HomeMy WebLinkAbout2013-1416.Savaryn.14-12-10 DecisionCrown Employees
Grievance Settlement
Board
Suite 600
180 Dundas St. West
Toronto, Ontario M5G 1Z8
Tel. (416) 326-1388
Fax (416) 326-1396
Commission de
règlement des griefs
des employés de la
Couronne
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
Téléc. : (416) 326-1396
GSB#2013-1416
UNION#G-15-13-SOW
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Amalgamated Transit Union - Local 1587
(Savaryn) Union
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The Crown in Right of Ontario
(Metrolinx - GO Transit) Employer
BEFORE Owen V. Gray Vice-Chair
FOR THE UNION Dean Ardron
Ursel Phillips Fellows Hopkinson LLP
Counsel
FOR THE EMPLOYER Daniel Fogel
Hicks Morley Hamilton Stewart Storie LLP
Counsel
HEARING April 3, May 14 and 15, June 11 and 27 and
October 7, 2014
DECISION
[1] On April 24, 2013, the employer terminated the grievor’s employment in its 33rd
year. Its letter confirming the termination gave these reasons for doing so:
As discussed, an investigation into your internet usage was conducted after our systems detected that you attempted to bypass our web filtering tool on numerous occasions so as to access inappropriate materials of a sexual and/or pornographic nature. Upon further investigation into your internet usage during working time, over the period January 1 to April 9, 2013, it was found that you spent excessive working hours browsing on the internet. Much of this time was spent on sites typically used to conduct on-line sales.
An investigative meeting was held on April 12, 2013, with … you. You claimed to have no knowledge of attempting to access adult content websites. With respect to your internet usage over the period January 1 to April 9, 2013, you acknowledged that it was possible that you spent 4-6 hours a day on websites, in part to conduct on-line sales.
We have no reason to not accept as accurate the results of our initial investigation of your internet usage. Your activities constitute a serious offence, including misuse of corporate assets and time, attempting to circumvent the web filtering tool, conducting on-line sales while at work, viewing inappropriate web sites and/or materials and a breach of the trust placed in you. Your actions were in violation of your computer access privileges, in violation of Metrolinx’s Code of Business Conduct and Ethical Behaviour, in violation of Metrolinx’s Use of Corporate Assets policy, and in violation of Metrolinx’s Electronic Communications policy.
[2] In his opening statement in this matter on April 3, 2014, union counsel stated
that, in addition to what he admitted in the investigation meeting of April 12, 2013, the
grievor would admit that he had not been honest in that meeting when asked about his
accessing or trying to access adult content web sites. He said that the grievor would
acknowledge having made attempts to access adult content, and that while many of
these attempts were blocked there were instances when he could access material that
“he now appreciates was inappropriate.” He stated that that material, although
“improper,” had not been “of an egregious nature.” He said the grievor and the union
were unable to say precisely what sites the grievor had visited. In that regard, he said,
the employer had produced its documents that morning, and he thought that the union
might learn what those documents meant through the employer’s first witness.
[3] Union counsel also said, in opening, that the grievor acknowledged that it had
been wrong of him to access or try to access web sites other than for purposes of his job.
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He stated that the grievor did not appreciate the significance of what he was doing at
the time. He observed that in the grievor’s job there were periods during the day when
there was nothing for him to do, that he had always been ready to perform and had
performed the work required of him as it arose, and that, accordingly, his misconduct
had not involved “time theft.” He said he understood there was no allegation that the
grievor had forwarded inappropriate material to others or that anyone other than the
grievor had seen inappropriate material on his computer monitor. The union conceded,
he said, that the employer had had cause to discipline the grievor. Its position was that
discharge was an excessive response in all the circumstances, including particularly the
grievor’s long service.
[4] The facts set out in the paragraphs that appear under the headings
“Background” and “Termination” do not appear to be in dispute. The descriptions of
testimony and argument that appear under subsequent headings are not intended to be
exhaustive.
Background
[5] GO Transit hired the grievor as a ticket collector in January 1981. He was then
23 years old. By then he had completed high school, had obtained a certificate in
“general business” from Humber College, and had worked at a variety of jobs. The
grievor became a Station Attendant in 1987. In 2013, up to the time he was discharged,
he worked Monday to Friday, 12:45 p.m. to 8:45 p.m., at a GO station (“the Station”) to
which he had been assigned since July 2009.
[6] The parties’ collective agreement contains a “sunset clause” that limits the
retention and use of records of discipline for periods of up to five years depending on the
severity of the discipline. As of his termination, no discipline had been imposed on the
grievor in the preceding five years.
[7] When he was terminated he was about two years away from qualifying for a
“full” pension, and had two teenaged children who would soon finish high school.
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[8] The main duties of a Station Attendant are to sell tickets and passes, load Presto
cards, handle and account for the resulting revenue, provide way-finding and trip-
planning information requested by the travelling public and make announcements and
records of service delays. The full duties of a Station Attendant are as set out in its
position description:
POSITION MISSION
Under the supervision of the Supervisor, Station Operations, to ensure the care and control of all ticket stock, cash float, equipment, lost and found articles, or other products.
To attend to all duties, functions, and responsibilities associated with the assigned location in a safe and efficient manner. To promote customer service and assist customers as required.
POSITION MANDATE
This position is responsible for:
Selling all forms of transportation tickets/passes and other items as required and depositing revenues daily.
Providing information to the travelling public and the appropriate handling of lost and found articles.
POSITION ROLES
Opens and closes stations and selling locations.
Maintains accurate records of ticket sales, station floats, change orders, ticket inventories. and bank deposits.
Updates manuals, and keeps notice boards, service bulletins and Station Operations Notices up to date and current.
Handles cash/credit/debit card sales and, where required, Bus Drivers’ cash-in deposits.
Processes refunds, prepares daily cash/bank deposits, provides information to customers as required including tariffs, routes, schedules and costs,
Enhancement of customer service and assists customers as required.
Makes announcements and provides First Aid as required.
Conducts safety checks-of assigned location including platforms, stairs, tunnels, elevators, escalators, and any associated equipment. Logs and reports deficiencies and takes corrective action to ensure the safety and security of employees and customers.
Follows procedures established for the usage of alarm systems, lifts, elevators, escalators, PA systems, video equipment, computer equipment and other equipment and new technologies common to each location.
Maintains a complete and accurate logbook of service delays, records and reports incidents, equipment failures and enforcement related issues.
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Provides assistance in training new employees
Other related duties as assigned.
[9] The grievor had no regular, on-site supervision at the Station. For that and 31
other stations there were just three supervisors on the retail side and three supervisors
on the maintenance side. Visits to the Station by a supervisor might average two per
week, but not necessarily during the grievor’s shift. There was no set schedule for such
visits. The morning shift of another Station Attendant at the Station overlapped the
grievor’s by 30 minutes at the start of his shift. A maintenance person came in once a
day to use the microwave and access his email. Otherwise, the grievor was the sole GO
Transit/Metrolinx employee in the Station during his work hours. The position
description for Station Attendant notes, among other things, that
Employees often work alone and must exercise sound judgement that conforms with policy and procedures applicable to the situation at hand.
[10] A building on the Station site contains a ticket sales booth, a “Gateway”
newsstand, men’s and women’s washrooms, and some rooms accessible only to GO
Transit personnel. Outside the building the Station site has a bus loop where
passengers get on and off buses, a “Kiss and Ride” area, a parking lot and a train
platform. The grievor performed the major duties of his job in the Station building,
sitting at one of three workstations in the ticket sales booth.
[11] The walls of the ticket sales booth in which the grievor worked were clear glass
above (roughly) waist height. The grievor engaged with customers as necessary through
a wicket in the glass in front of him. He had the use of a computer at his workstation,
for which the monitor was to his left as he faced the wicket. Passenger trains and buses
on several different bus routes each stopped outside the Station more than once during
the day. Passengers would not necessarily have to engage with the grievor in order to
travel on the train or a bus. It is not apparent whether they would have to move
through the Station building in order to board or leave trains or buses that stopped
there.
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[12] Passengers could enter the Station to engage with the station attendant or for
other purposes through any of several doors situated at various angles to the grievor’s
position, including angles from which passengers who were outside the grievor’s own
field of view could see, at a distance, the computer monitor to the grievor’s left.
[13] The computer at the grievor’s workstation was connected to the employer’s
computer network. The grievor had to log on to the computer (which logged him into the
network) before he could make any use of it. At some point in time station attendants
were given general access to the internet, having previously had only very restricted
access. This was to assist them in answering customer way-finding, trip-planning and
other questions. Although the evidence suggests that attendants at other stations may
have been given this broader access earlier, it was the grievor’s unchallenged evidence
that for him this occurred in June 2012.
[14] The employer has been very clear with its employees that its property, and in
particular its computers and computer network, is to be used only for purposes of the
employer’s business.
[15] The termination letter refers to the employer’s Code of Business Conduct and
Ethical Behaviour. At the relevant time that policy said this, among other things:
USE OF CORPORATE ASSETS
Corporate assets are provided to Employees based on business needs and are a resource to assist Employees in performing their responsibilities to the Corporation. Assets are to be used solely for the purposes of conducting the affairs of the Corporation in accordance with the Use of Corporate Assets Policy as provided to the Employee and amended from time to time. (Please refer to HR-0302-01 (P) - Use of Corporate Assets).
The Use of Corporate Assets policy to which this and the termination letter refer
elaborated as follows:
DEFINITION OF CORPORATE ASSETS
Corporate assets include, but are not limited to, the following: GO Transit facilities, computer equipment and software, telephone equipment including cellular telephones, blackberry, pagers, palm pilots, facsimile machines, photocopiers, courier and mail services, stationery, office supplies, calculators, etc.
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USE OF CORPORATE ASSETS
Corporate Assets are provided to employees based on their job classification and business need. These assets are a resource to assist employees in performing their job duties.
It is understood that from time to time, an employee may be required to use
a corporate asset for personal business, such as his or her business
telephone for either incoming or outgoing calls related to a family matter or
emergency. The use of corporate assets for personal business must be kept
to a minimum and be of short duration; if direct costs are incurred, they
should be credited back to the corporation through the Expense Claim
process.
Employees are not permitted to use computer equipment, software or
corporate systems for their own personal business or for entertainment
purposes. Employees are not to add unauthorized computer equipment or software and the deletion or alteration of software/hardware or configurations is strictly prohibited.
DIRECTION OR CLARIFICATION
For further clarification, reference should be made to other policies in the Corporate Administrative Manual, including but not limited to, Policy CA-0406-04 Electronic Records; Policy CA-0501-01 Information Systems -General; Policy CA-0502-03 Business Application Administration; Policy CA-0502-04 Electronic Communications; Policy CA- 0502-05 IT Support; and Policy CA-0502-06 GO Transit Web Sites. Please also refer to Corporate Human Resources Procedure HR-0302-02(P), GO Transit Employees Code of Conduct.
Employees who have questions on the application of this policy should contact their supervisors or the Human Resources Department.
MISUSE OF CORPORATE ASSETS
All GO Transit employees are expected to adhere to provisions outlined in
this and other related policies. Misuse of corporate assets may result in
disciplinary action leading up to and including termination of employment.
(Emphasis added) The Electronic Communications Policy to which this and the
termination letter refer said the following, among other things:
INTERNET AND EXTERNAL E-MAIL ACCESS
Internet access is provided to employees who have an ongoing business requirement to use this service. …
Software for browsing the Internet is provided to employees with approval to access the Internet for business purposes only. …
GUIDELINES FOR INTERNET ACCESS
Acceptable use includes:
• Electronic mail with vendors and customers of GO Transit for purposes of GO Transit business.
• Researching issues relevant to GO Transit business.
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• Participation by GO Transit employees in forums, news groups, and other information exchanges for the purpose of improving their professional knowledge or skills pertaining to work at GO Transit, but subject to Policies and Procedures on confidentiality.
Unacceptable use includes:
• Any activity that interferes with the business or other legitimate activities of anyone using this facility, or using any other network or system accessed through this facility.
• GO Transit does not allow display, use or transmission of
communications that contain sexually oriented material, ethnic slurs, racial slurs, racial epithets or any other disparaging material based on race, religion, sex, nationality, age, disability or marital status.
• Obtaining patches and/or other software updates. This practice is the sole responsibility of the IT department.
• Obtaining software from other sources, regardless if such software is verified or authenticated. All software must be purchased and installed through the IT department.
• Any activity for private or personal business.
• For profit activities not sanctioned by GO Transit
• Playing games.
• Alteration or destruction of the integrity of GO Transit’s computer-based information.
(Emphasis added)
[16] In addition to promulgating those and other policies, the employer required that
its employees sign the following “Use of Internet Acknowledgement:”
TO: Metrolinx Staff
I acknowledge that I have read and understand the following terms and conditions relating to my use of Internet services provided by Metrolinx for use in the course of my employment, and agree to comply with such terms and conditions.
1. Use of Internet services, including Internet access and E-mail exchange, like other corporate computer system resources, is provided to authorize [sic] Metrolinx employees as a tool for use in effective and efficient conduct of Metrolinx business activities only. Access to Internet services is governed by corporate policies addressing employees’ use of corporate property (see Code of Conduct, HR-0302-02) and electronic records (Freedom of Information and Protection of Privacy, CA-0406-04).
2. The following principles apply to Internet use:
a) Internet usage is for business purposes only;
b) Metrolinx monitors all internet traffic on an ongoing basis and generates detailed reports on overall and individual use.
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c) As contents of files and/or E-mail is a corporate asset, such files may be accessed for business or investigative purposes and may be disclosed for business purposes; (This applies to non internet use as well).
d) Appropriate security measures are taken when transmitting sensitive or confidential information over the Internet.
e) The validity of material obtained from the Internet should be verified before it is used for business purposes; and
f) Material posted on the Internet may be protected by copyrights or trademarks, and any use of material from the Internet should be investigated to ensure that such use complies with applicable laws.
3. Any misuse of the Internet services, as with any other corporate resource, may result in discipline up to and including termination.
In the event you transfer to a position that has access to Internet use, this form will apply.
The grievor signed such an acknowledgement in May 2010.
[17] Station attendants are periodically sent Stations Operations Notices on a variety
of subjects. On April 11, 2011 they received the following notice with the subject
“Internet Access for Station Attendants:”
Internet access has been granted as another tool to help Station Attendants respond to the needs of our customers.
Just as a reminder, this access is granted for business purposes only. Please refer to GO Transit Corporate Administrative Policies & Procedures Manual, Information Technology section CA-0502-01J if you require more information.
Your continuous efforts to service our customers are greatly appreciated.
Please contact your regional supervisor if you have any questions.
Subsequent Stations Operations Notices on the same subject dated December 15, 2011,
March 22, 2012 and January 21, 2013 each said, among other things:
Internet access was granted as another tool to help Station Attendants quickly respond to the needs of our customers.
Station Attendants are reminded that Internet access is granted for business
purposes only. This policy must be strictly adhered to at all times. Internet usage must be appropriate and must relate to delivering service to our customers.
(Emphasis as in the originals) These notices repeated the April 2011 notice’s reference
to the Information Technology Policy and the instruction that questions should be
addressed to the regional supervisor.
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[18] At all relevant times communications between the employer’s computer network
and the internet were logged and filtered by systems administered for the employer by
a third party contractor named Spyders. Among other things, those systems compared
web browser requests from computers on the network with a list of domains at which
content had been categorized by the vendors of Websense, a software product or service,
as falling within a category that the employer had decided should be blocked, such as
explicit adult content. These systems would block a computer’s attempt to access a
domain in those categories and cause the requesting browser to display a message on
the requesting computer’s monitor where the blocked content would otherwise have
appeared. Such a message would begin as follows:
The website you are trying to access has been blocked by the Websense Web Filter. If you believe this is in error or need to access this link please contact Metrolinx IT Service Desk …
Events Leading To The Termination
[19] The employer’s arrangement with Spyders was that Spyders would notify the
employer’s IT department when the systems Spyders administered detected that a
computer user in the employer’s network has made 80 or more blocked adult content
web requests in a 24 hour period. On March 20, 2013, the employer’s IT department
received such a notice from Spyders with respect to requests coming from the browser
on the computer on which the grievor was logged in at the times of the requests.
Further information was sought and received from Spyders. Then the employer’s IT
department received a second such notice from Spyders with respect to requests
apparently made by the grievor’s browser on April 4, 2013. The employer then asked
Spyders for information about the grievor’s internet usage for the period January to
April 2013. The report that Spyders provided in response listed domains to which the
grievor’s browser had made web requests in that period, the categories to which
Websense had assigned those domains, and the estimates that the Websense software
gave of the time the grievor had spent viewing content on sites to which the service had
not blocked access.
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[20] Suzanne Mackey is the employer’s Manager of Station Operations in the West
Region. The grievor’s improper internet use was brought to her attention by the
employer’s Manager of Network Operations on April 9, 2013. Based on the information
Spyders had provided, the employer concluded that the grievor had been spending
several hours per day browsing web sites on the internet for other than business
purposes. Apart from the results of his attempts to access adult content, those sites
included sales sites (Kijiji and Craigslist) at which it appeared the grievor may have
been placing advertisements and the web interface to an email account other than the
grievor’s work email account.
[21] After consultations to clarify what the data provided by Spyders might mean,
Ms. Mackey and someone from Human Resources met with the grievor and a union
steward on April 12, 2013. They told the grievor that IT records showed that he had
attempted to access blocked adult content on the internet 80 or more times on April 4th
and March 20th. He responded that he may have accidentally accessed “centrefold-
type” sites, perhaps as a result of clicking on a link on a soccer site. They told him
records showed that he had been spending four to six hours per day on web sites. He
said it was possible he spent that much time on the internet. He said he checked
personal email, posted ads on Kijiji and Craigslist, visited soccer sites and listened to
music. After a break to consult with his union steward, the grievor told those present at
the meeting that he had not wanted to compromise his job or the image of GO. He was
then told that he was suspended pending further investigation.
[22] The day after the meeting the grievor sent the following email message to Ms.
Mackey:
I’m very upset about this matter, and everything related to this. May you please give me another chance and I promise that this will never happen again. I've enjoyed my 32 years here at GO Transit and I would love to stay a little longer.
[23] The termination letter was signed by Ms. Mackay on April 24, 2013, and given to
the grievor at a meeting on that date. No other communication of any significance
occurred at that meeting.
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The Employer’s Evidence
[24] Doug Wickens is the employer’s Manager of Information Security. He was the
“first witness” to whom union counsel had referred in his opening statement.
[25] Mr. Wickens testified that, at the direction of the Ontario Government, the
employer seeks to prevent its networks from being used to access internet content
involving gambling, hate, violence, adult material and several other categories of
content. To that end it had engaged Spyders to administer systems that employed
Websense software to filter web requests. One of Mr. Wickens’ responsibilities was to
manage the employer’s dealings with Spyder. He said he was not aware, and had been
unable to discover, why 80 attempts in 24 hours was the threshold for Spyders’
reporting attempts to access blocked adult content.
[26] Mr. Wickens offered his understanding of what the Websense software did and
how its vendor found and classified web content. He said he understood that the vendor
was constantly looking for web content that it had not yet categorized, and that
categorization of new content was done by people employed or engaged by that vendor.
He observed that new content was constantly appearing on the web, and that at any
particular time as much as 20% of the web’s adult content might not yet have been
categorized as such by Websense. Websense would not block content that its vendor had
not yet categorized.
[27] He noted that the Websense reports that Spyders had provided in April 2013 had
identified the domains from which the grievor’s browser had requested content, but not
the full web addresses – more accurately, the uniform resource locators or “ urls” – of
the resources actually requested. He stated that in February 2014 Spyders had been
asked to provide that information. Spyders had then provided a report in the form of a
spreadsheet covering the period February 20 to April 4, 2013. The report listed all the
urls requested on days in that period between 12 noon and 8 pm by the computer on
which the grievor logged in, together with the times at which those requests were
made. He testified that all outgoing web requests went through an “Alta Vista” server,
which logged them extensively. Although those Alta Vista logs for the period January to
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April 2013 were no longer in existence in February 2014 when the request was made,
there were still summary reports dating back to February 20, 2013 that had been made
from the Alta Vista logs by “Panorama” software before those logs were purged.
Mr. Wicken’s understanding was that the spreadsheet Spyders had provided in
February 2014 was a compilation from these intermediary “Panorama” reports of
information pertinent to the employer`s request.
[28] Mr. Wickens testified that Websense does not filter on the search terms that a
user might enter in a general search or image search on Google, Bing or other search
sites. The search results that appear on the user’s screen in response to a search
request would not be filtered except to the extent that rendering them involved using
images or other embedded resources, such as videos, that had to come from domains
that Websense blocked. In that event, a message of the sort quoted in paragraph [18]
would appear in the space that would otherwise have been occupied by the blocked
resource. Mr. Wickens observed that some search engines maintain a cache of low
resolution copies of images found at other sites. When rendering of the search results
sent by the search engine requires the browser to use an image copy cached on the
search engine`s own servers that copy might not be blocked by Websense, even though
the original would have been blocked if the browser had attempted to fetch it from its
original location.
[29] Mr. Wicken’s attention was drawn to an entry in the spreadsheet dated March
13, 2013 at 13:24 showing
www.bing.com/search?q=old+porn+stars&src=ie9tr
as the requested url. He testified that this would reflect the grievor’s having conducted
a search at Bing using the search string “old porn stars.” He said that an entry for
March 19, 2013 at 18:53 for the url
www.bing.com/images/search?q=Cynthia+Myers&Form=IQFRDR
would reflect the grievor’s having made a images search on Bing using the search string
“Cynthia Myers”. When employer counsel projected on a screen the result of his having
entered that url in his own computer, Mr. Wickens cautioned that what then appeared
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might be different from what would have appeared a year before. He agreed that an
entry for March 20, 2013 at 13:52 with the url
http://www.bing.com/videos/search?q=Cynthia+Myers+Playmate+1968&view=detail&mid=D3A6A6670274119D6D19D3A6A6670274119D6D19&first=0&FORM=NVPFVR
reflected the grievor’s having made a Bing video search with the search string “Cynthia
Myers Playmate 1968” and that an entry for 19:38 that day with the url
www.bing.com/videos/search?q=Ukrainian+Porn&FORM=VQFRVP
represented the grievor’s having made a Bing video search with the search string
“Ukrainian Porn”.
[30] During Mr. Wickens’ examination-in-chief employer counsel used a laptop
connected to the internet (without filtering by any version of Websense) to conduct
searches with the same key words the grievor had used over a year earlier (by
submitting the search urls in a browser), and projected the results on a screen by
means of a digital projector. Employer counsel characterized the results thus shown as
“heinous” and “extreme hard core imagery with elderly women, abuse and images of
offensive acts.” He invited union counsel to say whether the union would make the
argument that what the grievor had looked at on the occasions when he had used the
same search terms was not “heinous,” or whether it would agree that it was “vile.” I
invited the parties to try and agree on a characterization of the results of the grievor’s
original searches for adult content before the next hearing day. For the balance of the
hearing day Mr. Wickens’ testimony-in-chief focused on portions of the spreadsheet that
appeared to demonstrate the grievor’s use of the web interface to Microsoft Live
(formerly Hotmail) email and his management of ads on Kijiji.
[31] At the beginning of the next hearing day union counsel elaborated on the union’s
position with respect to the grievor’s attempts to access adult content. He said the
grievor acknowledged that where the employer’s spreadsheet document contained a
search url – that is, a url containing the word “search” followed by search terms in a
query string prefixed with a “?” – it did reflect an intentional search in which the
grievor entered the search terms in a search bar and that when he did so he had had an
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understanding of the sort of results that would flow from searching on those terms.
Further, he said the union and the grievor acknowledged that it was likely that the
grievor clicked on some of the links in the search results, but said the grievor would not
be able to say which links were clicked and which were not. The union did not accept
that every line in the spreadsheet represented the result of action taken separately by
the grievor. Its view was that some lines could reflect requests made by the browser as
a result of receiving the results of a search request.
[32] Union counsel stated, again, that the grievor acknowledged having engaged in
personal internet use. He acknowledged that he had used Youtube with some
frequency. He acknowledged that he had checked his Microsoft Live email account, left
that web site open in the browser and may have responded to emails as they arrived.
He acknowledged frequent use of Kijiji and Craigslist sites for the purpose of selling
goods. Union counsel did not anticipate that the grievor could provide specific
information about what he was doing at any given point in time. He did not anticipate
that the grievor would dispute the hours per day estimate that he had not disputed in
the investigation meeting. He anticipated that the grievor would say he was at all times
in his booth during working hours.
[33] Union counsel further stated that the grievor would acknowledge having
accessed adult content that was “at the lesser end” of a spectrum on which child
pornography would be at the opposite end. The grievor would acknowledge having
searched for “playmate centrefolds” and that there were “fleeting and infrequent”
occasions when he accessed material that was “more hard core” – that is, graphic
depictions of apparently consensual sexual intercourse. Beyond that union counsel was
not prepared to agree to employer counsel’s earlier characterizations of the adult
material that the grievor had accessed.
[34] Employer counsel said he would suggest that I visit the sites myself. I replied
that I was not prepared to do so, that my decision would have to be based on evidence
presented at the hearing in the presence of both parties. It was by then apparent that
the content that would be returned from a url at or after the hearing would not
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necessarily be what would have been returned from the same url when the grievor
accessed or attempted to access it. That point was reinforced by Mr. Wickens’ again in
cross-examination, when he said that unless a copy had been made of the site at the
relevant time there was no way of knowing later what content would have been
retrieved from a site at that time.
[35] During his cross-examination Mr. Wickens testified that in addition to reports
when users have 80 or more blocked attempts to access adult content, the employer gets
reports on “the top 20 internet users” and “the top 20 Youtube users.” He said the
grievor had been on the latter list as some point in time that he could not pinpoint, but
believed had been in the same time frame as the reports of his unsuccessful attempts to
access adult content.
[36] Ms. Mackey testified that after the investigation meeting she felt that there had
been an “absolute break” in trust, that she could not have the grievor working alone
“with money.” She said she was struck by the grievor’s having shown no remorse. She
thought he was sorry for having been caught but not for what he had done. She
regarded the email message she had received from the grievor after the investigation
meeting as “too little, too late.”
[37] Ms. Mackey stated that the phrase “attempted to bypass our web filtering tool”
in the termination letter was a reference to the grievor’s having continued trying to
access inappropriate sites after other attempts to access such sites were blocked. She
said the phrase “breach of the trust placed in you” referred to the grievor’s having done
something he knew he should not do, in a context in which he worked alone, and then
lied about what he had done when questioned. She said that because the grievor had
broken company policy, and had not adhered to rules and regulations with respect to
business conduct, there was “no trust left.” She said the employer could not afford to
have someone watched by someone else to ensure they follow rules. There was an
“absolute break in trust,” and they could not have him working in a booth with money.”
Because he worked alone, she said, there was no option but to terminate.
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[38] Ms. Mackey identified the schedules of the buses and trains that departed from
the Station in the period leading up to the grievor’s termination. This evidence became
part of a closing submission by employer counsel that correlated the scheduled times of
departure from the Station of those trains and buses with times of entries in the
spreadsheet from Spyders and the time periods that the grievor had testified said were
busy times at the Station.
[39] Ms. Mackey testified that she had reviewed records of the number of sales
effected by the grievor during his shifts, and found that these averaged 200
transactions per shift. During cross-examination she clarified that one customer’s
purchasing three rides would appear as three transactions in the records from which
this average was calculated, and that the grievor’s having effected 200 transactions
would not necessarily mean that he interacted with 200 different people. With that
clarification the union conceded that the grievor would have engaged in an average of
200 transactions per day. The employer led no evidence about the times of day when
these sales were effected, either generally or on the particular days when the Spyders
spreadsheet showed that the grievor had accessed or attempted to access adult
material.
[40] Employer counsel attempted to introduce records of four complaints that the
employer had received, apparently by telephone, from members of the public concerning
the behaviour of the attendant at this Station at times when the grievor would have
been that attendant. The union objected, arguing that the employer was precluded from
relying on the complaints because the grievor had not been interviewed about the
complaints within the time frame provided for in Article 4.14(5)(c) of the parties’
collective agreement. That provision states:
4.14(5) Complaint Investigation and Handling
The procedure regarding the investigation of complaints from members of the public will be based on the philosophy that our employees are innocent until proven guilty and shall be as follows:
(a) A complaint means a complaint received by GO Transit from a member of the public regarding the conduct of an employee.
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(b) If a complaint is to be considered for disciplinary action, it must be forwarded in writing by the complainant to GO Transit within one (1) calendar month of the incident in question. If such complaint is not received within the above time limit, the incident/complaint will not be considered for discipline.
This provision will not be required in cases involving allegations of a criminal nature.
(c) Nothing herein will prevent the employer from interviewing employees concerning verbal complaints. However, verbal and written complaints which have not resulted in disciplinary action may be kept on record for a period of up to twenty-four (24) months. All interviews concerning complaints must take place within fifteen (15) calendar days of receipt of the complaint by the respective department.
(d) Should such record be used for disciplinary purposes then the record shall be null and void as set out in Article 4.14(2).
(Article 4.14(2) is the sunset provision to which I referred earlier.) Employer counsel
conceded that the content of the complaints could not be used as evidence that the
grievor had been disciplined for what they alleged, but asked that they be admitted as
evidence of customer expectations. I ruled that I would not admit them on that basis. I
observed that their limited evidentiary value in that regard was far outweighed by the
prejudicial effect of admitting them despite the failure to satisfy the requirements of
Article 4.14(5). I noted also that in the absence of evidence to the contrary I would be
prepared to assume that customers expect station attendants not to behave as the
complaints alleged the grievor had.
[41] When asked in cross-examination whether station attendants were allowed to
listen to radios in their booths Ms. Mackey said they were not. This was not
contradicted by any subsequent testimony.
The Grievor’s Testimony
[42] The grievor testified that during his shifts there were periods when he would be
busy selling tickets and otherwise dealing with travellers, and periods when he was less
busy. During the less busy times he would be on the internet. He testified without
challenge or contradiction that he was not aware of any specific duties he was obliged to
perform during “down time.”
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[43] The grievor stated that he got “full access” to the internet at work in June 2012.
Prior to then internet access at work had been very limited. He said he found the
internet surprising and fascinating.
[44] The grievor said he really liked music, and had used Youtube daily to access
music videos. He would access music in this way three or four hours a day. While
listening to music he would check his personal email. Sometimes he would look at video
documentaries. He found documentaries about animals, particularly violent conflict
between different sorts of animals, very interesting. He did visit adult websites to view,
for example, what he described as “Playboy centrefolds” and, among other things, had
sought out information on the internet about what become of Cynthia Myers (a Playboy
Playmate in the late 1960’s) and other playmates and porn subjects later in their lives.
[45] The grievor acknowledged that there were occasions when a customer came
toward his wicket to interact with him as he was listening to music videos. He said that
in those circumstances he would have “shut the computer,” “put it in freeze mode or
mute.”
[46] The grievor said he would both read and send personal emails via the browser on
his work computer, and might have done that every 30 minutes or so. There was
someone who emailed him links to soccer websites. He would visit those.
[47] The grievor said he also visited shopping sites – Kijiji and Craigslist – often,
sometimes a couple of times a day but not every day. He used the sites for selling items
he had obtained at garage sales or found abandoned at the side of the road: area rugs,
bicycles, bedframes, furniture, baby stuff, sports equipment. This involved logging in to
site, composing and entering a description of the item and usually a price. He would
include his home telephone number and personal email address as contact information.
During the day he might read and respond to email messages sent by people interested
in his ads. The items he offered for sale generally sold for between $5 and $50. He said
his income from these activities was about $40 per week. He thought of this as a
“hobby” or a “game.” He had been doing it for five or six years. Before he got broader
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internet access at work he had done this on his home computer, which he said was slow
and had “a bad attitude.”
[48] The grievor testified that he might spend 45 minutes of a day on his Kijiji and
Craiglist activities, during parts of the work day when he was not otherwise busy. He
stated that a lot of times he stayed at the Station after it closed at the end of his shift to
do his postings on the internet.
[49] As for his accessing adult content, he said he had gone to Bing and typed in
“Playboy centrefold.” He had used Bing because on Google he was blocked. When he
was blocked he saw a message of the sort described in paragraph [18] above. He said he
kept trying, switching from Google to Bing, because he wanted to view centrefolds. He
realized at the time that this was something that was not appropriate. His searches for
adult content started with the search terms “Playboy centrefold.” He moved on to other
terms. Those searches provided links to other porn sites. Sometime he clicked on the
links. Eventually he got to “hard core” material – that is, still pictures and occasionally
short videos of adults engaging in sexual intercourse. These searches for adult material
began, he said, in early 2013. The frequency and duration of the searches and the
explicitness of the results increased over time. Sometimes his searches started at Bing.
Sometimes he came to adult sites by following links on soccer sites. He acknowledged
that he had accessed adult content sites in his booth during working hours and perhaps
also after the station closed. He said he did not do so when anyone was in the station.
[50] When asked if he had been concerned that someone would observe him accessing
these adult content sites, the grievor said “yes, I was concerned.” When he was then
asked “why did you do it then,” he answered “I guess it’s bad judgment on my part.”
[51] The grievor acknowledged having known it was wrong to access adult web sites,
soccer sites, personal email, Kijiji and Craigslist. He knew there was a policy that the
internet was only to be used for business purposes.
[52] He acknowledged that he did not give a fully honest answer in the investigation
meeting when he said he might have accessed adult content sites accidently. When
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union counsel asked him why he had not been fully honest, he said that he had been
“stressed,” he had been “in a defensive mode,” that it was a “defense mechanism.” When
asked why he had made the statement he made at the end of the meeting, he said that
he had wanted to let everybody know, that that was an honest statement, that he did
not want to look bad and did not want GO to look bad.
[53] Union counsel asked what he thought now about his conduct. He stated that it
was not worth it, that it was a foolish stupid thing to engage in it, that it was “terrible”
and “too stupid.” He said that if reinstated he would strictly focus on the job and keep
personal activities off the property. At the end of his examination-in-chief he said to the
employer that he was sorry for putting it through this “troublesome matter,” that he
was “very upset about it” and if reinstated he would not let it happen again.
[54] During cross-examination the grievor acknowledged that he had had duties
other than just selling tickets and answering customer questions: doing paperwork
associated with sales and refunds, cleaning, looking out for the safety of travellers,
stocking shelves with train and bus schedules, replenishing supplies in the booth and so
on. He acknowledged that he had had an old, slow home computer on which he had
checked email, interacted with Kijiji and Craigslist and so on, and that in early 2013 he
also had access to his son’s newer computer on which he could and did do those things
and accessed adult content web sites as well. He acknowledged that he did not need to
use his work computer for that. When asked why he had, he said “it was bad judgment
on my part.”
[55] When it was put to the grievor that his internet activities had to have distracted
him from customers he said that if customers came to his wicket he was always ready,
always vigilant. He said he was not always viewing the screen, he might just be
listening to music. When he saw a customer approaching he would “freeze” the
computer and give priority to the customer, not to internet use.
[56] He was asked in cross-examination why he had not stopped his internet use,
knowing it was not allowed. He said he thought it had got out of hand. When it was put
to him “you just didn’t care about the rule” he said “it kind of like took over. You can
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sometimes lose track of what you are doing. I think that is what happened. I used
improper judgment.” Asked later why it had not occurred to him to stop he said “there
were times I was getting worried that it was getting out of hand. It was controlling.
What you’re worried about – you know you’re supposed to worry about the customer,
that’s what I was worried about … don’t want customers to be upset, customer getting
upset wouldn’t look good for me or the company.”
[57] The grievor acknowledged that “hard core” means more than that two people are
having sex – that it is graphic, with close up shots, showing penetration by penises of
vaginas, mouths and anuses. The grievor said it was hard core viewing and that he had
seen what employer counsel described. Counsel again projected on a screen the results
of resubmitting to Bing some of the search strings in the Spyders spreadsheet. The
grievor said that when he conducted those searches the results were similar – close ups
of sex acts – vaginal, oral and anal.
[58] The grievor said he had never had an incident when a customer came up and
saw adult content on his computer screen. He admitted that it could have happened
that someone came into the building through a door behind him, but did not believe it
had happened. He said that he did not even look at a “Sunshine girl” in front of a
customer, adding that women can find that offensive.
[59] When again asked why he had not stopped, he again replied “it was bad
judgment.”
[60] The grievor acknowledged in cross-examination that before making his final
statement at the investigation meeting he had spoken in private with the shop steward.
He said she had advised him to be honest but had not told him what to say. He said
that in composing the email message he sent to Ms. Mackey the following day he had
had the assistance of his adolescent son. In re-examination he said the message had
reflected what he felt.
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The Parties’ Submissions
[61] Employer counsel submitted that the grievor’s misconduct was a “breach of
trust.” He had spent several hours per day engaged in personal internet usage on work
time, contrary to clear policies that were well known to him and were, as he had
acknowledged in cross-examination, common sense. His web viewing had included
attempted viewing and viewing of hard core pornography. He had misrepresented and
downplayed that aspect of his misconduct when it was investigated and, counsel
submitted, he had continued to do so in his testimony. Employer counsel invited me to
conclude that the grievor still fails to appreciate the significance or seriousness of his
misconduct – that his actions broke an obvious rule and that they created a real risk
that passengers would see inappropriate images. A comparison of the times at which
adult content searches had been logged with times when buses and trains arrived, and
with the time periods that the grievor had identified as busy times, showed that the
searches had occurred in busy times and not just, as the grievor testified, times that
were “in between” busy and not busy.
[62] Employer counsel argued that the grievor had not taken responsibility for his
actions, but had evaded them in claiming that his internet activities had taken over
and become beyond his control. He had been evasive in frequently answering “it’s
possible” to questions to which he should have known the answers. His having said he
was “upset” did not demonstrate remorse. There were no mitigating considerations. No
lesser penalty would suffice. Because there had been a “breach of trust,” it would be
inappropriate to have the grievor back in the workplace, in a position in which he
worked alone as the representative of GO Transit in dealings with the public.
[63] In his submissions employer counsel referred to Re Owens Corning Canada Ltd.
and UNITE HERE, Local 1350 (2005), 142 L.A.C. (4th) 62 (Levinson), The Crown in
Right of Ontario (Ministry of Community and Social Services) and OPSEU
(Aboutaeib/Carletti) (2011), 213 L.A.C. (4th) 336 (Johnston), Board of Education of
School District No. 39 (Vancouver) and United Brotherhood of Carpenters and Joiners,
Local 1995 (Hawco), 2010 CarswellBC 4216, [2010] B.C.C.A.A.A. No. 128 (Ready),
Board of Education of School District No. 39 (Vancouver) and U.A. Local 170, 2011
- 23 -
CarswellBC 1983 (Sanderson), Telus Communications Inc. and Telecommunications
Workers Union (2005), 143 L.A.C. (4th) 299 (Sims) and Interior Health Authority and
Hospital Employees’ Union, 2013 CarswellBC 988 (Young).
[64] Union counsel acknowledged the seriousness of the grievor’s misconduct, but
disputed the employer’s contention that no lesser penalty would be sufficient or
warranted. He submitted that seniority was a very important consideration, a
consideration it appeared the employer had not taken into account in determining the
penalty for the grievor’s misconduct.
[65] Union counsel disputed the contention that the grievor had been evasive at
hearing or failed to take responsibility for his actions or failed to demonstrate remorse.
He disputed the argument that the grievor had been evading responsibility by
contending that his accessing adult content had gotten out of hand. This was not a
contention that it had been beyond his control; the grievor had described how things
had progressed but had not tried to evade responsibility for it. His testimony had been
honest and candid, not evasive. He gave the best evidence he could about events that
had occurred a long time ago, and had said “it’s possible” when he could not be certain.
[66] Union counsel observed that the grievor had admitted a great deal about his
breach of the prohibition of person internet rule at the investigation meeting. Although
the grievor had not been honest initially about having intentionally accessed adult
content, his admissions at the hearing were “the next best thing” to an admission at the
investigation meeting, and indicated recognition of his error. He should be given credit
for having made those admissions, particularly when, he submitted, the employer’s
evidence might have been insufficient to establish what the grievor admitted.
[67] In that regard he observed that Mr. Wickens’ testimony about the systems
administered by Spyders and the reports Spyders that had provided was hearsay, and
that Mr. Wickens had not been qualified as an expert on those systems or on the
interpretation of the reports. Even if Mr. Wicken’s testimony was given some weight, it
was largely limited by Mr. Wicken’s admission that one could not know from a logged
url what content would have been returned by a request to that url at the time it was
- 24 -
logged, unless a copy of that content had been made at the time. Union counsel
observed that there was no evidence of what actually happened on the computer the
grievor was using, other than the grievor’s. He submitted that at the end of the day the
only evidence about the content that was delivered to that computer came from the
grievor, who had been honest and candid in giving that evidence despite its being
against his own interest. He urged me to reject an employer argument that the grievor
had only come clean when it became apparent from the documents what the employer
could prove, because in his submission the employer’s documents proved remarkably
little.
[68] While not in any way defending the grievor’s having accessed adult content,
union counsel was not prepared to adopt employer counsel’s characterization of the
content he accessed as “egregious” or “heinous.” He noted that the content was not child
pornography or otherwise illegal to possess, that it was not violent in nature, that the
grievor had not used the employer’s email system to share it, that he had not intended
to display it to others and that there was no evidence that it had been seen by anyone
else as a result of the grievor’s activities.
[69] Union counsel argued that the grievor’s sales activities should be assessed on the
basis that they were a hobby rather than a business enterprise like the cruise line
travel business that had been conducted by a grievor in one of the cases cited by
employer counsel. He submitted that the bulk of the four to six hours of internet
activity per day consisted of listening to music, which was analogous to listening to the
radio. His activities had not interfered with his doing what his job required.
[70] Union counsel invited me to conclude that the email sent by the grievor on the
day after the investigation meeting was an attempt at an apology and evidenced
remorse, even though the language he used could have been better. He suggested that
the grievor’s failure to use the magic words that employer counsel said he ought to have
used to apologize and express remorse reflected only that the grievor was perhaps not
good with words. The grievor had said at the hearing that he was sorry. He said what
he had done was foolish, stupid, terrible. He demonstrated an understanding that the
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potential effect on customers was what was important, that customer service was
important, that if his employment is restored it cannot happen again. His having
provided the only evidence of what happened was an indicator that he had accepted
that what he did was wrong and that he accepted responsibility for it.
[71] Union counsel submitted that the fact that the misconduct involved pornography
was not an “escape hatch” from considerations of progressive discipline. He noted that
no consideration seemed to have been given to the grievor’s long seniority. He argued
that the grievor’s lengthy service created “trust equity” which weighed in his favour in
an assessment of whether a lesser penalty would be sufficient to correct his misconduct.
He submitted that substituting a lengthy suspension without pay for the discharge
would send a clear message that the grievor’s misconduct was serious and would ensure
that the grievor would not engage in that misconduct again. He observed that it would
be open to me to return the grievor to another position, one without access to a
computer, or with greater supervision, although the union was not contending that
such an alternate remedy should involve displacing anyone from their job.
[72] In his submissions union counsel cited Hamilton Health Sciences and Canadian
Union of Public Employees CUPE Local 4800, 2005 CanLII 56335 (ON LA)
(Surdykowski), Hydro One Networks Inc. v. Power Workers’ Union (Barber Grievance),
[2001] O.L.A.A. No. 758 (Stewart), Petruccelli v. Canadian National Railways Co.,
[2005] C.L.A.D. No. 113 (Betcherman), Manitoba Government and General Employees’
Union v. Manitoba (M. W. Grievance), [2013] M.G.A.D. No.10 (Gibson), Canadian
National Railway Co. v. National Automobile, Aerospace, Transportation and General
Workers Union of Canada (CAW-TCA) Local 100 (McConnell Grievance), [2002]
C.L.A.D. No. 233 (Picher), Ontario Public Service Employees’ Union v. Ontario (Ministry
of Natural Resources) (Wickett Grievance), [2005] O.G.S.B.A. No. 93 (Petryshen),
Fairmont Royal York v. Unite Here, Local 75 (Gonzales Grievance), [2012] O.L.A.A. No.
33 (Trachuk), Ontario Public Service Employees Union (Gyapong) v. The Crown Rights
of Ontario (Ministry of Children and Youth Services), 2013 CanLII 31978 (ON GSB).
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[73] In reply, employer counsel argued that the grievor should not get credit for
having told the truth as he was obliged to do, particularly in admissions only elicited in
cross-examination. He argued that a reasonable person would have recalled “vividly”
things the grievor would only say were “possible.” He said that it was the grievor’s
personal use of the internet contrary to the rule, not how much the grievor earned as a
result, that was significant. Even discounting time spent using Youtube like a radio,
there was substantial time spent on other internet activities.
[74] Employer counsel noted that the union had not questioned Ms. Mackey about
her consideration of seniority, nor about alternate jobs. He submitted that
consideration of seniority can cut both ways, particularly when the misconduct is not a
spur of the moment, isolated incident but deliberate and repeated: a more senior
employee might be expected to better understand how contrary to the employer’s
expectations the misconduct was. As for the absence of evidence that anyone else had
seen the adult conduct accessed by the grievor, the seriousness of the grievor’s
misconduct in accessing adult content arose from the risk of its being seen. As for the
suggestion of an alternate position he submitted that there is no position in which
adherence to rules is not required, and none in which trust is not required. The
employer’s concern is not computer specific, it is that trust has been destroyed and was
not restored in the course of the proceedings.
Decision
[75] I have reviewed but will not describe here the fact situations, analyses and
dispositions in the awards cited by counsel. They reflect the application to
distinguishable fact situations of general principles that do not appear to me to be in
serious dispute.
[76] The employer had a very clear rule that its computers were to be used to access
the internet for business purposes only. The union concedes that the rule was a
reasonable one. The grievor broke that rule, repeatedly and deliberately. He was not
entirely honest with the employer when it investigated what he had done. The issue
here is not whether the grievor’s misconduct warranted discipline. It clearly did. The
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issue is two-fold: whether the misconduct, including the dishonesty in the investigation
meeting, was cause for discharge and, even if that may have seemed so at the time,
whether the circumstances as they appear to me now warrant my substituting a lesser
penalty in the exercise of my statutory discretion.1
[77] Although the facts that were before Arbitrator Surdykowski in Hamilton Health
Science, supra, are different in some respects, these observations in that award apply
equally here:
37. … The principles of corrective and progressive discipline apply even in cases of serious misconduct that no employer can be expected to tolerate. It is well established that the ultimate penalty of discharge should only be imposed as a last resort, when there is no reasonable prospect that any lesser penalty would be sufficient to both provide sufficient correction and deterrence, and protect the legitimate interests of the employer. This is as true of cases where the misconduct is misuse of the employer’s computer system … as it is for other kinds of serious misconduct.
In assessing whether a lesser penalty would be sufficient having regard to the
principles of corrective and progressive discipline, I must consider the nature of the
grievor’s misconduct as well as the nature of the grievor himself, as far as that is
apparent from the evidence before me.
[78] The grievor’s misuse of internet access occurred over a period of several months,
from June 2012 to April 2013. This was not a momentary lapse. During that period the
grievor received at least one reminder of the rule: the Operations Notice of January 21,
2013 reminding Station Attendants that their internet access was to be used for
business purposes only. Employer counsel argues that the grievor’s continued misuse of
internet access and increased access to adult content after receiving that reminder
1 These proceedings are governed by the Crown Employees’ Collective Bargaining Act, 1993, S.O. 1993, c.38, as amended. That Act incorporates by reference a number of provisions of the Labour
Relations Act, 1995, S.O. 1995, c. 1, Sch. A, as amended, including subsection 48(17):
(17) Where an arbitrator or arbitration board determines that an employee has been discharged or otherwise disciplined by an employer for cause and the collective agreement does not contain a specific penalty for the infraction that is the subject-matter of the arbitration, the arbitrator or arbitration board may substitute such other penalty for the discharge or discipline as to the arbitrator or arbitration board seems just and reasonable in all the circumstances.
There is no suggestion here that the parties’ collective agreement contains a specific penalty for the misconduct in issue.
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shows that the grievor is incapable of learning. I would not go that far. It shows that
simple statements of the rule and possible consequences of its breach, which should
have been sufficient to deter the grievor from breaching it, were not sufficient in the
grievor’s case. It does not show that the grievor is incapable of being reformed through
progressive discipline short of discharge.
[79] The grievor’s misuse of internet access occurred for lengthy periods each work
day. While this adds to the seriousness of the offence, it is less serious in this case than
it would have been in one in which the internet misuse was demonstrably at the
expense of job performance. Here there is no evidence that, prior to the investigation
meeting, there was any task required of the grievor in his job as station attendant that
he failed to do (other than his failure to abide by the rule that he breached). There is no
specific evidence of his having been distracted from providing customer service that was
as good as it could otherwise have been had he not been accessing the internet as he
did. There is no evidence of any customer complaint that the employer took through the
process to which it had agreed in Article 4.14(5) of the collective agreement. There is no
evidence that the revenue or records returned by the grievor, or complaints from
customers unwilling to reduce them to writing, led to a “secret shopper” or other form of
investigation that detected poor or distracted customer service. That is not to say that
without such evidence the breach of the rule is trivial. The breach was not trivial, nor
would it have been if there had been no access or attempted access to adult content. My
observation is simply that it was not aggravated by proven poor productivity or poor
customer service.
[80] Misuse of employer-provided internet access to engage in money-making
activities during time paid for by the employer is more troubling than misuse involving
checking personal email or sports scores during down time. That is so even when the
revenue from the activities is modest and the time spent on them is time when there
was otherwise nothing for the employee to do but twiddle his thumbs. Most troubling
was the time spent, in increasing amounts, on attempts to access pornographic images
that could well have offended customers if they had seen them. I am not assisted in my
analysis by assigning an emotive label to the nature of the images – it is enough to say
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that they were manifestly unsuitable for a workplace, particularly one accessible to
members of the public. It cannot be doubted that images of the sort the grievor sought,
if seen by others, were likely to offend a significant portion of those others. Although
there is no evidence that anyone but the grievor saw the images that his searches for
adult content returned, the gravity of this misconduct is in the risk that they would be
seen. Given the layout of the Station and the times of day when the grievor attempted
to access adult content, I find that that was a non-trivial risk.
[81] There is no evidence that the grievor was accessing or attempting to access child
pornography, or images of apparently non-consensual sexual or other interpersonal
violence. The grievor was not engaged in distributing the materials to others. Had there
been any of those features, it would have been worse. But it was still bad.
[82] Nothing in the grievor’s testimony explained why, knowing of the rule, he
repeatedly broke it – in any manner at all, much less in a manner that risked
displaying offensive images to customers. The grievor’s “it was bad judgment” answers
to “why?” questions only characterized his thinking. They did not disclose what the
thinking had been that had led him to do what he did. I am not persuaded that those
answers were evasive. The grievor may well have thought they were responsive, that
seeing whether he would acknowledge the badness of his judgment or behaviour was
the object of the questions. Neither counsel did anything in response to those answers
to focus him on describing the thought process that had led to the bad judgments.
Although union counsel’s opening statement referred to what the grievor “now
appreciates” and “now understands,” there was ultimately no suggestion in the
grievor’s testimony that his appreciation and understanding had been any different
during the misconduct than it was at the time of the hearing. In the end, the absence of
an explanation made my assessment more difficult.
[83] One might wonder whether the grievor’s “bad judgment” in so profoundly
breaching the employer’s rule with respect to internet access was symptomatic of a
generalized indifference to following instructions or behaving appropriately in other
material respects as well. In a very junior employee the possibility that it was
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symptomatic of general bad judgment and unreliability might have favoured
termination as the response. The grievor’s long service favours the conclusion that the
unexplained “bad judgment” was a “one of” blind spot in an otherwise generally reliable
employee. He had been in the job for a very long time. He had had no discipline in the
five years before his termination. Failures to perform in accordance with the employer’s
reasonable expectations in other aspects of the job, aspects of longer standing than the
availability of broad internet access, either had not occurred or had proven correctable.
[84] I agree that the grievor’s saying he was upset is not what one would normally
expect remorse to look like. Perhaps it is what remorse looked like to the grievor when
it was explained to him. In any event, an employee’s expressing remorse is significant
to the extent that it demonstrates recognition that his conduct was contrary to the
standards of the workplace. It is important to remember, however, that “[l]abour
relations progressive discipline is about curbing employment misconduct, not about
ensuring that employees fully subscribe in their own minds to what the employer or
others consider to be social norms of behaviour” (Hamilton Health Sciences, supra, at
¶42). Expressing remorse is not the only way an employee can demonstrate an
awareness that his conduct violated workplace standards and a willingness and ability
to abide by those standards in future.
[85] It is clear to me from his testimony that the grievor knows that a rule prohibits
use of workplace access to the internet for anything other than business purposes, is
capable of distinguishing between the business and non-business uses of that internet
access and must now recognize, whatever he may have thought before, that his
breaching the rule will lead to very serious consequences.
[86] If the grievor had not been dishonest in the investigative meeting, if he had then
acknowledged his having deliberately attempted to access adult content, along with the
other things that he did then acknowledge, the employer’s response might have been
different. The fully acknowledged misconduct would still have been serious, but not a
“hanging” offence warranting termination, particularly not for a long service employee
with a record that was clean (in the sense that there was nothing that the sunset clause
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had not removed from it). In those circumstances, discharge would not have been
consistent with the principles of corrective and progressive disciple. If the employer had
discharged the grievor in those circumstances I might well have substituted an unpaid
suspension of two weeks or so, and reinstated the grievor with compensation for all but
those two weeks. The dishonesty at the investigation meeting changes that.
[87] At the investigation meeting the grievor denied the most serious aspect of his
breaches of the rule (apart, perhaps, from their sheer volume and duration): that it
included deliberate access and attempted access to pornography. He said any attempted
access was accidental. That was untrue to his knowledge. Dishonesty undermines the
trust that sustains an employment relationship. An employee’s denial of serious
misconduct, particularly a denial that persists beyond a moment of initial panic,
undermines the basis for any hope of correction, and may transform cause for serious
discipline into cause for discharge.
[88] Acknowledging that the grievor ought not to have been dishonest at the
investigation meeting, union counsel argued that the grievor’s admissions at hearing
were the “next best thing.” They were not. The next best thing, having provided
misinformation, would have been for the grievor to correct the misinformation and
admit the truth later in the meeting, when he returned to the meeting after conferring
with his union representative. Or if not then, then in his email message the next day.
Or at some other time before the termination meeting. Or at the outset of the
termination meeting. When it discharged the grievor the employer was faced with an
employee who had committed very serious misconduct and then persisted in a denial
one of the most concerning aspects of that misconduct. It is difficult to fault the
employer for concluding, on what it had before it, that discharge was justified.
[89] Thereafter the grievor did not admit until the hearing began on April 3, 2014 (at
least not outside the “without prejudice” protection of the grievance process, about
which, naturally, I have no evidence) that he had made deliberate and at least partially
successful attempts to access pornographic images. The admission came nearly a year
after the investigation meeting, after an earlier hearing date in January 2014 had been
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adjourned on consent pending production of documents by the employer, and after
(albeit not long after) those documents had been produced to the union.
[90] The question whether the Spyders’ Websense and Panorama log reports would
have been given weight on the basis of Mr. Wicken’s testimony alone is of no
significance. The union’s opening admissions, and the further admissions during
Mr. Wicken’s testimony-in-chief, were made before the employer closed its case. It is a
matter of pure speculation whether the employer would have called other testimony
about those documents before it closed its case if those admissions had not been made.
If the grievor had maintained to the end his position that any attempt to access to adult
content had been accidental, and if the evidence called by the employer in response had
persuaded me that that was false, then I might well have concluded that the grievor
was incorrigible and sustained the discharge.
[91] Employer counsel argued that I should find the grievor incorrigible because, he
said, the grievor had been evasive during his testimony, both in failing to explain his
thinking and in answering “it’s possible” to questions about which, he submitted, the
grievor must have had a firmer recollection than those answers implied. I have already
said (in paragraph [82]) that in the circumstances I do not consider the grievor’s failure
to describe his thinking, rather than merely characterize it as he did, to be evasive. As
for his repeated use of “it’s possible,” my impression is, as union counsel submitted, that
the grievor was trying to be totally honest, and that his answering “it’s possible”
reflected an understandable inability to either confirm or deny details that employer
counsel put to him about events that occurred more than 14 months earlier.
[92] If the grievor were reinstated it would not be necessary for the employer to hire
someone to supervise him in the workplace in order to verify whether he adhered in
future to the rule he had earlier breached. The employer already monitors internet use.
The hearing will have brought home to the grievor the significance of statements in the
employer’s policies that the employer monitors internet use. I am satisfied that the
grievor knows that he must not repeat his misconduct, and is most unlikely to do so, if
only out of fear of termination.
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[93] I am not persuaded that the grievor’s misconduct, including his having falsely
denied what he only belatedly confessed, provides an objective basis for a conclusion
that this very lengthy employment relationship is irreparable. Although I find that the
employer had cause to discharge the grievor when it did, the governing statute obliges
me to consider whether it would nevertheless be just and reasonable, in all the
circumstances now before me, to substitute a lesser penalty. I am persuaded that it
would be just to substitute a penalty that does not involve loss of employment. I am also
persuaded, however, that it would not be just to require the employer to pay any
compensation to the grievor for the period of time it took for the union to secure for him
this exercise of my statutory discretion, after he afforded the employer cause for
discharge and then withheld for so long the admissions that now form part of the basis
for my conclusion about the appropriate exercise of my statutory discretion.
[94] Accordingly, in the exercise of my statutory discretion I find it just and
reasonable in all the circumstances to substitute a lengthy unpaid suspension for the
discharge, on the basis that the suspension will be treated as having been “issued” on
the date this decision is released but served prior thereto, and that the grievor will not
be entitled to any payment of any sort from or by the employer in respect of the period
from the date he was discharged to the earliest date on which he can be reinstated after
this award is issued. I do not think it much matters whether all or only two weeks of
that period is treated as a disciplinary suspension for purposes of his record, so long as
no part of it is the subject of compensation and it is clear that the discipline imposed is
at the very last step of progressive discipline before discharge for purposes of assessing
the response to any future misconduct. The grievor is to be treated as having remained
an employee throughout, but one who had no earnings between April 24, 2013 and the
date of his reinstatement to active duty. On those terms I order that the grievor be
reinstated to a station attendant position without loss of seniority. It need not be to the
same shift or in the same station. It may be in the interests of all concerned that it be a
reasonably comparable assignment in another station.
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[95] I remain seised with any issue the parties are unable to resolve concerning the
implementation of these directions.
Dated at Toronto this 10th day of December 2014.
Owen V. Gray, Vice-Chair