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HomeMy WebLinkAboutP.C. 04-08-11 1 CAAT- A QC63- oLlOJo-ccol IN THE MATTER OF AN ARBITRATION BETWEEN: LOYALIST COLLEGE OF APPLIED ARTS AND TECHNOLOGY (the "Employer/College") - and - OPSEU, LOCAL 420 AND IN THE MATTER OF THE GRIEVANCE OF P.C. OPSEU GRIEVANCE NO. 2003-0420-001 AWARD BOARD OF ARBITRATION Paula Knopf, Chair J. Campbell, Employer Nominee Ronald Kelly, Union Nominee APPEARANCES For the College D. K. Gray, Counsel For the Union Andrew Lokan, Counsel Emily Lawrence, Student The Hearing in this matter was held in Belleville, Ontario on September 11, 2003; January 13, February 3, May 6, May 17, June 22, June 23 and July 13, 2004 AWARD This is a discharge case. The grievor1 was a respected professor at the Loyalist College (hereinafter referred to as "the College") for over 18 years. Unfortunately, the grievor also has a history of alcohol abuse. It began to manifest itself in the workplace beginning in the year 2000. The effects of his drinking resulted in incidents for which he was progressively disciplined to the point that he was given a "last chance Agreement" in 2002. In 2003 he was discharged for what the College views as a breach of that Agreement. Subsequent to his termination the College discovered a number of allegedly inappropriate and/or pornographic files on the desktop and laptop computers assigned to him. In an interim decision dated October 15, 2003, this Board of Arbitration ruled that "it is appropriate to allow the Employer to call evidence with regard to both the alleged breach of the Last Chance Agreement and the grounds related to the alleged improper use of the College's computers." Accordingly, the evidence regarding both these allegations was considered with regard to the propriety of the grievor's termination. The College asserts that the discharge of the grievor is justified on the basis of one or both of these alleged infractions. The Union asserts that the College has failed to accommodate the grievor's alcoholism and that the computer use does not justify discharge. There is little factual dispute about the relevant events leading up to the discharge. It is very important to put all the evidence in the context of the grievor as a human being. He is 56 years old; he is married and has two teenaged children. He has been a teacher since 1968, teaching in various settings until he came to Loyalist College in 1984, He had been an innovative and hardworking member of the faculty. He helped develop new programmes. He served as the Co-ordinator of the Foundation 1 The grievor shall not be referred to by name out of respect for his privacy and that of his family. 2 Year Programme from 1996-2001, implementing effective ideas with regard to recruitment and registration. He has also served as Co-ordinator for Years 2 and 3 of the Business and Applied Arts School in 2002-2003. He has taught in the departments of Information Systems and Business and Applied Arts. The courses he has taught include E-Commerce, Marketing, Organizational Behaviour, Introduction to Computers, Computerized Accounting, Career Development, and Industrial Relations. He was twice elected as the faculty's representative on the College's Board of Governors, serving from 1996-2002. In this capacity, he also acted as the chair or as a member of several committees. This position is evidence of the esteem and respect accorded to him by his peers. His contribution to the Board of Governors was significant. He was once nominated for a teaching award and two colleagues testified about his effectiveness as a teacher and his value as a professional colleague. He has also been active doing volunteer work in his local community outside of the College. However, it is clear that during the 18 years of his service, the grievor dedicated a great deal of his time to the College. He testified that he loves teaching. He describes the College as his "second home." Despite his productive and effective contributions to his community and the College for the last two decades, the grievor has also been plagued by alcohol abuse. He described himself as a "binge drinker" who would typically go for long periods without drinking too much alcohol, but who would then drink to excess on weekends. He testified that he had been struggling with this for a number of years and first sought help by going to a religious retreat in 1992 at his wife's urging. By 1996 he began attending Alcoholics Anonymous (AA) meetings for finite periods of time. He had some reluctance to attend in his own town because of his pride and sense of embarrassment. However, even when he was able to overcome these emotions, his pattern of attendance became one of attending meetings for a number of months and then he would stop, either because he felt that the situation was under control or because he was embarrassed by the fact that he had resumed drinking. Then his problems first 3 began to manifest themselves at work as a professional concern in April 2000. He explained that he had been drinking to excess on the weekends and struggling with "personal issues." This resulted in him not reporting to work for any of his scheduled classes during the week of April 24. On two of those days he did not contact the College to tell them that he would not be attending or explain his absence. He attributes the absence to the results of "binge drinking" that had begun on the weekend. On Thursday, April 27, Dan Holland, the Dean of the School of Business and Continuing Education, received a call from the grievor's priest who gave the explanation for the grievor's absence. On Friday, April 28 Dean Holland met with the grievor. The two men discussed the grievor's financial, marital and alcohol related difficulties. Dean Holland testified that this was the first time that he had become aware that the grievor might have been having difficulties with the abuse of alcohol. Dean Holland recalls telling the grievor that help could be available through the College's Employee Assistance Program (EAP) and that he needed counselling. The grievor has no recollection of this and despite detailed and careful notes kept by Dean Holland about their meetings, there is no documentation about any discussion with regard to EAP. While the EAP services may be well publicized for employees generally, the grievor was not effectively helped to realize that he could or should avail himself of the EAP support at that time. Nor did the note sent to the grievor to document the incident suggest or encourage him to enlist the services of the EAP. Nevertheless, the grievor describes the Dean as being "supportive". The Dean wrote a memo to the grievor which concluded: We met at 9:00 a.m. in order that we could discuss your absence and the impact your actions had on our students during their last week of contact. Students in all three classes were concerned about finishing their semester. It became increasingly awkward as the week progressed for staff in the School of Business to provide any feedback to students regarding their scheduled review and final exams because we had no contact with you. With the help of one of your colleagues we were able to meet with one of your scheduled classes and administer the final exam. With your help we have made alternative arrangements for the other two classes. 4 . . . . ., you have shared with me the personal difficulties you are currently experiencing. Although we support you in your efforts to overcome these problems, your actions of last week cannot be condoned. With respect to the four days in question and your eligibility for pay, we need to meet and discuss how we will handle this. In the meantime, would you please contact me personally any time you are unable to attend classes or other scheduled duties. A voice message will not suffice. It is the College's expectation that there will be no further incidents of a similar or related nature and in the event that there are, appropriate disciplinary measures will be taken. We have agreed today that this letter will remain sealed in my personal custody for one year, at which time I will determine whether it will be placed in your personnel file or destroyed. The grievor testified that the Dean's reaction "seemed very fair." The grievor says that he then "resolved to do something" about his personal problems. He testified that he resumed attending AA meetings regularly for a number of months, but did not seek any further professional assistance. By the end of the calendar year he was no longer attending AA meetings. In February 2001 the grievor attended a professional conference where he says "a lot of drinking was going on." He then continued to drink to excess after the conference and could not report to work on February 20 and 21. As a result, he was unavailable to administer two scheduled tests or offer one scheduled review to his students. Students were left waiting in classrooms for the scheduled tests to begin and had to be told that the College was unaware of the grievor's whereabouts. The tests had to be administered at another time. This was obviously very disruptive and disturbing to the students and the College. As a result, the grievor was called to meet with Dean Holland about this on February 22, 2001. Because the absence had occurred less than one year after the events in May 2001, the May 1 warning letter cited above was placed on the grievor's 5 personal file as "confirmation of a disciplinary warning." He was not paid for the February 20 and 21 absences and he was suspended without pay for a further five days. A disciplinary note was issued at the time and concluded: I must remind you that this inadequate performance will not be tolerated. Should there be any further incidents in the future, you will be subject to further disciplinary action up to and including dismissal. The grievor did not grieve this because, as he testified: I knew I was in the wrong. I certainly was very depressed over it - to say the least - not because of the suspension - but because of my not living up to my commitment to solve the problem or my commitment to the students. It was very difficult to accept that. He then explored the possibility of entering a residential treatment programme for alcohol addiction. He discussed this with a person who often went with him to AA meetings and who he described as a "kind of a sponsor". The grievor explained that this person "wasn't big on the residential programmes" and led the grievor to believe that there was a six to twelve month waiting period for admission. Accordingly, he set aside the notion of an intensive residential rehabilitation clinic and personally resolved again to try to deal with the drinking on him own. Unfortunately, problems resurfaced at work again in January 2002. The grievor had been given time off work to attend the funeral of a friend. He drove out of town to attend the funeral. He met with old friends the night before the service and this is when excessive drinking began. After the funeral there was more drinking. He then drove back into town, parked his car in a nightclub parking lot and was arrested for impaired driving as he emerged from the car.2 The next day he called in "sick" because he described himself as being "extremely distraught over being charged." He stayed off work approximately one week. His classes were suspended. The underlining reason 2 He was subsequently convicted of this offence and had his driver's license suspended for one year. 6 for the absence and the fact of the arrest came to the attention of Dean Holland through an article about his arrest in the local newspaper. The Dean called the grievor and asked him to provide a medical note to verify the alleged sickness. The grievor was also told to attend a meeting on February ih. The College's Vice-President of Human Resources, David Butler, was in attendance as well as the Union's Chief Steward, Harry Plummer. Up to that point, the College had been willing to deal with the grievor in accordance with what Mr. Butler had described as the College's "generic progressive disciplinary pattern," beginning with a warning letter and then escalating to progressively higher suspensions. But at this meeting, the College tabled a document entitled "Last Chance Agreement." The College witnesses say it was crafted "in the hope that we could get the behaviour to change." The message given to the grievor was that unless he agreed to the terms of the prepared document, he would be terminated. The College considered his signing of the document to be a quid pro quo of his continued employment. Harry Plummer did not agree with either the imposition or the terms of the proposed Last Chance Agreement. He had been unaware that the grievor was suffering from an alcohol abuse problem before this incident came to light. However, on the basis of what he learned at that meeting, he felt the College had not done even the "minimum" of what it should do to accommodate the grievor. Accordingly, Mr. Plummer argued that it was premature to impose such conditions on the grievor. Mr. Plummer also told the College that it would be inappropriate for the College to demand that the grievor sign it. Nevertheless, Dean Holland made it clear that the College was prepared to fire the grievor unless he signed the document. Mr. Plummer was only able to convince the College to remove a "stipulated penalty clause" from the prepared draft that would have prevented an arbitration board from substituting a lesser penalty than discharge in the event of a breach of the agreement. Even with this amendment, Mr. Plummer indicated that he was unwilling to sign the document on behalf of the Union. He asked the College what would happen if he or the Union refused to sign it, 7 but he did not receive an answer. This left everyone in a situation where the grievor's continued employment was contingent on him signing the document while the Union was refusing to sign on as a party because it considered the document to be . inappropriate. As Mr. Plummer testified, "I said I didn't think that he [the grievor] should sign it, but I recognized he felt he had to sign it. I wasn't going to stop him..." In the midst of this, the grievor expressed optimism that he could live up to the terms of the document and told Mr. Plummer "not worry about it." The grievor certainly understood that he had to sign the document in order to retain his job. Accordingly, he signed the document that day. The relevant terms of the document are as follows: The parties irrevocably acknowledge and agree as follows; 1. P.C. is a professor, and Loyalist College, the employer, is a community college. P.C. was absent from work for the week of April 24, 2000, without authorization or explanation, and received a letter of warning from the Dean of Business and Applied Arts dated May 1, 2000, advising of the consequences of further unexplained absences. Mr. Callaghan acknowledges said absence was self-induced and alcohol related. 2. P.C. was further absent without leave and explanation on February 20, and 21, 2001, for alcohol related reasons. For said absence he was suspended without pay, for five days. Said suspension was not grieved. 3. On January 30,2002, P.C. was again absent from work without authorization, for alcohol related causes. In lieu of termination for cause by reason of said absence and record of absences, P.C. and the union have agreed to enter into this last chance contract. 4. P.C. further acknowledges that he has been provided with opportunity to have a union official present for any or all meetings with employer and has elected . [sic] 5. The employer has made every reasonable effort to accommodate Mr. C's alcohol problem by providing 8 information and encouragement to participate in the College's Assistance Program. Given the circumstances outlined above, the parties do hereby agree as follows: 1 . The parties to this Memorandum of Agreement accept and will not dispute the accuracy of the foregoing statements and agree to provide P.C. with a last chance to retain his employment, subject to the terms and conditions set out below. 2. P.C. must, no later than February 8,2002, contact Ginny Palmer, with Beckett Kitchener Associates, the College's Employee Assistance Program provider, to secure and accept the earliest available appointment with that counselor. 3. P.C. will attend the initial assessment and any subsequent interview, counseling sessions, or referrals recommended by Ms. Palmer, and must, without exception, successfully complete and attend all of said sessions, including any residential treatment or aftercare program as may be recommended by Ms. Palmer, or such other treatment provider as the College may approve. The College will support approved absences from the workplace in order to participate in such rehabilitative and counselling programs as may be appropriate and reasonable. 4. P.C. must immediately provide Loyalist College with a release authorizing his counselors, doctors, or any other treating professionals with the authority to disclose to the College, on an on-going basis, any information they may require with respect to his attendance, progress or treatment for alcoholism or alcohol dependency. 5. P.C. must never at any time consume alcohol on any College premises, or at any College functions. He must not in any event, at any time, be under the influence of alcohol while performing his duties of employment. It is understood and agreed that no absences due to alcohol consumption will constitute satisfactory reason for absence from work. 6. P.C. must provide satisfactory written medical evidence covering each and every day absent from work for which illness is claimed as a reason. Such absences are to be reported 9 directly to Dan Holland, or his designate, at least two hours prior to the start of the regular working day. 7. The parties agree that should P.C., at any time, breach any of the obligations or conditions under this Last Chance Agreement, he shall forthwith be deemed to have been terminated. Such deemed termination shall be irrevocable. The parties further agree that any deemed termination shall be for "just cause", and that it would not be just and reasonable that he be reinstated in employment. Mr. Plummer was concerned that the College would use the Union's refusal to sign the document as an excuse to renege on the promise to continue the grievor's employment. Accordingly, the following day the Union's position was clarified in a letter to Dean Holland that states: I understand the seriousness of your concerns and recognize that you consider p's undertaking as expressed in that agreement, to be critical to your decision to continue p's employment. The union, however, is not prepared to be a party to that agreement. It is our opinion that signing the document would constitute abandoning our duty to fairly represent the employee. As P and you have chosen to sign the agreement we are of the opinion that you are obligated to honour the commitment you have made to continue his employment under the conditions outlined in the agreement. We caution you that we would view as an "Unfair Labour Practice" any attempt to negate that agreement on the grounds that the Union would not sign it. Within a few day of signing the Agreement the grievor met with the College's EAP counsellor, Ginny Palmer. He recalls discussing with her the "options available" to him including receiving residential treatment. He did not perceive her as being "directive"; rather that she was soliciting ideas from him for a solution. She did refer him to a local addiction assessment and treatment centre. He recalls again exploring the idea of an intensive residential alcohol treatment programme. He recalls placing several phone calls himself across the province making enquiries, but being told that there would 10 be a six to twelve-month waiting period before he could be admitted, There is no evidence that he asked or was advised to ask about being placed on a waiting list. All that happened was that he accepted the referral to a local treatment programme, was administered a variety of assessment tests and was assigned a counselor. He met with that counselor "two or three times" in February 2002 and remained off work on medical advice and the Dean's insistence. While off work he kept himself busy doing college- related research and course preparation. He did return to work in March and saw the addiction counselor "one or two" more times. Meanwhile, his classroom responsibilities had been reassigned for the rest of the semester and he undertook some projects for the Dean. He also consulted his psychiatrist in the fall of 2002. He was placed on anti- depressant medication and it was suggested that he may be suffering from the seasonal affected disorder (SAD). A specialized lamp was suggested to alleviate the symptoms. There is no evidence about whether he followed up on the suggestion. Despite everyone's hopes and good intentions, in early 2003 the grievor's drinking again affected his work. In the last week of January, he checked himself into a local hotel and called the College on Monday -Wednesday, January 27,28 and 29 reporting himself "sick". In fact, he was drinking to excess. On Thursday, January 30 he failed to call into work and was still absent. Dean Holland had been suspicious about the reason for the grievor's absences and was finally able to contact the grievor by telephone. The Dean needed to know whether to expect the grievor back to work the following week because arrangements would have to be made for his classes. Dean Holland suspected that the grievor was drunk because the grievor seemed "out of it" during the conversation. The grievor said that he had a doctor's appointment the following day. However, the Dean did not hear from the grievor on the Friday. However, by Friday evening January 31 the grievor had developed chest pains and was admitted to the hospital's emergency department where he stayed until February 1st. The grievor did then leave a voice mail for the Dean around noon on Sunday February 2 saying that he would return to work Monday February 3. 11 As promised, the grievor did return to the College February 3 and met with the Dean. The grievor told the Dean that that he had not been able to see the family doctor on January 31st because he had been called out of town. However, the grievor added that he had been admitted to the hospital's emergency department that same evening because of chest pains. Dean Holland asked the grievor directly whether he had been drinking the previous week and the grievor vehemently denied such conduct. The grievor gave the Dean a doctor's note from the hospital's Emergency Department stating that the grievor had been "under medical care since January 27,2003." The doctor who issued this note had seen the grievor in Emergency on January 31, but not earlier. No doctor had been attending to the grievor between January 27 and January 30. Therefore the note is not accurate. Dean Holland did not know the specifics; however he was suspicious and was not satisfied with the note. He insisted that the grievor sign a medical release form to enable the College to further "assess" the recent absence from work. The grievor believed the note he had already provided was in compliance with the collective agreement and that it ought to be sufficient to explain the absence. Therefore he resisted providing the release. However, Dean Holland reminded the grievor about the terms of the Last Chance Agreement [Page 2, paragraph 4, cited above] and the grievor finally acquiesced. The grievor also attached the following note to the signed release that he provided to the College: Please find attached the authorization requested. As I told you on Monday February 3, 2003, I affirm that I was sick Monday January 27 until February 3 and I did not see Dr. Brearly. I believe that I was suffering from the flu. However, I did see Dr. Courtland on February 2, 2003 and I have provided you with his diagnosis. I did call in sick this week every day except Friday. On that day I had no classes. Armed with the grievor's release, the College soon received a report from the hospital concerning the grievor's admission to Emergency on February 1 and his release February 2. The relevant parts of the Report indicate: 12 HISTORY TO PRESENT ILLNESS: This is a 54 year old man who was admitted to hospital February 1 with onset of chest pain. Mr. C. unfortunately has been drinking rather heavily over the last week prior to admission. He woke up with a central chest pressure that radiated to his arm. He was sweaty, short of breath, and nauseated, although did not vomit. He does have a past history of hypertension, bilateral hiatus hernia repair, and ethanol abuse. When he presented to the Emergency Department he was found to be in a sinus tachycardia. Within an hour he developed a rapid arterial fibrillation at 173 beats per minute. He was treated in the Emergency Department with IV Diltiazem, 1V Metoprolol, and was given Nitroglycerin. This did not seem to control his rate very well, and he subsequently was put on IV Amiodarone. He was admitted to the ICU. Mr. C. likely had chest pain and atrial fibrillation related to alcohol abuse. He was put on Losec in hospital, and he was switched from Atenolol to Monocor. He did well and was subsequently discharged home. I will see him again to follow up for an Exercise Stress Test later this week. We did have a long talk about his alcohol abuse and he will apparently be avoiding it in the future. FINAL DIAGNOSIS: 1. Chest pain, query cardiac. 2. Atrial fibrillation. 3. Alcohol abuse. 4. Hypertension. When the College received this report a decision was made to terminate the grievor. He was called to a meeting on February 19. At that meeting he continued to deny to both the College and the Union representative that he had been drinking during the last week of January. These denials persisted until he was confronted with the information 13 concerning his alcohol abuse from the medical report from the hospital. He was then given the letter of termination that cited his breach of the Last Chance Agreement as cause for termination. He was also offered the option of resignation which he did not exercise and a grievance was launched. Because alcohol abuse and accommodation are factors in this case, the College's EAP is relevant. The College does make treatment programmes available to faculty. Faculty are given information about this when they are hired and on an ongoing basis. The College has an agreement with specific professionals to provide the necessary services, including an alcohol treatment and assessment group in Belleville. The College's practice is to play no role in treatment decisions and to leave those matters completely within the sphere of the employee, his/her family, medical advisors and the professional counselors. Mr. Butler testified that essentially all the College felt it could or should do was to have made treatment available to the grievor through the EAP referral and specify in the Last Chance Agreement that he would be terminated if he did not avail himself of the counseling. The College did not direct or insist on a certain kind of treatment because it felt that it was up to the grievor to be guided by the expertise of the contracted services. Mr. Butler testified: "I don't know what else we could have done." It was stressed that the College's goal at all times had been to change the grievor's inappropriate behaviour. However, the College's concern at the time of termination was that despite these efforts, the grievor's behaviour had not changed and the students were being put in jeopardy because of the grievor's absences. The College was concerned that reinstatement of the grievor would inevitably lead to further disruptions to the students. Mr. Butler also felt that the College would "lose credibility as an institution" if it took the grievor back in light of the number of previous failed attempts to effect a behavioral change in the grievor, including the "Last Chance Agreement." Further, the College expressed concern that reinstatement would result in someone else being laid off. Finally, Mr. Butler stressed: "We are an education 14 faculty, we train students. We are not a counselling service." For all these reasons, the College was not willing to continue the grievor's employment. In order to assess the impact of the grievor's absenteeism compared with other members of the faculty, the Union filed in evidence a listing of the bargaining unit's sick leave experience from September 1999 through to the end of September 2003. This chart revealed that the average annual absenteeism rate was 4.32 days. If major medical absences are removed, the average drops to 1.76 days. The grievor's average during this same period was 13.86 days per year. Twelve days during that period are attributable to alcohol abuse. Two other faculty members had higher absenteeism rates. In addition, two other professors were given leaves of absence in order to attend residential rehabilitation programmes. The Union offered evidence of the grievor's rehabilitation efforts since the time of his discharge.3 The grievor completed a 21-day residential treatment programme for alcohol abuse a few months after his termination. While he had been repeatedly told about 6-12 month waiting periods for admission, he was able to quickly take advantage of a cancelled bed that became available once he placed himself on the waiting list. A letter from the Sellwood Private Hospital (hereinafter referred to as Sellwood) over the signature of a "recovery counselor" confirms the grievor's participation and co-operation in an intensive 21-day alcohol dependency programme from April 25, 2003 to May 15, 2003. The letter indicates that the grievor made "significant gains towards establishing an alcohol free lifestyle." The letter also concludes with the sentence: "[P]'s aftercare plan will include regular 12-step meetings and work with his sponsor." 3 The College objected, asserting that post-discharge evidence is inadmissible. However, the College was content to have the Board of Arbitration receive the evidence and leave the legal issue for final argument. In a ruling which will be explained below, the evidence has been found to be admissible and shall therefore be recounted at this point in the narrative. 15 The grievor was asked numerous questions by both parties in order to explore the extent of his actual recovery. He testified in chief that "My problem has been binge drinking, mostly. I often have periods of sobriety, three to six months." In cross-examination he then shied away from this self-description, but did not offer an alternative. The grievor also testified about his experiences with AA. He has attended AA on and off since 1996. As mentioned above, he would stop attending when his drinking tapered off and when he was not getting into trouble or when he had resumed drinking and was too embarrassed to face those who had maintained abstinence at the meetings. He admits that prior to his termination he did not "embrace AA", that he was perhaps too proud and embarrassed to attend regularly and that he felt that he could manage his own solution to his drinking problems. However, he said "I've come to the belief in the last one and a half years that this can't be done on my own." The grievor testified that after leaving the programme at Sellwood, he took Antabuse4 medication for approximately nine months. However he described this drug as a "sort of a crutch." He stopped taking it at his doctor's suggestion and because of difficulty in filling the prescription. He was asked what he has learned from the Sellwoods programme. He responded in part: A lot of people have this problem. I found it [Sellwood] very educational. Misery loves company.... It was like a conference - a lot you learn is from interaction with others. The biggest thing was - I was left with the strong desire to stop drinking and an educated view as to what my problem was. When asked if he felt his drinking was something he could deal with alone he responded: "No, I don't think so." He admits that he now knows he cannot be a social drinker. He has seen his own psychiatrist twice since his termination. He has been able to get another job and has maintained that position since September 2003. He testified that he has resumed attending AA twice a week and he says,"For the first time I 4 A drug designed to inhibit alcohol consumption. 16 have embraced the 12-step programme rather than just attending the meetings." He says that he has now accepted the spiritual aspects of AA that are compatible with his religious beliefs. He says that the last time he had a drink of alcohol was two to three weeks before his attendance at the Sellwoods Hospital. He wants to return to teaching at the College and would be willing to accept conditions such as continued attendance at AA and following the recommendations of the College's EAP programme. These assertions were tested in cross-examination. When asked to list the twelve steps of the AA programme, the grievor was unable to articulate more than six. While he testified that he attends both open and closed AA meetings, he concedes that his wife has not attended any of the open AA meetings where partners are encouraged to participate. He gave no evidence to indicate that he has an AA sponsor or why he has not followed the Sellwood's recommendation that work with a sponsor be part of his after care. However, the answer may lie in one part of his testimony where he conceded that that he "has never been at a stage" where he would be able to make the kind of contract that one is expected to make with an AA sponsor. When the grievor was dismissed, arrangements had to be made to deal with his ongoing classroom assignments for the rest of the term. The College's desk-top and laptop computers that had been assigned to the grievor had been confiscated at the time of his termination. Dean Holland arranged to have them turned over to the teacher who would be taking over the grievor's classes. The hope and expectation was that the computers would contain materials and presentations that would facilitate the delivery of the courses. The replacement professor scanning the files on the grievor's computers did find what he was looking for. However, he also found a number of files which were referred to generically during this hearing as "adult sites". He reported this to the Dean who gave instructions to the manager of the College's computer centre to have the course material copied onto one disk and that the images originating from the "adult sites" should be copied onto a separate computer disc. Dean Holland was then shown 17 a short video clip from one site taken from the grievor's computer. After a few seconds the Dean's reaction was to say: "Enough". What he saw made him feel that it was unacceptable for a college employee to download such material and that this would constitute a breach of the College's Code of Ethics which reads: As employees of Loyalist College our actions are guided by specific laws and regulations. However, we recognize that there are academic and moral duties above and beyond those which must be observed within the confines of an academic institution. Loyalist is committed to providing quality education for lifelong learning and career fulfillment. Our ability to achieve these goals is dependent upon our ability to maintain the highest academic standards. We are individually and collectively responsible for setting the academic and moral standards of this college. Insofar as our actions and the policies we adopt have academic significance, we should act in ways that will enhance those standards. As individuals and collectively, we influence whether the college community acts justly and whether basic human rights are observed. Insofar as our actions and the policies have moral significance, we should act in ways that will produce the greatest possible good. Approved by the Board of Governors June 4, 1998 It is perhaps ironic that the grievor had been a member of the Board of Governors when this Code of Ethics was drafted and adopted. Dean Holland felt that the grievor's use of the College's computer and internet system to download the kinds of materials contained on the adult sites meant that he had failed to fulfill the expectation that a professor act as a role model and live up to the esteem that the students accord to professors. The College had no formal policies in place regarding the use of computers or the internet. Dean Holland's expectation was that College computers would be used only for research related to courses. However, he did concede that the 18 College would not discipline an employee for using the internet to book a vacation. But he felt strongly that the few seconds of the video clip that he had viewed from the grievor's computer were "inappropriate." That particular clip contained images of young females spanking each other. Dean Holland conceded that the grievor's laptop could have been taken home and that the College had no interest in what professors do in their own homes "so long as they do not use College equipment." However, Dean Holland was also concerned about the extent or number of files that had been found and that the existence of these files on the grievor's computer was also relevant to the students. Dean Holland explained: This material - I saw one clip, I have to look at this in light of the students, the academics, the classroom. If the individuals are responsible for the academic wellbeing of the students, I'm no expert, but in my opinion this could have some relevance upon what goes on in the classroom. Therefore, Dean Holland objected not only to the use of College equipment but also to the fact that a College teacher was viewing this type of material. Dean Holland understood from the manager of the computer services that the grievor had two to three thousand objectionable files on the College's computers' hard drives. The Dean specified that his concerns about the grievor's use of the computer related not only to the nature, but also to the extent of the material contained on the computers. Dean Holland said that someone viewing this type of material is "unfit to teach." When pressed in cross-examination, Dean Holland also said that he felt that someone with two to three thousand Playboy magazines in his own home would also be unfit to teach. Mr. Butler also testified that although the College has no written policy regarding computers and pornography, the College considers it totally unacceptable to use College equipment to download the kind of material found on the grievor's computer. Mr. Butler testified that professors are expected to be role models, working directly with students where classrooms are small and the students are "known by name, not by number." In light of all this, on March 6, 2003, the President of the College 19 wrote to the grievor indicating that it had come to the College's attention that "numerous pornographic websites have been accessed through both your office computer and your laptop." This was said to be "highly improper and possibly illegal." The letter indicated that this factor "constitutes a further reason for your dismissal." Accordingly, this became the second or alternative ground upon which the College is justifying the grievor's termination. The contents of the grievor's computers were explained to the Board of Arbitration by Randy Gilchrist, a programme analyst at the College and a member of the bargaining unit. He is a certified network engineer. He explained that professors are assigned desktop and laptop computers and have access to the internet through the College. He was unable to determine how much of the "adult" material that had been found on the grievor's assigned computers had been directly accessed by the grievor or had been automatically sent to him by the adult sites. Mr. Gilchrist explained that if one accesses a file on the internet, one can deliberately download that file or it could become imbedded in a temporary file that will be automatically created. Mr. Gilchrist conceded in cross-examination that "adult" websites are often designed to be automatically downloaded onto a hard drive. They are therefore known to be "sticky" because attempts to close such sites are frustrated by the site automatically returning unsolicited to the initial user. This is a commonly known feature of the adult sites. Accordingly, it is virtually impossible to discern how much of the materials on the grievor's computer were actively downloaded by him or have been automatically retained when he was "surfing" the sites and their images became imbedded unsolicited. Filed in evidence and considered by this Board of Arbitration was the CD Rom created from the files on the hard drive of the grievor's desktop and laptop computers. It contains a numbers of completely innocuous files. It also contains numerous files which could be described as "adult sites." In a very significant number of 20 these files there is a consistent theme that the grievor himself describes as "BDSM". These initials stand for bondage, discipline, and sado-masochism. The images can be found in sites which have titles that include the words rape, violence, torture, and brutality. Some of the images are of women apparently being raped, whipped, and/or struck to the point of significant bruising and bleeding. Some of the images are photographs; some are video clips. The images are clear, graphic, and numerous. When pressed about the nature of the images contained on these sites, he described BDSM as "a lifestyle". He expressed no concern about the production or the existence of these images. When confronted with the contents of some of the specific images of rape taken from his computer, he admitted that they were degrading and dehumanizing to women.5 However, he did not agree that the sites depicted violence because he says that he had "discovered" that people participate voluntarily in the production of these sites. The grievor was asked to explain the presence of these adult sites on the College's computers. His explanation for their presence is: "They caught my interest." He testified that he had studied deviant sexual practices as an undergraduate in psychology in the mid-1980s. He also mentioned that the sites had a relation to the E- commerce courses he taught, although he never used them as examples in his classes. He testified, "They are sites that I came across by accident that I downloaded to check out personally." He admits viewing many of the sites but testified that he did not realize that they were being automatically downloaded. He said that if he had realized this, he would have deleted these files. His uncontradicted evidence was that he only viewed these adult sites in the confines of his own office at the College when no one else was present and that he never sent the images to anyone else. While he knew the College had no specific policy about this kind of thing, he did direct his students that they were 5 Counsel for the Union objected to the grievor being asked whether the images were degrading or dehumanizing on the basis that the question called for a legal conclusion. The Board of Arbitration allowed the question to be answered in order to hear the grievor's response, while at the same time indicating that the response would not be received as a legal conclusion. 21 not to view sites that "could be objectionable to others in the classroom" and told the students "basically, look at them in private." The grievor was asked to comment upon the College's objection to his using its computers for the viewing of these types of sites. His response was: "In retrospect, if these were sites I wanted to look at, I should have done it at home." Several images were also discovered on the grievor's laptop. He testified that this computer was in the possession of another teacher for some time and then was taken to his home from July to August 2002 where his wife, son, daughter and their friends had access to it. He suggested that some of the "adult sites" found on the computer could have been accessed by his teenaged son or his friends. He also testified that he had never seen 95-98 percent of the images on the disk made from his laptop and suggested that they were there either as a result of the automatic downloading from the sites he surfed or that they may have been accessed by the others who had access to this computer. However, he also admitted that some of the images from the laptop were the result of his own actions and "have a similar theme" to the "BDSM" images found on his assigned desktop computer. The Submissions of the Parties Submissions of the Emplover The Employer asserts that there is just cause for dismissal based on either or both of the allegations concerning the conduct arising from the abuse of alcohol and/or the grievor's misuse of College computer facilities. It was stressed that the grievor breached the Last Chance Agreement or, in the alternative, if the agreement is not binding and enforceable, then his conduct resulting from his abuse of alcohol warrants termination. Secondly, it is asserted that the grievor's downloading and/or 22 accessing of obscene material on College owned computers during working time, amounts to just cause. The Employer also asserts that the Union has failed to establish any basis for mitigating the penalty. Counsel for the Employer reviewed the evidence in detail. In particular, the College emphasized the disruption and difficulties that were created when the grievor failed to attend his scheduled classes. Special weight was given to the days when the grievor failed to attend for scheduled examinations. The College also emphasized that the grievor acknowledged that he was dealt with fairly by Dean Holland when the College first became aware that his absences were due to alcohol-related difficulties. It was asserted that the College acted appropriately at the time of the second incident when the disciplinary record was created. It was said that it was proper to impose the five-day suspension and warn the grievor that further incidents would be subject to discipline, up to and including discharge. When the third incident occurred, the College asserts that it was appropriate to have the grievor enter into a Last Chance Agreement in order to bring home to him the seriousness of his conduct and inspire a change in behaviour. It was said that the grievor's signing of the document shows his acknowledgment that the College had made every reasonable effort to accommodate him up to date and that maintaining his employment at that point amounted to his "last chance." Further, the grievor accepted the chance to avail himself of the services of the Employee Assistance Programme. Acknowledging that the Union never signed the "Last Chance Agreement," the Employer asserts that the Union is nevertheless bound by it because it was given input into its contents and then insisted on the College's compliance with its terms. Therefore, it was argued that the Union must be bound by the agreement because even though it failed to put its signature on the document, it was accepting the document's terms. In support of his argument counsel cited the following cases: Domtar Sonoco Containers and I.A. W. - Canada Local 1-1000, (1992) 28 L.A.C. (4th) 11, (I.G. Thorne), 23 Skeena Cellulose Inc. and P.P. W.C., Loc. 4 (Cooper-Shaw), (2001) 95 L.A.C. (4th) 289 (R.K. McDonald), Counsel for the College placed great emphasis on the seriousness of the last alcohol-related incident in January 2003. His absence was characterized as not only being disruptive to the students, but also as being exacerbated by the fact that he was not truthful with the College. It was stressed that the grievor repeatedly said that he was sick when he was actually in a hotel room drinking to excess. Further, he presented a misleading medical note to the College; he resisted providing further medical evidence and then continued to insist that he had not been drinking to both the College and the Union. The truth only came to light when the Hospital records were received. Counsel stressed "the College, at that point really had no option" and therefore decided to terminate. Setting aside the question of the admissibility of post discharge evidence for the moment, counsel for the Employer argued that the evidence provided by the grievor was insufficient to justify any mitigation of the dismissal. It was stressed that the only concrete evidence presented by the grievor was the letter from Bellwood Hospital confirming that he attended the 21-day residential programme. The only other evidence was the grievor's own testimony indicating that he is attending AA, has adopted the Twelve Step programme and that he has seen a psychiatrist twice since his discharge. It was stressed that this type of evidence shows no different pattern than any of the evidence presented by the grievor about his efforts to control his alcohol abuse prior to the discharge. Further, the Employer stressed that the evidence lacks any corroboration. The College doubts the credibility of the rehabilitative evidence, arguing "this is the same person who repeatedly lied to himself and to the College about his drinking and who has assured the College a number of times that things would be different." Counsel also emphasized that the grievor did not present any evidence from a sponsor, a caregiver, a doctor, a psychiatrist or anyone else to corroborate the 24 grievor's claims about sobriety or about his continuing attempts to remain abstinent. Counsel argued "all you have heard is the same assertions from the grievor that he has given before." Therefore, the College argues that conduct warranting the discharge has been established and that the grievor has presented insufficient evidence to mitigate against such a result. Turning to the issue of accommodation, the College first questions whether the grievor is in fact an alcoholic and challenges whether he is entitled to the protections of the Human Rights Code. It was stressed that no medical evidence has been filed to prove that the grievor is an alcoholic. The College does not concede that the grievor is an alcoholic and suggests that it would be wrong to infer that he has the disease without medical evidence to support the claim. In the alternative, the Employer stresses that on three occasions, prior to the dismissal, the grievor was given the benefit of progressive disciplinary steps in order to change his workplace behaviour. Further, the grievor was given the benefits of a Last Chance Agreement and urged to attend counselling at the College's expense. Therefore it was said that he was given opportunities to address his problems. It was argued that this amounted to "significant accommodation and effort on the College's part." The College argued that it has reasonably accommodated the grievor in all the circumstances. Stressing that the College could have terminated the grievor at the point that he was offered the Last Chance Agreement, it was said that the College "went the extra mile" and gave him the further opportunity to correct his behaviour and explore his difficulties through the EAP services. It was argued that the College cannot be expected to force the grievor to attend any specific type of treatment. It was said, "The College isn't in the business of dealing with alcohol problems. It refers people to experts. The College cannot be faulted for not doing anything else." It was stressed that the College offered the last chance opportunity to the grievor and obtained his signature as a "quid pro quo" for returning him to employment in 2002. It was argued that to give the grievor another last chance would "render meaningless" the concept of a Last Chance Agreement. It was 25 said that there are important policy reasons for honouring Last Chance Agreements and it would be an undue hardship to force the College to accommodate the grievor any further. It was submitted that whether or not the Last Chance Agreement is binding, it should not be lightly overturned because to do so would be a denial of the accommodative measures given to the grievor and would discourage employers from entering into such agreements in the future. Reliance was placed on the decisions in Toronto District School Board and CUPE (1999),79 L.A.C. (4th) 365 (Knopf) and Toronto District School Board and CUPE, Local 4400 (1999),80 L.A.C. (4th) 168 (Knopf) and Frost Wire Products Ltd and USWA, Local 3561, unreported decision of P. Knopf dated June 1, 1998. Counsel for the College also argued that any evidence of post discharge "rehabilitation" efforts ought to be ruled as inadmissible and irrelevant in this case. Reliance was placed on the Supreme Court of Canada's decision in Quebec Cartier and USWA Local 6869 (1995), 125 DLR (4th) 577 (SCC), Labaft Breweries Ontario and B.G.P.W.u., Loc. 304 (Bartolo) 107 L.A.C. (4th) 126 (A. Barrett) and Case Corporation and USWA, Local 2868, unreported decision of Howard Brown dated January 8, 1996. Counsel also reminded the Board of Arbitration that this case is being heard under the Colleges' Collective Bargaining Act, R.S.O. 1990, c.C. 15, s. 46(4), where the powers of the Board are not worded in the same way as the Ontario Labour Relations Act. Under the Colleges' Collective Bargaining Act, section 46(4), an arbitration board "may substitute such other penalty for the discipline or dismissal as [it] considers just and reasonable in all the circumstances" when it "determines that a disciplinary penalty or dismissal of an employee is excessive." Given that this is a different provision than the one relied upon by the arbitrators in Ontario who have not followed the Quebec Cartier decision, counsel for the Employer argued that the Board of Arbitration is bound by the Supreme Court of Canada not to consider the post discharge evidence. 26 The College also relies on the evidence regarding the allegedly "pornographic" files accumulated by the grievor as a further or alternative ground to justify the dismissal. Admitting that the evidence presented does not allow the Board of Arbitration to determine how much the grievor actively downloaded onto College computers, it was argued that the evidence showed sustained use of College computers to access and view what the College considers to be obscene material. It was stressed that the grievor was the only one who had access to the office desktop computer. It was argued that it is "highly unlikely" that the grievor's teenaged children would be responsible for the contents on the laptop computer assigned to the grievor. The similarity of the contents of the "BDSM" materials on both computers was said to be supportive of the assertion that the grievor must be held responsible for the materials on both machines. The College also emphasized the volume and the nature of the material on the grievor's computers. It was said that there were "hundreds if not thousands" of sites on both computers that amount to inappropriate adult or pornographic sites. The College stresses that a professor is to be a role model. The Board of Arbitration was reminded that the grievor was one of the authors of the College's Code of Ethics that sets out moral standards for the faculty. It was said that the contents of the grievor's computers are inconsistent with the grievor's position as a role model. It was stressed that the files "don't just depict sex." The objection to the files is that the materials show violence, rape, humiliation and degradation of women, as well as women being used as subservient sexual objects for the purposes of exploitation and abuse. It was conceded that some of the sites may depict or have been created as a result of some consensual activity "to some degree." However it was stressed that other sites are clearly examples of degradation, humiliation and violence including a "gross depiction of a woman being raped." It was argued that nothing the grievor said explains the contents of the type of material found on the computers the College assigned to him. Counsel for the College also emphasized that the volume of the 27 material should be taken into account. Accepting that some of the files may have been sent automatically, it was stressed that the grievor did admit that he had accessed these types of sites. The Board of Arbitration was reminded that the grievor is a computer expert. In fact he teaches the subject. It was stressed that the offending files were not hard to find or access. Therefore, the thrust of the Employer's argument is that the grievor must be deemed to have known that they existed and be held responsible for them being retained on the College's equipment. Counsel for the Employer stressed that the issue is not whether the grievor was committing a criminal offence. It was argued that the issue is whether the material is consistent with the grievor's position as a professor. It was argued that the material does not come close to complying with community standards. It was said that it makes no difference whether the College has a rule against the use of computers to acquire this kind of material. It was said that there is no need to have a rule to say a professor cannot download obscene material on College equipment. The College relies on the Supreme Court of Canada's decision in. R. v. Butler (1992), 89 DLR (4th) 449 to argue that the materials on the computers meet the definition of obscenity. In support of the proposition that this activity is just cause for dismissal, the Employer relied on the following cases: Dupont Canada Inc. and CEP Local 28-0 (2000),92 L.A.C. (4th) 261 (Palmer), Greater Toronto Airports Authority and PSAC (2001), 101 L.AC. (4th) 29 (D. Murray), Telus Mobility and TWU (2001), 102 L.AC.(4th) 239 (AC.L. Simms), Seneca College and OPSEU (2002), 109 L.A.C. (4th) 334 (Carter) and Ontario (Ministry of Natural Resources) and OPSEU (2003), 115 L.AC. (4th) 120 (Petryshen). 28 Submissions of the Union Counsel for the Union began his submissions by saying that the Union does not suggest that the grievor is a perfect person. Instead, it was conceded that the grievor has made serious errors and has serious problems. But it was stressed that the grievor has been a respected professor for over 18 years and has given distinguished service to this College. Unlike most of the reported cases where the discharge of an alcoholic has been upheld, this case was said to be distinguished as being a situation where the grievor has an exemplary record of service for the Employer. It was stressed that the grievor has been "a high functioning alcoholic" whose difficulties did not manifest themselves at his work place prior to the year 2000. It was stressed that despite his problems, he has made contributions to the College "above and beyond the norm." It was also stressed that he has brought creativity and innovation to the College and his community. Counsel pleaded that the grievor "is not a man who should be thrown out because of the harm he inflicted upon himself and others." Counsel for the Union argued that if the evidence is looked at objectively it should lead to the conclusion that the episodes of alcohol abuse have had a "quite limited impact on the work place." It was stressed that the amount of time he actually missed because of alcohol abuse was "objectively not very much." While the disruption his absences caused was acknowledged, it was argued that there were only three or four days within 18 years that he did not attend without notice so that this does not amount to "undue hardship" for the Employer. Counsel for the Union also argued that the purported "Last Chance Agreement" is not binding on the Union and therefore should not be determinative of the grievor's status. It was stressed that the Union never signed the document and that the evidence establishes that the Union Steward made it clear to the College that the Union would not be a party to the document. Further, the letter sent by the Steward the day 29 after the document was signed by the grievor states clearly that the Union would not be a party to the document. Therefore it was argued that the document cannot and should not be given the weight and effect of an agreement between the parties to a collective agreement. It was acknowledged that the Employer considered the grievor's signature as a quid pro quo to continuing of the grievor's employment. Accordingly, counsel for the Union accepts that the College can rely on the document as a factor of accommodation and as evidence that the grievor was offered the Employee Assistance Programme at the same time. The Union simply asserts that the document cannot be treated as a binding contract entitling the Employer to discharge the grievor in the circumstances of this case. Further, or in the alternative, counsel for the Union argued that even if a "Last Chance Agreement" exists in this case, it is not enforceable because of the grievor's alcoholism. Counsel argued that there is ample evidence that the grievor is an alcoholic. The hospital's report confirms this as well as the fact that the College treated the grievor as an alcoholic since the year 2000 and he was admitted to the Bellwood alcohol treatment program. It was said that the purported agreement offends the Human Rights Code. Reliance was placed on Ontario Public Service Employees Union v. Ontario Ministry of Community and Social Services, [1966] O.J. No. 608 (Div. Ct.) (Q.L.), Mainland Sawmills and I.W.A.-Canada, Local 2171 (2002), 104 L.AC. (4th) 385 (B. Foley), Fantom Technologies Inc. and United Steelworkers of America, Local 6444 (1998),70 L.AC. (4th) 241 (S.M. Beck), Ottawa-Carleton (Regional Municipality) and Ottawa-Carleton Public Employees Union, Local 503 (Lance) (2000), 89 L.AC. (4th) 412, Camcar Textron Canada Ltd. and United Steelworkers of America, Local 3222 (2000),99 L.AC. (4th) 305, Toronto District School Board and Canadian Union of Public Employees, Local4400 (1999), 80 L.AC. (4th) 168, Toronto District School Board and Canadian Union of Public Employees (1999),79 L.AC. (4th) 365, Slocan Group- Mackenzie Operations and Pulp, Paper and Woodworkers of Canada, Local 18 (2001 ), 30 97 L.A.C. (4th) 387, and Village of Cache Creek and International Union of Operating Engineers, Local 115C (2002), 105 L.A.C. (4th) 97. Counsel for the Union argues that the evidence falls "far short" of establishing that the College accommodated the grievor's disability of alcoholism to the point of undue hardship. It was argued that the rate of absence falls "well within the range of other employees accommodated by this Employer." It was stressed that the Employer presented no evidence to suggest that it could not accommodate the level of the grievor's absences. It was also argued that the Employer had not sufficiently accommodated the grievor at the time of the termination. It was argued that the grievor's pattern of difficulties resulted in only "once a year events" beginning in the year 2000. Further, it was stressed that the grievor did everything requested of him by the College after the episode in 2002 and that he also made personal inquires about residential treatment. The Employer never insisted that the grievor obtain any more rigorous type of treatment and the grievor co-operated with the advice that was given to him by the EAP counselors. Accordingly, he was said to be in compliance with the Last Chance Agreement in terms of rehabilitative efforts. It was argued the evidence does not suggest that the grievor refused to deal with his problems or resisted treatment. The Union relies heavily on the post-discharge evidence. It was submitted that this evidence is relevant and admissible as acknowledged in the many cases cited in Brown & Beatty Canadian Labour Arbitration and as demonstrated by the Supreme Court of Canada itself in the Board of Education for the City of Toronto and OSSTF, District 15 1 SCR 487 (1997). It was stressed that the grievor attended at the residential programme at Bellwood Hospital and that "it seems to have had a significant impact on him." Counsel reiterated the grievor's testimony about taking Antabuse for nine months, seeing his psychiatrist, taking antidepressants, and making a renewed commitment to M. Further, he has said that he has not had a drink for 15 months. It was argued that 31 his demeanor, alertness and continuing ability to function should be accepted as evidence that corroborates his assertions about rehabilitation. The Union argued that this is a very appropriate case to reinstate the grievor. The length and quality of his service to the College was emphasized. It was stressed his alcohol abuse has had a limited impact on the College while the seriousness of its effect on the students was not denied. However, it was stressed that the grievor never appeared drunk at work or performed impaired. Accordingly, it was said that the grievor remains a "valuable asset to the College" who should not "be discarded." Further, it was stressed that the grievor is willing to return to his teaching duties on conditions. Therefore, it was said that it was both appropriate and possible to re-establish a viable employment relationship. Counsel for the Union then dealt with the issue of computer use by the grievor. It was argued that the evidence "falls well short of an independent ground for discharge." However, it was acknowledged that it could be used "as a factor" to be taken into account in the ultimate result. Counsel challenged the Employer's assertion that there are hundreds if not thousands of objectionable "sites" on the computers, arguing that the materials before the Board of Arbitration make it impossible to determine whether the images are from defined "sites" or simply separate images. Further, the evidence makes it impossible to determine how many of the images exist as a result of the grievor's active downloading or the fact that the images have been sent automatically once he accesses certain sites. In any event, it was argued that there is no evidence of time theft, no evidence that anyone at the College was ever aware of the grievor's activities, and no evidence that he ever sent these images to anyone else. The Union concedes that the images "are not for everyone." However, it was argued that they are consistent with a culture of "BDSM" that most people may not 32 understand, but that nevertheless exists in society. It was argued that it is not appropriate for a board of arbitration to adjudicate standards of obscenity and that since the Employer is not alleging illegal activity, the "distasteful nature" of these sites should not be given too much emphasis. It was argued that the grievor has been forthright about accepting that most of the material on the computers is there as a result of his own activities. It was said that the only time he was not perfectly candid with the College was when he denied his drinking in 2002. As counsel for the Union explained, "Without condoning this, this can be understood" because an admission of alcohol abuse would have meant that he had violated the "Last Chance Agreement" and would be subject to discharge. It was also stressed that the College has no relevant internet or computer usage policy that prohibited the grievor's activities. It was acknowledged that an employer may have the right to make a rule forbidding employees from accessing the type of materials at issue in this case. But in the absence of such a rule it was said to be improper to discharge someone like the grievor under these circumstances. Further, it was submitted that the Board of Arbitration should accept the grievor's explanation that he had "a reason to look at adult sites as an aspect of E-commerce" and because of his "interest in psychology." Further, it was said that the grievor should be credited for being candid about expressing his interest in BDSM. In support of these propositions the Union relied on the decisions in Owens-Coming Canada Inc. and C.E.P., Local 728 (Gorgichuk) (2002), 113 L.AC. (4th) 97, Canadian National Railway Co. v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CA W- TCA) Local 100 (McConnell Grievance) [2002], C.L.AD. No. 233, Ontario Public Service Employees Union (Wickett et al) and Ministry of Natural Resources (June 18, 2004, K. Petryshen) (unreported), Ontario (Ministry of Natural Resources) and O.P.S.E.U. (2003), 115 L.AC. (4th) (K. Petryshen) (unreported), Hydro One Networks Inc. and Power Workers' Union, (August 27,2001), (S.L. Stewart) (unreported), and 33 Hydro One Networks Inc. and Power Workers' Union, (June 19, 2002) (J.H. Devlin) (unreported). The Union addressed the issue of the grievor's computer usage in the context of his position as a teacher at a Community College. It was stressed that what the grievor did was "completely private" and that he understood the need not to expose his students to offensive materials. The Union submitted that it was not trying to assert that the grievor did nothing wrong, but simply that his activities "fall short of warranting discharge." In conclusion, counsel for the Union stressed that the grievor has made "an extraordinary contribution" to this College. It was admitted that the grievor has had problems and made errors in judgment. However, the Board of Arbitration was urged to allow the grievor to put his life together upon whatever conditions are deemed to be appropriate. The Emplover's Replv Submissions Counsel for he Employer argued that all the cases supporting reinstatement that were cited by the Union are distinguishable because none deal with a teacher in a college setting. The question was asked as to what students would think if they knew that the grievor was using the College's computers for the purposes of accessing the type of materials that were found in this case. The College emphasized the rationale in the Seneca College case, supra, and stressed that the grievor's particular position must be taken into account in assessing the circumstances. The Board of Arbitration was also asked to take into account the nature and the extent of the materials on the computers and to conclude that they are harmful to society. 34 Turning to the submissions regarding the Last Chance Agreement and the duty to accommodate, counsel for the Employer argued that the Last Chance Agreement here amounts to an accommodation process and has accommodations built into it. The Decision This is a board of arbitration constituted under a collective agreement pursuant to the Colleges Collective Bargaining Act, R.S.O. 1990, c.C.15. The following provision establishes our jurisdiction: 46 (4) Where an arbitrator or arbitration Board .... determines that a disciplinary penalty or dismissal of an employee is excessive, the arbitrator or arbitration board, as the case may be, may substitute such other penalty for the discipline or dismissal as the arbitrator or arbitration board considers just and reasonable in all the circumstances. Article 32.05 G of the parties' collective agreement mirrors this language. The grievor was dismissed because of workplace disruptions resulting from alcohol abuse and/or his alleged misuse of College computers to access materials that the College considers obscene. Therefore the question for the Board of Arbitration is whether discharge was excessive and if so, whether this is an appropriate case to substitute another penalty. The factors in this case raise several issues which must be addressed sequentially in order to determine the result. Is there a binding Last Chance Agreement? The concept of a Last Chance Agreement in situations of alcohol-related problems has long been endorsed by boards of arbitration. Last Chance Agreements give employees a clear message that their behaviour is unacceptable and that they are being given a final opportunity to change. Properly constructed, Last Chance 35 Agreements set out expectations and conditions for continued employment. They can act as an accommodation process, facilitating assistance and signaling the employer's support. Properly designed, they are corrective and tailored to each individual situation to operate in compliance with the Human Rights Code. They serve to reclaim an employer/employee relationship and return the employee to the road of productivity and health. That is clearly what was intended in this case. The "Last Chance Agreement" document that was offered to the grievor in 2002 was designed to bring about a change in his behaviour, to outline the availability of the College's employee assistance programmes, and to spell out the conditions of his continued employment. It was offered and he understood it to be the quid pro quo for his continued employment. He signed it, hoping and believing that its conditions were within his ability to fulfill. The Employer also signed the document committing to live up to the obligations contained therein. However, the Union is a party to the collective agreement and this arbitration. For a Last Chance Agreement to be binding on a board of arbitration constituted under the parties' collective agreement, the union would also have to be a party to the arrangement. The Union's failure to sign the document would not necessarily be fatal to its enforceability if the evidence shows that the Union accepted the terms of the document in substance. See Domtar Sonoco Containers, supra. But unlike the factual situation in that case, the facts in the case at hand show that the Union never reached agreement about the terms of a Last Chance Agreement with the College. The evidence establishes that the Union's Chief Steward stated clearly that he felt that the situation in 2002 was premature to warrant entering into such an agreement. He also articulated disagreement with several of the terms in the document including the paragraph indicating that the grievor had been accommodated to the point of undue hardship. He succeeded in persuading the Employer to remove one paragraph in the prepared document. But he never indicated agreement with the contents of the remaining document or the fact that it was being offered as a condition of continued 36 employment. He also emphasized in writing that the Union would not be a party to the document. It is true that he also made it clear to the College that the Union would insist that the College continue the grievor's employment under the terms of the document he was repudiating. Essentially, the Union wanted the grievor to have the benefits of a Last Chance Agreement without the Union taking any responsibility as a party to it. Whether this was fair, appropriate or simply strategic, the fact remains that there is no evidence of a contractual agreement reached between the Union and the College regarding the purported "Last Chance" document. The Union and the College are the parties to the collective agreement and the parties to this arbitration. The grievor's signature and the College's compliance with the document do not bind the parties to the collective agreement or this Board of Arbitration. Therefore, it cannot be concluded that a binding contract between the Union and the Employer was created with regard to the "Last Chance" document in 2002. Instead, that document can and must be viewed as significant evidence of the College and the grievor's responses to the penultimate episode of workplace disruption due to excessive use of alcohol. What, if any, discipline is warranted for the events that occurred as a result of the grievor's workplace misconduct resulting from alcohol abuse? This takes us to an assessment of the grievor's workplace misconduct related to alcohol abuse. Looked at starkly, the evidence reveals a difficult, but not horrific situation. The grievor was an exemplary professor and member of the College community from 1986 to 2000. Even between 2000 and the time of his termination in 2003, he continued to function as an effective professor and member of the Board of Governors. His election to this latter position is a reflection of the respect and esteem that he enjoyed from his peers. However, once a year, starting in 2000 his binge drinking affected his teaching duties because he became too impaired to show up for work. He lost twelve days because of this. Sometimes he called in "sick"; other times he gave no notice. Sometimes he left students in classrooms awaiting examinations. One 37 can only imagine their frustration and agitation when they were told that their tests would have to be rescheduled. The College, as an institution, was also affected because other faculty had to be brought in to teach his courses in 2002 and alternate arrangements had to be made for his cancelled classes. Therefore, there is no question that discipline was warranted. The grievor himself accepted that the progressive disciplinary approach that was applied to him was fair up to 2002. He acknowledges that the first episode in 2000 was responded to with kindness and advice from the Dean. He was offered the chance to have the incidents forgotten if there was no repeat within a year. However, when the second incident arose in 2001, he accepted the five day suspension imposed and understood that the first incident would become a part of his personnel file. No grievance was launched. The third disruption occurred in 2002. The grievor again acknowledged his misconduct. He accepted the loss of pay, acceded to the Last Chance Agreement and its terms and again instituted no grievance. Therefore, when the last incident occurred in 2003, the grievor had an unchallenged history of progressive discipline which he knew meant that another occurrence could lead to his discharge. It must be noted that the last incident in 2003 involved even greater disruption to the College. He was absent for a full week. Classes had to be cancelled, one day after the other. Further, unlike the previous incidents, the grievor was not honest about the fact that he had been drinking. Indeed, he tried to hide the fact from the Employer and repeatedly told the Union and the Employer that he had been ill rather than admit to the fact that he had been drinking to excess for the whole week. The College reacted to the grievor's lack of candor by accusing him of lying and dishonesty. This seemed to be the "last straw" for the College and an indicator that the employment relationship could not be continued. However, it is also easy to assume that this behaviour was equally if not more consistent with the desperation, self-destruction and denial that is common to people suffering from alcohol abuse. The Board of Arbitration 38 sees the grievor's lack of candor as a desperate attempt to retain employment rather than any deceitful act of malice. Nevertheless, the fact remains that he is responsible for workplace disruptions arising from alcohol abuse. There is no question that the College was entitled to impose discipline under these circumstances. The difficult question is what would be the appropriate response to the situation. The answer to that demands a closer look at all the circumstances, including the underlying causes for the grievor's misconduct. Is the Grievor an alcoholic and if so, what is the impact of this on the case? The unchallenged evidence is that the workplace disruptions were caused by alcohol abuse. No other explanation has been suggested by either party. However, during closing argument, the College asserted that it does not accept that the grievor is an alcoholic. Indeed, there is no expert evidence to that effect. Further, while the grievor admitted to having difficulties with alcohol abuse to the College and this Board of Arbitration, he never directly admitted that he is an alcoholic. However, the evidence establishes that the College had received evidence from the grievor's priest in 2000 that there was an alcohol problem. Indeed, Dean Holland humanely responded. Further, the medical reports from the hospital received in 2003 advised the College that the grievor was suffering from alcohol abuse. Admittedly, there is no specific evidence certifying or diagnosing the grievor as an alcoholic. However this Board of Arbitration can connect the dots created by the evidence. The evidence demonstrates that the grievor has abused alcohol dating back to the early 1990's, his dependency on alcohol resulted in the disruptions in the workplace after 2000 and his alcohol consumption impaired his conduct, his ability to function as a professor and his home life. If the grievor could have refrained from consuming alcohol to excess, he would not be in the situation that he finds himself today. All this is clear evidence of alcohol dependency. Further, we have the College's 39 EAP counselor referring him to a local alcohol assessment and treatment center and his participation in their programme. Finally, we have the medical evidence from the hospital in 2003 confirming alcohol abuse and his admission to the Bellwood residential treatment programme shortly thereafter6. Taken together, this is sufficient evidence to create a foundation for a finding of alcohol dependency or alcoholism. This has long been accepted as a disability within the meaning of the Human Rights Code. Therefore, the grievor and the circumstances of this case must be viewed in light of the protection of the Human Rights Code. The Human Rights Code requires that an employer's actions shall not be found to be reasonable unless a Board of Arbitration is satisfied that the needs of the employee have been accommodated to the point of undue hardship. (See Ontario Human Rights Code, R.S.O. 1990, c. H. 19 section 11 (2)). Undue hardship is a complex concept that can only be determined by the facts of each case. As arbitrator Pam Chapman pointed out in the Camcar Textron Canada case, supra, at page 328; The Code provides no definition of "undue hardship", but in determining whether suitable accommodation has been provided, arbitrators have examined various elements of the management over the time of the disability and its impact upon the workplace, including previous chances at rehabilitation offered to the employee and the extent to which an employer has supported those efforts. As it was put in the A/can Rolled Products Co.7 case, the burden of the manifestation of handicap already experienced and of the accommodative measures already taken during the period of handicap must be added to the anticipated future burden (at page 234). Arbitrators have also noted that a Last Chance Agreement can itself be a norm of accommodation especially where both parties have acknowledged that that is its purpose. Drawing from this analysis, we have a situation in this case where a person with 15 years of unblemished service was treated with what he described as fairness when his 6 See discussion below regarding the admissibility of post-discharge evidence. 7 (1997) 56 LAC. (4TH) 187 (O.V. Gray) 40 alcoholism first intruded into the workplace. He was also given the benefit of a Last Chance Agreement even though the Union refused to sign it. He was given time off and relieved of his teaching responsibilities for the balance of one term in 2002. He was referred to counseling. All this can and must be recognized as accommodative measures which were offered for the grievor's benefit and for which the College deserves credit. However, there is a great deal that was not done for the grievor and there is no evidence that the Employer accommodated to the point of undue hardship. Despite the fact that the College was made well aware of the grievor's difficulties in 2000, there is no clear evidence that he was referred to or encouraged to seek the services of the Employee Assistance Programme until 2002. Even if it was mentioned to him earlier as Dean Holland suggests, the discussion was insufficient to get the message across. While the Employer does make a general effort to make the programme known to its employees, there is insufficient evidence to conclude that the grievor was encouraged, directed or even told to avail himself of the Employee Assistance Programme until the problems had progressed to such a critical stage that the referral may have been too late. Further, there is no evidence that the College's administration or the EAP counselors referred the grievor to a residential programme or encouraged him to enroll in one. Nor was he told that he could be given time off to attend such a programme even though other professors had been given that opportunity. An employer is not necessarily required to provide the time or the funding for a residential program to employees. But there is no evidence that providing this to the grievor would have created any undue hardship. Other professors had been similarly accommodated and the College had been able to deal with more lengthy absences due to other illnesses. Further, while the grievor's behaviour certainly showed an escalating pattern of abuse and dysfunction, it also shows that he functioned well between bouts of abuse. Therefore, he certainly needed significant help and intervention. However, at the point that he was made to sign the Last Chance Agreement, he may not have deteriorated to the point that he could not have been rehabilitated. Accordingly, this could have been an opportune time to 41 implement some significant therapy and rehabilitation. The evidence suggests that he was not resistant to any of the counseling that was offered through the EAP. However, it is also clear that the assessment and the few sessions he was given with the local counselor were insufficient to have a significant rehabilitative effect. To simply mention residential treatment to an alcoholic in these circumstances is neither effective nor adequate; nor can it be considered as a significant accommodation. Therefore the evidence falls short of establishing that the grievor's disability was adequately accommodated by the College. However, another aspect of determining undue hardship is an assessment of the "anticipated future burden" as cited above. The College's concern was that the grievor would inevitably have further relapses and that the students should not be subjected to any further disruptions. Further, the College was concerned about the inconsistent message that reinstatement would send after making the employee sign a "Last Chance Agreement." This is why the College would not reinstate after the events in 2003. However, the Board of Arbitration had the benefit of more evidence than was available to the College at the time that gives a better insight into the likelihood of further alcohol abuse and related conduct. This is post discharge evidence. Is Post-Discharge Evidence Admissible in this Case? Most arbitrators in Ontario have not accepted that the Quebec Cartier case, supra, has dictated that post-discharge evidence of rehabilitative efforts are inadmissible for purposes of assessing whether discharge is the appropriate result. See Brown and Beatty, Canadian Labour Arbitration, at p. 7-324-327, supra. More significantly, at paragraph 12 of the Quebec Cartier case, the Supreme Court acknowledges that an employer can and should consider at the time of discharge whether the employee's ability to fulfill workplace duties was impaired by alcohol problems and whether any improvement in this respect would be likely in the foreseeable future; "Such an analysis, if 42 performed as at the time of the employee was dismissed, is reasonable and is entirely within the jurisdiction of the arbitrator." Such a consideration was made by the College in this case and is therefore subject to arbitral review. Further, four years after the Quebec Carlier decision, the Supreme Court of Canada looked closely at post discharge evidence in the case of the Board of Education for the City of Toronto and OSSTF, District 15 [1997],1 S.C.R. 487. In that case, post discharge evidence was examined to determine whether there was just cause to uphold a termination. While the legislative and collective agreement language establishing this Board of Arbitration is different than the language in the Ontario Labour Relations Act and the cases that deal with Quebec Carlier, we do not find a difference in substance affecting the admissibility of evidence. The tests of "just cause" and "excessive" may be different, but both pieces of legislation give a board of arbitration remedial authority to substitute a different penalty in defined circumstances. Therefore, we have no hesitation in considering post-discharge evidence regarding the grievor's rehabilitative efforts in order to assess the question of his anticipated and/or future "burden to the Employer" and in order to assess the appropriateness of discharge in all the circumstances. What is the effect of the post-discharge evidence? Unfortunately, the post discharge evidence offered by the grievor is not compelling. It is acknowledged that the grievor presented himself at the hearing as a healthy, articulate man, with a great deal of dignity in a very stressful setting. He has also succeeded in obtaining and maintaining employment for the last year. These are very positive indicators. We also have documentary evidence that he attended and completed a 21-day residential programme designed to assist him with alcohol abuse. We also have the grievor's testimony that he took Antabuse for nine months, that he is attending AA meetings approximately two times a week, that he has seen his psychiatrist twice since his discharge and that he has been prescribed anti-depressants. None of this is corroborated. This evidence must be viewed in light of the grievor's other evidence that 43 he had been attending M meetings going back as far as 1996, but also had a history of discontinuing. He admitted that prior to his termination he did not "embrace M" and he expressed embarrassment about having other people in the community see him at these meeting. He admitted that in the past he would stop attending M meetings when he was able to go for periods without drinking and keep out of trouble. Conversely, when he resumed his drinking, he felt too ashamed to attend the meetings when he probably needed the help the most. But most significantly, he admits that he did not maintain regular attendance because he kept thinking that he could deal with alcohol abuse on his own. He did testify that only in the last 1 % years has he come to realize that he cannot stop drinking on his own. However, the only evidence he presented to the Board is that he continues to try to fight the addiction by himself. There is no evidence of any family, friend or professional person assisting him in the maintenance of sobriety. The Bellwood Hospital's letter indicates that its treatment follow-up calls for him working with a sponsor. There is no evidence of a sponsor. Further, he never admitted to this Board that he is an alcoholic although he recognizes that such an admission is one of the critical Twelve Steps towards recovery. While he says that he has come to "embrace M" now, his testimony did not present convincing or sufficient evidence that he either understands or is living by its precepts. In assessing accommodation and the appropriateness of the discharge, a very important factor is the likelihood of future difficulties and the likelihood of rehabilitation. In the many arbitration cases where reinstatement has been ordered, boards of arbitration have been able to rely upon the evidence of sponsors, family, doctors, counselors and/or colleagues who can attest to the success of rehabilitative efforts and the maintenance of sobriety. Further, those boards of arbitration have relied upon the evidence of the alcoholic's self-awareness and his/her addiction's effects on others. In the case at hand, we have little or no evidence to corroborate any of the critical components that signify rehabilitation or reform. The grievor's assertions of the abstinence are not taken lightly, nor do we suggest that he is deceitful. However, in light 44 of the disease of alcoholism and his history of self-deception and unfilled commitments, the evidence he presented is an insufficient basis to signal that his pattern of behaviour has been altered. This is a significant factor that must be taken into consideration in the disposition of this case. Despite this, if the behaviour related to alcohol abuse were the only factor in this case, we would continue the analysis by asking whether there was any possibility that the grievor could be reinstated with strict conditions in order to give him the benefit of further accommodation or whether the employment relationship has been irretrievably destroyed by these actions. However, given the facts in this case we do not have the luxury of resolving that question in isolation because further allegations must be add ressed. Does the evidence of computer and internet use warrant discipline and/or discharge? The determination of this case requires that the Board of Arbitration look at the evidence regarding the materials found on the grievor's computer after he was terminated. This is evidence that must be considered as a potential ground for discharge or discipline in itself. Alternatively, this could become a factor that must be assessed in light of the findings made above with regard to the alcohol related misconduct. This case does not concern itself with the simple misuse of College equipment for non-College related matters. Further, this Board of Arbitration is not addressing the files that are not college related or that would fall within the generic category of "adult sites." The only sites that are relevant to this decision are the numerous videos and still images taken from College computers assigned to the grievor 45 that all fall within the category that the grievor himself defines as BDSM. The College is not alleging that the collecting of these images amounts to criminal behaviour within the meaning of the Criminal Code. Mere possession of pornographic material (except for child pornography) is not itself a criminal offence. However the College is alleging that the materials are "obscene" or pornographic within the meaning of the Criminal Code, section 163(8): For the purposes of this Act, any publication a dominant characteristic of which is the undue exploitation of sex, or of sex or anyone or more of the following subjects, namely crime, horror, cruelty and violence, shall be deemed to be obscene. In R v Butler, 89 D.L.R. (4th) 449 (SCC); the Supreme Court gave direction on the interpretation of this provision: (b) Tests of "undue exploitation of sex" In order for the work or material to qualify as "obscene", the exploitation of sex must not only be its dominant characteristic, but such exploitation must be "undue". In determining when the exploitation of sex will be considered "undue", the courts have attempted to formulate workable tests. The most important of these is the "community standard of tolerance" test. (i) "Community standard of tolerance" test In Brodie, Judson J. accepted the view espoused notably by the Australian and New Zealand courts that obscenity is to be measured against "community standards". He cited (at p. 182) the following passage in the judgment of Fullager J. in R. v. Close [1948] V.L.R. 445: "There does exist in any community at all times - however the standard may vary from time to time - a general instinctive sense of what is decent and what is indecent, of what is clean and what is dirty, and when the distinction has to be drawn. I do not know. . . that today there is any better tribunal than a jury to draw it . . . I am very far from attempting to lay down a model direction, but a Judge might perhaps, in the case of a novel, say something like this: 'It would not be true to say that any publication dealing with sexual relations is obscene. The relations of the sexes are, of course, 46 legitimate matters elsewhere. . . There are certain standards of decency which prevail in the community, and you are really called upon to try this case because you are regarded as representing and capable of justly applying, those standards. What is obscene is something which offends against those standards.''' The community standards test has been the subject of extensive judicial analysis. It is the standards of the community as a whole which must be considered and not the standards of a small segment of that community such as the university community where a film was shown. Therefore, the community standards test is concerned not with what Canadians would not tolerate being exposed to themselves, but what they would not tolerate other Canadians being exposed to. (ii) "Degradation or dehumanization" test There has been a growing recognition in recent cases that material which may be said to exploit sex in a degrading or dehumanizing" manner will necessarily fail the community standards test. . . . . . . . Among other things, degrading or dehumanizing materials place women (and sometimes men) in positions of subordination, servile submission or humiliation. They run against the principles of equality and dignity of all human beings. In the appreciation of whether material is degrading or dehumanizing, the appearance of consent is not necessarily determinative. Consent cannot save materials that otherwise contain degrading or dehumanizing scenes. Sometimes the very appearance of consent makes the depicted acts even more degrading or dehumanizing This type of material would, apparently, fail the community standards test not because it offends against morals but because it is perceived by public opinion to be harmful to society, particularly to women. While the accuracy of this perception is not susceptible of exact proof, there is a substantial body of opinion that holds that the portrayal of persons being subjected to degrading or dehumanizing sexual treatment results in harm, particularly to women and therefore to society as a whole. 47 A Board of Arbitration is not a criminal court. Nor is it an enforcer of moral standards. Our expertise is in labour relations and collective agreement interpretation and enforcement. Therefore, we are not required to make a definitive finding about whether the materials on the grievor's computers fall within the Criminal Code's definition of obscene. However, we are required to consider the nature and extent of the materials because they are on the College's computers as a result of the grievor's actions. While he may not have deliberately downloaded all of the material, he admits that his "curiosity" and "interest" in the BDSM websites resulted in his accessing this type of material. This could have in turn resulted in the automatic downloading of other similar materials. He may not have asked for all the images, but his actions triggered the issuing of these images onto the Colleges' computers. The grievor is a teacher and expert in the computer field. It must be assumed that he was aware of the contents on his machines and had the ability and opportunity to manage their contents. It is therefore because of his deliberate actions that the volume of materials came into existence and remained on the College's equipment. A significant number of the images on the grievor's computers are harmless and completely irrelevant to this case. Other images could easily be classified as "adult sites" showing sexually explicit images that are commonplace in mainstream current society. However, a significant number of other images unmistakably demonstrate sex combined with cruelty and violence. Some images show women being beaten to the point that their buttocks appear to be flayed and bleeding. These and other images come from websites with titles that include the words rape, brutality, and/or violence. The sites deliver what the titles promise. The Criminal Code's concept of obscenity offers a fair and appropriate standard of what society deems acceptable. Therefore, the Supreme Court of Canada's "community standard test" can be considered as a reasonable standard that an employer can apply to the situation at hand. Using this test, it is clear that the BDSM materials found on the College's computers as a result of the grievor's actions are degrading and dehumanizing. It is not enough to say that the images may be compatible 48 with some people's lifestyle, as the grievor suggests. The images place people in positions of subordination, servile submission and humiliation. The images are an affront to the principle of equality and human dignity because their dominant characteristic is the undue exploitation of sex through subjugation and violence. If the images are of consenting adults as the grievor tried to suggest, then the depicted acts are even more degrading and dehumanizing for all the participants. While one would perhaps like to assume that the images were created in production studios by voluntary participants, it is naive and willful blindness to assume consent being involved in the production of all these images. It is also impossible to know whether or not consent is involved. It is equally or more likely that duress, exploitation and/or violence have been involved in their production. But most importantly for the purposes of this case, the words of the Supreme Court of Canada from R. v. Butler, supra, warrant repeating: Consent cannot save materials that otherwise contain degrading or dehumanizing scenes. Sometimes the very appearance of consent makes the depicted acts even more degrading or dehumanizing. This type of material would, apparently, fail the community standards test, not because it offends against morals but because it is perceived by public opinion to be harmful to society, particularly to women, While the accuracy of this perception is not susceptible of exact proof, there is a substantial body of opinion that holds that the portrayal of persons being subjected to degrading or dehumanizing sexual treatment results in harm, particularly to women and therefore to society as a whole. Having reviewed and considered the images taken from the College computers assigned to the grievor, it must be concluded that the BDSM materials fall far below the community standards test of acceptability because they portray degrading and dehumanizing sexual treatment. However, as much as the community may abhor this kind of material, we do not agree with Dean Holland that the College can or should be able to judge one's fitness to be a professor on the basis of whether the person simply views it. Such 49 material is readily accessible to all elements of society through the internet and other means and we are not suggesting that continued employment can be dependent on one maintaining a level of acceptable sexual practices or proclivities if it does not intrude into the classroom. However, this is not a case about an employee simply being terminated because he views unacceptable materials in his own home or because he has a keen interest in BDSM sites. This is a case about whether it is appropriate to discipline or discharge a College professor who used the College's internet facilities and its computers on campus and at home to access significant volumes of such obscene material. While it would be preferable to have had an internet and technology usage policy in place to signal the College's disapproval of such activities, the existence of such a policy is not needed to make such conduct a workplace offence. It should be self-evident to any employee that an employer's facilities are not available to acquire material of this nature. (See Te/us Mobility, supra.) The materials on the BDSM web sites are well beyond what any intelligent person would think would be acceptable to an employer. Indeed, the grievor himself recognized this. He is a very intelligent person who was well aware that he was working within a college setting. The grievor knew that viewing of such material would not be acceptable to the College. This is why he said that he should have done this only at his own home and instructed his students to do the same. Further, he claimed that if had realized the extent of the material on his hard drives, he would have deleted it. This shows that he recognized its impropriety. Further, even though he never shared or showed this material to others, his conduct cannot be said to be strictly private. He accumulated the obscene material on College equipment. Other professors had access to the laptop during the relevant periods. Further, there was always potential that the desktop computer would be accessed by another professor as was done when the grievor's classes were reassigned. Finally, the material could have come to the attention of someone in technical support if they had to service the grievor's computer. Accordingly, the accumulation of this type of material 50 had the potential of poisoning the workplace environment even though the grievor certainly may have intended to keep the material within the confines of his office. Therefore, it must be concluded that the grievor's receiving and storing of the obscene material is, despite the absence of any workplace rule, just cause for discipline. This again takes us to the question of whether discharge is excessive. To decide this we must look at all the other factors concerning the accumulation of this material, including the grievor's response to the situation. In his testimony, the grievor expressed no remorse or apology. He did acknowledge that his conduct was inappropriate when he indicated that he told his students not to access such sites at the College, but that they should confine this type of activity to their own homes. The only regret he expressed is that he should have done the same. It must also be noted that the grievor did not accept full responsibility for his own actions. We accept and agree with the Union's submissions that, given the nature of the material and the evidence presented, it is impossible to determine the exact extent to which the grievor accessed these sites and how much was sent to him automatically. Therefore, while the grievor is indirectly responsible for the accumulation of all the material, he may not be responsible for the entire extent of it. However, that being said, the grievor tried to deflect responsibility onto others. He suggested that some of the material on the laptop is attributable to his teenage son. The Board found this attempt to redirect responsibility to be offensive as well as lacking in credibility, dignity and candor. Similarly, his claims that he was accumulating this material because of his academic interest in "E-Commerce" and "psychology" do not seem sincere. This is inconsistent with his defense of BDSM as a "life-style," the singularity of the theme of the images and the volumes of the materials. Further, it must be remembered that the grievor is a computer expert. Yet he claimed that he did not know that so many obscene files or images were on his computers. Given his expertise and the easy accessibility of the files, his claims lack credibility. 51 Further, the grievor showed no appreciation for the impact of the nature of the images. There was no recognition of the violence or degradation that could be involved in the production and the dissemination of these images. Nor did he express any understanding that degrading and dehumanizing sexual treatment results in harm to society as a whole. This is disconcerting enough, but it is particularly disturbing in light of the fact that this case must be decided in the context of an educational setting. Professors at a community college are there not only to teach but also to serve as role models. This is recognized in this College's Code of Ethics (cited above) and has been given arbitral weight in the Seneca College and OPSEU case, supra, at p. 343: "An institution such an the College must trust its members to honour the institutional norms of conduct that it establishes. . . . . [F]aculty, who serve as a role model to students, should be particularly scrupulous in honoring the norms of the institution." It is recognized that Loyalist College, unlike Seneca College, did not institute an "acceptable technology usage" policy. Nevertheless, the grievor in this case knew full well that his use of the College's technology was not consistent with the norms of acceptable conduct within the College. Yet by his own admission, he has not adhered to the norms of the institution. He has thereby violated the important trust over a sustained period of time. For all these reasons, it must be concluded that there are no mitigating circumstances with regard to the computer usage. On the contrary, given that these actions occurred in an educational, college setting, the actions are very serious. It is very important that the decision in this case should not be interpreted as a ruling that suggests that someone with the grievor's sexual interest is unfit to teach. We are not in a position to assess him as a teacher, nor are we justified in imposing any moral judgment upon him. Indeed, we are not doing so. However, given the totality of the evidence surrounding the computer usage allegations, it must be concluded that discipline was warranted. Whether or not this would be sufficient misconduct to warrant discharge need not be determined in this case. What this Board of Arbitration must now 52 do is examine this conduct together with the allegations concerning the disruptions caused by alcohol abuse to determine whether all of the factors justify the termination of the grievor's employment in light of 18 years of distinguished service. Conclusion As a board of arbitration we can and must determine whether the College's response to the grievor's actions was excessive. The facts add up to the following. The grievor is an alcoholic who functioned with excellence from 1986 to 2000. However, his alcoholism invaded his teaching duties on four occasions from 2000 to 2003. The College responded with initial fairness and progressive discipline in order to try to change his behaviour. The College also offered some accommodative measures, but not to the point of undue hardship. On the other hand, the grievor has not offered sufficient evidence to demonstrate that he has changed his patterns of behaviour. He provided no evidence in support of his assertions that he has maintained sobriety or that there are any support mechanisms in place to ensure that his lifestyle has been made healthier. Nor has he accepted the help of a sponsor as was prescribed by the hospital where he attended for residential rehabilitation. Therefore, neither the evidence of the College nor the grievor was satisfactory in this regard. Had this been the only evidence before this Board of Arbitration, the conclusion would be very difficult to formulate. However, the evidence also indicates that a large number of obscene images were found on the College's computers that had been issued to the grievor. The grievor himself recognized that the accumulation of these materials would have been offensive to the College and that he should not have done this on the College campus or on its equipment. Therefore, this activity also amounts to misconduct warranting disciple. The grievor expressed no contrition, remorse or recognition about the seriousness of this kind of conduct. 53 If this Board of Arbitration were called upon to rule whether either the alcohol-related misconduct or the computer misuse was grounds for discharge separately, the case may have come to a different conclusion, particularly in light of the grievor's distinguished service of 18 years to the College. However, this case has to be decided by looking at all the circumstances. The circumstances include a grievor who has not satisfied the Board of Arbitration that his struggle with alcohol abuse is being sufficiently addressed and who collected obscene material on College computers and still does not recognize the impact of this in an education environment. He works in a place of learning where his duties include that of being a role model and a professor. Indeed, he is a computer professor responsible for teaching the effective and proper use of the equipment. His actions are not consistent with the type of conduct that students are entitled to expect in a college environment. Given his workplace, his role, his lack of understanding of the seriousness of his conduct and the insufficient evidence of alcohol rehabilitation, we must conclude that the employer/employee relationship has been irretrievably destroyed in this case. Therefore, we must conclude that his discharge was not excessive. Even if it was excessive, there are not sufficient mitigating factors to suggest that reinstatement under any conditions would be appropriate. In closing, we wish to thank both counsel for their able and sensitive advocacy. While the grievance must be denied, it is clear that no one won this case. The College has lost a professor who made considerable contributions to its programmes and to the institution. His dedication was never questioned. It is a tragedy that his self- destruction, his disease and his misjudgment have led to his employment being terminated. Given all the circumstances, the College is encouraged to reconsider allowing the grievor to resign his employment at this time. Obviously, the Board of Arbitration does not have the jurisdiction to order the College to do so. We simply offer this as a suggestion. 54 Unfortunately, given the totality of the evidence, we cannot conclude that discharge was excessive or that it would be appropriate to restore him to this workplace. Therefore, the grievance must be dismissed. DATED at Toronto, Ontario this 11th day of August, 2004. Paula Knopf - Chair I concur "J. Campbell" Employer Nominee I dissent. See attached "Ronald J. Kelly" Union Nominee 55 Dissent in the matter of an arbitration between Loyalist College of Applied Arts and Technology - and - OPSEU, Local 420 in the matter of a grievance of P.C. OPSEU Grievance No. 2003-0420-001 I cannot concur with the majority in this case because of two major questions. 1) What if the majority had adequately accommodated the alcoholism problem? 2) What if the grievor has achieved a measure of rehabilitation sufficient to . control the alcoholism? Two grave doubts indeed but the benefit of each doubt must favour the grievor. It is agreed that the College failed to adequately accommodate the alcoholism. That conclusion, of itself, should be cause to find for the grievor. Has the grievor conquered his struggle with alcoholism? The majority aren't satisfied that his struggle with alcohol abuse is being sufficientlv addressed because there was "little or no evidence to corroborate any of the critical components that signify rehabilitation or reform." (Emphasis added) The majority acknowledge that "the grievor presented himself at the hearing as a healthy, articulate man, with a great deal of dignity in a very stressful setting. He has also succeeded in obtaining and maintaining employment for the last year. These are very positive indicators. We also have documentary evidence that he attended and 56 completed a 21-day residential programme designed to assist him with alcohol abuse. We also have the grievor's testimony that he took Antabuse for nine months, that he is attending AA meetings approximately two times a week, that he has seen his psychiatrist twice since his discharge and that he has been prescribed anti- depressants. None of this is corroborated." But none of it was contradicted either! He has to be believed. It was his evidence. He is an alcoholic (and I believe that he did so testify). He needs support. He didn't get adequate support from his employer. Yet there were only four occasions in three years when his alcoholism caused him to miss work and then only for 12 days in total. He continues to fight the addiction by himself. Because of eighteen years outstanding service he has earned the support of the College. I would give him the benefit of the doubt - of the two doubts - and order that he be reinstated and that he and the College agree on the conditions necessary to ensure his continued employment. In regard to accessing adult web sites using College computers, there is no proven relationship between that practice and the alcohol abuse behaviour. It isn't a crime to access adult websites - it may have been inappropriate to use College computers but the College has no policy in that regard. Besides, the extent of use was surfing or accessing and not habitual downloading. DATED at Kingston, Ontario this 11th day of August 2004. "Ronald J. Kelly" Union Nominee