Child porn charges lead to instant firing

Ontario court upholds termination even though worker had yet to be found guilty and didn’t use company equipment or time

A company in Guelph, Ont., that fired a manager accused of possessing child pornography was justified in doing so even though the worker hadn’t yet been found guilty, the Ontario Superior Court of Justice ruled.

The ruling raised the eyebrows of some employment lawyers because there was no indication any of the wrongdoing was done on company time or using company equipment. Bill Gale, a partner with Grosman, Grosman and Gale in Toronto, said it was a surprising decision because the worker was fired before there was any determination of his guilt.

“The usual thing is that you’re innocent until you’re proven guilty in our system, so that was in and of itself pretty remarkable,” he said.

Philip Kelly started working for Linamar Corporation, the largest employer in Guelph with about 8,000 employees, in 1988. In January 2002 he was the materials manager at Emtol Manufacturing, a subsidiary of Linamar.

He had no history of misconduct and appeared to be a well-respected and trusted employee. He supervised about a dozen workers and was relatively well known inside and outside of the company because he had a lot of contact with suppliers and customers.

Justice Casimir Herold of the Ontario Superior Court of Justice said Linamar “has an excellent reputation in the community as a good corporate citizen.” Its philanthropic efforts are directed at young children, including sponsoring their attendance at cultural events, sponsoring their sports teams and working with the local schools in innovative educational projects.

In 2001, the Ontario Provincial Police received a tip from authorities in Texas who were investigating a company known as Landslide Productions. The Texas authorities were attempting to track down customers of Landslide who were involved in the acquisition of child pornography. As a result of the use of credit cards to purchase pornography from Landslide, about 1,000 Ontarians were identified as being customers, including Kelly.

On Jan. 21, 2002, a search warrant was executed at his home. He was arrested and charged with possession of child pornography. On Jan. 24, 2002, Kelly was fired.

Justice Herold said he had no hesitation in concluding that, from a public relations perspective and operating with a good moral compass, Linamar’s actions were both understandable and easily supportable. But from a legal perspective, the decision to fire Kelly for cause required a bit of exploration.

The onus was on Linamar to prove it had just cause to terminate the employment relationship. The company relied on the criminal charges and the fact Kelly did not inform it of one of his bail restrictions — that he could not use a computer at work unless he was supervised.

Justice Herold said the criminal charges need not be proven beyond a reasonable doubt as they would have to be in a criminal trial. But an employer that relies on criminal conduct for just cause has to introduce evidence that, when put under a strong light, satisfies the civil test of proof on a balance of probabilities.

Whether or not Kelly told Linamar about the restrictions on the use of a computer wasn’t clear, and the court said it was not satisfied Linamar had proven he failed to inform the company.

But when the court began to scrutinize the child pornography charges as just cause, it started to tip in favour of the employer. Kelly’s arrest was “publicized notoriously in the local press and on the local radio stations,” said Justice Herold.

The court said it was clear the decision to terminate Kelly was not made lightly. There was hands-on involvement all the way up the chain of command, including the company’s chief executive officer.

“The executives considered Linamar’s reputation in the community, concerns that had been raised briefly by employees who worked with Mr. Kelly and at least one incident which had been perceived (probably correctly) as a threat to Mr. Kelly’s safety,” said Justice Herold, though he didn’t elaborate on the nature of the threat.

The company also took into consideration that all of the activity occurred after hours on a personal computer, and there was no indication any of it took place at work using company equipment in deciding to fire him.

Linamar argued Kelly had a duty, given his position with the company, to ensure his conduct did not adversely impact any of his activities and responsibilities. The company said that, by permitting himself to be placed in a position where he would be charged with possession of child pornography, a fact that became almost immediately known to his management peers, co-workers and people who reported to him, and ultimately to the general public when the identity of his employer was disclosed, he failed to discharge that duty he has to his employer.

The court agreed with that opinion.

“Linamar has over a long period of time built up a good reputation which it jealously protects,” said Justice Herold. “That reputation includes the promotion of its activities with young people.”

The court said an employer is entitled to take reasonable steps to protect its reputation and the termination of Kelly was just such a step and he upheld the termination.

For more information see:

Kelly v. Linamar Corp., 2005 CarswellOnt 6611 (Ont. S.C.J.)



Child porn charges not a blank cheque

The court was quick to point out that this does not mean every charge of possession of child pornography means an employer has just cause to terminate the employment relationship.

Each case must be decided on its own facts, but the court said there are a number of factors that will be significant including:

•the degree of responsibility exercised by the employee;

•the company’s notoriety and the degree to which, if at all, its reputation in the community will likely be affected; and

•whether company equipment was used.

“It would not be appropriate to conclude that every employee who is charged with or convicted of possessing child pornography or some similar crime of moral turpitude is automatically subject to termination without compensation,” said Justice Herold. “It may be fair to conclude that his claim for compensation faces a long hard uphill battle, but the facts must be scrutinized carefully.”

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