Whether or not Mr. Kelly made any admission of culpability, it is clear that the decision to terminate Mr. Kelly was not made lightly. The decision was made following the hands-on involvement of his supervisor, Shawn Marshall, Beverly O?Neill, the Employee Relations Manager of Emtol, Michael Annable, now the Executive Vice-President of Linamar but at that time the Vice-President in charge of Human Resources, Information Technology and Administration, and Linda Hasenfratz, the Chief Executive Officer of Linamar. 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. They also considered the fact that the child pornography was located on a personal computer at Mr. Kelly?s home and as far as anyone was aware (subsequently confirmed) did not involve the use of company computers nor any activity taking place on company time. Having considered all of the options available, they concluded that termination of Mr. Kelly was the appropriate course of action and the letter referred to at paragraph [10] was drafted and sent.
The defendant argues that an employee in the position of Philip Kelly, who is required to work with the general public both acquiring product from suppliers and supplying product to customers, who is required to manage, instruct and discipline people working under him, and who is required to interact collegially with many peers at the management level, has a duty to ensure that his conduct does not adversely impact on any of those activities. It is argued that permitting himself to be placed in the position where he would be charged with possession of child pornography, which fact became almost immediately known to his management peers, co-workers and people who reported to him, and which ultimately became known to the general public when at a later stage the identity of his employer was disclosed, he has failed to discharge the duty that he has to his employer.
I agree. Linamar has over a long period of time built up a good reputation which it jealously protects. That reputation includes the promotion of its activities with young people outlined earlier. A company is entitled to take reasonable steps to protect such a reputation and the termination of Philip Kelly was just such a step. The employer has demonstrated just cause on far more than the balance of probabilities.
