Court upholds decision to fire worker who surfed porn at work, but don't close the book yet
As I reviewed recent summary dismissal decisions in preparation for the first update of 2014 to my book You're Fired! Just Cause for Dismissal in Canada, I came across a decision that addressed the interplay between summary dismissal and the duty to accommodate. In that case, what made the decision more interesting and entertaining was the fact it related to a relatively new form of disability for which accommodation was requested: Addiction to Internet pornography.
In Interior Health Authority and HEU (P. R.)), Re, the approximately 10-year employee, a care aide, was found to have spent hundreds of hours surfing the net while he was at work. He worked nights, generally unsupervised.
There were clear policies with respect to the types of websites that could be accessed. In fact, a blocking mechanism had been installed that prevented users from accessing certain websites. The evidence showed he had accessed many inappropriate websites and, when websites that he attempted to access were blocked, he entered alternate URLs in an effort to defeat the blocking mechanism. Rather than trying to access a .com website, he might try the same name using .org or.ca. In addition, he also accessed various dating websites and used his corporate email account to log in and receive correspondence from those websites, again contrary to policy.
At trial, there was little dispute with respect to the fact the employee had engaged in misconduct. However, that is only the first step in the analysis of whether just cause for dismissal exists. Once misconduct has been established, the employer must assess whether, in light of all of the relevant circumstances, summary dismissal was warranted. In other words, had the employment relationship been irreparably harmed? Further, courts have made it clear that proportionality is a fundamental principle. In other words, a judge will not ratify dismissal for cause where a lesser form of discipline would be appropriate.
In this case, the issue was complicated by the fact the individual claimed to suffer from a disability. Specifically, he claimed he could not control himself and was effectively addicted to Internet pornography. He said he had a lot of stress in his personal life and surfing the Internet for pornography was an “escape,” adding he only did it during down time and didn’t compromise the safety of his patients or his job performance.
The employee produced a screening test which indicated he had “a diagnosable psychological illness” that required a treatment program, though he stated he did not require treatment. The arbitrator was not convinced, questioning the validity of the test and noting that “sexual compulsivity” is not a recognized mental illness.
An important factor in the decision was the fact the employee attempted to conceal his misconduct by deleting emails. Although the employee apologized for his conduct, it was seen as “too little and too late”, coming weeks after the dismissal.
In recent years, the notion of addiction to Internet pornography has been raised on several occasions, and it was only a matter of time before it was an issue that had to be addressed by the courts. In this case, the court dealt with the submission quickly, as there was no real evidence to support it. In other words, the employee had not demonstrated he actually suffered from a legitimate disability that required accommodation. It remains an open question as to whether our courts would recognize such a disability if sufficient evidence was put forward.
Based upon the repeated and egregious violations of company policy, the court agreed in this case that summary dismissal was warranted. Taking into account all of the circumstances, including his tenure, positive performance reviews and lack of supervision which required a significant degree of trust, the court agreed that dismissal was appropriate.
