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HomeMy WebLinkAboutChampeau 11-05-16Ornge v. O.P.S.E.U., Local 505, 2011 CarswellOnt 5980 2011 CarswellOnt 5980, 111 C.L.A.S. 158 Copyright © Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved.1 2011 CarswellOnt 5980 Ontario Arbitration Ornge v. O.P.S.E.U., Local 505 2011 CarswellOnt 5980, 111 C.L.A.S. 158 In the Matter of an Arbitration between Ornge, ("Employer") and Ontario Public Service Employees Union on Behalf of its Local 505, ("Union") In the Matter of a Grievance Respecting the Discharge of Philip Champeau George S. Monteith Member Heard: May 9, 2011 Judgment: May 16, 2011 Docket: A/Z000661 Counsel: Craig Rix, for Employer Subject: Labour; Public Related Abridgment Classifications Labour and employment law I Labour law I.10 Discipline and termination I.10.a Grounds I.10.a.ii Insubordination I.10.a.ii.D Violation of company rule I.10.a.ii.D.4 Miscellaneous Labour and employment law I Labour law I.10 Discipline and termination I.10.c Factors considered I.10.c.x Rehabilitation potential Labour and employment law I Labour law I.10 Discipline and termination I.10.d Kinds of discipline I.10.d.v Discharge I.10.d.v.B Just cause Labour and employment law I Labour law I.10 Discipline and termination I.10.g Remedies I.10.g.i Substitution of penalty I.10.g.i.B Miscellaneous Headnote Labour and employment law --- Labour law — Discipline and termination — Grounds — Insubordination — Violation of company rule — Miscellaneous Ornge v. O.P.S.E.U., Local 505, 2011 CarswellOnt 5980 2011 CarswellOnt 5980, 111 C.L.A.S. 158 Copyright © Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved.2 Labour and employment law --- Labour law — Discipline and termination — Factors considered — Rehabilitation potential Labour and employment law --- Labour law — Discipline and termination — Kinds of discipline — Discharge — Just cause Labour and employment law --- Labour law — Discipline and termination — Remedies — Substitution of penalty — Miscellaneous Table of Authorities Cases considered by George S. Monteith Member: Baptist Housing Society (Grandview Towers) v. H.E.U., Local 180 (1982), 6 L.A.C. (3d) 430 (B.C. Arb.) — considered Kennedy Lodge Nursing Home v. S.E.I.U., Local 204 (1991), 18 L.A.C. (4th) 38 (Ont. Arb.) — considered Lumber & Sawmill Workers' Union, Local 2537 v. KVP Co. (1965), 16 L.A.C. 73, 1965 CarswellOnt 618 (Ont. Arb.) — considered Ontario (Ministry of Natural Resources) v. O.P.S.E.U. (2005), 143 L.A.C. (4th) 14, 2005 CarswellOnt 8222 (Ont. Grievance S.B.) — considered Owens Corning Canada Ltd. v. U.N.I.T.E.-H.E.R.E., Local 1350 (2005), [2005] L.V.I. 3579-4, 2005 CarswellOnt 4222, 142 L.A.C. (4th) 62 (Ont. Arb.) — considered U.S.W.A., Local 3257 v. Steel Equipment Co. (1964), 14 L.A.C. 356 (Ont. Arb.) — considered Wasaya Airways LP v. A.L.P.A. (2010), 195 L.A.C. (4th) 1 (Can. Arb.) — considered George S. Monteith Member: 1      This is a discharge grievance. The grievor was discharged for the reasons set out in the letter (June 16, 2010) of Les Cleverly, Director, Ornge Communications Centre ("Cleverly"). The letter states, in part: [I]t has been determined that you used Ornge property to post a personal message on a public message board which reflected negatively on Ornge and was a breach of confidentiality and corporate policy. [I]t has also been determined that you have downloaded pornographic pictures on an Ornge computer. 2      At the commencement of the hearing, the parties filed an agreed statement of facts (below) together with the documents and images referred to therein. The parties also agreed to the filing of the grievor's "Will Say" statement (below). I heard evidence from Cleverly about the investigation of the grievor, the factors that were taken into account by the employer in the decision to discharge the grievor and the administration of the applicable policies of the employer at the time of the events in this case. Cleverly emphasized that the employer provides important medical services to the inhabitants of the Province and the care and protection of confidential and private patient information must be adhered to at all times by all staff in the performance of their duties. Further, he testified that a breach of confidentiality has the potential to expose the employer to liability to the patient and under the legislation. In addition, it is damaging to its reputation and the trust of the community. Cleverly also testified he considered a number of the images accessed by the grievor during work to be pornographic and highly inappropriate. He agreed, quite fairly, that the policy prohibiting personal use of the employer's computerized systems during work was not administered at the time, although apparently, it now is, in as consistent a manner as it ought to have been. Agreed Statement of Facts 3          • Ornge is engaged in provincial health care sector involved in transport medicine delivering specialized medical care in a mobile environment. The Ornge Communications Centre is responsible for the coordination and the logistics associated with the transport of patients across Ontario using a fleet of fixed-wing aircraft, rotor aircraft and critical care land ambulances. Employees within the Communication Centre have continuous access to confidential Ornge v. O.P.S.E.U., Local 505, 2011 CarswellOnt 5980 2011 CarswellOnt 5980, 111 C.L.A.S. 158 Copyright © Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved.3 personal health information. In their role within the Communication Centre, Communications Officers acquire appropriate patient medical information and use this information to determine the right vehicle for transport, the right medical crew with the appropriate medical expertise and the amount of time necessary for a medical transfer/ on scene response. • Ornge presently has 68 full time and part-time employees working within its Communications Centre. • Employees within the Communication Centre are represented by OPSEU Local 505. 4      The collective agreement is attached at Tab 1. • Ornge is a member of the Ontario Hospital Association. • Ornge's core values are compassion, innovation and collaboration. • As a result of a divestment from the Ontario government, Ontario Air Ambulance (as it was known prior to being renamed Ornge) offered the grievor a new permanent part-time, on-call position as "Flight Planner" in the Ornge Communications Centre (hereinafter "OCC"). The grievor's employment with Ontario Air Ambulance in this position began January 16, 2006. • As a result of a voluntary recognition agreement between the parties, the grievor's prior service with the Ontario Ministry of Health and Long-Term Care was not recognized upon the commencement of his employment with Ontario Air Ambulance. 5      The grievor's offer letter from Ontario Air Ambulance (TAB #2). • As part of Ontario Air Ambulance's offer of employment to the grievor, the grievor was required to sign a Confidentiality Agreement. The grievor acknowledges that this policy applied to him during the events in question. • The Employer has a policy respecting appropriate computer use called Use of Ornge Assets (1.6.5). The grievor acknowledges that this policy applied to him during the events in question. • The Employer has a Workplace Harassment policy 1.6.7. The grievor acknowledges that this policy applied to him during the events in question. 6      Confidentiality Agreement signed by the grievor on December 17, 2005 (TAB #3). 7      Ornge Assets policy 1.6.5 (Tab 4) 8      Ornge Workplace Harassment Policy (Tab 5) • While employed as a part-time "Flight Planner" with Ontario Air Ambulance, now called Ornge, the grievor attended a human resources training session, entitled, "Building a Healthy and Respectful Workplace," on April 9, 2008. 9      Building a Healthy and Respectful Workplace: Participant Manual (TAB #6). • Approximately four years following the grievor's appointment as "Flight Planner" with Ornge, Ornge posted a permanent full-time position for "Communications Officer" in the OCC. On May 28, 2010, the grievor applied for this position and was awarded this position. His start date for the full-time position was June 13, 2010. 10      Offer letter from Mr. Steve Farquhar (TAB #7). Ornge v. O.P.S.E.U., Local 505, 2011 CarswellOnt 5980 2011 CarswellOnt 5980, 111 C.L.A.S. 158 Copyright © Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved.4 • As part of his acceptance of Ornge's employment offer, the grievor was again required to sign an updated Confidentiality Agreement. This was signed on June 14, 2010. 11      Confidentiality Agreement signed by the grievor on June 14, 2010 (TAB #8). • The grievor's first two shifts as a full-time Communications Officer in the OCC occurred on Saturday, June 12, 2010 and Sunday, June 13, 2010. Each of these shifts were midnight shifts, beginning at 6:45 p.m., and finishing the following morning at 7:00 a.m. 12      The grievor's timesheets for June 12 and 13, 2010 (TAB #9). • During his shifts on June 12 th and 13th, 2010, the grievor accessed numerous non-work related websites. At this time, staff in the communications centre at Ornge had access to the net and could surf the web while at work. • While at work on June 12, 2010, the grievor regularly accessed a message board entitled, GTAMotorcycle.com. This website features a community of members from across Southern Ontario, who chat online about various issues relating to motorcycles. 13      List of websites accessed by the grievor (TAB #10). 14      Printed homepage of GTAMotorcycle.com (TAB #11). • At 5:36 a.m., the grievor accessed a newspaper article from a Belleville newspaper called the Intelligencer. It was entitled, "Peterborough man dies afte [sic] Highway 62 collision." This article states that the victim of an earlier Highway 62 motorcycle accident on June 11 th succumbed to his injuries at the Belleville General Hospital. The article identifies the victim as 53-year-old Brien Bowen of Peterborough, The article does not mention that emergency services were dispatched to the scene. 15      The Intelligencer article, "Peterborough man dies afte [sic] Highway 62 collision" (TAB #12) • The grievor then returned to the GTAMotorcylce.com message board and accessed a thread entitled "Rider & Passenger Down On Hwy 62 South. This thread discussed the above noted accident. The grievor replied to this message board thread at 5:53 a.m. The grievor made the following post under the alias "Joseph." • "The Intelligencer is reporting that the rider has succumbed to his injuries. "Police said 53-year-old Brien Bowen died in hospital while his passenger 51-year-old Wendy Bown [sic] also of Peterborough, suffered non-life threatening injuries." Apparently he was so severely injured it took 5 hours to clean the helicopter afterwards." 16      List of websites accessed by the grievor (TAB #10). 17      Message board thread from www.gtamotorcycle.com (TAB #13). • On June 13, 2010, beginning at 6.09 a.m., the grievor also accessed a message board thread on the GTAMotorcycle.com website entitled, "chicks on bikes/or next to one." The grievor viewed a significant number of images of scantily clad women in suggestive positions from his work computer. 18      List of websites accessed by the grievor (TAB #10). 19      GTAMotorcycle.com message board thread entitled "chicks on bikes/or next to one" (TAB #14) Ornge v. O.P.S.E.U., Local 505, 2011 CarswellOnt 5980 2011 CarswellOnt 5980, 111 C.L.A.S. 158 Copyright © Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved.5 20      Printed images accessed by grievor. • On June 14, 2010 at 9:46 a.m., Ms. Kathryn Bickerton-Smith, Ornge's Paediatric Program Manager, was alerted to the posting on GTAMotorcylce.com by two Ornge medics, Matt Tremble and Darin Veilleux. Matt Trembe googled the accident that they were involved in responding to and came across the message board post. 21      Email from Kathryn Bickerton-Smith to Jennifer Tracey and Jeff Carss (TAB #15). • The employer commenced an investigation. The Employer reviewed the profile of the message board alias "Joseph" which revealed other previous posts made by the same person. Previous posts make reference to being an ambulance dispatcher and the Employer was aware that the grievor had a child named Josepth. As a result, Les Cleverly contacted Ornge's IT department and asked it to conduct an investigation into the grievor's computer use. This included a review of the Grievor's computer use while on shift on June 12, 2010. The investigation lead the employer to suspect that the Grievor used the alias Joseph, that he made the above noted posting on GTAMotorcycle.com and that he used Ornge assets to view inappropriate material. • Consequently, on the same morning, Mr. Cleverly contacted Mr. Cristian Miron, Senior Network Analyst in Ornge's IT Department, in order to determine whether the grievor accessed this particular website from an Ornge computer at the time of the message board post. Mr. Cleverly requested that Mr. Miron show him the grievor's internet browsing history, and more particularly, whether the grievor browsed the GTAMotorcycle.com website. • In order to access the grievor's browsing history during the relevant shift, Mr. Miron logged into Ornge's domain controllers and obtained the IP address of the workstation in which the grievor was logged. With this IP address, Mr. Miron first checked the firewall logs to see the traffic generated. Mr. Miron confirmed the grievor's computer use and copied the grievor's Temporary Internet Cache to his own computer to review. Once he gathered this information, Mr. Miron burned the information on a disk, and provided that disk to Mr. Cleverly. • Mr. Miron produced a list of all of the websites the grievor accessed during his last two shifts on June 12 and 13, 2010, and the pornographic images viewed by the grievor. Accordingly, Mr. Miron compiled a binder that included: (i) the images viewed by the grievor; (ii) a printout with the grievor's complete browsing history during these two shifts; and (iii) a brief description on how this data was retrieved. Mr. Miron also attached a copy of the disk he had provided to Mr. Cleverly earlier. 22      IT Report (Log-in times and work station for Phil Champeau) TAB #16 23      List of websites accessed by the Grievor (Tab #10) 24      Printed images accessed by grievor. • On June 16, 2010, the grievor was called to a meeting about confidentiality. Mr. Cleverly and Mr. Hughes met with the grievor and his OPSEU assigned steward, Mr. Gregory Fletcher. In the course of this interview, the Grievor initially denied being an active member of GTAMotorcyle.com. He denied making any recent posts to this message board but did admit to acting under the alias Joseph. He subsequently admitted to making the above noted post while at work but he asserted that all of the information contained in the post was from the newspaper. The grievor denied writing that part of the post that stated, "Apparently he was so severely injured it took 5 hours to clean the helicopter afterwards." • The Employer also asked the grievor about whether he viewed pornographic material while at work. The grievor denied this noting that he did not visit any pornographic websites but did note that he may have visited one site by accident and one picture may have been viewed. 25      Mr. Cleverly's interview notes (TAB #17) Ornge v. O.P.S.E.U., Local 505, 2011 CarswellOnt 5980 2011 CarswellOnt 5980, 111 C.L.A.S. 158 Copyright © Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved.6 • Mr. Cleverly and Mr Hughes of the Employer excused themselves from this interview to consider the information provided to it by the grievor. The Employer then returned to the meeting and provided the grievor and Mr. Fletcher a copy of the grievor's termination letter. Pursuant to this letter, the grievor's employment with Ornge was terminated immediately based upon to central grounds: • (i) the grievor used Ornge property to post a personal message on a public message board which reflected negatively on Ornge and was a breach of confidentiality and corporate policy; and • (ii) the grievor downloaded pornographic pictures from an Ornge computer. 26      The grievor's termination letter (TAB #18). • On June 17, 2010, the member, "Joseph," edited the comment, removing that statement, "Apparently he was so severely injured it took 5 hours to clean the helicopter afterwards." 27      Documentary Evidence: Current message board thread from www.gtamotorcycle.com (TAB #20). • At the time of his discharge, the grievor did not have any discipline on his record. The grievor had 4 years and 7 months service at the time of his discharge. On June 29, 2010, the grievor filed a grievance alleging that Ornge acted in an arbitrary, bad faith and discriminatory manner when it unjustly dismissed him, contrary to the collective agreement. The grievance form (TAB #21). • The grievor became aware of the above noted patient accident when on June 11, 2010 the grievor was working a night shift at ORNGE (7 p.m. to 7 a.m.). At the Shift briefing the supervisor advised the staff that there had been a motor vehicle accident involving a motorcycle and car in the Kingston area and that, as a result of the scale of the incident, a Helicopter would be out of service for some time. The grievor was assigned to the Ottawa area desk for that shift. The grievor had a few conversations with the crew of the helicopter that had attended the accident scene. One of the crew told the grievor that things in the helicopter were really messed up and it was going to take hours to clean. About 1:00 a.m. the crew notified Mr. Champeau that they were back in service. • The grievor acknowledges that he made the blog entry on June 12/13 th of 2010 on the GTA motorcycle.com website as written at tab 13. • The grievor further acknowledges that he viewed numerous photos on the same web site of women with Motorcycles on the same shift in question under the thread at Tab 14. • An Ornge branded motorcycle, built by a third party and provided to Ornge for promotional purposes was put on display by Ornge at the Toronto Motorcycle Show. This show took place in the Spring of 2010 and was held at the International Centre. Employees could volunteer to attend at the show. Ornge's display included its flying lion mascot. Other displays from other vendors included models in various uniforms that were similar to the clothes worn by the women in the above noted pictures. Ornge did not have any models displaying its motorcycle. Will Say Of Phil Champeau 28          On Night Shift In Question: 1. Mr. Champeau will say he acknowledges that on the night of June 12/13 2009 he did make the blog entry and did view the pictures as alleged. Ornge v. O.P.S.E.U., Local 505, 2011 CarswellOnt 5980 2011 CarswellOnt 5980, 111 C.L.A.S. 158 Copyright © Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved.7 2. The grievor did not think at the time that his comment and post were harmful and that he was thinking about the accident his brother had a few years back and the injuries he sustained and that further as an avid motorcycle enthusiast people needed to think about the injuries they can sustain and how important safe driving can be. 3. The grievor did not think about how this might be interpreted if someone from the family of the accident victim read this or how it might be attributed in any way to ORNGE or reflect on ORNGE as he was not speaking as an ORNGE employee or using his own name even and frankly was not thinking about this at all, he was only thinking about the seriousness of accidents and people driving. 4. In regards to the pictures the grievor will say that he was surfing around the motorcycle web site and saw a thread that said it contained pictures of women with Bikes. The thread entry started with the comments about no nudity and he just did not think looking at those pictures was pornographic or violated the policies in any way. He will say that the photos were not different then he saw in the Toronto sun or at Motorcycle shows in real life. He saw it as no different than advertisements he has seen papers and magazines in the work place. The Meeting on Confidentiality 1. The grievor will say that when he attended the meeting he thought that the employer was having a meeting regarding confidentiality and that the meeting was in reference to something related to his new full time status. 2. At the meeting when the employer began to talk about a blog entry and pornographic pictures the grievor was feeling ambushed, startled and did not was going on. 3. The grievor will say that he panicked when asked questions about the blog and could not understand where the employer was going with this. 4. In regards to the blog the grievor admits that he was not completely forthright in admitting the full context of the blog and that he was panicking and unsure of what he exactly had written at the time he made the entry. 5. In regards to the Pornographic material the grievor truly believed that he had not viewed pornographic images and was unaware that the employer was referring to the women with motorcycle images. 6. The grievor will say he asked to see the computer disc that the employer had present at the meeting and that the employer informed him contained the evidence. The employer refused to let him see it. The grievor will say, had the employer provided an opportunity to view the disc and the information he would have been able to better answer the questions. 7. The grievor was confronted with the employer asking him to resign or be fired which panicked him as his mind was thinking about how he was going to provide for his family and not what the meeting was about. All he could think of was his 9 years spent as an air ambulance dispatcher being pulled out from him and his new full time job with ORNGE and what he thought was a new full time career disappearing and not sure why this was happening. After Discharge 1. The grievor will say that after he left the meeting he was obviously very distraught and had to go home to explain to his family that he had been fired and why. 2. As the grievor explained it to his family and the initial panic settled somewhat, the grievor began to think about why the employer found the blog entry so offensive and why it would lead the employer to fire him. Ornge v. O.P.S.E.U., Local 505, 2011 CarswellOnt 5980 2011 CarswellOnt 5980, 111 C.L.A.S. 158 Copyright © Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved.8 3. The grievor began to realize that after he went back and relooked at the blog entry that if someone from the victim's family had read it, it could be potentially hurtful. At this point he also realized that it could be construed that only someone with inside knowledge of the helicopter could know of the length of time to clean it and that may seen by someone to reflect badly on ORNGE. 4. The grievor then realized that despite already having been fired he should remove the blog and upon getting up the next morning went to his computer and removed the entry. 5. The grievor will say until the Union received disclosure he was still unaware of the images that the employer was saying were pornographic. The grievor was unaware that those images because they were not nudity and not very different from a pictures in the Toronto Sun, or similar to things he has seen in advertisements or in pictures or live at motorcycle shows, that the viewing of them broke the employer's policies. Although, he will say he now acknowledges that the employer finds them inappropriate and offensive in the workplace. 6. The grievor will say that he did not intend to harm the reputation of ORNGE that he had no intention to hurt the family or anyone else. The grievor will say that he apologizes and recognizes these things. The grievor will say that he recognizes that he may deserve some discipline for his behaviour and his error in judgment he made. The grievor says he has learned his lesson from this and would not repeat this error in the future as he now sees the potential harm it could cause to the organization and possibly to individuals in the public. 7. The grievor will say that he has a lot of respect and admiration for ORNGE and that he loves working for them. He feels that he the job is worthwhile work and enjoys that he is part of life helping organization and that he feels given another chance that he would be the quality employee that ORNGE is looking for. 29      The union concedes the employer had just cause to discipline the grievor for breach of confidentiality but disputes there was just cause for discipline in respect of the downloading of the images. Accordingly, the submissions of the parties were directed at whether there was just cause to discipline the grievor for downloading the images filed by the parties and the question of penalty. At the conclusion of the submissions, the parties jointly requested that I expedite the issuance of the award with reasons in summary form. 30      I shall briefly summarize the position of the parties. Counsel for the employer reviewed the circumstances in this case and submitted that the grievor's breach of confidentiality and downloading of pornographic images was egregious misconduct warranting immediate dismissal. Counsel emphasized the importance of patient confidentiality, the high duty placed on the employer to ensure that staff protect and preserve patient confidentiality in all that they do and the real risks of liability and potential damage to the reputation of the employer for failure to do so. Counsel submits that this is not an appropriate case to exercise my discretion to substitute a lesser penalty in lieu of discharge in the circumstances. Alternatively, if I were to conclude otherwise and direct the grievor's reinstatement, counsel submits that it be without compensation and a substantial suspension be substituted for such serious misconduct. Counsel referred to the following cases: RE Baptist Housing Society (Grandview Towers) v. H.E.U., Local 180 (1982), 6 L.A.C. (3d) 430 (B.C. Arb.), Re Kennedy Lodge Nursing Home v. S.E.I.U., Local 204 (1991), 18 L.A.C. (4th) 38 (Ont. Arb.), RE Owens Corning Canada Ltd. v. U.N.I.T.E.-H.E.R.E., Local 1350 (2005), 142 L.A.C. (4th) 62 (Ont. Arb.), The Chronical Journal and Thunder Bay Typographical Union, Local No. 44, W. A. Marcotte, July 27 2000 (unreported), James Bay General Hospital and Public Service Alliance of Canada, P. Knopf, June 21, 1999 (unreported), EV Logistics and Retail Wholesale Union, Local 580, H. Laing, January 21, 2008 (unreported), RE Wasaya Airways LP v. A.L.P.A. (2010), 195 L.A.C. (4th) 1 (Can. Arb.) (Wendel), Toronto Board of Education v Canadian Union of Public Employees, Local 63 (Burk Grievance) S. Tacon, May 30, 1997 (unreported) and Re U.S.W.A., Local 3257 v. Steel Equipment Co. (1964), 14 L.A.C. 356 (Ont. Arb.) 31      Mr. Mulhall submits that the discharge letter specifically alleged the grievor downloaded pornographic pictures on an Ornge computer. The union does not deny the grievor downloaded the images while at work but contends that the images, although arguable inappropriate, would not be viewed as pornographic by today's standards. Further, the policy Ornge v. O.P.S.E.U., Local 505, 2011 CarswellOnt 5980 2011 CarswellOnt 5980, 111 C.L.A.S. 158 Copyright © Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved.9 prohibiting personal use of the employer's systems ought not to have been applied strictly in the circumstances of this case because the policy was not consistently applied when the grievor accessed the website containing the images. Accordingly, the employer has failed to prove that there was just cause to discipline the grievor for the downloading of the images. On the question of penalty for breach of confidentiality, Mr. Mulhall emphasizes all the mitigating factors including the grievor's acceptance of responsibility, his remorse for his conduct and his apology. Further, Mr. Mulhall agrees that the grievor's conduct warrants discipline but not discharge. The union submits that the grievor has rehabilitative potential and therefore, this is an appropriate case to exercise my discretion to substitute a lesser penalty in lieu of discharge. The union referred to the following cases: Ontario (Ministry of Natural Resources) v. O.P.S.E.U. (2005), 143 L.A.C. (4th) 14 (Ont. Grievance S.B.), Re Lumber & Sawmill Workers' Union, Local 2537 v. KVP Co. (1965), 16 L.A.C. 73 (Ont. Arb.), La-Z Boy Canada Ltd. and International Union of Electronic, Electrical, Salaried, Machine & Furniture Workers, Local 400 (Re) 23 C.L.A.S. 318, Brown and Beatty, Canadian Labour Arbitration, 4th ed. Paragraphs 7:4422, 7:6144 and 7:4400. Decision 32      The parties have requested an expedited decision in summary form. Upon careful review of the facts and the able submissions of the parties, I have concluded the following. First, the employer alleges the images downloaded by the grievor were pornographic. Many of the images portray women in various states of undress on or around motorcycles. I do understand Cleverly's view that it is inappropriate for an employee to view such images in the workplace. Some of the images do portray women in a sexualized and provocative way. However, the grievor was discharged in part, not for downloading inappropriate images, but for downloading pornographic images. In my view, the images would not be considered pornographic by the standards of today's society. Moreover, the administration of the assets policy prohibiting personal use of the employer's property, for instance to search the internet, was not at the time consistently enforced. The grievor ought not to be penalized for using the employer's property in such circumstances. Accordingly, I am not satisfied that the employer has proved there was just cause to discipline the grievor for his downloading activities. 33      Second, on the matter of the grievor's breach of confidentiality, I have been persuaded that this is an appropriate case to substitute a lesser penalty in lieu of discharge. There is no doubt the maintenance of patient confidentiality in the delivery of medical services is of the utmost importance and is a matter of legislated public policy. The union takes no issue with the necessity and the importance of its members to protect and preserve patient confidentiality. It is apparent the grievor's breach of confidentiality was a serious dereliction of his duty to the employer, the family of the persons involved in the accident and the public. It is deserving of serious discipline. However, the grievor has acknowledged his wrongdoing. He realized almost immediately after his dismissal that what he had done was wrong and he removed the posted BLOG from the motorcycle website. He has expressed sincere remorse and apologized for his conduct. His dismissal has had a profound personal and economic impact. There is no prior discipline on his employment record during his relatively short service. Taking into account all the aggravating and mitigating factors, I have concluded the grievor has rehabilitative potential and it is unlikely that such conduct will be repeated if he is reinstated to his position. 34      Accordingly, I direct that the grievor be reinstated without compensation to his position forthwith and a four month suspension from the date of his dismissal be substituted in lieu thereof on his employment record. The remaining period to the date he commences work shall be recorded as a leave of absence but the grievor is entitled to seniority accrual during the leave period. In addition, upon re-commencing work, the grievor is directed to attend a re-orientation program in regards to confidentiality and the policies governing the workplace. It is so ordered. 35      For the above reasons, the grievance is allowed. I shall remain seized to deal with any difficulties arising out of the implementation of this award.   End of Document Copyright © Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved.