HomeMy WebLinkAboutNelson 05-13-2002 IN TI4F~ MATTER OF AN ARBITRATION
BETWEEN:
SENECA COLLEGE
(the "College")
-alld-
ONTARIO I~I. TBI,IC SERVICE EMPLOYEES UNION
(the "Union")
AND IN THE MATTER OF the grievance OPSEU No. 00A364.
BOARD OF ARBITRATION: D.D. Carter, Chair
S. Murray, Union Nominee
M. Ridell, Employer Nominee
APPEARANCES FOR THE UNION: S. B. D. Wahl, Counsel
E. Montgomery, President Local 560
L. Olivio, Vice-President Local 560
J. Stawoff, Chief Steward Local 560
_APPEARANCES FOR THE EMPLOYER:
C. G. Riggs, Q.C., Conn.qel
C. S. Rix, Counsel
D. Chart, Seneca College
S. Vallance, :Seneca College
M. Fogel, Seneca College
A heating of this matter was held at Toronto, Ontario, on September 26, 2000, April
2, June 25, June 27, 2001, August 29, 30,2001, April 10, 1I, 2002.
AWARD
The grievor, a Professor at the College, was discharged on March 5, 1999.
At the time of his discharge he had been an employee of the College for over
eighteen years and, up until the events leading to his discharge, had an unblemished
employment record with the College. The reason given for his discharge was that he
had "used College equipment and facilities to access, download, and store images
defined in the Criminal Code of Canada as child pornography".
On January 25, 1999, the College fa-st became aware of the activities that
form the basis of the grievor's discharge. IDa that day two students working m the
computer laboratory at the College's King Calnpus b.riofly noticed images of naked
children m sexual poses on the screen of the monitor of a laboratory computer
terminal being used by the grievor to download these images to floppy disks. The
two students then reported what they had observed to another College professor
who then brought the incident to the attention of the College's security department.
An incident report was filed by that department and it was at this point the College
began a formal .investigation of the incident. On February 17, 1999, while this
investigation was being pmsued, the grievor was again observed ia the computer
laboratory downloading to disk images of naked children in sexual poses.
On Febx~ary 23, 1999, the grievor was not/fled by letter that, because of
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these incidents, he was suspended with full pay and benefits pending the outcome of
the College's internal investigation and at the same time directed to remain off
College property unless required to attend a meeting dealing with these incidents.
On March 5, 1999, he was notified by the College by'I~ier that its investigation of
the matter had led it to conclude that he has "used College equipment and facil/ties
to access, download, and store images defined m the Criminal Code of Canada as
child pornography" and that he had used "an open access student laboratory to carry
out these actions m order to avoid ident/ficafion and incr/mination" and, on the basis
of these conclusions, it was termlnatng his employment at the College. On March
27, 2001, the grievor entered a guilty plea to possessing child pornography in
contravention of s. 163.1 (4) of the Criminal Code of Canada and was given a
suspended sentence and placed on probation for two years, one of the conditions of.
that probation being that he not use the intemet on any computer at any t/me.
The nnion in this case did not dispute the fact that the grievor used the
College's computer lab to download to disk images of naked children/n sexa~al
poses and that he later viewed these images in the privacy of his office at the
College. It argued, however, that the grievor's difficult personal circnm~ances led
him to s~ffer from a mental disorder that had manifested itself in the form of
pathological internet use. This mental disorder, according to the Bnion, could be
considered a disability under Ontario's Human Rights Code, imposing upon the
employer a duty to provide some form of accommodation to the grievor. The union
argued that the appropriate employer approach in this case should have been a
response that reco~maized the seriousness of the grievor's conduct but fell short of
term/nation of employment. The nnion argued that the grievor had akeady paid the
penalty for his anti-social conduct in the criminal courts so that, in the employment
context, a less punitive approach was required. It submitted that, at least by
September 11., 2000, the grievor should have been reinstated to his employment
with restrict/ohs on his use of the internet, since by that time it had become clear
that th.e grievor was well on his way to recovery. In the alternative, the union
argued that, eve~ if the grievor's condition could not be considered to be a disability
as that term is understood in the Human Rights Code, discharge was still an
excessive response by the employer in light of the grievor's personal circttmstances
and his nineteen years of good service at the College.
The employer submitted that the medical evidence presented at the hearing
did not support a conclusion that the grievor was suffering from a disability at the
me that he engaged in the behaviour that led to his discharge. The employer
argued that, since the grievor had no difficulty restraining from engaging in this
behaviour outside of the place of his work and was able to refrain from this
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behaviour totally once he had been caught, the evidence did not support a
conclusion that the grievor was suffering fi:om any form of impulse control disorder.
The employer also noted that any sigas that the grievor might be clinically depressed
occurred after he was caught and these symptoms were only transitory at best. In
the employer' s view, this was a dear case of the grievor engaging in criminal
conduct at h/s place of Work and this criminal conduct was of such a serious order
that it had irreparably damaged the bond of trust between the grievor and the
institution for which he worked. The employer further argued that, even ffthe
grievor could be considered to be disabled, his disability still could not excme
conduct that had such serious repercussions for the College, making any form of
accommodation inappropriate in this case.
The issue before this board is whether the College had just cause for
terminating the grievor's employment. At the time he gave his testimony in this case
the grievor was 49 years old, nnmarried, and still living with his parents. Prior to
his employment with the College, the grievor had worked as a technician dealing
with the repair and maintenance of lawn care equipment. In early September of
1980 he was hired by the College as a technician for its new Golf Course
Technician program. As this program grew so did the grievor' s role in the program
and m 1988 he obtained an appointment as a Professor in the program. The grievor
testified that he did well as a Professor, receiving better than average teaching
evaluations and enjoying the respect of both current students and graduates of the
program for his teaching abilities.
The grievor, however, did not experience a similar success in his personal
life. He testified that he grew up in an evangel/cai Christian home ruled by a
domineering mother. Many social restrictions were imposed on him as he was
growing up and, even later, when he had finished secondary school and had entered
the workforce but continued to live in his parents' home. Irt 1981 he finally moved
out of his parents' home and began to enjoy greater social ~eedom. In 1987, he
purchased a larger house in Richmond Hill and at this point his parents decided to
sell their condominium ha Scarborough and stay with the gdevor for the two one-
month periods that they were not spending either in Florida or at their summer
cottage. These short visits did not pose too great a problem for the grievor's social
life, but the situation changed in 1994 when .his parents for health and financial
reasons were no longer able to take their six-month sojourn in Florida and bec~me
permanent residents in the grievor's home. As the grievor described it, at this point
he was back to living under his parents' social roles. To compound his problems, his
mother's m6ods became very volatile with the onset of Al~.heimer's disease ha 1995.
This change of hying arrangements for the grievor eventually led to his
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social isolation. His rclationshi'ps with women did not meet with success and he
eventually gave up socially since his parents would become upset when he invited
his own friends to his house. In the evenings and weekends the griever would
retreat to the basement of his home, do/ng some woodworking or mechanical work,
or sometimes just listening to the radio by himself.
In 1996 the gr/evor found a new interest - the interact. He began to use the
computer facilities at the College, choosing to use the student computer lab for this
purpose as the computer facilities in lais own department were limited. The griever
established a regular pattern of visiting the student computer lab in early afternoon
once he had finished classes and staying there until the lab closed at 4:30 p.m,
These visits to the student computer lab began to occupy three or four afternoons in
.his work week. It should be noted that in the student computer lab access to the
interrtet can be obtained without a personal password.
The griever testified that, initially, he had used the interact to obtain useful
material for his courses. He candidly admitted, however, that his activities in the
student computer lab developed into a form of escape as he began to discover other
kinds of material on the internet. By September of 19977 his surfing of the internet
has led him to pornographic sites and by late 1997 he was accessing pornographic
web sites featuring children. The griever testified that he had become intfi.'gued by a
wide variety of sex~_~aHy explicit material and only some of the pornographic sites
that he visited involved children. He further testified that he had never paid for
pornographic material on the internet, confining h~m.~elf to the free samples offered
by pornographic web sites. He also testified that he had never participated in a
pornographic chat lme~ posted a message on a pornographic bulletin board or
uploaded an.y pornographic material. What he had been doing was to use the
computers in the student lab to access pornographic web sites~ rn~n~m~7~ the images
there d/splayed, and then download these images to disk for later viewing in the
privacy of his own office once other employees had left for the day.
The grievor testified that he was not happy about what he was doing but his
desire triumphed over his determination to g/.ve up this activity. He candidly
aclm~tted that he succumbed to this desire because the search for internet
pornography offered him excitement, in~igue, and mystery. The excitement c~me
form the sexual aspect of the material; the intrigue came from searching out the
material as he was constantly seeking new material; and the mystery came from the
unknown nature of the material being sought. He testified that his internct activities
served to relieve the sadness he felt about the rest of his life, offering him escape
from the realities of his home life.
The gievor testified that he was in shock after the College advised him that he
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was suspended from his duties. Initially he sought counselling through the College's
Employee Assistance Progrmn but was advised by the program provider that they
could not accept him as a client since, as it was very likely that his employment
would be terminated, they would not be paid for their services. In the course of this
conversation he was advised that he should consult a criminal lawyer as soon as
possible.
The grievor followed up on this suggestion, contacting his family's lawyer to
obtain the name of a criminal lawyer to act for him. A recommendation was
provided and the grievor met with a criminal lawyer who suggested that the grievor
might want to seek psychiatric help. The grievor then contacted his family doctor to
obtain a referral. The family doctor advised the grievor that he needed to see him
first before a referral could be made and that the grievor would have m wait until the
end of the week for au appointment. The grievor testified that. at this point he was
desperate and considering suicide. Following the advice of Ted Montgomery from
the un/on, he drove to York County Hospital to seek medical help immediately. He
was admitted to that hospital on Wednesday, February 24, 1999, and discharged
from it on Saturday, February 27, 1999. By the time of his discharge the grievor's
mental state had greatly knproved and, according to the medical report, ~ he no
longer had any suicidal ideation, nor did he have a particularly depressed mood". ,
At the time of his discharge the grievor expressed an interest in further
counselling and was referred to Malcolm Watts, a social worker at the hospital. The
grievor met with Watts on March 29, 1999, then bi-weekly for two months, and
then intermittently. In a letter dated September 11, 2000, Watts indicated that the
grievor was no longer clinically depressed and was functioning well on a daily basis.
The grievor testified that Watts successfully assisted him irt getting his life
together and that he no longer had any desire to view pornographic material. He
stated that he is now a new person with no wish to return to the destructive
behaviour that led to his disgrace and the loss of his position at the College. He
testified that his family had been supportive in his efforts to mm his life around and
that he is uow employed in a business owned by a family member. However, his
greatest satisfaction still comes from worldng with students and he would prefer to
return to his position at the College.
The first question we must answer is whether the grievor was suffering from a
disability within the meaning of the Human Rights Code at the time o£the activities
that led to his discharge. It is clear to us that, at the time of the incidents leading to
his discharge, the grievor was burdened by very difficult personal circumstances and
was leading a very unhappy life. The medical evidence presented to us, however,
does not support a conclusion that the grievor was suffering fi.om a any form of
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medically recognized mental disorder. The union argued that the grievor was
suffering fi.om a type of impulse control disorder that took the form of pathological.
attraction to mtemet pornography. The ev/dence, however, does not support this
conclusion. The grievor through his own testimony indicated that his activity in
searching out and hewing mtemet pornography was both selective and controlled,
suggesting that he could exercise self restraint ii'he chose to do so. Moreover, there
is no medical evidence that the grievor was clinically depressed when he was
engaging in this activity. While the grievor was unhappy about the social restraints
that had been placed on his lifestyle by his parents and was seeking a form of
escape from these restraints, these factors alone do not support a conclusion that the
grievor was suffering from any medically reco~tmizable mental disorder.
The union placed considerable weight upon the grievor' s mental state
following his suspension fi.om work. The grievor, once he had been suspended f~om
his employment, did exhibit signs of depression and suicidal ideation. This
condition, however, did not appear to a pre-existing condition but one that resulted
from the disgrace of being caught engaging in illegal conduct and facing the very
real possibility that his employment would be terminated. This condition, moreover,
did not linger as the grievor was discharged after a short stay at the York County
Hospital with a report that he was no loner suffering fi.om a "particularly depressed
mood". On these facts we can only conclude that at all relevant times the gnevor
was not suffering a mental disorder that would constitute a disability under
Otltario's Hnman Rights Code.
This conclusion still leaves us with the ques .tion~6¥ whether discharge was too
severe a penalty in light of the grievor's previous unblemished employment record
and his difficult personal' circnm.qtances. In other words, is this a situation where,
despite the seriousness of the grievor's misconduct, the employer still should have
given the grievor another chance? The union argued that the failure of the College
to act more quickly to terminate the grievor's employment after the grievor's
activities were first discovered on January 25, 1999, suggests that the College
investigation assumed a life of its own that ultimately resulted in the College losing
sight of the need to make a balanced decision by taking into account principles of
progressive discipline.
Dr. Anthony Tilly, who was Acting President of the College at the time oft. he
grievor's discharge, testified as to the reasons for the College's decision to
terminate the grievor's employment. Dr. Tilly stated that, given the open access to a
wide variety of material on the interact, it was important for the College to enforce
its Information Technology Acceptable Use Policy. That pohcy which was in force
at all times when the grievor was engaged in the conduct that led to his discharge
makes it clear that "all employees, students, and clients" are expected to abide by its
terms. It further provides that "[a]ll members of the Seneca Community are
responsible for obeying the law and College policy with regards to the use of
i.uformation technology services, facilities and equipment". The policy contemplates
that the College may take disciplinary action where there has been a violation of the
pohcy, expressly listing as possible discipline "verbal/written warnings, rescinding
of e-mail or interact accounts, removal of materials from College computer
equipment facilities and network, disciplinary directives, behavioural contracts,
suspension and/or expulsion/dismissal fi:om the College". Dr. Tilly testified that the
College had decided that in this case discharge was the appropriate disciplinary
response because the grievor had engaged in a continuing pattern of conduct that
was in clear violation of the College's Information Technology Acceptable Use
Policy. This conduct, in the College's view, was of a particularly serious nature and
a fu-m response was needed in order to ensure a proper environment at the College.
There is no question that the College has a legitimate interest in the
enforcement of its lnfonnafion Technology Acceptable Use Policy. The only issue
is whether the application of that policy m this case the College imposed too severe
a penalty. In answering this final question we do not accept the nnion' argument
that the employer's failure to act immediately to suspend the grievor fi:om his
As to the issue of" breech of the employer's trust" and the higher standard of
expectations flowing from his position:
The evidence of the lab monitor was that visits to pornographic sites in the lab
were a regular, if not daily occurrence, despite the fact that is ~' against the
rules". The students who witnessed the event were opposed to the materials but
not traumatized or harmed. The attitude expressed was "that's sick!"
In the circumstances of this grievor, the college should have afforded the
opportunity to the grievm to address his aberrant behaviour.
This board, in consideration of the above should have ordered that the grievor
deserved to be placed in a position to access benefits owing to him such as
leave with pay in orde~ to avail himself of the help he needed_
As to reinstatement, there are a number of issues to be addressed. What is so
terribly concerning in this case is the fact that persons in the lab on a continuous
basis access this type of material. We heard nothing to suggest that college has
attempted to educate staff or students to the fact that every hit on these sites is
interpreted as market demand thus perpetuating the degradation and abuse of
children.
However, it is this member's position, that despite the grievor's record of good
service, his use of the employer's equipment, on the premises and in fi'ont of
students is behaviour that breech the fundamental responsibility of his teaching
position to the extent that reinstatement is not an option. In that respect, this
Board should have awarded severance in the mounts contemplated by the
collective agreement (similar to lay-off, and the Employment Standards Act) for
two reasons. First, in view of the fact that the employment relationship is
irreparably damaged he was not rehastated .The second, the grievor cannot
reach back into time to access his benefits.
All of which is respecthlly submitted, Sherril Murray, Union Nominee
While in no way condoning the actions of the grievor, this member must
nevertheless dissent in part from the opinion of the majority,
The grievor's" illness" fell sho~t 0fthe accepted medical model of psychiatric
disorders in that the DSM 4 no longer recognizes "addictions" per se, let alone
the concept of"intemet addiction", Instead the psychiattSc community n.ow
speaks to "substance abuse", toxic ingestion/intervention into the body. The
medical community does howeve~ recognize compulsive behaviour and mood
disorders.
There oan be no doubt that this grievor suffered. The psychological intervention
( as opposed to the psych/attic, m6dical model, ) clearly reco~ized the fact that
this grievor had massive personal issues to deal with and overcome, the grievor
accepting the prescription of counseling instead of drugs.
The evidence of the grievor was that ora man whose life circumstances left him
overwhelmed with no "escape" in the foreseeable future. He turned to a vehicle,
the mternet, that, for a few hours everyday allowed him to escape his own
reality. How is that different from those who turn to alcohol, drugs, gambling
and other forms of escapism? The difference, this member submits, is our own
personal view on the morality oft h. e issue and of course, legality of the issue.
The college has an extensive history of employees who for a m~mber of reasons
have had to take time off to fight their own personal demons.
This grievor was not afforded that same opportunity.
After I9 years of unblemished service he is discarded.
The union offered a solution: remove the grievor from interact access. Give him
the time to engage in the cotmselin, g h.e so desperatoly needed. Allow him the
opportunity to use the sick benefits he has earned for 19 years.
As to the legality of the issue, the grievor has been dealt with in court.
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Dated at Kingston, Ontario, this 13th day of May, 2002.
D.D. C~~
"S. Murray
I dissent in part
S. Murray, Union Nominee
~'M. Ridden"
I concur
M. Riddell, Employer Nominee