The case of Backman and Maritime Paper Products can be found here. The case deals with an employee that admitted viewing internet porn on his computer at work and was subsequently fired. He then sued the company for damages for wrongful dismissal. They say they had just cause to terminate his employment without notice. The plaintiff had worked for Maritime Paper for 14 years and held the position of Structural Design Supervisor and supervised two other skilled employees. His annual salary was $53,000.00. The company did audits of Mr. Backman’s computer. They found that he was surfing porn web sites. The company had warned him in the past not to do this. From Mr. Backman’s point of view those warnings should have been given little or no weight because they expired under the collective agreement after two years and because of his good annual performance appraisals and his regular increases in salary.   There was also an issue with a transfer to Halifax. He felt that the pornography issue is not just cause but only an excuse by the company to avoid offering him severance pay of perhaps $53,000 that he would have expected if he had decided not to accept that transfer.

How the parties viewed the issue of Porn at work.

Mr. Backman appeared to see it as a harmless diversion when work permitted. The employer appeared to see it as offensive and obscene misuse of the employer’s computer resources and a serious and recurring violation of important company policies. The Judge found that employers are entitled to establish appropriate rules about the conduct or self-expression of their employees at work. Such policies may even be enforceable with regard to off-duty conduct away from the place of employment where such conduct causes a “poisoned” environment at work. It could also be constituted as sexual harassment under Provincial Statute. He found that looking at pornography for sexual gratification is sexual conduct or a sexually-oriented practice. If such conduct or practice takes place at work and undermines the sense of personal dignity of another person at work who learns of it, then it is a form of illegal sexual harassment of that other person.  This is analogous to Ontario Human Rights Legislation.  In addition, Mr. Backman’s viewing of pornography at work came to the attention of the female IT Person. As part of her job she herself had to view the pornographic images that he had been looking at on his computer at work. She says that seeing those images made her “unhappy”. It was offensive to her.

One for the employer.

The issues of condonation and estoppel.

The plaintiff said that any earlier misconduct has been condoned by the employer raising his salary after the employer’s Vice-President of Finance knew of that misconduct. Because of this, he argued that they could not fire him without at least first giving him another warning. This can be classified as a legal argument called “estoppel” or  in other words “you can’t do it or you are prevented from doing it.”  A better understanding is to apply it to the American Double Jeopardy Rule that forbids a defendant from being tried twice for the same crime on the same set of facts. The Crown is “estopped”  from doing this. A trial already happened.

The Court determined the nature of the obligation imposed by the statute, and then considered whether the admission of an estoppel would nullify the statutory provision i.e. Human Rights Law. The Plaintiffs argued that “… there is not a single case in which an estoppel has been allowed in such a case to defeat a statutory obligation (here we mean sexual assault) of an unconditional character.” The Judge found that any condonation or estoppel by the employer with respect to misconduct by Mr. Backman cannot defeat the statutory obligation on the employer to prevent sexual harassment in its workplaces. In the words of the Privy Council in Maritime Electric, even if the employer’s Board of Directors “with every possible formality had purported to” authorize Mr.Backman to watch internet pornography at work for his sexual gratification regardless of whether another employee was offended, such an authorization “would be null and void” because an authorization “to do a thing which cannot be done without a violation of the law is clearly void.”

Two for the employer.

Warnings and Misconduct

This was a major issue in the case. If you want to understand the law of  prior warnings give this case a full read. The Judge noted a case that said that in fact, written warnings do not remain in effect forever. A Judge also noted a case involving McDonalds which stated that “It is unreasonable and wrong for a black mark on an employee’s record to hang over his head forever, in despite of his subsequent good conduct, duly recorded and rewarded as it was in this instance. Despite this, the Judge found that, after considering numerous cases, Mr. Backman’s repeated viewing of internet pornography at work was a serious matterIt was a pattern of behaviour that destroyed the employer’s trust in him as a supervisor.  The estoppel argument did not work.

Three for the employers.

Accordingly, the Judge found that Maritime were able to prove that it had just cause to dismiss Mr. Backman without notice. If the employer had not proven just cause for Mr. Backman’s dismissal, I would have assessed his damages in lieu of notice based on 12 months pay and benefits, less the other earnings and benefits he received in mitigation during that time period, plus simple interest at 7%.

This cases was recently appealed and the Plaintiff was unsuccessful. You can read it here.