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HomeMy WebLinkAbout2001-0542.Wickett et al.05-08-12 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2001-0542,2001-0559 2001-0560 2001-0561 2001-0831 2001-0908 UNION# 2001-0310-0007 2001-0224-0008 2001-0224-0007 2001-0224-0006 2001-0638-0004 2001-0652-0001 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Wickett et al ) Union - and - The Crown In RIght of Ontano (Mimstry of Natural Resources) Employer BEFORE Ken Petryshen Vice-Chair FOR THE UNION Don Eady PalIare Roland Rosenberg RothensteIn LLP Barnsters and SOlICItorS and Enc O'Bnen, Gnevance Officer Ontano PublIc ServIce Employees Umon FOR THE EMPLOYER DavId Strang, ActIng AssocIate DIrector Steve Patterson, AssocIate DIrector Fateh SalIm and BenJamIn Parry Counsel, Management Board Secretanat HEARING Feb 10 11 20 25 26 May 16 June 5 6 July 17 18 Sept. 11 12, 16 17 18 Oct. 7 8 9 27 Nov 5 12,27 2003 Jan. 15 22, Feb.26 March 2, 11 Apnl14 15 20 May 10 11 12 & 13 2004 2 DeCISIon In June 2001 the Employer termInated the employment ofMr J HastIe, Mr R. Nadeau, Mr J Vallee, Mr L Wickett, Mr T Walmsely and Mr P CurtIS (hereInafter referred to as "the gnevors") for contravemng two polIcIes, the Workplace DISCnmInatIOn and Harassment PreventIOn PolIcy ("the WDHP PolIcy") and the OperatIng Procedure on Usage ofI.T Resources ("the IT PolIcy") They were dIscharged because they used a Mimstry computer speCIfically theIr Outlook e-maIl account, to receIve and dIstnbute Inappropnate matenal of a sexually explICIt nature WhIle concedIng that the Employer had cause to dIscIplIne the gnevors, the Umon took the posItIOn that the penalty of dIscharge was exceSSIve In the CIrcumstances The Employer had submItted In the alternatIve that If! were to find that It dId not have Just cause to dIscharge the gnevors that damages should be awarded Instead of reInstatement. After more than thIrty heanng days, IncludIng four days for final argument, I Issued an order on June 18 2004 dIrectIng the Employer to reInstate the gnevors ThIS decIsIOn contaIns the reasons for my conclusIOns that the Employer dId not have Just cause to dIscharge the gnevors and that reInstatement IS the appropnate remedIal response In the CIrcumstances It also addresses what penalty ought to be substItuted for the dIscharges of four of the gnevors WhIle I was In the process ofwntIng reasons for the decIsIOn, counsel for the Umon, In a letter dated September 7 2004 to the RegIstrar of the Gnevance Settlement Board ("the GSB"), requested on behalf of the partIes that I "hold off ISSUIng any reasons untIl the partIes have had the opportumty to dISCUSS certaIn Issues" In a letter to the RegIstrar dated January 20 2005 counsel for the Employer advIsed "that the partIes have concluded theIr dIscussIOns" and requested that I proceed wIth my reasons for the decIsIOn. Counsel further advIsed that the 3 partIes had resolved the outstandIng Issues In relatIOn to HastIe and CurtIS and that It was therefore unnecessary to deal wIth the remedIal Issues relatIng to these two employees The Employer first became aware that employees wIthIn the Mimstry of Natural Resources ("the MNR") were dIstnbutIng Inappropnate matenal bye-mall In January 2001 Mr D SmIth, an Enforcement SupervIsor WIthIn the Bancroft DIstnct, advIsed Ms J Addyman, the WDHP CoordInator for the MNR, that Mr M. Lamont, a ConservatIOn Officer showed hIm Inappropnate matenal on hIS computer screen. What SmIth saw was a graphIc Image of three nude women referred to as "hand warmers" Mr B Wilson, another ConservatIOn Officer had sent thIS Item to Lamont and Wilson advIsed SmIth that he receIved the Item from Nadeau, one of the gnevors Around the same tIme, Addyman was advIsed that Mr A Mathews, an MNR employee, sent two Inappropnate e-maIls to an employee of Daimler-Chrysler Canada ("Chrysler") The first Included eIght Images of a woman named "Amber" and the second Included an Image of a woman named "Superheroes" HastIe had sent these Items to Mathews These events led to a lengthy InVestIgatIOn by the Employer of the Inappropnate use of e-maIl by MNR employees By the conclUSIOn of the InVestIgatIOn, the Employer had reVIewed the Outlook accounts of 189 MNR employees It had dIvIded these employees Into two groups One group the A-LISt, Included employees who appeared to have engaged In senous contraventIOns of the two polIcIes and the second group the B-LISt, Included those employees who had less than five mIld Images on theIr e-maIl account and employees who receIved questIOnable matenal, but dId not dIstnbute It. Of the 90 employees on the A-LISt, 16 were In management and 74 were bargaInIng umt employees, the vast maJonty of whom were In the bargaInIng umt represented by the Umon. The Employer dIscIplIned 66 employees for contravemng the WDHP PolIcy and the IT PolIcy In addItIOn to dIschargIng the SIX gnevors, the Employer's dIscIplInary response 4 ranged from letters ofrepnmand and suspenSIOns of varyIng lengths to a maXImum of20 days There were 26 gnevances referred to the Gnevance Settlement Board. The partIes first agreed to obtaIn a determInatIOn as to whether the dIscharges could be sustaIned based on the Employer's best case To thIS end, the Employer filed a consIderable volume of matenal In order to provIde a complete documentary pIcture of the WDHP InVestIgatIOn and the dIscIplInary process relatIng to persons on the A-LISt. The partIes agreed that In asseSSIng the Employer's best case that I could consIder the gnevors' dIscIplIne free records and the concept of progressIve dIscIplIne, but not the Issue of condonatIOn or other mItIgatIng factors In a decIsIOn dated January 23 2003 ("the best-case decIsIOn"), I concluded that dIschargIng the gnevors mIght be an appropnate response and that I was not prepared to reInstate them at that stage of the proceedIng. I found that each gnevor commItted a senous offence and rather than address the Issue of progreSSIve dIscIplIne In IsolatIOn, I IndIcated that It was preferable to deal wIth that Issue along wIth the Issues of mItIgatIOn and condonatIOn, and any other factors relevant to the Issue of reInstatement. As one mIght expect, many of the Issues whIch were dealt wIth In the best-case decIsIOn were revIsIted dunng thIS stage of the proceedIng. When the proceedIng contInued, the Employer called the folloWIng eIght wItnesses Ms L AselstIne, Staff RelatIOns Officer Mr D Lynch, DIrector Human Resources Branch, Ms J Addyman, WDHP CoordInator for the MNR, B Watts, DIrector ofI.T ServIces for the MNR, Mr D MacDonald, the Manager Upper Great Lakes, dunng the relevant penod, Mr R. Scott, DIstnct Manager Hearst DIstnct, Mr W FIset, DIstnct Manager Chapleau DIstnct, and Mr R. Messervey DIstnct Manager Aurora DIstnct. MacDonald termInated the employment of HastIe, CurtIS and Walmsely Scott termInated the employment of Nadeau. Fiset dIscharged 5 Vallee and Messervey dIscharged Wickett. In addItIOn to callIng each of the gnevors, the Umon called Mr P Wall, a steward In the Hearst DIstnct, and Mr B PeterkIn, who dunng the relevant penod was a Semor AdvIsor ConservatIOn AuthontIes SectIOn. In determInIng the facts, I consIdered the oral testImony of the sIxteen wItnesses, the numerous exhIbIts, the consIderable volume of matenal filed by the Employer In support of ItS best case and the submIssIOns of counsel I resolved the very few sIgmficant conflIcts In the eVIdence by utIlIzIng the usual cntena, IncludIng a consIderatIOn of what IS most probable, havIng regard to the totalIty of the eVIdence A reVIew of the InVestIgatIOn and dIscIplInary process Illustrates how the Employer responded to a sIgmficant labour relatIOns Issue and how It addressed the questIOn of dIscIplIne As noted prevIOusly there were two IncIdents In January 2001 whIch caused the Employer to commence an InVestIgatIOn Into the Inappropnate use of e-maIl The e-maIl accounts ImtIally revIewed revealed the names of other MNR employees who had eIther sent or receIved Inappropnate e-maIl As addItIOnal employees were revealed In thIS way they were also InvestIgated. Because of the number of employees and the volume of matenal In theIr Outlook accounts, the Employer decIded to retaIn Ms G Shore, an external consultant affilIated wIth the firm of Charles Novogrodsky & AssocIates Mr Ed Laas, another external consultant, and Addyman assIsted Shore In the eVIdence gathenng component of the InVestIgatIOn. As part of the eVIdence gathenng process, Shore created an eVIdence summary sheet for each employee ThIS sheet IdentIfied a partIcular employee hIS or her posItIOn and some basIc InfOrmatIOn about the matenal found In each employee's Outlook account, such as the date, who the matenal was receIved from and/or sent to the subJect and content of each Item and whether It was deleted. The Inappropnate matenal was pnnted and attached to the summary sheets Once 6 the eVIdence was compIled, Shore revIewed each employee file to determIne the type of Images found, the number of Images or text, whether the Images or text were sImply receIved or whether the employee actIvely dIstnbuted Images or text, and the frequency and/or volume of the exchange or receIpt of matenals Shore decIded whether an employee belonged on the A-LISt or the B-LISt. Employees on the B-LISt were treated dIfferently than the employees on the A-LISt In that they were reqUIred to attend formal meetIngs wIth theIr managers, but were not dIscIplIned. Employees on the A-LISt were provIded wIth a letter from Lynch adVISIng that he or she had been IdentIfied as a respondent In a management ImtIated WDHP InVestIgatIOn concermng the receIpt and dIstnbutIOn of Inappropnate matenal bye-mall and that hIS or her semor manager would be In contact to set up an IntervIew The fact findIng component of the InVestIgatIOn Involved adVISIng employees of the allegatIOns made agaInst them, IntervIeWIng them and provIdIng employees wIth the opportumty to respond to the allegatIOns Shore prepared a standard set of IntervIew questIOns for bargaInIng umt employees MeetIngs and teleconferences were held on March 21 and 22,2001 In order to update the relevant managers about the InVestIgatIOn and to prepare them for the IntervIew process There were two semor managers at each employee IntervIew WIth thIrty managers Involved In the IntervIew process After the employees on the A-LISt were IntervIewed, the managers returned the IntervIew packages to Addyman. The packages consIsted of the IntervIew questIOns and the handwntten answers recorded by the managers, an eVIdence summary sheet and the Images found on the employee's e-maIl account. The packages were sent to Shore for analysIs She was the only one Involved In completIng the analysIs and a draft report for each employee In prepanng the draft reports, Shore summanzed the eVIdence on an eVIdence table whIch had been prepared by the 7 MNR m order to provIde a rough summary of each employee's conduct. ThIS table mdIcates the manner m whIch the Employer analyzed the matenal contamed m an Outlook account. One column separates the Items based on "receIved and deleted" "receIved and saved" "receIved and dIstnbuted" "dIstnbuted" and "dIstnbuted wIth comments" Another column categonzes the matenal based on "sexual content" "nudIty" "exposed gemtalIa" "sexually graphIc" "vIOlence/degradatIOn/and dehumamzatIOn" and "other/racIal, ethmc, place of ongm, sexual onentatIOn, etc " Draft mvestIgatIOn reports were dIsclosed to employees begmmng on or about May 7 2001 Employees were mVIted to respond wIth comments or concerns Shore prepared a final report for each employee after revIewmg any response provIded by an employee Addyman accepted the findmgs mall of the reports AllegatIOns agamst 83 employees on the A-LISt were substantIated, 7 were not substantIated. Letters were then delIvered to respondents advIsmg them that they were found to have vIOlated the WDHP and IT polIcIes and that theIr manager would soon meet wIth them. A managers meetmg was held m Toronto on May 28 and 29 2001 m order to among other thmgs, advIse managers of the outcome of the mvestIgatIOn and to provIde managers wIth the tools to assIst them m makmg dIscIplInary decIsIOns Lynch, Aselstme and Addyman addressed the managers at the meetmg. Pnor to the meetmg, the managers were provIded wIth two papers dealIng wIth dIscIplIne and the exerCIse of management dIscretIOn and Aselstme revIewed these papers wIth the managers at the meetmg. Managers had the opportumty to compare the contents of the Outlook accounts of theIr employees and other respondents Aselstme provIded the managers wIth recommendatIOns on dIscIplIne m an effort 8 to ensure consIstency Her recommendatIOns were based solely on the eVIdence packages and dId not take Into account any mItIgatIng or aggravatIng factors In formulatIng her recommendatIOns, AselstIne had dIvIded the eVIdence packages Into three groupIngs based on the level of offensIveness and then determIned a range of dIscIplIne for each groupIng. Group #1 had a range from a letter of counsel (non-dIscIplInary) up to 5 days suspenSIOn. Group #2 had a range from 5 days up to 15 days suspenSIOn and Group #3 had a range from 10 days suspenSIOn up to dIsmIssal After companng the eVIdence packages wIthIn each groupIng, she dIvIded each groupIng Into three sub-groups AselstIne produced a spreadsheet that IdentIfied her categonzatIOn of each respondent's eVIdence package and her recommended dIscIplIne She dIscussed her recommendatIOns wIth managers at the May meetIng and some adjustments were made For Instance AselstIne ImtIally recommended a twenty-day suspenSIOn for Walmsely but she changed her recommendatIOn to dIsmIssal after dISCUSSIng the matter wIth MacDonald, Walmsely's manager The ultImate dIscIplInary decIsIon rested wIth the managers The managers were Instructed to consult wIth AselstIne If they were InclIned to Impose a penalty dIfferent from her recommendatIOn. Managers held mItIgatIOn meetIngs WIth employees to provIde them wIth a final opportumty to explaIn theIr conduct and to IdentIfy mItIgatIng factors It was after these meetIngs that each manager decIded what penalty If any to Impose on an employee AselstIne recommended dIscharge for seven employees, the SIX gnevors and PeterkIn. After consIdenng mItIgatIng cIrcumstances, Messervey elected to suspend PeterkIn for twenty days, rather than dIscharge hIm Each manager completed a mItIgatIOn sheet for each respondent. The sheet Included such factors as prevIOUS record, length of servIce, a summary ofWDHP traInIng, the InabIlIty to apprecIate the wrongfulness of conduct, the acknowledgement of mIsconduct, 9 remorse, and the lIkelIhood of recurrence Each employee on the A-lIst attended a dIscIplIne meetIng where the employee was advIsed of the penalty and gIven a dIscIplInary letter Every Mimstry computer provIdes a warnIng that unauthonzed use of the computer system IS prohIbIted. ThIS warnIng appears before a name and password are entered. A second warmng dIrectly related to the IT PolIcy appears before loggIng onto the Outlook e-maIl account. The user must clIck the OK box below the warmng before proceedIng. The warnIng reads as follows As wIth other government resources, InformatIOn Technology (IT) resources [e g. e-maIl, Internet/Intranet] are to be used exclusIvely for government busIness, unless authonzed by the employee's manager As has always been the case the government has an Interest In ensunng that government resources are used by employees only for busIness purposes SpecIfically IT resources are not to be used for purposes that the OperatIng Procedure on Usage ofIT Resources lIsts as unacceptable, such as to access, dIsplay or store offensIve data, for personal or pnvate busIness, or to send anonymous messages Consequently If the government has reasonable belIef that IT resources are beIng used Inappropnately by an employee It wIll momtor thIS usage to determIne whether any dIscIplInary or other actIOn should be taken. The full text of the OperatIng Procedure IS avaIlable for reVIew at Intra.cpb gov on.ca By selectIng the box IndIcated below you acknowledge that you have read thIS advIsory notIce In July 1998 Deputy Mimster R. Vrancart Issued a memorandum ("the Vrancart memorandum") to all MNR staff about the WDHP polIcy The relevant text of thIS memorandum provIdes as follows The Mimstry of Natural Resources has a zero tolerance polIcy wIth respect to dISCnmInatIOn and harassment In the workplace ThIS polIcy IS called the Workplace DISCnmInatIOn and Harassment PreventIOn (WDHP) OperatIng PolIcy As the Deputy Mimster I am commItted to thIS zero tolerance polIcy ThIS polIcy applIes to dISCnmInatIOn In all aspects of employment such as recruItment, promotIOn, traInIng, Job transfer receIpt of benefits, dIsmIssal, dIscIplIne, and performance appraisals All MNR employees have the nght to fair and eqUItable treatment In employment wIthout dISCnmInatIOn or harassment based on specIfic grounds 10 as outlIned In the Ontano Human RIghts Code Those grounds are race, ancestry place of on gIn, color ethmc ongIn, cItIzenshIp creed, sex (includIng pregnancy), sexual onentatIOn, age, record of offences, mantal status or handIcap (dIsabIlIty) SImIlarly no employee IS to be subJected to a pOIsoned work envIronment or partIcIpate In the creatIOn of one A pOIsoned work envIronment IS charactenzed by comments or behavIOrs that ndIcule, belIttle or degrade people or groups IdentIfied by one or more prohIbIted grounds ThIS behavIOr does not need to be dIrected at specIfic IndIVIduals The number ofWDHP complaInts InvestIgated Increased over the last year IndIcatIng a need to reInforce the mImstry's zero tolerance polIcy Please be advIsed that as Deputy Mimster I take these matters very senously and It IS my expectatIOn that all staff are able to work free of dISCnmInatIOn and harassment. It has been brought to my attentIOn that there IS a dIsturbIng new trend that many employers, IncludIng MNR, are currently expenenCIng - specIfically the use of mImstry computers to access pornographIc and other questIOnable matenal from the Internet. It goes wIthout saYIng that the use of computers for anythIng other than government busIness IS not allowed. However you also need to be made aware that the acceSSIng, presence and/or dIsplaYIng of pornographIc or other offensIve matenals on mImstry computers can create a pOIsoned work envIronment and may be In dIrect vIOlatIOn of the WDHP polIcy DependIng on the matenal, there may also be ImplIcatIOns under the CnmInal Code of Canada. The use of mImstry eqUIpment and/or work tIme to access offensIve matenal of any kInd IS unacceptable and wIll not be tolerated. It wIll result In dIscIplInary actIOn, up to and IncludIng dIsmIssal As the computer eqUIpment and systems are the property of the Mimstry to be used solely for busIness related purposes, the Mimstry maIntaInS the nght to momtor computer use and content from tIme to tIme, as deemed appropnate, and wIthout notIce to the employee The IT PolIcy IS dated July 21 2000 I was referred by counsel to the folloWIng parts of thIS polIcy The I.T. Policy PURPOSE To protect the government's Interest In ensunng that InformatIOn Technology Resources are used only for government busIness and other approved purposes PRINCIPLES User Accountability Unacceptable use ofInformatIOn Technology Resources may result In restncted access to those resources and/or dIscIplInary actIOn. 11 Business Purposes InformatIOn and InformatIOn Technology Resources are to be used for government busIness purposes and support the goals and obJectIves OfmInIstnes and agencIes Use of government computers, Networks, systems and software may be subJect to momtonng. Unauthorized Use of Resources Computer systems and Networks must not be used for Illegal or unacceptable actIvIty Unacceptable Activity- In the context of I. T resources, unacceptable actIvIty Includes - Access, dIsplay or storage of any software, Data, graphIc or Image whIch IS offensIve and conducIve to a pOIsoned work envIronment (as per WDHP PolIcy) Responsibilities Users Users are responsIble for - USIng InformatIOn Technology resources only when authonzed by management and only for government busIness or approved purposes Appendix Unacceptable and illegal activities Include but are not lImIted to Child pornography and obscenity possessIng or dIstnbutIng chIld pornography dISSemInatIng obscene matenals Hatred wIlfully promotIng hatred agaInst any IdentIfiable group by commumcatIng such statements outsIde of pnvate conversatIOns The WDHP PolIcy was Introduced In 1990 wIth the current verSIOn effectIve from 1998 ThIS polIcy reflects the Employer's IntentIOn to promote a posItIve and respectful workplace consIstent WIth the obJectIves of the Ontario Human Rights Code ("the HRC") GIven the practIce of provIdIng WDHP traInIng, MNR employees are generally aware of the WDHP PolIcy As IndIcated prevIOusly the Employer charactenzed ItS InVestIgatIOn of the receIpt and dIstnbutIOn of Inappropnate matenal bye-mall as a WDHP InVestIgatIOn. Counsel referred me to the folloWIng parts of the WDHP PolIcy 12 The WDHP Policy PURPOSE ThIS polIcy supports - a posItIve and respectful workplace that IS free from dISCnmInatIOn and harassment based on the Ontano Human Rights Code. - preventIng, IdentIfYIng and correctIng actIOns of one employee toward another that, left unchecked, would result In employment-related dISCnmInatIOn or harassment. APPLICA TION AND SCOPE ThIS polIcy covers - the Code's prohIbIted grounds of employment-related dISCnmInatIOn and harassment whIch are race, ancestry place of on gIn, color ethmc on gIn, cItIzenshIp creed, sex (includIng pregnancy) sexual onentatIOn, age, record of offences, mantal status, famIly status or handIcap (dIsabIlIty) - behavIOurs and practIces based on prohIbIted grounds, IncludIng o creatIng, contnbutIng or condomng a pOIsoned work envIronment. o faIlure of management, In keepIng wIth ItS authonty to respond adequately to InformatIOn about dISCnmInatIOn, harassment or pOIsoned work envIronment; such faIlure may be consIdered condomng of dISCnmInatIOn and/or harassment. PRINCIPLES o The OPS as an employer IS commItted to o zero tolerance of dISCnmInatIOn and harassment o proactIve preventIOn-onented and cost effectIve practIces o alternate dIspute resolutIOn processes, and o resolutIOn of dISCnmInatIOn and harassment, as soon as possIble, and In a way that least dISruptS ongoIng workIng relatIOnshIps o All aspects of workplace dISCnmInatIOn and harassment preventIOn processes wIll be fair responSIve, tImely confidentIal, professIOnal, Impartial, consIstently applIed, and wIll aim to preserve the dIgmty self respect and nghts of all partIes o Responses to dISCnmInatIOn and harassment wIll aim to correct IdentIfied problems and to prevent repeated vIOlatIOns of thIS polIcy MANDA TORY REQUIREMENTS PreventIOn, commumcatIOn and educatIOn - Employees must not be subJected to offensIve remarks, behavIOur or 13 surroundIngs (based on the prohIbIted grounds) that create IntImIdatIng or humIlIatIng workIng condItIOns PenaltIes - Employees found to have vIOlated thIS polIcy wIll receIve penaltIes, If appropnate (dependIng on the CIrcumstances of each case) up to and IncludIng dIsmIssal RESPONSIBILITIES Managers and Supervisors - ensunng that theIr workplaces are free from dISCnmInatIOn and harassment; IncludIng clanfYIng the type of workplace behavIOur expected under thIS polIcy ALL EMPLOYEES All employees are responsIble for - refraInIng from dISCnmInatIOn and harassment, IncludIng offensIve remarks or other actIOns that create IntImIdatIng hostIle or humIlIatIng workIng condItIOns based on the prohIbIted grounds of thIS polIcy - adhenng to thIS polIcy and related mImstry processes Employees are encouraged, where possIble to tell alleged offenders about unwelcome conduct or actIOns perceIved to be dISCnmInatory WhIle employees cannot be reqUIred to report expenences of dISCnmInatIOn or harassment, they are also encouraged to qUIckly notIfy the first level of management not Involved In the complaInt (free of bias or conflIct of Interest) about alleged vIOlatIOns of the polIcy ThIS procedure helps to resolve Issues qUIckly and In the least adversanal way DEFINITIONS Poisoned work environment An Infnngement of every person's nght to equal treatment wIth respect to employment whIch refers to comments, behavIOur or work envIronment that ndIcules, belIttles or degrades people or groups IdentIfied by one or more prohIbIted grounds of thIS polIcy A pOIsoned work envIronment could result from a senous and sIngle event, remark or actIOn and need not be dIrected at a partIcular IndIVIdual The Umon conceded that the gnevors had contravened the IT PolIcy The reference to the WDHP PolIcy In the IT PolIcy IndIcates that unacceptable actIvIty Includes access, 14 dIsplaYIng and storage of offensIve matenal conducIve to a pOIsoned work envIronment. I determIned In the best-case decIsIOn that the gnevors contravened both the IT PolIcy and the WDHP PolIcy The addItIOnal eVIdence and the most recent submIssIOns of counsel for the Umon have not changed my VIews on thIS Issue Although the number of employees InvestIgated IS a relatIvely small percentage of the approxImately 3 000 full tIme Mimstry employees, the Employer recogmzed that It was confronted wIth a senous problem. There were certaInly more than a handful of employees USIng e-maIl Inappropnately In a number of offices throughout the Mimstry Employees on the A-LISt Include OPSEU members, some AMAPCEO members, Human Resources staff, a WDHP advIsor and, as prevIOusly noted, sIxteen managers Generally the dIscIplIned employees sent Inappropnate e-maIl to Mimstry employees, to other Ontano PublIc ServIce ("OPS") employees and to persons outsIde of the OPS They receIved such e-maIl from Mimstry employees, from other OPS employees and from persons outsIde of the OPS In many Instances employees had one or more dIstnbutIOn lIsts The source of e-maIl sent by a Mimstry employee can be IdentIfied easIly as ongInatIng from a Mimstry computer No employee who receIved Inappropnate e-maIl complaIned to the Employer The Inappropnate matenalIs In the form of text, Images and vIdeos Just as the nature of the actIvIty for each dIscIplIned employee vanes, there are dIfferences wIth respect to the level of offensIveness Some of the Inappropnate matenalIs qUIte mIld whIle some of the Images and vIdeos would be consIdered very offensIve by any obJectIve standard. The depIctIOn of women, In partIcular ranges from the dIsplaYIng of breasts and other parts of the female anatomy to women engaged In a vanety of sexual acts, some natural and some not. Some of the Items 15 InvolvIng women are vIOlent and degradIng. For the most part, It appears that many employees sent and receIved the matenal wIth the VIew that the matenal was humorous As It dId wIth all the employees under InVestIgatIOn, the Employer assessed the conduct of the gnevors by consIdenng the nature of theIr actIvIty and the offensIveness of the matenal In theIr Outlook accounts The matenal the Employer relIes on to support the dIscharges represents a snapshot of a few months of Inappropnate e-maIl actIvIty The Employer concluded that the Inappropnate matenal In the Outlook accounts of the gnevors IS generally more offensIve than the matenal In the Outlook accounts of others who were InvestIgated, partIcularly the employees who were suspended for twenty days I agreed wIth thIS conclusIOn In the best-case decIsIOn and I have not altered my VIew on thIS Issue after heanng the eVIdence and entertaInIng the most recent submIssIOns of counsel Even amongst the gnevors there IS a range of offensIve matenal and Inappropnate conduct. From HastIe and CUrtIS at the hIgh end of the range to Walmsely at the lower end, the Inappropnate matenal receIved and sent by the gnevors IS generally more offensIve and the volume of actIvIty generally greater when compared to the employees who were suspended for twenty days Without detaIlIng the nature of all of the matenal In the Outlook account of each gnevor upon whIch the Employer relIes to support the dIscharges, the Inappropnate matenal Includes, In addItIOn to some relatIvely Innocuous Items, some very offensIve Items that are degradIng to women. Many Items obJectIfy and Illustrate hostIlIty to women. One of the most offensIve Items IS an InteractIve vIdeo cartoon entItled "DIrty Sanchez" HavIng referred to thIS Item In detaIl In the best-case decIsIOn, I sImply note that It IS a partIcularly offensIve Item InvolVIng the SInger Bntney Spears, whose face IS supenmposed on a female cartoon figure ThIS vIdeo cartoon was In the Outlook accounts of HastIe CUrtIS and Walmsely There IS no doubt that the Employer would not have termInated Walmsely but for the presence of thIS Item on hIS Outlook account. 16 Dunng hIS submIssIOns on the Employer's best case counsel for the Umon had argued that the mere receIpt and deletIOn of Inappropnate matenal could not subJect an employee to dIscIplIne on the theory that an employee cannot be responsIble for the actIOns of others I found In the best-case decIsIOn that the gnevors were not engaged In a paSSIve actIvIty when they receIved and then deleted offensIve Items, and that such conduct could not be Ignored when aSseSSIng culpabIlIty The eVIdence Illustrates that employees, IncludIng the gnevors, explIcItly In some Instances and certaInly ImplIcItly InvIted the receIpt of Inappropnate matenal At no tIme dId any gnevor receIve offensIve matenal bye-mall, delete It and then advIse the sender not to send such matenal agaIn. HavIng InvIted such matenal at least ImplIcItly It IS my VIew that the responsIbIlIty for the presence of an Item on an Outlook account and the degree of offensIveness of that Item must be shared between the sender and the recIpIent. As noted prevIOusly each manager who dIscharged a gnevor testIfied. It IS fair to note that they were overwhelmed wIth the offensIveness of the matenal on each gnevor's Outlook account and the extent of the Inappropnate e-maIl actIvIty They concluded that there were InSUfficIent mItIgatIng factors whIch would cause them to devIate from AselstIne's recommendatIOns Each manager completed a mItIgatIOn sheet for each gnevor and some made addItIOnal notes settIng out vanous mItIgatIng and aggravatIng factors for consIderatIOn. Although counsel for the Employer referred to a number of Issues dunng hIS submIssIOns, the essence of the Employer's posItIOn IS that the Inappropnate e-maIl actIvIty engaged In by the gnevors IS so egregIOus and InCOnsIstent WIth the role of a publIc servant that dIscharge IS the appropnate penalty In the CIrcumstances In supportIng the conclusIOns of the managers, the Employer took the posItIOn that there are no mItIgatIng factors whIch would compel the SubstItutIOn of a lesser penalty for any gnevor Counsel for the Employer noted, In partIcular 17 that there IS no IndIcatIOn that the gnevors apprecIate the nature of theIr mIsconduct or are sIncerely remorseful for theIr contraventIOn of the WDHP and IT polIcIes He also submItted that the gnevors dId not demonstrate the necessary candor or change In attItude such that one could be confident that they could be trusted to cease the Inappropnate actIvIty If returned to the workplace In the best-case decIsIOn, I referred a number of arbItratIOn awards whIch deal wIth dIscIplIne for the Inappropnate use of e-maIl and I do not Intend to generally reVIew these decIsIOns agaIn here As one mIght expect, the result In any case of thIS type IS very much dependent on ItS partIcular facts ArbItrators have upheld dIscharges for the dIstnbutIOn of offensIve matenal bye-mall In the workplace, whIle others have substItuted suspensIOns or upheld suspenSIOns of varyIng lengths for such actIvIty In applYIng the usual arbItral pnncIples assocIated wIth dIscIplIne matters, arbItrators assess the senous of the mIsconduct by consIdenng the volume of the matenal, ItS degree of offensIveness, the nature of the actIvIty and the general employment context wIthIn whIch the actIvIty occurs Of course, arbItrators wIll also consIder any mItIgatIng cIrcumstances In order to determIne whether It IS appropnate to SubstItute a lesser penalty Before turnIng to some of the Issues whIch counsel addressed dunng theIr submIssIOns, It IS useful to hIghlIght what thIS case IS not about In order to apprecIate the central Issues In thIS case The case IS not about an employer dIscIplImng employees for Inappropnate use of the e- mall system dunng workIng tIme The Employer dId not take the posItIOn that the gnevors were gUIlty of sendIng or reCeIVIng Inappropnate e-maIl when they should have been performIng theIr dutIes ThIS IS not a case about whether the gnevors engaged In Illegal actIvIty when they used the Employer's e-maIl system. Because of a concern that It had wIth some of the Images on 18 some of the gnevor's Outlook accounts, the Employer referred the matter to the polIce After the polIce vIewed the relevant matenal, It was determIned that no charges would be laid and the Employer was advIsed to deal wIth the matter Internally The Employer dId not allege, nor dId the eVIdence IndIcate, that any gnevor engaged In Illegal conduct, such as the receIpt and dIstnbutIOn of chIld pornography ThIS case IS not about whether the Employer breached a gnevor's nght to pnvacy The Umon elected In thIS case not to make such an allegatIOn. Although the Umon suggested at tImes that the Employer termInated the gnevors due to a belIef that theIr conduct demonstrated that they were "bad people" the Employer made no such allegatIOn In thIS case These gnevors could have used theIr home computers to send and receIve the IdentIcal matenal away from the workplace wIthout attractIng an Employer Interest, even though theIr general character remaIned the same FInally thIS IS not a case about whether the applIcatIOn of a zero tolerance polIcy must result In dIscharge The Employer In thIS case consIdered a vanety of factors before decIdIng what dIscIplIne was appropnate In each case and ultImately Imposed a broad range of dIscIplInary responses The employees on the B-lIst were not even formally dIscIplIned. As noted at the outset, what thIS case IS about IS whether the Employer had Just cause to dIscharge these gnevors In the CIrcumstances because they used a Mimstry computer and theIr Outlook account to receIve and send Inappropnate matenal, some of whIch IS qUIte offensIve Counsel for the Umon referred to a number of factors whIch he submItted should result In the SubstItutIOn of a lesser penalty for the gnevors Some of them were made also In dealIng wIth the Employer's best case and some were addressed In the best-case decIsIOn, although wIthout the benefit of eVIdence and therefore In a dIfferent context. In concludIng that the Employer dId not have Just cause to termInate the gnevors, I ObvIOusly was persuaded that some of the submIssIOns made by counsel for the Umon had ment. There are a number of factors 19 when consIdered In theIr totalIty whIch compelled me to conclude that dIscharge IS not an appropnate dIscIplInary response for the gnevors In the CIrcumstances Before dealIng wIth the IndIVIdual CIrcumstances of each gnevor I wIll address some of the Issues raised by counsel whIch have general applIcatIOn to all of the gnevors Although I wIll deal wIth the Issues separately as counsel dId In theIr submIssIOns, many of the Issues are related. I wIll concentrate pnmanly on the sIgmficant Issues raised by counsel dunng the four days of submIssIOns and the factors whIch caused me to conclude that dIscharge was not the appropnate response for the gnevors In the CIrcumstances The nature and senousness of the offence CharactenzIng the offence and ItS senousness are Important aspects In assessIng whether there IS cause to dIscIplIne and In determInIng the appropnate penalty An underlYIng theme found In many of the Umon's submIssIOns IS a partIcular VIew of the nature and senousness of the offence commItted by the gnevors The Umon submIts that In charactenzIng the conduct of the gnevors It IS Important to consIder that no employee complaIned to management about reCeIVIng the offensIve matenal, that there IS no eVIdence to establIsh that the dIstnbutIOn of the Inappropnate matenal In the workplace created a pOIsoned work envIronment, that the gnevors dId not Intend to create a pOIsoned work envIronment and that they dId not Intend to harass other employees I concluded In the best-case decIsIOn that the receIpt and dIstnbutIOn of matenal by e-maIl In the workplace whIch obJectIfies, demgrates and depIcts acts of vIOlence agaInst women, and whIch IS obJectIOnable In other respects from a human nghts perspectIve pOIsons the workplace and therefore contravenes the WDHP PolIcy It IS my VIew that the presence of thIS type of Inappropnate matenal In the workplace creates an unwelcome, oppreSSIve and hostIle envIronment for women and others, and It serves to lower the status of women and others as 20 valuable contnbutors It sets the norms for who IS Included and who IS excluded In the workplace It IS because of these effects that the cIrculatIOn of offensIve matenal bye-mall between employees by Itself creates a pOIsoned work envIronment, one whIch the HRC and the WDHP PolIcy attempts to prevent. In my VIew a complaInt from an employee about reCeIVIng offensIve matenal or eVIdence to lInk the presence of offensIve matenal at work to the harassment of one employee agaInst another employee are not necessary to prove the eXIstence of a pOIsoned work envIronment. Whether In the context of the WDHP PolIcy or otherwIse the absence of a complaInt does not alter the nature of the actIvIty engaged In by the gnevors and the other employees who were dIscIplIned. As counsel for the Employer submItted, the absence of an employee complaInt In these CIrcumstances IS eVIdence only of the fact that no employee complaIned. The eXIstence of a pOIsoned work envIronment created by the presence of offensIve matenal In the workplace could dIrectly result In negatIve consequences such as the harassment of an employee by another employee However the absence of any eVIdence of such negatIve consequences does not mean In thIS context that a pOIsoned envIronment has not been created. Whether the gnevors or other employees Intended to pOIson the workplace by reCeIVIng or sendIng offensIve matenal does not alter the fact that thIS IS precIsely what they dId. Many of the employees who were InvestIgated appeared to belIeve that the electromc transmISSIOn of offensIve matenal to persons who wIshed to receIve It IS not as senous as the physIcal dIsplay of such matenal In the workplace undoubtedly because of the VIew that sendIng offensIve Items electromcally IS pnvate The belIef that sendIng offensIve Items to specIfic IndIVIduals In a workplace bye-maIlls pnvate IS Illusory DependIng on the physIcal configuratIOn of the workplace, there IS the nsk that persons other than the Intended recIpIent mIght VIew offensIve matenal on a screen. Mr Walmsely testIfied that he saw Inappropnate Items on a momtor next to hIm on more than one occaSIOn dunng hIS first week of work at Owen 21 Sound. In addItIOn, the sender of mappropnate matenal has no control over what the recIpIent wIll do wIth the matenal Although umntended by HastIe, some offensIve matenal sent by hIm to Mathews ended up m the e-maIl account of a Chrysler employee A further consIderatIOn, as thIS case Illustrates all too well, IS that the employer's dIscovery of mappropnate e-maIl actIvIty can result m many mdIvIduals vIewmg the offensIve matenal Apart from counsel and me, the matenal m thIS case was exammed by managers, consultants, a WDHP Coordmator a Staff RelatIOns Officer and a Umon representatIve A least one arbItrator has expressed the VIew a VIew WIth whIch I agree that the responsibIlIty for exposmg mdIvIduals m thIS way to the offensIve matenal rests wIth the employees who were responsIble for dIstnbutmg the matenal electromcally m the workplace See Re Telus Mobility and T W C (Lee) (2001) 102 L AC (4th) 239 (SIms) Many of the dIscIplIned employees contnbuted to pOIsomng the workplace by receIvmg and dIstnbutmg offensIve matenal Many of them receIved and sent offensIve matenal to other employees wIthm the OPS Mr Nadeau had a dIstnbutIOn lIst whIch mcluded Ontano ProvmcIal PolIce ("OPP") officers A number of dIscIplIned employees dIstnbuted offensIve matenal to persons unconnected wIth the OPS resultmg m the potentIal for embarrassment for them and damage to the reputatIOn of the Employer That potentIal was realIzed wIth the dIscovery of the matenal sent to a Chrysler employee by Mathews What dIstmgUIshed the gnevors from the other dIscIplIned employees IS the degree of offensIveness of theIr matenal As noted prevIOusly I concluded m the best-case decIsIOn that the Employer correctly determmed that the Outlook accounts of the gnevors contamed some very offensIve matenal and that It IS appropnate to consIder thIS factor when assessmg a dIscIplInary response Apart from the volume of the matenal, a hIgher degree of offensIveness contnbutes m a more sIgmficant way to a pOIsoned work envIronment. Although the volume of offensIve matenalIs less and the nature 22 of hIS actIvIty dIfferent from the other gnevors, Walmsely's e-maIl account dId contaIn the DIrty Sanchez vIdeo When examInIng the volume and or the offensIveness of the matenal, even In the case ofWalmsely I am satIsfied that the Inappropnate e-maIl conduct of the gnevors and theIr contnbutIOn to a pOIsoned work envIronment constItutes a senous offence As prevIOusly noted, theIr conduct In thIS regard IS more senous than the conduct of the IndIVIduals who were suspended for twenty days Emplover's ConsIderatIOn of MitIgatIng Factors In reVIeWIng the InVestIgatIOn and the dIscIplInary process, counsel for the Umon submItted that there was a "rush to Judgment" whIch resulted In the faIlure of managers to gIve appropnate consIderatIOn to mItIgatIng factors Counsel argued that AselstIne' s recommendatIOns had the effect of negatIng any dIscretIOn the managers had to SubstItute a lesser penalty In the case of the gnevors In support of thIS posItIOn, counsel noted that the managers were told dunng the May 2001 meetIng In Toronto that the MNR wanted to send a strong message to employees, that the matter had been brought to the attentIOn of the PremIer's office and that the goal of treatIng the employees In a consIstent manner was Important. Counsel submItted that the managers were gIven theIr "marchIng orders" at thIS meetIng and left Toronto wIth the belIef that some employees had to be dIscharged. Counsel submItted that certaIn conduct by some of the managers demonstrates that they dId not exerCIse theIr dIscretIOn appropnately Scott made mItIgatIOn notes of some thoughts he had about Nadeau pnor to the managers meetIng In Toronto Counsel argued that a reVIew of the notes IndIcates that Scott was nowhere close to contemplatIng dIscharge for Nadeau. Dunng a conversatIOn about Nadeau after the dIscharge, Wall testIfied that Scott told hIm that he had hIS famIly and penSIOn to thInk about. Scott could not recall makIng such a statement to Wall 23 MacDonald prepared the dIsmIssal letters In Peterborough before he held the mItIgatIOn meetIngs In Owen Sound wIth HastIe, CurtIS and Walmsely MacDonald also testIfied that he dId not thInk that any factors HastIe could bnng forward could change hIS mInd Vallee testIfied that whIle they were plaYIng hockey subsequent to hIS dIscharge, whIle SIttIng on the bench, FIset told hIm that he had no chOIce and that he dId what he had to do FIset demed that he made such comments to Vallee In response to a questIOn from an Insurance agent regardIng an employment Insurance claim by Wickett, Messervey IndIcated that the dIscIplInary decIsIOns were made corporately not IndIVIdually Counsel submItted that eIther because of the nature of the process or because they were so offended by the offensIve matenal, the managers dId not gIve proper consIderatIOn to the tradItIOnal mItIgatIng factors I agree wIth the Umon's posItIOn that the gnevor's managers dId not gIve appropnate consIderatIOn to certaIn mItIgatIng factors For example, they gave no consIderatIOn to condonatIOn. They also faIled to consIder appropnately progressIve dIscIplIne and whether the gnevors were lIkely to contInue to send and receIve offensIve matenalIf a lesser penalty than dIscharge was Imposed. I wIll be commentIng on these matters In due course Even though I found that the managers dId not gIve sufficIent weIght to some mItIgatIng factors, I am unable to accept In theIr entIrety the partIcular submIssIOns made by counsel for the Umon. In my VIew the Employer dId not rush to Judgment In the CIrcumstances of thIS case The Employer conducted a thorough InVestIgatIOn and It structured a dIscIplInary process whIch was fair for those employees subJect to dIscIplIne Employees were advIsed of the allegatIOns agaInst them and they were gIven the opportumty to explaIn theIr conduct. AselstIne's recommendatIOns on dIscIplIne were an effort to ensure that employees would be treated conSI stentl y It IS my vIew that the benefit of recommendatIOns from an expenenced Staff 24 RelatIOns Officer served to enhance the fairness of the dIscIplInary process and was not a detnment to It, as suggested by the Umon. Her recommendatIOns dId not have the effect of fettenng the dIscretIOn of the managers As counsel for the Employer noted, there were many Instances where managers Imposed dIscIplIne InCOnsIstent WIth a recommendatIOn and whIch favoured the employee As noted prevIOusly after consIdenng mItIgatIng factors Messervey decIded to suspend PeterkIn In the face of a dIscharge recommendatIOn from AselstIne Although the message at the May 2001 meetIng In Toronto was that the Issue before them was an Important one, there was no dIrect or ImplIcIt IndIcatIOn from semor management that some employees had to be dIscharged. Even In the face of a recommendatIOn from AselstIne the managers were advIsed to assess the senousness of an employee's conduct and to consIder any mItIgatIng factors Each manager who termInated a gnevor dId so because he belIeved that dIscharge was the appropnate penalty In the CIrcumstances Although I have reached a dIfferent conclusIOn from them, I have no doubt that they carned out theIr dIfficult task In good faith. Those aspects of the eVIdence referred to prevIOusly whIch the Umon relIed on to suggest otherwIse do not establIsh that the managers dId not ultImately decIde on theIr own that dIscharge was the appropnate response for each gnevor In partIcular the comments attnbuted to Scott and FIset after the fact are ambIguous and do not compel the conclusIOn that they were reqUIred to dIscharge Nadeau and Vallee for reasons unrelated the partIcular cIrcumstances of the case before them. TraInIng The Umon submItted that the Employer faIled to provIde the traInIng necessary to Inform the gnevors about theIr oblIgatIOns regardIng the use of e-maIl Counsel for the Umon argued 25 that the absence of any reference m the WDHP trammg or other trammg receIved by the gnevors to the mappropnate use of e-maIl IS a mItIgatmg factor Counsel referred to the changes Implemented by the Employer after the completIOn of the dIscIplInary process to better notIfy employees about theIr oblIgatIOns when utIlIzmg the Employer's computers and e-maIl Later m 2001 the Employer made the warmng whIch appears before loggmg on to the e-maIl account clearer The e-maIl Issue was referred to m memos to staff, m meetmgs locally between managers and staff, m a revIsed WDHP trammg program and m an employee gUIde Counsel submItted that these changes after the fact serve to hIghlIght how the Employer faIled to notIfy employees adequately of ItS expectatIOns about e-maIl use dunng the relevant penod. Counsel also referred to the Draft Management Report prepared by Ms Shore wherem she mdIcated that It was prudent to dISCUSS polIcIes WIth staff on a contmumg basIs to ensure that employees fully understand the Employer's message There IS a general oblIgatIOn on an employer to advIse employees about what behavIOur IS unacceptable m the workplace and the consequences of engagmg m such conduct. Employers usually satIsfy thIS reqUIrement by Issumg rules or polIcIes and provIdmg a range of penaltIes for a contraventIOn of the rules Trammg can be used also to advIse employees about standards of conduct, as eVIdenced by the WDHP trammg provIded by the Employer Such a general approach to notIfymg employees ensures that they wIll not be surpnsed as to what conduct IS unacceptable Whether the Employer's faIlure to provIde trammg about the mappropnate use of e-maIl IS a mItIgatmg factor cannot be consIdered m IsolatIOn. The Employer dId make an effort to notIfy employees about the WDHP and IT polIcIes and specIfically the prohIbItIOn agamst sendmg and receIvmg mappropnate matenal bye-mall There are the two warmngs on every 26 Mimstry computer mcludmg the warmng whIch appears before an employee logs onto an e-maIl account. ThIS warnmg notIfies employees that IT resources are not to be used for unacceptable purposes, such as to access, dIsplay or store offensIve data and that dIscIplInary actIOn could result from such mappropnate use The gnevors and Wall, a steward, testIfied that rather than read the warmng, they sImply clIcked the OK box and carned on wIth theIr work. The faIlure of the gnevors to read the warmng does not mean that the Employer dId not provIde reasonable notIce of the prohIbIted conduct. The Vrancart memorandum, also reproduced prevIOusly notIfied employees m July 1998 of the Mimstry's zero tolerance polIcy and that the dIsplay of offensIve matenal on Mimstry computers would not be tolerated. The eVIdence dIscloses that CurtIS, Walmsely and Wickett dId not have an e-maIl account m 1998 and that they were unaware of thIS notIce I am satIsfied that the remammg gnevors receIved the Vrancart memorandum, although they testIfied that they dId not recall seemg It. Wickett IS the only gnevor who dId not receIve WDHP trammg. The fact that the Employer went to consIderable lengths after thIS mvestIgatIOn to commumcate ItS VIew about the mappropnate use of e-maIl, by Itself, does not lead to the conclusIOn that ItS efforts pnor to the mvestIgatIOn were madequate As I noted m the best-case decIsIOn, there are certam offences, theft bemg a good example, that any reasonable employee would recogmze as unacceptable wIthout a rule or trammg. In my VIew a VIew also expressed by other arbItrators, reasonable employees would have lIttle dIfficulty m apprecIatmg that the receIpt and dIstributIOn of offensIve matenal by the Employer's e-maIl system would be unacceptable, even If It were the case that the Employer had faIled to convey thIS message to employees m a satIsfactory manner See Re Telus Mobility and T W C (Lee) supra, and Re Consumers Gas v Communications Energy and PaperJ1,orkers Union (PnmIam) [1999] O.L AA No 649 (KIrkwood) ThIS perspectIve IS Important when 27 consIdenng whether the Employer faIled to traIn the gnevors properly In the appropnate use of e- mall There IS no doubt that the gnevors recogmzed that the receIpt and dIstributIOn of offensIve matenal bye-maIlls conduct whIch the Employer consIdered Inappropnate It also appears to be the case that the gnevors and other employees, IncludIng managers, dId not apprecIate that such conduct was so senous that It could lead to theIr dIsmIssal The gnevors lIkely formed thIS VIew because they knew that many employees and some managers were engaged In sImIlar conduct. When I concluded In the best-case decIsIOn that the faIlure of the Employer to provIde the gnevors wIth traInIng on the Inappropnate use of e-maIl was not a mItIgatIng factor In the cIrcumstances, It was In the context of the Employer not provIdIng any WDHP traInIng about Inappropnate e-maIl use to any MNR employee However the testImony ofMs Addyman dIsclosed that MNR employees do receIve some traInIng on thIS subJect. The eVIdence also IndIcates that at least some managers dIscussed the Issue dunng staff meetIngs Both Lynch and Watt testIfied that they have addressed the Issue of e-maIl abuse wIth theIr staff and there IS no IndIcatIOn that a member of theIr staff was InvestIgated for USIng e-maIl Inappropnately Although It appears that many employees In the Mimstry dId have the benefit of WDHP traInIng concermng the appropnate use of e-maIl, the gnevors dId not. TheIr managers dId not dISCUSS thIS Issue at staff meetIngs Such traInIng may have provIded the gnevors wIth a better understandIng of theIr oblIgatIOns regardIng the use of e-maIl, and more Importantly It would have better Informed them that the receIpt and dIstnbutIOn of offensIve matenal bye-mall IS an Important Issue for the Employer and an offence whIch could result In dIscharge Although not as sIgmficant a factor as others, the fact that the Employer provIded traInIng to some MNR employees about the Inappropnate use of e-maIl, but not to the gnevors, IS a mItIgatIng factor In theIr favour 28 InvestIgatIOn and Process Issues Counsel for the Umon submItted that there were a number of aspects of the process adopted by the Employer that are problematIc and relevant to asseSSIng the appropnateness of the penalty Counsel noted that the letter from Lynch adVISIng employees that they were a respondent In a WDHP InVestIgatIOn dId not IndIcate that dIscIplIne was an optIOn avaIlable to the Employer Contrary to the Employer's decIsIOn not to do so counsel submItted that AselstIne's recommendatIOn should have been provIded to each employee Counsel noted that employees were not asked about the warmngs on the computer the Vrancart memorandum and any InformatIOn about theIr dIstnbutIOn lIst or lIsts Counsel also referred to the faIlure of the Employer to adhere to the WDHP PolIcy and to InVestIgate many employees whose names appeared on the relevant e-maIls The WDHP PolIcy provIdes that one of the responsIbIlItIes of the Deputy Head IS to receIve InVestIgatIOn reports and, after consultIng wIth others, to decIde on remedIes In thIS InVestIgatIOn the Deputy Head dId not receIve the InVestIgatIOn reports, nor dId the Deputy Head make the decIsIOns on penalty As prevIOusly noted, Ms Addyman receIved the InVestIgatIOn reports and the managers were left wIth the task of determInIng the appropnate penalty It appears that the Employer altered thIS aspect of the process set out In the WDHP PolIcy because of a concern that the Deputy Head may have to testIfy In an arbItratIOn proceedIng. The Umon took the posItIOn that thIS was an Improper purpose for devIatIng from the WDHP PolIcy and that the faIlure to stnctly adhere to the polIcy In thIS regard detnmentally affected the gnevors The Employer InvestIgated the e-maIl actIvIty of any Mimstry employee whose name appeared on the "to" or "from" sectIOns of an Inappropnate e-maIl of whIch It had knowledge 29 FolloWIng thIS approach, the Employer InvestIgated the e-maIl actIvIty of 189 employees The Umon has establIshed that there were the names of as many as 87 Mimstry employees on the "to" or "from" sectIOns of the Inappropnate e-maIls sent or receIved by the gnevors whIch the Employer dId not InVestIgate The Umon submIts that the faIlure to InVestIgate such a sIgmficant number ofMNR employees, wIth the result of course that no penaltIes were Imposed on them, should result In a lesser penalty for the gnevors In my VIew none of the above matters IS a mItIgatIng factor In thIS Instance Although Lynch dId not specIfically note In hIS letter to the respondents that dIscIplIne was a possIbIlIty a reasonable employee would antIcIpate from the CIrcumstances that dIscIplIne could flow from such an extensIve InVestIgatIOn. Lynch dId provIde employees wIth copIes of the relevant polIcIes whIch do set out that a breach of the polIcy could result In dIscIplIne In my VIew there was no oblIgatIOn on the Employer to tell each employee of AselstIne' s recommendatIOn. The faIlure of the Employer to ask specIfically about a number of matters referred to above, and other matters, does not affect my VIew of the appropnate penalty In these CIrcumstances The faIlure to have the Deputy Head receIve the InVestIgatIOn reports and to determIne the penalty IS not relevant to the Issue of whether the gnevors should be dIscharged for theIr conduct. ThIS was ObvIOusly not a tYPIcal InVestIgatIOn under the WDHP PolIcy and It IS not surpnSIng or unreasonable that the Deputy Head was spared the burden of such a sIgmficant undertakIng. I agree wIth counsel for the Employer that sectIOn 23 of the Public Service Act provIdes the Deputy Head wIth broad powers of delegatIOn. Although many MNR employees were not InvestIgated even though theIr names were on e-maIls that the gnevors sent or receIved, It IS clear that the Employer dId not IntentIOnally decIde not to InVestIgate these employees I accept the Employer's explanatIOn that It mIssed employees because It dId not recogmze them as MNR employees ThIS IS not a sItuatIOn where the Employer was aware that some employees mIght 30 have engaged In sImIlar mIsconduct as the gnevors, but only InvestIgated some employees and not others, thereby dISCnmInatIng agaInst the gnevors and the other employees who were dIscIplIned. GIven that the Employer Intended to InVestIgate all employees who sent or receIved offensIve e-maIl, no consequences flow from the fact that some employees escaped detectIOn. See Re Iron Ore Co of Canada and Us. WA. Loc 5795 (1975) 11 L.AC (2nd) 16 (Hams) As noted prevIOusly the Employer took the approach that It would not advIse an employee about the penalty that had been recommended by AselstIne The gnevors were not to be told therefore dunng theIr dIscIplInary IntervIew or at some pOInt pnor to dIscharge that there was a recommendatIOn that they be dIscharged. I dId not find favour wIth counsel for the Umon's submIssIOn that such an approach was problematIc However counsel for the Umon argued that the eVIdence demonstrated that Messervey told PeterkIn pnor to hIS mItIgatIOn meetIng that there was a recommendatIOn that he be dIscharged and that thIS caused PeterkIn to plead hIS case often and strenuously In order to aVOId dIscharge Counsel for the Umon submItted that It was unfair to advIse only one employee that he was facIng dIscharge and that the gnevors were dIsadvantaged by not apprecIatIng the senous of theIr sItuatIOn After carefully reVIeWIng the eVIdence on thIS pOInt, It IS my conclusIOn that Messervey dId not tell PeterkIn that there was a recommendatIOn that he be dIscharged. Messervey testIfied that he dId not recall gIVIng PeterkIn thIS InformatIOn and that he would be surpnsed Ifhe dId. PeterkIn testIfied that he dId not recall beIng told by Messervey or by Mr G Pnce, a manager for another DIstnct who he knew well, that he would be dIsmIssed. What he dId say he was told was that he had been placed In the hIghest category and that the matter was senous What PeterkIn deduced from thIS IS that he was In a group of employees who could be dIscharged. With thIS knowledge he expended a consIderable amount of effort to conVInce Messervey not to 31 dIscharge hIm GIven that he was not advIsed of AselstIne' s recommendatIOn, PeterkIn was not treated dIfferently from the other gnevors In thIS respect. What he was told by Messervey and Pnce to IndIcate the senousness of the matter was somethIng that should have been readIly apparent to all of the gnevors CondonatIOn Counsel for the Umon referred to the Involvement of managers In sendIng and reCeIVIng offensIve e-maIl and submItted that thIS mIsconduct constItutes condonatIOn of the gnevors' Inappropnate e-maIl actIvIty Counsel noted Instances where a manager sent an offensIve e-maIl to an employee or employees, IncludIng some of the gnevors, as well as Instances where the gnevors could ascertaIn from the "to" and "from" sectIOns of an e-maIl that a manager was partIcIpatIng In the receIpt or dIstnbutIOn of offensIve e-maIl In the workplace WhIle acknowledgIng that thIS does not entIrely absolve the gnevors of responsIbIlIty counsel argued that It IS an Important mItIgatIng factor whIch clearly calls for a lesser penalty Counsel relIed on the folloWIng decIsIOns In support of thIS argument Re Four Seasons Hotel Toronto and Textile Processors, Service Trades, Health Care Professional & Technical Employees Loc 351 (1989) 8 L AC (4th) 354 (Marcotte) Re City of Edmonton and Amalgamated Transit Union, Local 569 (1985),23 LAC (3rd) 76 (Thomas) and Re City ofNanticoke and Canadian Union of Public Employees Local 246 (1980) 29 L.AC (2nd) 64 (Barton) Counsel for the Employer submItted that there IS nothIng In the nature of the managers' e-maIl mIsconduct whIch would have gIven the gnevors cause to belIeve that the Employer condoned theIr sendIng or reCeIVIng very offensIve matenal bye-mall USIng the Employer's eqUIpment. Counsel also submItted that the appearance of a manager's name on an Inappropnate e-maIl whIch came to the attentIOn of a gnevor does not, by Itself, establIsh condonatIOn. The 32 Employer takes the posItIOn that even If the Inappropnate e-maIl actIvIty of managers can gIve nse to condonatIOn In some Instances, It IS not a mItIgatIng factor In these cIrcumstances, gIven the very offensIve matenal that the gnevors receIved and dIstnbuted. In my VIew the Inappropnate e-maIl actIvIty ofMNR managers and the connectIOn between that actIvIty and the gnevors does serve to establIsh condonatIOn on the part of the Employer In thIS Instance There are examples of dIrect Inappropnate e-maIl actIvIty between a manager and HastIe, Nadeau and Wickett, and IndIrect Inappropnate e-maIl actIvIty InvolVIng a manager and all of the gnevors By IndIrect, I am refemng to Instances when the name of a manager known to a gnevor appears on an e-maIl that has been receIved by a gnevor I agree that the e-maIl actIvIty between a manager and a gnevor whether dIrect or IndIrect, Involved first lIne management and, for the most part, Involved mIlder forms of offensIve matenal However what IS sIgmficant In my VIew IS that the gnevors were aware that managers were engaged In the use of the Employer's e-maIl system to receIve and dIstnbute Inappropnate e- mall It IS the responsIbIlIty of the managers to enforce the WDHP and IT polIcIes As I noted prevIOusly the gnevors knew that theIr Inappropnate e-maIl actIvIty would be unacceptable to the Employer However theIr knowledge of a manager's Inappropnate e-maIl actIvIty would serve to confirm that such conduct was not that senous, and certaInly not senous enough to warrant dIscharge I agree wIth the comment made by Ms Shore, the Employer's InVestIgator contaIned In the final report relatIng to Mr C Todesco an Enforcement SupervIsor Mr Todesco sent Inappropnate e-maIl to staff that reported dIrectly to hIm Ms Shore noted at page 174 of Tedesco's final report that thIS conduct "suggests to those subordInate In both posItIOn and authonty that management of the MNR condones thIS type of behavIOur and may In fact encourage It." ThIS same comment IS applIcable to CIrcumstances when employees are aware that managenal personnel are engaged In sendIng and reCeIVIng Inappropnate e-maIls 33 The WDHP PolIcy specIfically provIdes that a faIlure of management to adequately respond to CIrcumstances whIch can gIve nse to a pOIsoned work envIronment may be consIdered to be condonatIOn of dISCnmInatIOn and/or harassment. The eVIdence suggests that very lIttle consIderatIOn was gIven to the Issue of condonatIOn dunng the InVestIgatIOn and dIscIplInary process WhIle partIcIpatIng In the teleconference desIgned to prepare managers for the IntervIew process, Fiset recorded In hIS notes that "CONDONATION IS a concern." In relatIOn to asseSSIng the conduct of Tedesco's staff, It was noted that a factor for consIderatIOn IS that these employees had receIved Inappropnate e-maIl from theIr manager However there was no dIscussIOn of condonatIOn at the meetIng held for managers In Toronto In May 2001 No questIOns were asked of the gnevors dunng theIr IntervIew and dIscIplInary meetIngs about theIr knowledge of managers engagIng In Inappropnate e-maIl conduct. In addItIOn, and most Importantly condonatIOn was not consIdered by the managers when they determIned what penalty was appropnate for the gnevors The faIlure of the managers to consIder condonatIOn when contemplatIng a penalty for each gnevor In lIght of the nature of the condonatIOn that eXIsts In thIS Instance IS, In my VIew a sIgmficant mItIgatIng factor ProgreSSIVe DISCIPlIne and whether the gnevors are lIkely to re-offend Counsel for the Umon submItted that there IS nothIng umque about the conduct of the gnevors that would make It Inappropnate to apply the pnncIple of progressIve dIscIplIne and that the managers dId not gIve thIS Important pnncIple sufficIent weIght. I agree wIth these submIssIons All of the gnevors have a dIscIplIne free record. Even though the length of servIce of some of the gnevors IS not consIderable and the offence commItted by each gnevor IS senous, It IS stIll appropnate to take Into account theIr dIscIplIne free records It IS tnte to observe that 34 the purpose of dIscIplIne IS to correct Inappropnate employee behavIOur ArbItrators have held that dIscharge should not only fit the offence but also that It should only be utIlIzed where It IS unlIkely that a lesser penalty would be sufficIent to correct the Inappropnate behavIOur See Re Tenant Hotline and Peters and Gittens (1983) 10 L.AC (3rd) 130 (MacDowell) The manager for each gnevor noted on the mItIgatIOn sheet they prepared that eIther there was no prevIOUS dIscIplIne or thIS area was left blank. Although I have no doubt that each manager who termInated a gnevor gave some consIderatIOn to the absence of prevIOUS dIscIplIne, In my VIew they dId not gIve thIS factor the weIght It deserved In the CIrcumstances But for the Issue of e-maIl usage, the gnevors appeared to have performed theIr work very well and there IS no IndIcatIOn that they presented the Employer wIth a dIscIplInary challenge I IndIcated In the best-case decIsIOn that I preferred to address progressIve dISCIplIne along wIth other mItIgatIng factors whIch were not then before me In assessIng the other mItIgatIng factors and progressIve dISCIplIne, my VIew IS that the matter of a dIscIplIne free record IS deservIng of more weIght than the Employer gave It. In partIcular on the eVIdence before me, I was convInced that a penalty less than dIscharge would serve to correct the behavIOur of each gnevor At the outset of hIS submISSIOns, counsel for the Employer commented that one would have thought that the Employer would have some dIfficulty wIth these gnevances because of an expectatIOn that the gnevors would respond lIke PeterkIn, by acknowledgIng theIr mIsconduct, exhIbItIng remorse, by testIfYIng In a manner that was truthful, and thereby establIshIng a basIs for concludIng that theIr e-maIl mIsconduct would not be repeated, If reInstated. Counsel submItted that the gnevors dId not meet thIS expectatIOn because, In fact, they were not completely truthful, they dId not apprecIate the nature of and senousness of theIr mIsconduct and that there was no basIs for concludIng that they would not re-offend, If reInstated. As noted 35 prevIOusly the managers who dIscharged the gnevors had determIned that there were no mItIgatIng cIrcumstances whIch warranted anythIng less than dIscharge I agree wIth the Umon' s posItIOn that the assessment of the gnevors, as reflected In counsel for the Employer's submIssIOns, IS not supported by the eVIdence When they were shown most of the offensIve matenal (vIdeos were not avaIlable) on theIr Outlook account dunng the IntervIew the gnevors acknowledged what they could remember and dId not deny responsIbIlIty for the matenal Most of the gnevors who provIded a wntten response to the draft report acknowledged what they dId was wrong and expressed remorse for theIr conduct. Some of the gnevors also commumcated these VIews In further dIscussIOns wIth theIr manager Dunng theIr testImony the gnevors acknowledged that the sendIng and reCeIVIng of offensIve e-maIl was wrong and that they would not engage agaIn In such conduct In the workplace In my VIew they dId not testIfy In thIS way only because It was convement to do so Counsel for the Employer submItted that the gnevors stIll do not apprecIate the Impact on the workplace caused by theIr offensIve matenal In my VIew the gnevors dId come to better apprecIate how the presence of offensIve matenal sent and receIved bye-mall can contnbute to a pOIsoned work envIronment. I note that counsel spent a consIderable amount of tIme dunng theIr submIssIOns addressIng the Impact of offensIve matenal In the workplace What IS Important IS that the gnevors recogmzed that the presence of offensIve matenal In the workplace IS wrong and that there IS every lIkelIhood that thIS conduct wIll not be repeated by them ThIS IS a factor whIch I found to be partIcularly sIgmficant In determInIng that the SubstItutIOn of a lesser penalty was warranted. I wIll bnefly refer to the CIrcumstances of each gnevor startIng In each Instance wIth a summary of the Inappropnate e-maIl actIvIty on each gnevor's Outlook account whIch IS 36 contaIned In theIr final WDHP report. Although some InaccuracIes eXIst, each summary provIdes the essentIal nature of each gnevor's Inappropnate e-maIl actIvIty relIed upon by the Employer to support the dIscharges Jim HastIe There were 76 Items IdentIfied In hIS Outlook account. He receIved 53 Items and sent 23 Items The final report summary IS as follows Of the 53 Items receIved 53 EmaIls contaIned matenals that were charactenzed In the folloWIng manner 15 Items contaIned matenals wIth sexual content; 14 Items contaIned matenals wIth nudIty mne Items contaIned exposed gemtalIa, SIX Items contaIned sexually graphIc matenals, and eIght Items WIth degradIng, dehumamzIng and vIOlent matenals The respondent re-forwarded 18 Items WIthIn the MNR, stored two Items and deleted the remaInIng Items Of the 23 Items dIstnbuted by the respondent, 23 EmaIls were charactenzed In the folloWIng manner 6 Items contaIned sexual content; 10 Items contaIned nudIty SIX Items contaIned exposed gemtalIa, one Item contaIned sexually graphIc matenal three Items contaIned Images that were eIther vIolent, degradIng or dehumamzIng; one Item contaIned racIal content. These matenals were dIstnbuted InsIde the MNR and outsIde the OPS MacDonald dIscharged HastIe by letter dated June 13 2001 SInce 1981 HastIe was employed as an OperatIOns CoordInator at the Owen Sound Area Office and he also worked as a CaptaIn on a boat. He had 24 years of servIce WIth the Employer and, at the tIme of hIS dIscharge, he was 57 years old and was approxImately SIX months away from early retIrement. HastIe was a Umon steward. CurtIS, Walmsely and at one tIme Wickett also worked out of the Owen Sound Area Office HastIe played a role In hmng Wickett. As a semor employee, HastIe appears to have had a consIderable Influence on CurtIS and Walmsely all unclassIfied employees There was a frequent exchange of offensIve e-maIl between HastIe and CurtIS, and to a lesser extent between HastIe and Wickett. There were also a couple of Instances when HastIe sent offensIve e-maIl to 37 Walmsely ConsIdenng the volume of matenal receIved and dIstnbuted and the degree of offensIveness of the matenal, HastIe was certaInly one of the worst offenders of all the employees InvestIgated. HastIe receIved WDHP traInIng In the early 1990's When asked dunng hIS IntervIew whether he had anythIng else to add, HastIe noted, among other thIngs, that he came from a generatIOn that allowed for many dISCnmInatory comments and that he has had to unlearn a lot of thIS He also commented that he felt he let the MNR down. In addItIOn to the meetIngs whIch were a part of the process, HastIe met wIth MacDonald tWIce and apologIzed on both occaSIOns for hIS Inappropnate e-maIl actIvIty In hIS lengthy wntten response to the draft report, HastIe IndIcated that he dId not Intend to belIttle or degrade any IndIVIdual or group and that after dIscussIOns wIth management he can now understand how the offensIve matenals In hIS Outlook account contravened the WDHP PolIcy He also wrote that he should have known better and that he would not engage In thIS type of conduct agaIn. HastIe expressed the same sentIments In hIS testImony He noted In partIcular how much he enJoyed workIng for the Mimstry that he understood that hIS e-maIl actIvIty at Issue was Inappropnate and that he would not engage In such actIvIty agaIn. HastIe's eVIdence summary sheet IndIcates that he receIved the DIrty Sanchez InteractIve vIdeo cartoon from CUrtIS It also IndIcates that he sent It to Walmsely As AselstIne and MacDonald conceded, thIS latter notatIOn IS an error HastIe dId not dIstnbute thIS partIcularly offensIve Item to anyone WIthIn the MNR and It was wrong for MacDonald to conclude that he had done so as part of the basIs for termInatIng hIS employment. 38 P. CurtIS There were 50 Items IdentIfied on hIS Outlook account. He receIved 22 Items and sent 28 Items The final report summary reads as follows Of the 22 Items receIved 18 EmaIls contaIned matenals that were charactenzed In the folloWIng manner 4 Items contaIned matenals wIth sexual content; 8 Items contaIned matenals wIth nudIty 2 Items contaIned sexually graphIc matenals, and, four Items were degradIng, dehumamzIng and vIOlent matenals The respondent re- forwarded all of the Items InsIde the MNR and outsIde the OPS Of the 28 Items dIstnbuted by the respondent, 28 EmaIls were charactenzed In the folloWIng manner 12 Items contaIned sexual content; 4 Items contaIned nudIty 3 Items contaIned exposed gemtalIa, five Items contaIned sexually graphIc matenal and four Items contaIned Images that were eIther vIOlent, degradIng or dehumamzIng. These matenals were dIstnbuted InsIde the MNR and outsIde the OPS Three Items were personal correspondence contaInIng offensIve language and sexual dIscussIOn. MacDonald dIsmIssed CUrtIS by letter dated June 13 2001 CUrtIS had worked on a senes of unclassIfied contracts at dIfferent locatIOns SInce 1995 At the tIme of hIS dIscharge, he was workIng as a resource techmcIan at Owen Sound. CUrtIS dId not have a computer untIl 2000 He had some bnefWDHP traInIng at about the tIme he started workIng for the MNR. Along wIth HastIe, CUrtIS was responsIble for reCeIVIng and dIstnbutIng a sIgmficant amount of Inappropnate e-maIl, some of whIch was very offensIve CUrtIS dIstnbuted the DIrty Sanchez vIdeo to HastIe, Walmsely and to persons outsIde the MNR. One of these persons was a graduate student who was USIng data from a fish nettIng survey InvolvIng CUrtIS In an attempt at humour and for what he descnbed as ItS "shock value" CUrtIS sent thIS person thIS offensIve vIdeo by an e-maIl Although by the response It appears that no offense was taken, and the student appears to have been a wIllIng partIcIpant In the e-maIl exchanges wIth CUrtIS, I agree wIth the submIssIOn of counsel for the Employer that thIS e-maIl from CUrtIS was entIrely Inappropnate and placed the Employer at consIderable nsk. 39 CurtIS was qUIte forthnght about hIS Inappropnate e-maIl actIvIty dunng hIS IntervIew He IndIcated In hIS wntten response to the draft report that he should have known better and that he could not blame anyone but hImself CurtIS acknowledged that he should not have used work eqUIpment for Inappropnate e-maIl actIvIty He also IndIcated that he learned a lot throughout the process of the InVestIgatIOn and that he was sorry for beIng Involved In such actIvIty In hIS mItIgatIOn meetIng WIth MacDonald he expressed the same sentIments and he dId so as well In hIS testImony T. Walmsely Of the 9 Items IdentIfied In hIS Outlook account, he receIved 8 Items and sent 1 Item There were 5 addItIOnal Items that were cross-referenced from other MNR accounts The final report summary provIdes as follows Of the eIght Items receIved they contaIned matenals that were charactenzed In the folloWIng manner 5 Items contaIned matenals wIth nudIty 2 Items contaIned sexually graphIc matenals, and one Item WIth degradIng, dehumamzIng and vIOlent matenal The respondent re-forwarded all of these Items outsIde the OPS The one Item dIstnbuted by the respondent contaIned ethmc and sexual content and was dIstnbuted InsIde the MNR. Of the five cross-referenced Items three Items contaIned exposed gemtalIa, one Item contaIned degradIng matenal, and one Item contaIned sexual and racIal content. These five Items were deleted. MacDonald termInated Walmsely's employment by letter dated June 13 2001 Walmsely was employed at the tIme as an unclassIfied FIshenes TechmcIan at Owen Sound. He had been employed on unclassIfied contracts SInce at least 1997 Walmsely IS 38 years of age, and mamed wIth two chIldren. 40 Walmsely dId receIve a couple of hours ofWDHP traInIng dunng an afternoon at least one year before hIS termInatIOn. He had fewer offensIve Items In hIS Outlook account than the other gnevors and the nature of hIS Inappropnate e-maIl actIvIty was dIfferent from theIrs The five Items cross-referenced from other MNR accounts were sImply deleted. Of the other mne Items sent to hIm, he forwarded SIX to hIS home e-maIl address, three on January 6 2001 wIthIn a matter of 5 mInutes, and three on December 15 2000 wIthIn a matter of 4 mInutes The fact the one Item was sent four tImes on both days and the tImIng of the actIvIty IS consIstent WIth Walmsely's testImony that he was attemptIng to determIne whether hIS e-maIl at home was operatIng. He sent one Item to the home e-maIl address of Martyn CurtIS, at Martyn's request. Most of these Items were qUIte low on the offensIveness scale However as noted prevIOusly hIS Outlook account contaIned the DIrty Sanchez vIdeo He receIved thIS Item from CurtIS on November 16 2000 and kept It on hIS system. On December 15 2000 close to the tIme he was checkIng to see IfhIS home e-maIl was operatIng, he sent the DIrty Sanchez vIdeo to a fnend. Walmsely testIfied that he dId thIS agaIn as a test and that hIS fnend told hIm that he dId not receIve thIS Item. Walmsely dId not send any offensIve Items WIthIn the MNR. It was the presence of the DIrty Sanchez vIdeo and hIS attempt to dIstnbute It outsIde the MNR whIch pnmanly caused AselstIne to change her recommendatIOn from a twenty-day suspenSIOn to dIscharge and whIch caused MacDonald to conclude that dIschargIng Walmsely was appropnate Dunng hIS IntervIew Walmsely IndIcated that he knew that sendIng and reCeIVIng Inappropnate matenal bye-mall was Improper and that he treated such Items as Junk mall He told MacDonald at the mItIgatIOn meetIng that a warmng would be sufficIent for hIS conduct and that a suspenSIOn would be "a np off' When he was later told that he was beIng dIscharged, Walmsely became qUIt upset and started shakIng, to such an extent that the keys he returned to MacDonald flew across the table at hIm. Walmsely testIfied that he dId not attempt to throw the 41 keys at MacDonald, a matter wIth whIch MacDonald agreed. Dunng a meetIng wIth MacDonald on the folloWIng day Walmsely apologIzed for appeanng to be aggressIve the day before He also told MacDonald at that tIme that he had been told by HastIe and others that he was a mInor player wIth respect to the Inappropnate e-maIl actIvIty and that It was unlIkely that he would receIve sIgmficant dIscIplIne In a letter to MacDonald dated June 18 2001 Walmsely apologIzed for hIS actIOns Walmsely IndIcated In hIS testImony that It was wrong for hIm to have engaged In such e-maIl actIvIty and that It would never happen agaIn. L. Wickett Of the 55 Items IdentIfied on hIS Outlook account, he receIved 47 Items and sent 8 Items His final report summary provIdes as follows Of the 47 Items receIved 45 EmaIls contaIned matenals the were charactenzed In the folloWIng manner 13 Items contaIned matenals wIth sexual content; 10 Items contaIned nudIty 10 Items contaIned matenals wIth exposed gemtalIa, five Items contaIned sexually graphIc matenals and, seven Items WIth degradIng, dehumamzIng and vIOlent matenals The respondent re-forwarded seven Items InsIde the MNR and outsIde the OPS stored 32 Items and deleted the remaInIng SIX Items Of the eIght Items dIstnbuted by the respondent, eIght EmaIls were charactenzed In the folloWIng manner three Items contaIned sexual content; three Items contaIned nudIty one Item contaIned exposed gemtalIa. These Items were dIstnbuted InsIde the MNR and outsIde the OPS Messervey along wIth MacDonald, sIgned the letter dated June 20 2001 termInatIng Wickett's employment. Wickett had been employed on a seasonal basIs SInce 1996 wIth a contInuous servIce date of Apnl26 1999 At the tIme of hIS dIscharge he was on a leave of absence from hIS FIshenes TechmcIan posItIOn at Owen Sound, whIch IS why MacDonald sIgned hIS termInatIOn letter as well, and workIng under a contract as a Highway 407 ProJect BIOlogISt, Aurora DIstnct. Wickett IS mamed WIth two chIldren. As noted prevIOusly Wickett dId not receIve any WDHP traInIng. 42 Wickett dIstnbuted relatIvely few Items WIthIn the MNR and, generally the Items on hIS Outlook account were not as offensIve as the matenal sent and receIved by some of the other gnevors Many of the Items were In text form, rather than pIctures, and the maJonty of the Items were In hIS saved folder In March 2000 Wickett sent an Inappropnate Item bye-mall to Mr E Delaplante, who had Just been made an ActIng OperatIOns SupervIsor In hIS e-maIl response, Delaplante suggested that Wickett remove the Lake Huron Umt staff from hIS dIstnbutIOn lIst. Wickett dIscontInued sendIng Inappropnate e-maIls to Delaplante, but dId contInue sendIng them to HastIe, the person who played a role In hmng hIm and someone who he socIalIzed wIth outsIde of work. As hIS mItIgatIOn sheet dIscloses, Messervey concluded that Wickett was cautIOned by Delaplante and yet contInued hIS Inappropnate e-maIl actIvIty However Delaplante dId not suggest, let alone dIrect, that Wickett cease all Inappropnate e-maIl actIvIty In thIS regard, It appears he responded as other managers dId, IncludIng some of the managers who dIscharged some of the gnevors, when they receIved Inappropnate matenal bye-mall It appears that at least some managers who receIved Inappropnate matenal would sImply advIse the sender to stop sendIng Items to hIm or her wIthout adVISIng semor management, thereby resultIng In no dIscIplInary consequences In my VIew Delaplante's response served only to suggest to Wickett that no senous consequences would result from hIS Inappropnate e-maIl actIvIty In a three page wntten response to the draft report, Wickett IndIcated that he regretted the non-busIness use of hIS computer and that he took full responsIbIlIty for hIS actIOns He wrote that he dId not Intend to offend anyone, that he had learned hIS lesson and that thIS conduct would not be repeated. He apologIzed for hIS actIOns Wickett apologIzed agaIn dunng hIS mItIgatIOn meetIng and IndIcated that he recogmzed that the InVestIgatIOn and dIscIplInary 43 process was dIstractIng the MNR from Important work. Dunng hIS testImony Wickett related how the termInatIOn of hIS employment adversely affected hIS professIOnal and famIly lIfe He also expressed hIS regret for engagIng In such conduct and IndIcated that It would not be repeated. 1.1. Vallee There were 30 Items IdentIfied In hIS Outlook account, wIth 27 Items receIved and 3 sent. The final report summary reads as follows Of the twenty-seven Items receIved they were charactenzed In the folloWIng manner SIX Items contaIned matenals wIth sexual content; SIX Items contaIned matenals wIth nudIty three Items contaIned matenals wIth exposed gemtalIa, SIX Items contaIned sexually graphIc matenals and, SIX Items contaIned matenals wIth degradIng, dehumamzIng and racIal content. The respondent redIstnbuted mne Items eIther InsIde the MNR or outsIde the OPS and deleted the remaInIng 18 Items Of the three Items sent by the respondent, two Items contaIned nudIty and one Item contaIned degradIng matenal The respondent dIstnbuted these Items eIther InsIde the MNR or outsIde the OPS FIset dIscharged Vallee by letter dated June 20 2001 Vallee had worked for the MNR SInce 1989 and he became a part of the permanent staff In August 1997 He started wIth the MNR In Cornwall after he fimshed college and moved to Chapleau near the end of 1989 At the tIme of hIS dIscharge he was a Semor FISh & WildlIfe TechmcIan workIng out of the Chapleau DIstnct. He also worked as a Deputy ConservatIOn Officer before 2001 for compensatIOn and SInce 2001 on a voluntary basIs He was dIscharged whIle on a parental leave but In consIderatIOn of the cIrcumstances, FIset made the dIscharge effectIve October 1 2001 the tIme when Vallee was scheduled to return from parental leave Vallee receIved WDHP traInIng dunng the summer of 2000 44 The first Item upon whIch the Employer relIes was sent to Vallee from outsIde the MNR on January 14 2001 On the folloWIng day Vallee sent thIS Item to persons WIthIn the MNR and to someone outsIde the MNR. The remaInder of hIS Inappropnate e-maIl actIvIty occurred on and after March 13 2001 well after the Employer's WDHP InVestIgatIOn had begun. When It first became aware of the sIgmficant problem of e-maIl abuse, the Employer dId not warn employees about engagIng In thIS actIvIty It only so advIsed employees, by a letter from the Deputy Mimster and by other means, after the dIscIplInary process was completed. Counsel for the Umon submIts that the Employer should have taken steps to commumcate ItS concerns to employees as soon as It became aware of the problem Vallee testIfied that he would not have engaged In sendIng and reCeIVIng Inappropnate e-maIl If he had been gIven a warmng by the Employer Counsel submItted that a tImely warmng to employees would have lIkely meant that Vallee would not have engaged In most of the conduct whIch the Employer now complaIns of and that thIS IS a relevant consIderatIOn when asseSSIng the appropnate penalty In hIS case Vallee was advIsed by Lynch that he had been IdentIfied as a respondent In the InVestIgatIOn by letter dated May 1 2001 much later than the other gnevors were so advIsed. It IS not surpnSIng that the focus of the Employer was on the InVestIgatIOn and the dIscIplInary process It IS not unreasonable for the Employer to first complete thIS process before determInIng what response It would develop for the MNR staff generally In my VIew the fact that the Employer dId not provIde a response to all MNR employees once It first became aware of the problem IS not relevant In asseSSIng Vallee's conduct. It IS not a mItIgatIng factor In these CIrcumstances and cannot negate Vallee's responsIbIlIty for engagIng In Inappropnate e-maIl actI VI ty ThIS IS not a sItuatIOn where the Employer was aware of Vallee's e-maIl mIsconduct and let hIm contInue It for a tIme before relYIng on It to support a dIscharge 45 Vallee was qUIte forthnght about hIS Inappropnate e-maIl actIvIty dunng hIS IntervIew He noted that he only sent Items to hIS close fnends, was dOIng what other employees were dOIng and never really thought much about hIS Inappropnate e-maIl actIvIty at the tIme In hIS eVIdence, Vallee IndIcated that he exercIsed poor Judgment when he added comments to Inappropnate Items He testIfied that he dId not realIze that thIS conduct would have such an Impact on hIS career wIth the MNR, IncludIng hIS desIre to become a ConservatIOn Officer He descnbed the dIfficulty he had In findIng employment and that he eventually only found mImmum wage Jobs to support hIS famIly He recogmzed that hIS Inappropnate e-maIl actIvIty has resulted In embarrassment for hIm and hIS famIly IncludIng hIS parents, and that he made a huge mIstake for whIch he IS extremely sorry Vallee IndIcated that he would not engage In such conduct agaIn In the workplace R. Nadeau There were 46 Items IdentIfied In hIS Outlook account, 43 receIved and 3 sent. There were 3 Items ongInatIng from Nadeau whIch were cross-referenced from other MNR accounts The final report summary provIdes as follows The 43 EmaIls receIved contaIned matenals that were charactenzed In the folloWIng manner 19 Items contaIned matenals wIth sexual content; two Items contaIned matenals wIth nudIty' 7 Items contaIned matenals wIth exposed gemtalIa, 8 Items contaIned sexually graphIc matenals four Items WIth degradIng, dehumamzIng matenals and 3 Items WIth sexual onentatIOn and place of ongIn content. The respondent re-forwarded 11 of these Items, stored seven Items and deleted 26 Items from hIS account. Of the three Items dIstnbuted by the respondent, one was IdentIfied as contaInIng sexual content. ThIS Item was dIstnbuted InsIde and outsIde the OPS The three cross- referenced matenals were charactenzed as follows one Item contaIned exposed gemtalIa, one Item was sexually graphIc and one Item contaIned degradIng matenal These Items were dIstnbuted InsIde the MNR, InsIde the OPS and outsIde the OPS Scott dIscharged Nadeau by letter dated June 20 2001 The dIsmIssal letter Issued to Nadeau IS somewhat dIfferent from the ones Issued to the other gnevors In It, there IS reference 46 to downloadIng Inappropnate matenal, to subscnbIng to Inappropnate web sItes and to hIS behavIOur after reCeIVIng a dIrectIOn and a warmng note, whIch was an Important factor In conVInCIng Scott that dIscIplIne would not correct Nadeau's Inappropnate behavIOr In the workplace Nadeau had been employed by the MNR for eleven years, three as a Resource TechmcIan (full-tIme SInce 1992) and the last eIght as a ConservatIOn Officer In the Hearst DIstnct. As a ConservatIOn Officer he IS an armed law enforcement officer He also worked as an ActIng Enforcement SupervIsor for SIX months In 1999 He was 36 years of age when he testIfied and mamed wIth three young chIldren. He receIved a couple of hours of WDHP traInIng In 1995 Nadeau was very forthnght In hIS dIscussIOns wIth Scott about hIS Inappropnate e-maIl actIvIty a matter WIth whIch Scott agreed. On the dIstnbutIOn sIde, Nadeau's Inappropnate actIvIty Included sendIng a few Items and re-forwardIng approxImately eleven Items The process began when he receIved some Inappropnate Items, some of these from OPP officers at the Hearst Detachment, and It evolved to the pOInt where employees were askIng hIm to add them to hIS dIstnbutIOn lIst. Among others, he receIved and dIstributed Inappropnate Items WIth actIng supervIsors and OPP officers Nadeau IndIcated that the Inappropnate e-maIl actIvIty became so commonplace at work that one would feel left out If one dId not partIcIpate He subscnbed wIthout cost to a few humour web sItes from hIS workplace computer At the tIme, he vIewed the Items he receIved and dIstnbuted as pnmanly humorous In nature RelatIvely soon after hIS computer was seIzed, Nadeau met wIth Scott to dISCUSS the WDHP InVestIgatIOn. In what appears to be a lengthy dIscussIOn, Nadeau admItted that he was forwardIng Inappropnate matenal and he expressed remorse and regret that hIS Immature 47 behavIOur would get other people In trouble, IncludIng managers Scott suggested to hIm that he should focus on hIS own behavIOur and not on the actIOns of others Nadeau IndIcated that he realIzed that what he vIewed as sImply humorous matenal at the tIme mIght not be humorous In a dIfferent context. These comments from Nadeau are contaIned In an e-maIl to Addyman In whIch Scott summanzes hIS conversatIOn wIth Nadeau. Dunng hIS IntervIew Nadeau admItted to hIS Inappropnate actIvIty IndIcated he dId not VIew the matenal as offensIve at the tIme and that he now recogmzes the senousness of hIS mIsconduct. He admItted to subscnbIng to the humour web sItes He also IndIcated that he dId not thInk he offended anyone because no one told hIm that they were offended and because hIS dIstnbutIOn lIst was made up of people who asked hIm to be on It. When asked If he had anythIng to add, he stated that he realIzed the senousness of hIS actIvIty and that he would not do It agaIn. He was asked about two matters whIch I wIll address In more detaIl later One was an e-maIl he receIved from an OPP officer located In Sturgeon Falls entItled "be cautIOus" and a matter whIch can be referred to as the Ashby IncIdent. After the IntervIew WIth Nadeau and before he attended the managers meetIng In Toronto at the end of May 2001 when he observed for the first tIme the vIdeos Nadeau had on hIS Outlook account, Scott prepared the mItIgatIOn notes referred to prevIOusly In hIS notes, Scott referred to the easy access lInks that were formed between the OPP computers and the MNR computers and that Inappropnate matenal began to flow between the two orgamzatIOns, some of whIch went to Nadeau, startIng the evolutIOn of hIS Inappropnate e-maIl actIvIty Scott IndIcates that he thought that Nadeau's offence was thoughtless, wIth an IntentIOn to be humorous and to lIghten the day especIally when dealIng wIth senous matters of enforcement. He wrote that he belIeved that Nadeau's actIOns were wIthout thought to Impact or consequences and that Nadeau 48 dId not thInk at the tIme that hIS actIOns would create a pOIsoned work envIronment. Scott noted that Nadeau IS a warm person and referred to hIS volunteer actIvItIes and hIS dIfficult famIly sItuatIOn. He also noted that Nadeau does a very good Job wIth complIcated cases Scott wrote that Nadeau was comIng to gnps wIth the senousness of hIS actIOns and that he dId not thInk that Nadeau would act In a manner contrary to the WDHP polIcy In the future He notes that Nadeau feels remorse for hIS actIOns and for InvolvIng others When he made these notes, It IS clear that the process was stIll ongoIng and that Scott had not determIned what penalty was appropnate for Nadeau. Scott also made extensIve notes of the questIOns Nadeau was asked and the answers he gave dunng the mItIgatIOn meetIng. Many of the matters dIscussed at thIS tIme had been dIscussed earlIer and therefore need not be repeated. I sImply note that Nadeau agaIn IndIcated that It was not appropnate to receIve and dIstnbute the matenal he had on hIS Outlook account and that It was a senous matter to have such matenal In the workplace He explaIned that hIS personal CIrcumstances led hIm to spend more tIme at work and that he spent a lot of hIS non- workIng tIme on the computer When It was suggested to hIm that some of hIS matenal was techmcally Illegal, he IndIcated that he dId not know thIS, partIcularly SInce It came from the Opp Nadeau agaIn expressed remorse and apologIzed for offendIng anyone for gettIng others Involved by sendIng Inappropnate e-maIl to them and for caUSIng stress on Scott and the other managers who were now Involved In the InVestIgatIOn and dIscIplInary process Dunng hIS testImony Nadeau repeated many of the same comments that he had made prevIOusly In dIscussIOns wIth Scott. He testIfied about hIS commumty actIvItIes WIth the Rotary Club the army cadets, the Boy Scouts and hIS role as a voluntary firefighter After hIS dIscharge, he thought It wIse to wIthdraw from the Boy Scouts so as not to harm the movement. Nadeau 49 testIfied that he understood that some parents belIeved that he must have been Involved wIth chIld pornography In order to be dIscharged. Nadeau also testIfied about hIS personal CIrcumstances when he was engagIng In Inappropnate e-maIl actIvIty He noted that he and hIS wIfe had been separated for a tIme and that wIth counsellIng theIr relatIOnshIp IS much better He referred to a fire at hIS home whIch resulted In hIm lIvIng at a motel for five weeks The opp InvestIgated the fire wIth the belIef that It mIght have been started In retalIatIOn for Nadeau's partIcIpatIOn In an InVestIgatIOn. Nadeau was shot at In the lIne of duty and the offender was convIcted. Nadeau dId not refer to these matters In order to excuse hIS conduct. He agaIn acknowledged that hIS Inappropnate e-maIl conduct was wrong and that he learned hIS lesson, apologIzed for hIS behavIOur and IndIcated that such conduct would not be repeated. He IndIcated that In hIS current Job that he deals wIth the MNR staff on a dally basIs wIthout any problems The OPP officer sent the e-maIl entItled "be cautIOus" to Nadeau on December 14 2000 In It, among other thIngs, the officer advIses Nadeau that hIS Supenntendent saw some of the new matenal Nadeau had sent to hIm He IndIcated to Nadeau that the Supenntendent told hIm that people In other mImstnes had been fired for sendIng such messages and that the officer was not to open and forward such messages The OPP officer ended hIS message by IndIcatIng that he was sorry and suggestIng to Nadeau that "you may want to be cautIOus as he may have the computer polIce checkIng our mall" Scott vIewed thIS as a warnIng whIch Nadeau Ignored. Although thIS message dId not come from management, Scott testIfied that the reference to "a warmng note" In hIS dIscharge letter to Nadeau referred to thIS e-maIl from the OPP officer In hIS testImony Nadeau admItted that It was stupId of hIm not to take the officer's advIce more senously 50 In October 2000 Nadeau forwarded a cartoon bye-mall that he had receIved from tWIstedhumour com. Ms Ashby who works In the IT area, sent Nadeau a message bye-mall, wIth a copy to Scott, adVISIng Nadeau not to forward such Items due to concerns about vIruses and server space Although thIS message was not produced In thIS proceedIng, there IS no dIspute about ItS contents The Ashby message led to a meetIng between Scott and Nadeau, wIth Enforcement SupervIsor Mr K. UkraInetz also In attendance (the Ashby IncIdent) Scott testIfied that he told Nadeau at the meetIng not to send Inappropnate matenal bye-mall and that Nadeau ObvIOusly dId not comply wIth thIS dIrectIOn. ThIS IS the dIrectIOn Scott refers to In the dIscharge letter to Nadeau. Scott consIdered thIS as InsubordInatIOn and It was a sIgmficant factor In hIS decIsIOn to dIscharge Nadeau. Scott agrees that the meetIng was not a dIscIplInary meetIng and that he dId not dIscIplIne Nadeau at the tIme Nadeau's recollectIOn of what occurred at the meetIng IS qUIte dIfferent. He testIfied that they talked about the subJect raised In Ashby's e-maIl, namely the forwardIng of cartoons from the tWIsted humour web sIte and the concerns about vIruses and server space He IndIcated that Scott told hIm to stop forwardIng these cartoons Nadeau testIfied that he told Scott that he would comply wIth hIS request and that he dId not forward cartoons from thIS sIte subsequent to the meetIng. Nadeau's verSIOn of what occurred at thIS meetIng wIth Scott has been consIstent. At hIS IntervIew at the mItIgatIOn meetIng and In hIS testImony Nadeau has maIntaIned that Scott only told hIm to stop forwardIng the cartoons There IS no IndIcatIOn dunng the meetIng that Scott InqUIred about Inappropnate e-maIl actIvIty generally and Scott agreed that he dId not refer to the WDHP or IT polIcIes Scott dId not consIder the matter senous enough to warrant dIscIplIne, nor dId he belIeve It necessary to confirm the conversatIOn In wntIng. Scott suggests In hIS 51 mItIgatIOn notes that there may have been confusIOn about the message he gave to Nadeau, although he stIll belIeved that there was stIll some InsubordInate behavIOur When Scott raised thIS Issue at the mItIgatIOn meetIng, he IndIcated In a questIOn that he was wIllIng to accept that Nadeau Interpreted theIr dIscussIOn to be only about the tWIsted humour websIte In response, Nadeau agaIn confirmed that he understood that he was only beIng asked to refraIn from forwardIng cartoons from that websIte Upon reVIeWIng the eVIdence, It IS my conclusIOn that the Employer dId not establIsh that Scott gave Nadeau a general InstructIOn to stop sendIng Inappropnate e-maIl A reVIew of all of the eVIdence supports Nadeau's VIew that he was Instructed only to stop forwardIng cartoons from the tWIsted humour websIte He complIed wIth that InstructIOn. What IS partIcularly sIgmficant about the Ashby IncIdent IS that Nadeau was not dIscIplIned for forwardIng the cartoon and there was no InqUIry about hIS e-maIl actIvIty generally The faIlure to dIscIplIne In thIS Instance or to make further Inqumes sends the message that the matter was not very senous and that any further breaches would not lIkely lead to severe consequences In decIdIng to dIscharge Nadeau, Scott relIed on a number of factual conclusIOns, some of whIch he vIewed as sIgmficant, whIch were sImply not correct. He accepted the statement In the final report that Nadeau contInued to forward cartoons from the tWIsted humour websIte after theIr meetIng, when there IS no eVIdence to suggest that he dId. Scott also belIeved that Nadeau forwarded some offensIve vIdeos when he In fact sImply receIved and deleted them Scott testIfied In cross-eXamInatIOn that he stIll placed some weIght on Addyman's comment that some matenal In Nadeau's Outlook account was techmcally Illegal, even though there IS no basIs for concludIng that any Items were Illegal I preferred Scott's answer dunng hIS cross-eXamInatIOn 52 to the one he gave In re-eXamInatIOn, when he said that Addyman's comment about techmcally Illegal Items had no Impact on hIS ultImate deCISIOn. As noted above, Nadeau exchanged Inappropnate matenal bye-mall wIth OPP officers It appears that the opp conducted an InVestIgatIOn Into the e-maIl actIvIty of ItS officers and that no opp officers were dIscharged as a result. Counsel for the Umon argued that the fact no opp officer was dIscharged IS a factor whIch should lead me to conclude that the dIscharge of the gnevors IS an excessIve response I dId not take thIS factor Into account. Although I have some e-maIls whIch were sent and receIved by some OPP officers, I do not have a complete pIcture of any OPP officer's e-maIl actIvIty Therefore, I am not In a posItIOn to compare any such actIvIty even If It were appropnate to do so wIth the Improper e-maIl actIvIty of the gnevors It may very well be the case that the e-maIl actIvIty of OPP officers was qUIte dIfferent from the e-maIl actIvIty of the gnevors and therefore dId not warrant dIscharge In summary there are several factors whIch weIgh heavIly In favour of the conclusIOn that the Employer dId not have Just cause to dIscharge the gnevors The partIcIpatIOn of managers In the receIpt and dIstnbutIOn of Inappropnate e-maIl and the lInk between theIr e-maIl actIvIty and the gnevors as descnbed prevIOusly creates the type of condonatIOn that IS a sIgmficant factor The dIscIplIne free records of the gnevors make the pnncIple of progressIve dIscIplIne a relevant consIderatIOn. Where appropnate, I also consIdered the length of servIce of the gnevors HastIe In partIcular has consIderable semonty and he was on the verge of retIrement. Nadeau also has sIgmficant semonty Many of the unclassIfied gnevors have held contracts for many years wIth the hope of secunng a classIfied posItIOn. I was Influenced also by the fact that MacDonald In the case of HastIe and Scott In the case of Nadeau relIed on untrue facts In decIdIng to dIscharge these gnevors What also IS In the gnevors' favour IS that they 53 were not accused of engagIng In Inappropnate e-maIl actIvIty when they should have been workIng, that theIr e-maIl actIvIty was not Illegal and that they were not gIven any traInIng In the proper use of e-maIl when other employees In the MNR dId receIve such traInIng. Another sIgmficant factor IS that all of the gnevors understand that they were wrong to partIcIpate In Inappropnate e-maIl actIvIty at work and that they are sIncerely remorseful for theIr actIOns Although they partIcIpated In an Improper e-maIl culture wIth many others and at the tIme they belIeved that the dIstnbutIOn of offensIve Items to fnends was not a senous matter they all came to apprecIate better the sIgmficance and consequences of theIr wrongful actIvIty WIthIn a publIc sector workforce Perhaps the most sIgmficant mItIgatIng factor IS that the gnevors are unlIkely to breach the WDHP and IT polIcIes agaIn. I dId not find the basIs upon whIch the managers concluded otherwIse to be compellIng. For example, the "warnIng" Wickett receIved from Delaplante, the cautIOn Nadeau receIved from the OPP officer and the dIrectIOn Scott gave to Nadeau In the Ashby IncIdent are, for the reasons I explaIned prevIOusly not events whIch support a conclusIOn that these two gnevors wIll lIkely re-offend If reInstated. Two other matters are worth notIng In connectIOn wIth the questIOn of whether the gnevors are lIkely to re-offend. The gnevors testIfied about the work that they performed and how much they enJoyed theIr Jobs Many of them IndIcated that an Important Impact of theIr dIscharge was that they were no longer able do the kInd of work they were educated and traIned to perform. The opportumtIes for them In theIr chosen fields outsIde of the MNR are lImIted. In addItIOn, apart from the loss of employment, I was struck by what most of them expenenced by beIng dIscharged In relatIvely small commumtIes In northern Ontano In part because of press 54 coverage and the nature of theIr posItIOns, It appears that theIr dIscharge and the reason behInd It became known to a fair degree throughout theIr respectIve commumtIes ThIS caused the gnevors and theIr famIlIes consIderable embarrassment. For someone as actIve In hIS commumty as Nadeau, thIS feature of hIS dIscharge has been partIcularly dIfficult. Although these consequences of lOSIng theIr employment may not be umque to these gnevors, I have no doubt that they are expenences whIch the gnevors wIll now wIsh to aVOId, wIth the result that It IS extremely unlIkely that they wIll use e-maIl Inappropnately In the future at work or engage In other conduct that mIght subJect them to dIscIplIne HavIng determIned that the Employer dId not have Just cause to dIscharge the gnevors, I also found It appropnate In the CIrcumstances to dIrect the Employer to reInstate them As reflected In the best-case decIsIOn, counsel for the Employer submItted that thIS IS the type of case In whIch a damages award IS appropnate, rather than reInstatement and referred me to two decIsIOns In support of thIS posItIOn. In Re York Region Board of Education and 0 SS rF (1999), 84 L AC (4th) 90 (ShIme) a teacher was awarded SIX months compensatIOn, rather than reInstatement. The gnevor was dIagnosed wIth mamc depressIOn In 1987 and was prescnbed LIthIUm by hIS psychIatnst. He stopped takIng LIthIUm In 1994 and was dIscharged after engagIng In Inappropnate conduct wIth students, a colleague and a parent, and for refusIng to Implement a markIng scheme After takIng Into account certaIn mItIgatIng factors, IncludIng the gnevor's Illness, the arbItratIOn board decIded that the employer dId not have Just cause for dIsmIssal However the gnevor's refusal to acknowledge any wrongdoIng, hIS refusal of any help uncertaInty about whether he would take medIcatIOn and the lIkelIhood that he would repeat hIS Inappropnate behavIOr led the board of arbItratIOn to refuse reInstatement. 55 In Re Community Living South Muskoka and o.p SE. U (Walla) (2000),92 L.AC (4th) 384 (Mikus) the gnevor engaged In a pattern of sexual harassment over a lengthy penod. The arbItratIOn board found that the dIscharge was wIthout Just cause but refused to reInstate the gnevor because It belIeved that It was unlIkely he could successfully return to the workplace In the CIrcumstances Counsel for the Umon argued that the CIrcumstances In thIS case dId not JustIfy denYIng the gnevors reInstatement. He submItted that the employment relatIOnshIp had not been Irrevocably damaged and that there IS no IndIcatIOn that the gnevors could not successfully return to the workplace Counsel referred me to Re Tenant Hotline and Peters and Gittens supra, In whIch the arbItrator after a well-reasoned dIscussIOn of the Issue, concluded at page 143 that "absent truly exceptIOnal cIrcumstances, employees who have been unJustly dIscharged should be reInstated." The usual remedIal response In a dIscharge case where Just cause has not been establIshed IS to dIrect the employer to reInstate the employee There IS a heavy onus on an employer who takes the posItIOn that thIS usual approach should not be followed In a partIcular case It was my conclusIOn In thIS case that reInstatement IS appropnate because there IS no eVIdence to IndIcate that the employment relatIOnshIp has been Irrevocably damaged and that the gnevors could not successfully return to the workplace Although some of the managers testIfied that they belIeved that the reInstatement of the gnevors would result In dIfficultIes, they were not specIfic as to what the dIfficultIes would be GIven the nature of theIr mIsconduct, there IS no reason to belIeve that the gnevors could not respond appropnately to a dIscIplInary penalty and thus return to the workplace and work productIvely 56 In determInIng what penalty to substItute for the dIscharge of Nadeau, Wickett, Vallee and Walmsely I took Into account many of the same factors whIch led me to conclude that dIscharge was an exceSSIve response In the CIrcumstances In partIcular I consIdered the nature of the Inappropnate e-maIl actIvIty of each gnevor and the senousness of that actIvIty As noted prevIOusly HastIe and CurtIS were the worst offenders and they lIkely would have receIved the longest suspenSIOns GIven that the partIes settled the outstandIng Issues relatIng to theIr gnevances, the Issue of what penalty to SubstItute for theIr dIscharge IS no longer before me Walmsely's Inappropnate e-maIl actIvIty In terms of quantIty and offensIveness, IS at the lower end of the scale AselstIne's ImtIal recommendatIOn that he receIve a twenty-day suspenSIOn IS closer to what he deserves, as opposed to dIscharge However the presence of the DIrty Sanchez vIdeo In hIS Outlook account for a long tIme and hIS attempt to dIstnbute It to someone outsIde the OPS along wIth the other Items In hIS Outlook account, warrant a sIgmficant penalty All four remaInIng gnevors wIll receIve a sIgmficant suspensIOn for theIr Improper e-maIl actIvIty The kInd of actIvIty that they engaged In IS understandably Intolerable to the Employer and InCOnsIstent WIth theIr duty as publIc servants However the senous nature of the mIsconduct here must be balanced wIth other consIderatIOns The penaltIes that I have decIded to Impose have sIgmficant ImplIcatIOns In terms of the records and finances of the gnevors, reflect the senousness of the Employer's Interests and wIll serve to deter other employees from engagIng In sImIlar actIvItIes, whIle takIng Into account the vanous relevant mItIgatIng factors WhIle thIS lengthy process has been dIfficult for all Involved, the nature and extent of the actIvIty In Issue has been thoroughly exposed and scrutImzed. It must be emphasIzed that thIS actIvIty Involves a small mInonty of employees In a Mimstry where work has hIstoncally been vIewed as akIn to a callIng and there IS great pnde In publIc servIce I have addressed prevIOusly the InsIdIOUS ImplIcatIOns of thIS kInd of actIvIty In a workplace where dIgmty respect and dIversIty are fundamental values The Employer has now clearly confirmed and clanfied ItS polIcy 57 prohIbItIng Inappropnate e-maIl use The Umon, whIle VIgorOUS In ItS defence of the gnevors, shares the Employer's Interest In a workplace In whIch the actIvItIes In Issue here have no place In eXerCISIng the authonty whIch the partIes agreed I have In these cIrcumstances, the folloWIng penaltIes shall be substItuted for each dIscharge Mr R. Nadeau - 10 month suspenSIOn Mr L Wickett - 8 month suspenSIOn Mr J J Vallee - 8 month suspenSIOn Mr T Walmsely - 2 month suspenSIOn Apart from the penod of suspenSIOn, the Employer IS dIrected to fully compensate these gnevors for theIr losses, IncludIng Interest, less any momes they earned In mItIgatIng theIr losses Each gnevor shall maIntaIn hIS contInuous servIce date I shall remaIn seIzed of these gnevances In the event that there IS any dIfficulty In calculatIng the compensatIOn payable to the gnevors or otherwIse In ImplementIng thIS decIsIOn. Dated at Toronto thIS lih day of August, 2005