, Nova Scotia, and that the real reason for the termination of his
employment was because he advised his employer that he was unwilling to transfer
“without renegotiating his employment contract”.

The trial judge did not accept Mr. Backman’s arguments. The trial judge
concluded that Mr. Backman had engaged in “illegal sexual harassment”,
even though this had not been specifically alleged by the company within its
Statement of Defence. The trial judge also rejected the argument that Maritime
Paper had somehow condoned Mr. Backman’s misconduct.

On appeal to the New Brunswick Court of Appeal, the Court determined that the
trial judge came to the right conclusion for the wrong reasons. The Court
rejected Mr. Backman’s argument of condonation on the basis that condoned
conduct is subject to an implied condition that the employee will not misconduct
him or herself in the future. If the employee does misconduct him or herself in
the future, then the employer may rely upon not only the then most recent
misconduct but also the prior misconduct that had been condoned.

The New Brunswick Court of Appeal held that Mr. Backman’s “repeated
viewing of internet pornography at work in October 2006 was a serious
matter” and that it constituted “a pattern of behaviour that destroyed
the employer’s trust in him as a supervisor”. The Court concluded that Mr.
Backman’s pattern of misconduct was sufficient to justify cause for his
termination, without notice or compensation.

The Backman case certainly stands as authority for the proposition
that an employer can terminate an employee for cause where they persist in
viewing pornographic material on the internet in spite of warnings to refrain
from such conduct and where the employer has an internet policy in place. The
case can arguably be distinguished in circumstances in which any of these key
factors are missing, namely:

      • an established internet policy;

• repeated use of the internet to view pornographic material; and

• multiple warnings to refrain from engaging in such conduct.

A compelling argument can be made that the Backman case is
persuasive legal authority for terminating an employee for cause based on the
individual viewing pornographic material during business hours, even where there
either is no established policy pertaining to use of the internet and/or where
there have not been multiple warnings given to the employee to refrain from
engaging in such conduct.

Norman Grosman tackles your employment law dilemmas regularly on Workopolis.
More information about him and his legal services can be found on his website grosman.com