Pattern of surfing Internet porn grounds for dismissal: Court

Worker spent hours looking at prohibited websites after warnings from employer

The firing of a New Brunswick employee for surfing Internet porn has been upheld by the New Brunswick Court of Queen’s Bench.

The employee, Gregory Backman, worked for Saint John-based cardboard box manufacturer Maritime Paper for 14 years. He was a structural design supervisor and had two employees working under him.

In 2002, Maritime had Backman acknowledge in writing the company’s policy on acceptable computer use at work, which prohibited pornographic websites. However, in September 2002 and April 2003 he was given written warnings after he accessed such sites at work. The second warning stated if he was found accessing the sites in the future, he would be terminated.

There were no further incidents until an audit of Backman’s computer activity on Oct. 23, 2006, revealed he surfed pornographic websites for three hours. He did it for another 1.5 hours the following day and on eight other days that month for periods of between 30 and 45 minutes. The computer audit was performed by the manager of information services, who was female. She found the images offensive and it made her “unhappy.”

On Nov. 9, 2006, Backman was called to a meeting, the reason for which he was unaware. He was then fired for his misconduct.

Backman said he was unaware his job was in jeopardy and the company had effectively condoned his misconduct by allowing him to surf pornographic sites in the period since his last warning in 2003. He also said the pornography wasn’t just cause as he viewed it as a “harmless diversion when work permits.”

The court found looking a pornography on the Internet was “sexual conduct or a sexually-oriented practice. Since it was at work and it undermined the dignity and feelings of the manager of information services, who had to view the images in the audit, it constituted sexual harassment. Protecting employees from sexual harassment overruled any condonation of his misconduct, the court said.

The court also found, even though Backman hadn’t been warned for every incident and some time had passed since his last warning, he knew he shouldn’t have been doing it. The previous incidents showed a pattern of behaviour that flouted company policy and “destroyed the employer’s trust in him as a supervisor.”

The court found Maritime Paper had just cause to fire Backman without further notice. See Backman v. Maritime Paper Products Ltd., 2008 CarswellNB 319 (N.B. Q.B.).

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