In the 2001 case of McKinley v. B.C. Tel,
the Supreme Court of Canada ruled that a contextual approach
is required in order to determine whether there is just cause for
termination of employment. A recent wrongful dismissal
case involving receipt of pornographic material illustrates how the
contextual approach will be applied by courts.
In February 2013, the Court of Appeal of New Brunswick upheld a
lower court finding in the case of Asurion Canada v. Brown and
Cormier, to the effect that dismissal without
notice was a disproportionately severe penalty for receiving
pornographic emails at work. At the time of
termination, Cormier had been with Asurion for 8 years and was
a call centre supervisor. Brown was employed by Asurion for 9
years and was vendor payables specialist. Both men had a good
employment history with the company. Both men, unfortunately,
also had a mutual friend who liked to send them pornographic
During the period from mid May to mid July 2010, Cormier and
Brown were sent over a dozen unsolicited emails from their
friend. The emails were promptly sent to home email accounts
and deleted. They were not shared with anyone at work. When
Asurion became aware of the emails in July as a result of its
network monitoring system, both men were dismissed immediately due
to breach of the company's policies and breach of trust.
While the company did have a policy which prohibited
"accessing, transmitting, receiving or storing discriminatory,
profane, harassing or defamatory information", the court found
that the policy was not reasonable given that:
(i) "receiving" information does not involve a
positive act; and (ii) the emails in question were
unsolicited. More importantly, the court confirmed that the
response of the company was not proportionate to the actions of the
employees. In particular, these longstanding employees had
unblemished records, none of the emails were shared with fellow
employees, and the images attached to the emails fell within the
category of "perfectly legal adult pornography" and were
not in violation of the Criminal Code of Canada.
Asurion had an employee handbook with a comprehensive
Computer Use and Harassment policy. The company's
employees were required to read the company's policies and
there was some suggestion that they were reminded of the Computer
Use policy each time that they logged onto their work
computers. The company went even further, and used a network
monitoring system in order to ensure that the policies were being
complied with. Ultimately it was all for naught, as the
policy was found to be unreasonable and the application of it was
disproportionately severe when viewed through the lens of the
employees' years of service and specific actions or inactions
in the case at hand.
This recent decision serves as a good reminder that any time a
termination for cause is being considered, the employer should
consider not just the offending actions of the employee, but the
other relevant circumstances of the employee's employment.
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