Canadian Employment Law Today

April 30, 2014

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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GST #897176350 Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5082 (Toronto) (877) 750-9041 (outside Toronto) E-mail: Carswell.customerrelations Website: Thomson Reuters Canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Director, Carswell Media: Karen Lorimer Publisher: John Hobel Managing Editor: Todd Humber Editor: Jeffrey R. Smith E-mail: ©2014 Thomson Reuters Canada Ltd. All rights reserved. Emplo y ment Law Today anad a ian How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL 8 Worker surfi ng for porn at work rides the wave out of a job THIS INSTALMENT of You Make the Call features an employee who was fi red for look- ing at pornography on a computer at work. e 54-year-old employee was a health care aide with the provincial Interior Health Authority, working at a long-term residen- tial care facility in Keremeos, B.C. e aide had worked for the authority since 1999. In 2009, the aide was assigned to the facil- ity's dementia unit, where he often worked unsupervised on night shifts, making rounds, checking on residents, and helping residents when needed. He did well and re- ceived "exceeding expectations" on a couple of performance reviews. e aide often accessed the computer in the facility when he wasn't busy. e com- puter showed a message stating it was only for offi cial purposes and its use may be mon- itored. Attempts to access data that could aff ect the reputation of the authority were prohibited and the health authority had an Internet access policy prohibiting the view- ing or downloading of off ensive material. e health authority obtained a report of the aide's Internet use from May 1 to July 27, 2012, during which he spent 29 hours brows- ing the Internet. During one particular shift, he browsed the Internet for a total of four hours; on two other shifts he spent just over two hours browsing. Several pornographic websites were viewed. e report showed that whenever the aide visited a site that was blocked by the Inter- net fi lter, he would try to enter variations of the address to access it. He also visited many adult sites that weren't blocked. It was also discovered the aide had downloaded more than 6,000 pornographic pictures, three adult movies, and a short-cut to a porno- graphic site onto the computer. e health authority also discovered the aide had sent emails with its domain name to adult dating services. A meeting was set up for Aug. 7, 2012. e aide saw the message while he was on vacation on Aug. 3, accessed his work email, and deleted several emails from dating sites. e health authority was able to retrieve the emails from the computer's recycle bin. At the meeting, the aide admitted to ac- cessing pornography at work and using his work email to communicate on adult dating sites. He also admitted he was aware of the policies and he deleted emails on his work account. Management asked if there were any contributing factors, but the aide said there were not. e aide apologized to his union repre- sentative and said "I knew I'd get caught but I just couldn't stop." Shortly thereafter, the health authority terminated the aide's em- ployment. e union representative said the aide realized he had a problem, but manage- ment replied that he had already said there were no contributing factors. e termination was eff ective Aug. 10. e union fi led a grievance, and on Aug. 20 the aide sent a letter of apology to the au- thority. He expressed remorse "for the harm and embarrassment I have caused." e aide also later claimed he had a lot of stress in his personal life and surfi ng the Internet for pornography was an escape for him. He claimed he only did it during down time and didn't compromise the safety of his patients or his job performance. e aide was examined by an expert, who conducted a sexual addiction screening test and determined the aide had "a diagnosable psychological illness" that required a treat- ment program. However, the aide didn't agree he needed treatment as it was unlikely he would "go down that road again." IF YOU SAID the health authority had the right to dismiss the aide, you're right. e arbitrator noted the screening test was not an offi cial diagnostic tool and sexual com- pulsivity was not an offi cial mental illness. erefore, the arbitrator said he was unable to fi nd there was a disability of "sexually compulsive behaviour regarding viewing pornography." e arbitrator also found that while the aide showed signs of depression following his dismissal, this was likely because of his dismissal and there were no indications he was unable to perform his job before that occurred. "I fi nd that (the aide) was not suff ering from a disability at the time of the discharge, be it Internet pornography addiction, or depression," said the arbitrator. "Further, I fi nd that the behaviours which resulted in dismissal were not caused, even in part, by a disability." e arbitrator expressed concern with the fact the aide tried to frustrate the inves- tigation into his activity by deleting emails, and the fact he was well aware of the em- ployer's policies. Even though he apolo- gized, it wasn't spontaneous and was given two weeks after his dismissal. e aid also refused to participate in treatment, which didn't wash with his contention he had a disability and increased the likelihood he would re-off end, said the arbitrator. Given these factors, the potential damage to the health authority's reputation, and the high level of trust required for the aide to do his job, the arbitrator found there was just cause for dismissal. For more information see: •Interior Health Authority and HEU (P. R.)), Re, 2013 CarswellBC 988 (B.C. Arb.). YOU MAKE THE CALL Should the health authority have terminated the aide's employment? OR Did the aide have an addiction that should have been accommodated?

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