Worker surfing for porn at work rides the wave out of a job

Employee claimed stress in personal life created need to escape by accessing pornography on work computer
|Canadian Employment Law Today|Last Updated: 04/30/2014

This instalment of You Make the Call features an employee who was fired for looking at pornography on a computer at work.

The 54-year-old employee was a health care aide with the provincial Interior Health Authority, working at a long-term residential care facility in Keremeos, B.C. The aide had worked for the authority since 1999.

In 2009, the aide was assigned to the facility’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 received “exceeding expectations” on a couple of performance reviews.

The aide often accessed the computer in the facility when he wasn’t busy. The computer showed a message stating it was only for official purposes and its use may be monitored. Attempts to access data that could affect the reputation of the authority were prohibited and the health authority had an Internet access policy prohibiting the viewing or downloading of offensive material.

The health authority obtained a report of the aide’s Internet use from May 1 to July 27, 2012, during which he spent 29 hours browsing 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.

The report showed that whenever the aide visited a site that was blocked by the Internet filter, 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 pornographic site onto the computer.

The 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. The aide saw the message while he was on vacation on Aug. 3, accessed his work email, and deleted several emails from dating sites. The health authority was able to retrieve the emails from the computer’s recycle bin.

At the meeting, the aide admitted to accessing 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.

The aide apologized to his union representative and said “I knew I’d get caught but I just couldn’t stop.” Shortly thereafter, the health authority terminated the aide’s employment. The union representative said the aide realized he had a problem, but management replied that he had already said there were no contributing factors.

The termination was effective Aug. 10. The union filed a grievance, and on Aug. 20 the aide sent a letter of apology to the authority. He expressed remorse “for the harm and embarrassment I have caused.”

The aide also later claimed he had a lot of stress in his personal life and surfing 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.

The 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 treatment program. However, the aide didn’t agree he needed treatment as it was unlikely he would “go down that road again.”

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?

If you said the health authority had the right to dismiss the aide, you’re right. The arbitrator noted the screening test was not an official diagnostic tool and sexual compulsivity was not an official mental illness. Therefore, the arbitrator said he was unable to find there was a disability of “sexually compulsive behaviour regarding viewing pornography.”

The 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 find that (the aide) was not suffering from a disability at the time of the discharge, be it Internet pornography addiction, or depression,” said the arbitrator. “Further, I find that the behaviours which resulted in dismissal were not caused, even in part, by a disability.”

The arbitrator expressed concern with the fact the aide tried to frustrate the investigation into his activity by deleting emails, and the fact he was well aware of the employer’s policies. Even though he apologized, it wasn’t spontaneous and was given two weeks after his dismissal. The 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-offend, 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.).