HomeMy WebLinkAboutMarazzo 22-05-161
IN THE MATTER OF AN ARBITRATION BETWEEN:
GEORGIAN COLLEGE
(the “Employer”)
and
ONTARIO PUBLIC SERVICE EMPLOYEES’ UNION, LOCAL 349
(the “Union”)
AND IN THE MATTER OF THE GRIEVANCE OF TOM MARAZZO
OPSEU # 2021-0350-0001
Louisa M. Davie - Sole Arbitrator
Appearances
For the Union: Chris Donovan
For the Employer: Dolores Barbini
2
Award
This is a termination grievance. Tom Marazzo (“the grievor ”) grieves that his
termination on September 13, 2021 was unjust and contrary to the collective
agreement between Georgian College (also “the Employer ”) and the Ontario
Public S ervice Employees Union, Local 350 (“the Union”).
This matter was scheduled to be heard on May 10, 2022. On that day, at the
commencement of the hearing, the grievor was not in attendance. As a result
counsel for the Union requested that the hearing be adjourned. The Union sought
the adjournment on behalf of the grievor because the g rievor is running as a
candidate in the provincial election to be held on June 2, 2022. A candidate’s
debate had been scheduled for May 10, 2022 at 5:00 PM in his riding. The grievor
needed time to prepare for and attend that candidate’s debate.
That adjournment request was opposed by the Employer. Instead, the Employer
sought to have the grievance dismissed because of the grievor’s failure to attend
the hearing. It was the Employer ’s position that the grievor was not interested in
this arbitration process and had shown a complete lack of respect for the process.
His conduct amounted to an abuse of process.
After hearing the submissions of the parties I rendered an oral ruling dismissing
the Employer ’s motion and the Union’s adjournment request with reasons to
follow. These are my reasons for my two oral rulings.
The Adjournment Request
The f acts relevant to my decision to dismiss the adjournment request can be
briefly summarized.
On March 31, 2022 the grievor was advised of the May 10, 2022 hearing date. He
was provided with notice that the hearing would be held on May 10, 2022 via
3
Zoom vide oconference commencing at 10 :00 AM. Since that time there were
several follow -up email exchanges between Union counsel’s office and the
grievor. Those email exchanges indicated that the grievor was aware of the date
and time of the hearing and that it wou ld be conducted via Zoom
videoconference.
The provincial election writs were issued on May 4, 2022.
The grievor was advised on Thursday, May 5, 2022 that there would be a
candidate ’s debate on May 10, 2022 in Peterborough at 5 :00 PM.
Despite emails from Union counsel’s office on May 6, 2022 and May 9, 2022
about the hearing , the grievor did not advise the Unio n, its counsel or the
Employer about his unavailability, his anticipated non -attendance or the need to
adjourn the proceedings until the morning of the hearing.
I dismissed the Union ’s request to adjourn the proceedings because, in my view,
in the circumstances of this case, the grievor had not provided adequate reasons
to explain his non -attendance that morning. The reasons provided also did not
support his short notice request for an adjournment . At best the grievor’s non-
attendance arose because of a conflict in his schedule. In the circumstances of
this case that scheduling conflict with another commitment was not sufficient to
explain his absence or adjourn and delay these proceedings.
The test to be applied when dealing with short notice adjournment request s such
as the one made by the Union in this case is whether the grievor’s non -
attendance and adjournment request arose from an unforeseen matter of urgency
(see for example William Osler Health Centre and Ontario Nurses'
Association [2012] O.L.A.A. No. 17 (Jesin); L-M Equipment (1981) Ltd. and United
Steelworkers, Local 2952 (2006) 86 C.L.A.S. 234 (Coleman); Swissport Canada Inc. and
Teamsters, local 419 (2018) can lead 6256 (Davie). When a grievor has had ample
4
advance notice of the scheduled arbitration hearing it is not good enough to , in effect,
say only “I had another more pressing commitment on that day.”
As arbitrator Jessen noted in William Osler Health Centre supra
Last -minute adjournments may be granted and are often granted where,
because of unforeseen circumstances hearing cannot continue. But such a
adjournments may not be easily granted where a grievor or party takes a
cavalier approach to the arbitration and sh ows no regard to the process or
the time and expense falling on the other parties.
This is not a case in which the grievor was preparing to attend at the hearing
was prevented from doing so because of an unforeseen matter of urgency.
Rather, this is a cas e in which the grievor made no provision to attend the
hearing in the first instance… o r she could have given all concerned
sufficient notice that an adjournment would be required. In that way the
considerable expense of preparing for and attending the hea ring could have
been avoided.
Similarly, in L - M E quipment (1981) L td supra , arbitrator Coleman, in dealing
with an adjournment request, stated:
In the result, the adjournment is granted on a conditional basis. As with
Toronto (city), supra, an adjournment is appropriate given the lack of
information, but it is conditional in that the grievor is required to provide a
full and frank explanation. Wit h respect to process, I am unwilling to put the
parties to the expense of a further hearing day unless the explanation is
substantial and reasonable. It is not possible to list all the legitimate or
illegitimate reasons, but I will give some guidance by ad vising that another
commitment such as work at another job (given that the grievor has not
provided any notice of that kind of conflict), a nonemergency medical
appointment, or simply “personal reasons”, will not suffice. By the same
token, the circumstanc es of some vehicle or other type of accident, a
medical emergency, or some kind of detention may well provide a
reasonable excuse.
In the circumstances of this case, the grievor’s need to prepare for and attend an
all-candidate’s debate at 5 :00 PM on May 10, 2022 does not rise to the level of an
unforeseen matter of urgency.
5
The grievor had about six weeks written notice of the date and time of the
hearing. Significantly he was also advised that the hearing would be conducted
via Zoom videoconfe rence so that there was no need for him to travel to attend
the hearing. There is nothing to indicate that the grievor made any request to
adjourn the hearing between March 31, 2022 and May 10, 2022.
It may be that the issuance of the writ for the general provincial election did not
occur until May 4, 2022 , so that it could be argued that until that date the grievor
would not have known that he might require an adjournment of the scheduled
hearing date . In that sense perhaps it could be argued that his inability to attend
because of his responsibilities as a candidate in the election was “unforeseen”. (It
is however rather difficult to conclude the election was “unforeseen” given that the
E lections Act R. S. O. 1990 c . 6 spec ifies that , subject only to the powers of the
Lieutenant Governor to dissolve the Legislature , general elections are to be held
on the first Thursday in June in the fourth calendar year following the most recent
provincial general election.) However, even if I were to accept that the calling of
the provincial election was “unforeseen” that does not explain why the grievor did
not , in the days following May 4, 2022 , immediately provide the Union or the
Employer with notice that an adjournment would be required. Had he done so the
expense of preparing for the hearing incurred by the Employer and the Union
might have been avoided.
Similarly , it could perhaps be argued that it was “unforeseen” that there would be
a candidate ’s debate on the same day as the day schedule for the arbitration of
his grievance. The facts however indicate that the grievor became aware of the
candidate ’s debate on May 5, 2022. No explanation has been proffered to explain
why the grievor waited until the last minute, the day of the hearing, to advise the
parties of his non -attendance and the need for an adjournment of the hearing.
In this regard I note that in making his submissions in support of the adjournment
request counsel for the Union submitted that the Employer would not suffer any
6
prejudice if the adjournment were granted. I am unable to accept that submission.
The Employer (and the Union ) had already suffered prejudice in preparing for a
scheduled hearing which could have been avoided had the grievor made more of
an effort, earlier, to advise of his non -attendance and the need for an
adjournment. Instead , his delay lends credence to the Employer’s position that
the grievor has exhibited a cavalier attitude in dealing with his grievance and
dis respects this grievance arbitration process.
I also did not grant the adjournment because I did not agree that the grievor’s
reasons for not attending the hearing were reasonable. The grievor asserted that
he needed time to prepare for the debate. In my view the grievor had five days to
prepare for the debate. He could have /should have altered his schedule and
prepared for the debate on days other than the one scheduled for the hearing of
his grievance. Employer ’s counsel description that the grievor’s attitude is that he
should not be inconvenienced and should be permitted to keep all others involved
in this arbitration process (the Union, the Employer, and the arbitrator) waiting
while he co ntinues as if there was no scheduled arbitration date for his grievance
appear s to be an accurate assessment.
Finally, I do not accept that a candidate ’s debate that the grievor was scheduled
to attend at 5 :00 PM was sufficient reason not to attend the hearing scheduled to
commence at 10:00 AM. There was no scheduling conflict in the sense of
overlapping times facing the grievor on May 10, 2022. The grievor knew the
hearing was to be conducted via Zoom. He was not re quired to travel and could
have attended the hearing from his home/office or other remote location. The
hearing would have been concluded by 5 :00 PM (or earlier if he needed some
time to travel to the debate location ). I can see no reason why the grievor could
not have attended both the arbitration hearing conducted via videoconference in
the morning and the candidate ’s debate much later that day.
7
That this is the case is borne out by the facts of the day. Not only di d the hearing
conclude before 5 :00 PM, but upon being advised by counsel that the request to
adjourn the hearing had been denied, the grievor did attend the hearing via Zoom
videoconference (see below)
In the result I determined that at its core the griev or’s explanation for not
attending the hearing and instead requesting an adjournment amounted to no
more than, from the grievor’s perspective, “I have other matters to attend to .” He
had a commitment which he viewed as more significant and more important. That
was not a reasonable explanation for his non-attendance at 10:00 AM and not a
sufficient reason for granting a short notice adjournment . That is simply a matter
of the grievor’s choice.
Where it is not a matter of unforeseen urgency choosing to be somewhere else
because the grievor viewed that as being more important is not a sufficient reason
not to attend and participate in a hearing established to deal with his grievance.
The G rievor Attends
As indicated the grievor did in fact attend the hearing that day. That attendance
confirms that, had he chosen to do so, he could have attended the hearing at
10:00 AM. That would have been the prudent and appropriate course of action.
Following my oral ruling dismissing the adj ournment request Union counsel asked
for some time to contact the grievor and advise him that the adjournment had not
been granted. As it was an opportune time in the day the hearing was adjourned
over the lunch break so counsel could do that.
During the lunch break the grievor joined the hearing via videoconference. He
met with Union counsel and Union representatives in a private breakout room .
8
When the hearing resumed at 1 :15 pm Union counsel indicated that the grievor
wished to speak to the matter, to reiterate the reasons underlying his earlier non-
attendance, and emphasize the importance and significance of his preparation
for, and attendance at, the candidate ’s debate.
I advise d counsel that having just rendered an oral ruling dismissing the
adjournment request I was not about to revisit or reconsider the matter an hour
later (particularly where, as here, there would not be anything new). The grievor
was here and the hearing woul d proceed on its merits.
However, even though he was clearly able to attend and participate in the hearing
process via Zoo m video conference, the grievor did not stay. He left the hearing
and did not remain to deal with the merits of his grievance.
As a result of this conduct, I consider it apt to make the following observation. I do
not disagree that in a free and democratic society it is very important for all to be
engaged in the electoral process. I accept that the grievor’s participa tion as a
candidate in a democratic election represents a significant commitment and
added obligations . Neither do I doubt that as a candidate the grievor’s
responsibilities are time -consuming and that his attendance at a candidate ’s
debate is important. On the facts of this case however I concluded that his
participation as a candidate in the election did not preclude him from participating
as a grievor in the arbitration hearing scheduled to hear his grievance . On the
facts of this case the two roles did not conflict.
It was the grievor who chose to prioritize his political candidate ’s role to the
detriment of his role as a grievor. That choice had consequences . Choosing to
leave meant that the hearing continued in his absence. As was the case with the
grievor’s deliberate conduct in waiting until the very last minute to notify the
parties of his non -attendance , the grievor is the author of his own misfortune. He
9
was wrong to expect that the Union , the Employer, and the arbitrator would delay
the hearing merely to suit his convenience .
The Employer’s Motion To Dismiss The Grievance
Counsel for the Employer argued that the grievor’s failure to attend was an abuse
of process. Reference was made to various newspaper articles which the
Employer asserted demonstrated that the grievor was not interested in being
reinstated to his position and that this attitude informed his decision not to attend
the hearing.
Counsel argued that the grievor has shown a complete lack of respect for the
grievance arbitration process throughout as evidenced by his failure to notify the
Union or the Employer at the first opportunity that he would not attend the
hearing. It was the Employer ’s position that the grievor ’s conduct amounted to an
abuse of process which ought not to be countenanced. She urged me to dismiss
the grievance.
In determining not to grant the Employer’s motion to dismiss I was cognizant of
the fact that this is a discharge grievance. An arbitrator should not lightly or
summarily dismiss a discharge grievance without a hearing. To do so requires
extraordinary circ umstances which I concluded were not present in this case.
In a discharge grievance the onus is on the Employer to prove it ha d just cause to
terminate the grievor’s employment. Despite the grievor’s non -attendance the
Union did not withdraw the grievan ce thereby indicating that it was putting the
Employer to the strict proof of its case. As it had the onus the Employer would
have to present its evidence first so that the Union could proceed despite the
grievor’s absence.
10
In these circumstances, although I did not countenance the grievor’s non -
attendance and what appeared to be a cavalier attitude which focused only on his
own interest without regard to the interest of others involved in the grievance
arbitration process, I did not view that attitude to rise to the level of an abuse of
process warranting summarily dismissing his grievance.
Merits of the G rievance
This leads me then to the merits of the grievance. The objective facts in this case are
not in dispute. However, the more subjective characterization of those facts is a key
area of dispute between the Employer and the Union.
The grievor was hired as a partial load Professor at Georgian College in September
2019. He was a Professor in the Computer Science Department. In the two years of his
employment, he taught a number of different computer related courses.
On August 13, 2021 the Employer announced that effective September 7, 2021 it would
move to a mandatory vaccination policy for all students and employees accessing any
of its campuses or locations.
On August 25, 2021 the Employer announced its Covid-19 vaccination procedure. That
procedure required all employees to have their first dose of an approved Covid-19
vaccine as of September 7, 2021 before coming on campus, and a second dose by
October 18, 2021. The Covid-19 procedure had a process for granting accommodation
for those who could not be vaccinated on medical or other grounds recognized by the
Ontario Human Rights Code. There was also a process for being placed on an unpaid
leave of absence. The announcement stated:
If you….do not qualify for an accommodation and do not intend to get vaccinated,
you should notify your manager in writing, on or before August 31, of your
11
decision. You will be placed on unpaid leave for the fall semester as noted in the
procedure. Your manager will work with you and Human Resources with regards
to the next steps.
I note that instructions issued by the Chief Medical Officer of Health issued August 30,
2021 pursuant to his statutory authority required the Employer to establish a mandatory
Covid-19 vaccination policy.
On Monday, September 6, 2021 at 3:42 PM the grievor sent an email to over 200
faculty and staff. The email shows the name and “@Georgian College” working email
address of each intended recipient. That email was copied to senior members of
Georgian College administration including the Georgian College President, Vice
President, Human Resources and the grievor’s supervisors including the Associate
Dean of Design and Visual Arts.
The parties do not agree on the characterization to be attributed to the text of that email.
On that same day, 14 minutes after sending out the mass email, the grievor forwarded
his email, including the names and work email addresses of each of the recipients, to an
outside email account of a person not connected to Georgian College.
Three hours later, at 6:39 PM that day, David Coward, Vice President, Human
Resources emailed the grievor stating:
Your message below is an inappropriate use of the Georgian College email
system. As such, I expect you to recall the message immediately.
You are prohibited from using the College email system to disparage College
policies or to solicit action against the College.
In giving you this direction, I am referencing the Appropriate Use Of Email and
Anti-Spam Compliance Policy, note Procedure Section 1, specifically 1.2, 1.9,
12
1.17 and 1.18 which specifically references, in situations of noncompliance with
this or the Information Technology Acceptable Use Policy, IT reserves the right to
revoke a user’s access to Georgian email and College technology systems. I am
also referencing the I.T. Acceptable Use Procedure which also references the
Code of Conduct section 1.2, 1.4 (1.4.1 and 1.4.2)
In his opportunity to respond meeting with Mr. Coward to investigate and address the
sending of these emails the grievor acknowledged that he did not see or respond to Mr.
Coward’s email. His explanation for not seeing the email was that the response to his
own email was overwhelming. Apparently, everyone “piled on.” He assumed Mr.
Coward’s email was of the same nature. There were so many emails that he stopped
looking at his emails and ignored all of the emails for a couple of days.
As he did not read Mr. Coward’s email the grievor did not recall the email he had sent
as he was instructed to do. In this regard I also note that in the investigative opportunity
to respond meeting the grievor stated that “as a computer person” he was
“embarrassed” to admit that he did not know how to recall an email from Outlook. Thus,
even if he had seen Mr. Coward’s email, the grievor would not have been able to recall
it.
As it turns out Mr. Coward arranged with the College’s own computer personnel to have
the email recalled. That took some time. Moreover, the email could not be “recalled”
from those who had already opened and read the email. If opened and responded to, or
forwarded, those responses or forwarded emails also could not be recalled. Thus,
although the grievor’s email was recalled by the College on September 6, 2021, there is
no evidence from which I can determine how many people saw the mass email, or who
might have forwarded, or who might have kept the email in circulation by a “reply to all”
response. All of this to say that the grievor’s email could not simply be “undone” or
erased. Once he sent it, the grievor lost control of its further dissemination.
13
On September 10, 2021 the Employer conducted its opportunity to respond
investigative meeting. The grievor was offered but declined Union representation. In the
meeting the grievor acknowledged that he sent the email. He was asked for his side of
the story, why he sent the email and what he was trying to achieve. In response to
these open-ended questions the Employer’s notes of the meeting indicate the grievor
said:
I have had several people contacting once the initial announcement went out on
the policy requiring Covid vaccine and I have had a lot of staff and faculty
reaching out. We felt there was no voice and we wanted to know out in the open
to connect with others who strongly disagreed with the actions taken by Georgian
and other colleges and universities.
The intent was to get a hold of us if you disagree. I volunteered in the group to be
the person to send out the communication. With my army pension, I am less
vulnerable. We drafted the communication together and I agreed I will send it and
look for the people with the same concerns.
There was a union meeting. We were disgusted by the union stance to say the
least. So with the union not going to help with the College in an email threatening
people with losing income, we thought we needed to connect with other people
and be unified in our position.”
When asked about the outside email account to which the email had been sent the
grievor stated that that person had nothing to do with Georgian College and the email
had been sent “just for a record, a copy of the email.”
At a subsequent meeting on September 13, 2021 the grievor’s employment was
terminated. The letter of termination reproduced below was read to him.
At this meeting the grievor confirmed his view and stated again that the Employer’s
Covid-19 vaccination procedure was illegal, unjustified and immoral. However, he
denied trying to persuade employees to join a lawsuit and not comply with the policy.
He stated:
14
I didn’t do that. I asked people to talk and contact me. That’s what it [the email]
does. I’m not asking people to join a lawsuit.… I asked them to talk to me and [by
the way] there is a lawsuit. I said lawsuit was against colleges and universities . I
never said Georgian specifically.
As for sending the email to an outside email address the grievor again said
… That was done in error. That wasn’t intended. That was a mistake. That isn’t
what I thought was happening.
On September 13, 2021 the Grievor was issued the following letter of termination
On September 6th, 2021 you sent out an email from your Georgian College email
account to over 200 other Georgian College employees. Your email implied that
the COVID-19 Vaccination Procedure recently implemented by the College was
illegal, unjustified and immoral. You also attempted to persuade other employees
to join a lawsuit against the College and to disobey a College procedure.
You also subsequently forwarded your own message (and the names and
College email addresses of our 200 College employees) to another outside email
account. Your actions are in violation of the College’s Employee Code of
Conduct, the Appropriate Use of Email and Anti-Spam Compliance Policy and
the Information Technology Acceptable Use Procedure.
These actions are considered serious misconduct. Therefore, your employment
with the College is terminated immediately for cause.
The Email Sent
The email sent by the grievor which resulted in the termination of his employment
states:
Faculty and Staff,
As you are aware, many Colleges and Universities across Ontario, have chosen
to institute a Vaccination Mandate. Georgian College has also made the decision
to follow this policy with the implementation of Procedures.
You may have also heard that there is a Class Action Lawsuit being filed by the
Children’s Health Defense, represented by the Constitutional Rights Center.
As a faculty member I am completely shocked by Georgian College’s aggressive
stance with these mandates.
15
These mandates contravene:
• The Constitution
• The Charter of Rights and Freedoms Section 2 (a) and Section 7
• The Privacy Act
• Ontario Healthcare Consent Act, 1996
• Personal Information Protection and Electronic Documents Act, 2000
(PIPEDA)
• Personal Health Information Protection Act, 2004 (PHIPA)
• Ontario Occupational Health and Safety Act, R. S. O. 1990, c. O. 1
• Municipal Freedom of Information and Protection of Privacy Act, RSO
1990.
• Bill S – 201, Statues [sic] of Canada 2017: “An Act to prohibit and prevent
genetic discrimination”
• Nuremberg Code: Article 6: Sections 1 and 3
I am the point of contact for a large, concerned group of Staff and Faculty who
feel these mandates are illegal, unjustified, and immoral. If you wish to learn
more, please reach out to me on email.
This message as [sic] gone to as many faculty and staff, as I can reach. Please
share this email if you believe Georgian College has exceeded their authority,
and the law, by imposing these mandates.
If you feel alone, you are not. There are many of us who believe we must exert
our Constitutional rights against these unlawful measures.
For some of you, this email will come as an enormous relief – reach out to us.
For others, it will create anger and frustration. Please keep in mind, this is NOT
about Covid-19. This is about the Law and our Human Rights.
Submissions of the Parties
The submissions of the parties about the results which should follow from these facts
are set out in highly abbreviated format.
Counsel for the College submitted that the grievor’s email violated the College’s policies
and procedures as set out in Mr. Coward’s email to the grievor requesting him to recall
his email. The grievor knew or should have been aware of these procedures, all of
16
which were online, as the contracts he signed as a partial load Professor clearly
directed him to those procedures. In those contracts the grievor agreed to review and
comply with the procedures. His contracts state:
Georgian College has several procedures, which are available online. You agree
to review, comply and stay informed of new and revised procedures during the
course of your employment with the College.
The grievor’s email clearly did not comply with the procedures that he agreed to abide
by. Moreover, as a professor, teaching Computer Science courses, the grievor should
have known that sending the email he did, including sending it to an outside email
address, was wrong.
College counsel also characterized the content of the email to be a “rallying cry”
designed to encourage others at the College to be defiant. The grievor used the
College’s email system to disparage the College, accuse it of unlawful conduct, and to
encourage dissent. The email was highly disruptive. The grievor knowingly and
deliberately sent the email knowing that it was wrong to do so.
Counsel argued that in this case there were no mitigating factors. The conduct was
premeditated, and the grievor knew full well it would result in severe consequences. The
grievor was neither remorseful, nor did he acknowledge his wrongdoing. At the time that
the College was taking action to protect the health and safety of its student s and staff
population in fulfilment of its responsibilities and its legal obligations under the
Occupational Health and Safety Act, the grievor was attempting to rally others to
oppose those measures. The grievor was a short service employee so that lengthy
service did not overcome his very public insubordination.
In addition, it was the Employer’s position that there were also aggravating factors
which made reinstatement impossible. In this regard counsel referred to certain post-
17
discharge articles relating to the grievor’s very public involvement with the convoy
protests in Ottawa in February 2022 which referenced the grievor’s termination from
Georgian College. It was asserted that this involvement and media presence adversely
impacted the College’s reputation. Counsel also referenced the grievor’s candidate’s
profile which states the grievor was fired from his position at an Ontario College “for
questioning the legality of the school’s Covid vaccine mandates” to submit that the
grievor was using his dismissal as a platform in his campaign. The grievor has made his
insubordination very public on both traditional and social media thereby indicating that
there was no potential for rehabilitation.
Turning to the Union's submissions, I note at the outset that in making the submissions
Union counsel filed and referred to the grievor's "statement of grievance" dated
September 27, 2021. Although addressed to Mr. Coward it was the Employer's
evidence that this document was never received by Mr. Coward. Mr. Coward did receive
other correspondence from the grievor dated September 27, 2021 in which the grievor
requested certain documents. In making my decision herein I have considered the
grievor's September 27, 2021 statement of grievance. However, I have done so having
regard to the Employer's position that because the grievor left the hearing he could not
be cross-examined on its contents. Thus, where there is a dispute about the truth or
accuracy of its contents, little weight has been attributed to those portions of the
statement.
It was the Union's position that the Employer did not have just cause to discipline the
grievor. In the alternative it was argued that discharge was much too severe in the
circumstances of this case. In this regard the Union noted that the grievor had a
discipline free record during his employment at the College, and that the principles of
progressive discipline had not been followed in this case.
18
Union counsel argued that it was important to consider the circumstances which existed
when the grievor sent his email. It was mere months after the introduction of vaccines to
fight the Covid-19 pandemic, at a time when there was widely divergent and strongly
held views about the efficacy of vaccines or the need for vaccine mandates. In this
instance the grievor had a different view than the College. Perhaps his views were
controversial. However, as a publicly funded postsecondary institution the College
should not stifle discussion and debate but should permit people to express their views.
A reading of the email sent by the grievor indicates that was all the grievor was doing.
He was exercising his rights of free speech to criticize and contest a viewpoint with
which he disagreed.
In the email the grievor was not "attempting to persuade others to join a lawsuit against
the College and to disobey a College procedure" as asserted in the termination letter.
Instead, the email did no more than express the grievor's feelings and viewpoints about
vaccine mandates while encouraging others who shared those views to contact him.
The email was not disruptive as alleged by the Employer because all it did was invite
recipients to contact the grievor by email. As for sending it to an outside email address,
the grievor explained his intent in doing so – it was merely to keep a record.
Union counsel submitted that the grievor's employment was terminated because he sent
an email, including sending it to an outside email address, and used the College's email
system to do so in a violation of various Georgian College procedures and policies
relating to email usage. The Union maintained that if the grievor had sent an
inappropriate email and had made inappropriate use of the College's email system, as
an employee without a disciplinary record, the appropriate College response should
have been to counsel the grievor. This Mr. Coward did in his September 6, 2021 email.
It was the Union's position that the grievor had not been made sufficiently aware of the
policies and procedures the College maintains he violated. The vague language relied
19
upon by the Employer in the contracts signed by the grievor was insufficient. Moreover,
even if the grievor knew or should have known of the policies, in the circumstances of
this case the violation of those policies did not warrant the most extreme disciplinary
response, namely termination of the grievor's employment. That was contrary to any
notion of progressive discipline.
As to the post discharge evidence relied upon by the Employer, it was the Union's
position that the media statements attributed to the grievor were, just as the September
6, 2021 email, no more than expressions of his beliefs and viewpoints. The media
coverage of his prominent role in the Ottawa convoy protest did not show fundamental
harm to the Employer's reputation, or irreparable damage to a continued employment
relationship.
In the result the Union submitted that neither the sending of the mail, nor the
controversial views expressed by the grievor about vaccine mandates, warranted
termination of the grievor's position teaching computer courses to students.
Decision
There is no doubt that in sending the email the grievor violated the Employer's
Appropriate Use of Email and Anti-Spam Compliance Policy and the Information
Technology Acceptable Use Procedure. Without setting them out in this decision I
agree that the email sent contravened the sections of those policies referred to in Mr.
Coward’s email to the grievor requesting him to recall his September 6, 2021 email.
This was a spam email. It falls within the classic definition of "spam" or "junk email" in
that it was an unsolicited message sent in bulk to a large list of recipients. As is the case
of all spam or junk email it was disruptive to the recipients, seeking the reader's
attention by making the recipient read an annoying email that the recipient had not
20
consented to view. The email itself recognizes this as it acknowledges that for some
recipients the email "will create anger and frustration."
That this was spam and unwanted is also borne out by the grievor's answers at his
opportunity to respond investigative meeting on September 10, 2021. Then he admitted
that in response to his email "everyone piled on". There were "so many" wanting the
email and replies to stop that the grievor himself stopped looking at his emails and
"ignored all of them for a couple of days". That is why he did not see Mr. Coward’s
email. Similarly, in a reply email sent to a fellow staff member on September 7, 2021 the
grievor states "this email has been met with a lot of hostility towards us." (I also note
parenthetically that the email states that the staff member is "literally the only person
who has had the guts to ask [for more information]..." which also suggests that the
grievor’s email, and the views it expressed, was unwanted by the vast majority of those
to whom it was sent, as it garnered only a single reply which could be viewed as
positive.)
Sending the spam email was an abuse and misuse of the College email and information
technology resources and culpable misconduct. That the grievor sent the email
containing the names and work email addresses of his colleagues to an outside email
account not his own is also culpable misconduct. That he only intended to create a
record by doing so may explain his conduct but does not excuse it. As noted earlier,
once the email was sent, the grievor effectively lost control over it. He could not for
example prevent any recipient from forwarding the email to others. He could not control
its further dissemination, and that included further dissemination of all the employees’
names and work email addresses. The grievor did not try to limit or restrict the
dissemination of his email. Indeed, in the email itself he encourages recipients to
"please share this email"
21
The grievor knew or should have known that sending his email contravened the
Employer's policies and procedures. He agreed to abide by those policies when he
signed his contracts as a partial load professor. Moreover, even without these policies
and procedures in place, given his position as a part-time professor in computer studies,
he knew or should have known that the email was contrary to the accepted norms of
email use and information technology resources by an employee. His status as a
professor, teaching students about computers, has led me to view his conduct more
severely. Misuse of the Employer's email and IT system was unprofessional and wrong.
It may have been been that because the grievor had two years discipline free service
the mere sending out of the email would not have led to his immediate dismissal.
Depending on the nature of the misuse of email or abuse of an Employer's information
technology resources, this type of misconduct can often be dealt with by an Employer
through counseling and progressive disciplinary measures imposed to ensure that
behavior is corrected and is not repeated.
In this case however the misuse and abuse of the Employer's email system did not only
violate the Employer's policies and procedures applicable to the use of emails and the
Employer's information technology systems. The grievor's email also breached the
Employer's Code of Conduct and the professional responsibilities to which employees
are expected to adhere. Again, without itemizing each section of the Employer's Code of
Conduct, that Code certainly speaks to the employee's duty and responsibility to ensure
College assets are used exclusively for valid College business, and to the misuse of
College equipment and computer resources. However, it also speaks to an employee's
responsibility not to disrupt or obstruct legitimate College activities by any means. Most
significantly the Code deals both expressly and implicitly with the principles and values
for conduct to which Georgian expects all employees to adhere.
22
The Code emphasizes professional conduct and the expectations of respect which are
key components of an employee’s conduct. It is in this context that the text and content
of the grievor's email is significant. It is not possible to separate the content of the email
and the violation of the Code of Conduct provisions about respect in the workplace
which that content breached and focus only on the violations of the email and computer
related procedures.
On balance, considering the grievor's short service, and having regard to the multiple
breaches of the Employer's policies and procedures which sending the email
represented, I have determined that the content and text of the email also represents a
significant breach of the expectations set out in the Code of Conduct that employees
promote a respectful workplace. It is a breach which warrants termination of
employment.
I accept and agree with the Union that the email does not attempt to persuade
employees to join a lawsuit against Georgian College. Neither does it attempt to
persuade employees to disobey College procedure such as the mandatory Covid-19
vaccine procedure. I do not however view the email as benignly as does Union counsel.
In this case the Employer has characterized the email as a "rallying cry" intended to
foment dissent and disobedience. The Union characterizes it as no more than a
communication to encourage dialogue and debate on a controversial topic.
I don't accept either characterization but find that in the continuum between fostering
dissent and disobedience at one end, and fostering debate at the other, the grievor's
email was intended to fall closer to the "dissent" than "debate" end. Of greater
significance is the tone of the email which fails to adhere to the principles of respect
embedded in the Code of Conduct.
23
That the grievor intended the email to, at a minimum, stir up controversy and not merely
encourage discussion is evident from the grievor's recognition that "for others it will
create anger and frustration." The grievor recognized the severity of his actions and
understood that severe consequences were likely to follow. For example, in the same
email to his colleague in which he speaks of his email being met with hostility, the
grievor says "if you're interested we’re going to do a Zoom call this week before I get
fired." This email was sent on September 7, 2021, days before the September 10, 2021
opportunity to respond meeting with the grievor, and days before the grievor claims to
have seen Mr. Coward’s September 6, 2021 email. I accept Employer counsel’s
submissions that this comment that he would get fired supports the Employer's position
that the misconduct was premeditated with the grievor knowing full well that his conduct
was wrong and that severe consequences would flow.
At the September 10, 2021 opportunity to respond meeting the grievor's responses to
open-ended questions also tend to suggest that he intended the email to do more than
simply foster dialogue. He knew the email would be divisive and intended it to be. In
that meeting the grievor spoke to needing to "connect with others who strongly
disagreed with the actions taken by Georgian" and that he wanted to "look for other
people with the same concerns", and that "… We needed to connect with other people
and be unified in our position". This comment naturally causes one to ask "unified in
what position?"
The Union has also argued that in the email the grievor does no more than express his
feelings and views that the mandatory vaccine procedures are unlawful. I am unable to
accept this submission. The email goes much further than merely stating the grievor's
belief that the College is wrong in enacting a policy which he believes (erroneously) to
contravene certain laws. Using strong words, the grievor disparages the College, and
denigrates the mandatory Covid vaccine procedures it has enacted. Using powerful
words he first implies the College's actions are "illegal, unjustified and immoral." Indeed,
24
in the penultimate paragraph of his email, after implying that Georgian College “has
exceeded…the law”, he explicitly says that the College's conduct is "unlawful".
If this were simply a case of someone expressing controversial or unpopular views there
might have been a different result. It is not. The grievor crossed the line by essentially
saying his Employer was engaged in unlawful or illegal and immoral activities. In so
doing he disregarded his obligations as an employee and violated the Employer’s Code
of Conduct by which he agreed to abide.
Publicly accusing your Employer of "unlawful" conduct and suggesting that its policies
are "illegal” and “immoral" does not foster either respect in the workplace or dialogue
and debate amongst those with divergent views. It is divisive, disrespectful, and
insubordinate behaviour and name calling. When he engaged in it the grievor ignored
and breached his obligations as an employee at Georgian College. In the circumstances
of this case that conduct warranted dismissal.
Considering my view of the appropriate characterization of the email which the grievor
sent I need not address the post discharge evidence which the Employer argued
militated against reinstatement.
For all of these reasons the grievance is denied and the termination of the grievor's
employment by letter dated September 13, 2021 is upheld.
Dated this 16tth day of May, 2021
Louisa Davie
25