UBC worker fired for viewing porn

Union argued university's policy didn't expressly forbid viewing of porn at work, but arbitrator read between the lines
|employmentlawtoday.com

The University of British Columbia (UBC) was justified in firing a worker who used its computers to access pornography, even though its general policy did not expressly prohibit workers from doing so, the British Columbia Arbitration Board has ruled.

On April 1, 2004, UBC dismissed a worker for “viewing and exchanging sexually explicit information” on a university computer. The worker appealed though his union, the Canadian Union of Public Employees (CUPE).

UBC’s policy didn’t prohibit porn: CUPE

CUPE said the university had not proven his conduct violated its directive on computer usage, given that the university’s general policy stated that:

•the university’s mandate was to uphold academic freedom and engage in open inquiry and public discourse;

•incidental personal use of computers was acceptable as long as it did not interfere with job performance;

•university administrators would not examine the personal files of computer users except in emergency or unusual circumstances; and

•the university “does not and will not act as a censor of information.”

UBC operates in a cultural and academic climate where certain subjects could be explored more readily than elsewhere and the worker’s viewing of pornography was not inconsistent with that climate, the union said.

It also pointed out that the university’s policy defined “illegal uses” and “unacceptable uses” of the computer — including “unlawful” uses such as viewing child pornography — but did not specifically prohibit the viewing of adult pornography.

Viewing of pornography at work inappropriate: UBC

UBC disagreed. It said its computer usage policy specified that workers could not use computers in an unprofessional way.

An April 2001 directive on responsible use of computer facilities, issued by the director of information technology after the university found inappropriate material on the computer network, specifically stated that “the most obvious example of this is the viewing of inappropriate material such as pornography.”

Pornography may be legal, but it’s not accepted by the community at large: arbitrator

The arbitrator sided with UBC, but conceded the university’s general policy did not expressly prohibit using university computers to view pornography. But such a policy could be implied by the preamble to a list of unacceptable uses in the policy that stated that items on the list are “representative examples only.” (For a partial reproduction of the university’s computer policy in respect to this, see below.)

The university’s policy should be read to mean it prohibits any activity likely to be disparaged by the general community, the arbitrator said. Adult pornography may be legal but it does not have the acceptance of the general population. If a university allowed employees to view it on university equipment it would likely be viewed negatively, if not with outrage, by the community at large.

There was no academic or research reason for the worker to have been accessing the pornography, the arbitrator said.

Therefore UBC was justified in disciplining the worker. He was 47, married with two children and had a 14-year history of employment with the university. But he had repeatedly violated an important rule of conduct, so UBC was within its rights when it terminated his employment.

The arbitrator said the worker in this case never admitted any wrongdoing, did not think his conduct deserved punishment and never apologized.

“The (worker) engaged in serious misconduct even though he and his fellow employees had been put on notice that it was not acceptable,” the arbitrator said. “The (worker) risked discovery and must be presumed to have known that his conduct could lead to his dismissal. On those facts there is no basis for concluding that a viable and trusting employment relationship could be restored. In the result, I conclude that dismissal was not an excessive response and the grievance is dismissed.”

For more information see:

University of British Columbia v. C.U.P.E., Local 2950

, 2005 CarswellBC 2569, 138 L.A.C. (4th) 358 (B.C. Arb. Bd.)


UBC’s computer use policy

CUPE argued UBC’s general policy defined "illegal uses" and "unacceptable uses" which prohibited practices perceived as "unlawful" (including child pornography) and practices perceived as "unacceptable." Neither category prohibited the viewing of adult pornography. That aspect of the policy reads as follows:

Examples of illegal uses

The following are representative examples only and do not comprise a comprehensive list of illegal uses:

•uttering threats (by computer or telephone);

•distribution of pornography materials to minors;

•child pornography;

•pyramid schemes; and

•copyright infringement.

Examples of unacceptable uses

The following are representative examples only and do not comprise a comprehensive list of unacceptable uses:

•seeking information on passwords or date belonging to another user;

•making unauthorized copies of propriety software, or offering unauthorized copies of proprietary software to others;

•copying someone else's files, or programs, or examining such information unless authorized;

•attempting to circumvent computer security methods or operating systems (e.g. subverting or obstructing a computer or network by introducing a worm or virus);

•using university-provided computer accounts for commercial purposes such as promoting by broadcast non-educational profit-driven products or services;

•intercepting or examining the content of messages, files, or communications in transit on a voice or data network;

•interfering with the work of other users of a network or with their host systems, seriously disrupting the network (e.g. chain letters or spamming), or engaging in any uses that result in the loss of another user's files or system; and

•harassing or discriminatory telephone messages.

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