Loading...
HomeMy WebLinkAbout2010-1428.Gyapong.13-05-30 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2010-1428 UNION#2010-0290-0022 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Gyapong) Union - and - The Crown in Right of Ontario (Ministry of Children and Youth Services) Employer BEFORE Owen V. Gray Vice-Chair FOR THE UNION Aaron Hart Koskie Minsky LLP Counsel FOR THE EMPLOYER Susan Munn Ministry of Government Services Legal Services Branch Counsel HEARING July 10, August 28 and October 11, 2012 January 8, February 4 and 7, March 8 and 15, 2013. DECISION [1] On August 24, 2010, the employer terminated its employment of Kofi Gyapong as a fixed term Youth Services Officer (“YSO”) at the Roy McMurtry Youth Centre (“RMYC”). It did so because it had concluded that he - had breached Ministry policy and misused Ministry IT resources when he accessed and printed images from the internet of an inappropriate sexual nature and provided the printed images to young persons on unit 5A, - had breached Ministry policy when he permitted young persons on unit 5A to use a Ministry computer, which they used, in part, to view pornographic videos, - had potentially jeopardized institutional security and community safety when he permitted young persons to use a Ministry computer on unit 5A, and - was not forthright with a Ministry Inspector when he refused to name the Youth Services Officers who he said had informed him that it was acceptable to print the pictures and provide them to young persons. [2] RMYC is a facility at which youths charged with or found guilty of an offence under the federal Youth Criminal Justice Act1 are held in secure custody pursuant to the Ontario Child and Family Services Act (hereafter, “the CFSA”).2 YSOs interact with, assist and control the activities of and, hopefully, serve as role models for these “young persons,” which is the term those statutes use to describe them. [3] Mr. Gyapong denies that he did any of the things that the employer says he did. On his behalf the union takes the position that the employer did not have just cause to discharge the grievor. In the alternative, the union argues that if the grievor did do any of those things discharge was an excessive response, particularly when the employer merely counselled or gave a written warning to four other YSOs at RMYC who were subsequently found to have accessed and printed images of an inappropriate sexual 1 SC 2002, c. 1, as amended. 2 R.S.O. 1990, c. 11, as amended. - 2 - nature and provided the printed images to young persons. That difference in treatment is also the basis of an allegation that in discharging the grievor employer discriminated against him on the basis of race and place of origin. [4] The grievor emigrated to Canada from Ghana in 1988. He worked as an automobile salesman from 1991 to 2003. From 2004 to 2006 he was enrolled in a Correctional Officer program at Centennial College. After he completed that program he returned to Ghana. When he came back to Canada in 2009 he was hired by the Ministry of Children and Youth Services, which gave him training and a one year contract as a fixed term YSO at RMYC. The grievor’s employment at RMYC began on January 4, 2010. [5] Less than 4 months later, on April 21, 2010, a number of printed images of a sexual nature were discovered and confiscated during a search of young persons’ rooms at RMYC. That same day a YSO reported that about a month earlier another YSO (whom she did not name) had told her that Mr. Gyapong had been printing explicit pornography for young persons.3 The Youth Centre Administrator, Mr. Ed McAndrew, immediately asked for an investigation of those allegations. He also issued a memo to staff saying that it was improper to print images of this sort for the young persons in the institution. [6] Mark McGillis, a Senior Investigator with the Investigation and Security Unit of Youth Justice Services, was assigned to conduct the requested investigation. To assist him, the IT Forensics group in the Corporate Security Branch of the Ministry of Government Services investigated the grievor’s use of government IT resources. [7] In what follows there is reference to the grievor’s “account” on the institution’s computer network and to the accounts of other YSOs. Computer resources at RMYC are configured and networked together in such a fashion that they can only be used by logging in on a computer workstation using the unique username and password associated with the network “account” of an authorized user. YSOs are authorized 3 No effort was made to prove that the contents of this report were true, and I refer to it only to identify what triggered the request for an investigation of the grievor’s use of IT resources. - 3 - users. During the period in question here, a workstation on which a YSO had logged in could then be used to access that YSO’s work email and personal network storage space, storage space shared with other facility staff, Ministry and government intranet resources, and (with some restrictions) the internet. [8] Employer policies applicable to YSOs during the grievor’s employment made it clear that each user of the employer’s IT Resources was responsible for the security of his/her network account, would be held accountable for any unauthorized access or misuse that occurred by means of that account, was only to use a computer network account that he/she was authorized to use, and was obliged to log off when leaving a computer workstation on which he/she was logged in, in order to avoid unauthorized use. The union conceded that the grievor was aware of these policies at all material times. [9] On June 10, 2010, Mr. McGillis received the IT Forensics report on the grievor’s IT usage. He summarized its conclusions in his subsequent report: Ontario IT Forensics provided the Ministry Inspector with the Final Report of their investigation on June 10, 2010. It was determined that YSO Gyapong’s IT account issued 8 print jobs on March 25, 2010 in Unit #5A. Those print jobs were identified as potentially inappropriate based upon the Internet URL addresses associated with the print source information. Based upon the discovery of the inappropriate pictures, Ontario IT Forensics conducted their audit of YSO Gyapong’s account on the Unit #5A Staff Station computer during the period of March 25-26, 2010. Besides the 8 inappropriate pictures that were printed, IT discovered 313 potentially inappropriate images contained in the “Temporary Internet Files” folder of YSO Gyapong’s account on the Unit #5A Staff Station computer. Also found in the folder were 23 potentially inappropriate video files which contained “Sexual Content/Nudity, Exposed Genitalia, Sexually Graphic or Other Inappropriate Materials.” In the hearing before me the author of the IT Forensics report testified at length about the evidence he had gathered about the use of the grievor’s account and how it had led him to his conclusions about what had been done from the staff workstation in unit 5A using that account. Among other things, he explained that the presence of image and video files in the “Temporary Internet Files” folder associated with the grievor’s account on the workstation indicated that the browser on that workstation had been used to access those files while the grievor’s account was logged in on the workstation. It is - 4 - unnecessary to review that testimony in any greater detail, because after he gave it the union did not challenge the testimony or the report’s conclusions. The union’s position thereafter was simply that the report did not prove that the grievor himself had done what the report found that his account had been used to do. [10] Later on June 10, 2010, Mr. McGillis sent the grievor a memorandum that said, in part, as follows: Please accept this correspondence as official notification that an administrative investigation has begun under the authority of Section 98 of the Child and Family Services Act (CFSA) regarding information Ministry officials received that alleged you misused Government of Ontario I.T. resources when you accessed, viewed and printed potentially inappropriate images. Further, that those materials were provided to Young Persons. It was also reported that you viewed videos that were categorized as “Sexual content-nudity”, “Exposed genitalia”, “Sexually Graphic” and “Other-Inappropriate Materials.” You have been identified as a “subject employee”. I have been assigned by Randy McAllister, Manager, Investigation and Security Unit to investigate the circumstances surrounding the alleged misuse of Government IT resources. It is my intention to conduct an interview with you concerning this matter. Although the allegations are the intended purpose of my interview with you, it should be understood that there might be other issues that are identified during the interview and once identified, may be subject to discussion. Facility video recordings, if available, will be used for investigative purposes. The memorandum said that the interview would take place June 16, 2010. [11] There are video cameras in the work areas at RMYC – hence, the reference to “facility video recordings” in Mr. McGillis’ notice to the grievor. The recordings made by the cameras around the staff workstation on Unit 5A on March 25 and 26 were no longer available when Mr. McGillis requested them shortly after his assignment to this investigation. The unchallenged testimony of the institution’s then Security Manager is that the recordings for that day would have been deleted some time well before April 21, 2010. [12] The grievor did not know that video recordings were unavailable, however. It is apparent that before the interview began he thought the employer had such recordings. Indeed, he testified that he thought that someone regularly viewed and summarized the video recordings after they were made. There is no evidence that that is so, but it reveals something about the grievor’s state of mind when the interview began. - 5 - [13] Mr. McGillis interviewed the grievor on June 16, 2010 in the presence of a manager from another facility and Bruce England, the local union President. In his subsequent report he summarized the interview as follows: When interviewed, YSO Gyapong acknowledged that he misused Ministry IT resources when he accessed inappropriate websites, when he printed inappropriate pictures and when he provided those pictures to YPs. YSO Gyapong stated that he had asked other YSOs for direction regarding providing the inappropriate pictures to the YPs and was informed that it was an acceptable practice. YSO Gyapong would not/could not provide the names of any YSOs who provided him with that direction. YSO Gyapong stated that he did not view the videos that could be described as hard- core pornography. He stated that YP(s) viewed them at the Staff Station. YSO Gyapong stated that he would leave the area for periods of time, while YP(s) used the computer at the staff station. YSO Gyapong potentially jeopardized institutional security and community safety when he permitted YPs to use the computer at the Staff Station. YPs had access to institutional policy, YSO Gyapong’s government email, their own email, etc. In this passage “YP” refers to “young person” – that is, a youth in custody at RMYC. [14] The parties’ dispute about whether the employer had grounds for discharge is largely focused on what the grievor said during the interview. I will describe the interview in greater detail later in this decision. [15] On August 12, 2010, the grievor attended a pre-disciplinary meeting conducted by Santo Lisi, who was then RMYC’s Deputy Youth Centre Administrator, Operations. That meeting was accurately described in the termination letter that the grievor subsequently received on August 24, 2010: As you know, the Employer conducted an investigation into the allegations that you inappropriately used Ministry IT resources in accessing, printing and providing materials of a sexual nature to Young Persons at the Roy McMurtry Youth Centre. The Ministry has now completed the investigation and based on the findings it has been concluded that on a balance of probabilities, the following allegations have been substantiated: • You breached Ministry policy and misused Ministry IT resources when you accessed and printed materials of an inappropriate sexual nature and provided those printings to young persons at Roy McMurtry Youth Centre while on unit 5A. • You breached Ministry policy when you permitted young persons while on unit 5A to use a Ministry computer, which they used for, in part, viewing pornography videos. - 6 - • You potentially jeopardized institutional security and community safety when you permitted young persons to use the computer at the unit 5A staff station. • You were not forthright with the Ministry Inspector when you refused to name the Youth Services Officers who, you stated, had informed you that it was acceptable to use Ministry IT resources to access and print inappropriate pictures and provided [sic] them to young persons on unit 5A. On August 12, 2010 you attended a pre-disciplinary meeting that allowed you the opportunity to provide any relevant information or mitigating factors you might wish for the Employer to consider prior to determining an appropriate response to these allegations. In attendance at this meeting was Bruce England, your union representative and Mr. Brad Hoover, Youth Services Manager. During the meeting you stated that you did ask the other Youth Services Officers if it was appropriate to print material of an inappropriate sexual nature on the ministry computer. You informed us that you were told that it was appropriate to do so by the Youth Services Officers. You stated that you did not remember the names of the Youth Services Officers who told you it was acceptable to use the ministry computer, to access and print inappropriate pictures and issue the pictures to young persons on unit 5A. You also stated that you did not permit young persons to use a ministry computer for viewing pornographic videos. You further stated that you did not permit young persons to use a ministry computer at the unit 5A station. This is contrary to what you admitted to the investigator during the investigation whereby you admitted that you did permit youth to view pornographic videos and did permit young persons to use a ministry computer at you [sic] work station on unit 5A. Your conduct is in violation of the following directives, policies, procedures and Ministry Internet/Intranet policies including, but not limited to: • Youth Justice Services Division Policy and Standards of Conduct • Local Operating Policy and Procedures, Internet-Intranet-Use of Ministry Information and Information Technology • Local Operating Policy and Procedures, Security and Controls, Restricted Items During the investigation, by your own admission, you were aware of the Roy McMurtry Youth Centre Local Operating Policy and Procedures on the use of computers which speaks to that each user is responsible for the security of his network account and will be held accountable for any unauthorized access or misuse. The Ministry takes your misconduct very seriously. As a Youth Service Officer you occupy a position of public trust and are expected to conduct yourself in a proper and responsible manner. Not only did you violate the employer’s IT policies, you also breached the employer’s and public trust that has been placed upon you to carry out your duties as a Youth Services Officer. In view of the seriousness of your actions and your negation of your own responsibility in this matter, I have decided to dismiss you, for cause, under Section 34 of the Public Service of Ontario Act effectively immediately. This letter was signed by Mr. McAndrew, who made the decision to discharge the grievor. - 7 - [16] Meanwhile, in May 2010, during its review of RMYC’s print server logs to see what had been printed using the grievor’s account, IT Forensics had found that the accounts of four other YSOs had also been used to print apparently inappropriate images on various dates in March and April 2010. On May 26, 2010, IT Forensics was asked to investigate the use of government IT resources by those four accounts. Its reports on those investigations were completed on September 2, 2010 and given to Mr. McGillis, who then interviewed the four YSOs on various dates in October 2010. [17] In November 2010 Mr. McAndrew left RMYC to become the Regional Manager Youth Justice Services, Central Region. Kevin O’Brien became RMYC’s Youth Centre Administrator. [18] It was Mr. O’Brien who later dealt with the results of Mr. McGillis’ investigations of the conduct of the four other YSOs and the pre-disciplinary meetings those YSOs subsequently attended on February 3, 2011. Each of the four admitted that, at the request of young persons in the institution, he had used a staff computer to access and print images and had given the printed images to the young persons. In each case the images were of scantily dressed young woman whose nipples and genitalia were not visible. Each of the four said he had not realized when he did this that it was wrong, had later realized that it was wrong, and had not done it since. Each also said that he had not allowed the young persons to use a staff computer themselves. Each was remorseful. One had actually reported his own misconduct to management in May 2010, before his use of IT resources was investigated. Mr. O’Brien decided that the YSO who had reported his own misconduct should be given a letter of counsel, and that each of the three others should be given a written warning. Did the employer have cause to discipline or discharge the grievor? [19] Mr. McAndrew testified, and there is no dispute, that printed images of an inappropriate sexual nature constitute contraband that youths in custody are not allowed to have at RMYC. If a youth in custody has contraband, that can create potentially dangerous power issues between that youth and other youths in custody. If a youth in custody obtains contraband from a YSO, that can create or aggravate power - 8 - issues between the two of them, between the youth and other YSO’s and between other youths and YSOs, all of which can have safety implications for youths and staff in the institution. Additionally, a YSO’s making such materials available to young persons in custody is inconsistent with the institution’s role as their custodian, as is allowing them to view pornographic videos. [20] There is no dispute that allowing a youth to use a computer on which a YSO is logged in potentially jeopardizes the security of the logged-in YSO’s account and the institutional information to which that YSO’s account has access, and also provides a means by which the youth could engage in unmonitored communication for improper purposes, such as to intimidate or arrange for intimidation of witnesses or other improper activities and, so, potentially jeopardizes community safety. [21] There is no dispute that when Mr. McGillis interviewed the grievor he was acting as a person designated under subsection (1) of section 98.1 of the CFSA: 98.1 (1) The Minister may designate any person to conduct such inspections or investigations as the Minister may require in connection with the administration of this Part. (2) Any person employed in the Ministry who obstructs an inspection or investigation or withholds, destroys, conceals or refuses to furnish any information or thing required for purposes of an inspection or investigation may be dismissed for cause from employment. As appears from subsection 2 of that section, refusing to provide information sought by Mr. McGillis would be cause for dismissal as a matter of law. In any event, employees have an obligation to honestly account to their employer for their conduct in the workplace. [22] In short, there is no dispute that it would be wrong and cause for discipline for a YSO to do any of the things that the employer concluded that the grievor had done. The parties’ dispute is simply whether the grievor did any of those things and, if so, whether I should exercise my statutory discretion to substitute a lesser penalty for the discharge that the employer imposed. [23] The employer bears the burden of proving the cause it alleges. While both counsel seemingly agreed that this required proof on a balance of probabilities, union - 9 - counsel also submitted that proof must be to a degree of probability commensurate with the seriousness and consequences of the allegations in dispute. The awards4 he cited in support of this proposition predate the decision of the Supreme Court of Canada in F.H. v. McDougall,5 which rejected the notion that the seriousness and consequences of allegations affect the degree of probability that must be established in order to prove them in civil proceedings.6 With respect to each of the disputed employer allegations the question I have to consider is simply whether it is more likely than not that the allegation is true. [24] The IT Forensics report determined that after internet searches were made on related key words, certain images of an inappropriate sexual nature were printed and certain pornographic videos were accessed from the staff workstation on Unit 5A on March 25 and 26, 2010, and that the grievor’s account was logged in on that workstation when those things occurred. The evidence establishes that the grievor was working in Unit 5A on those days, on shifts during which the improper usage occurred, although there is a dispute about whether the grievor left early on March 26th before the improper usage ended. [25] I agree with union counsel that the findings of the IT Forensics report themselves do not directly establish that it was the grievor who used his account to do those things on those dates. I agree with employer counsel, however, that the grievor’s awareness of the policies described earlier in paragraph [8] creates a context in which, in the absence of a credible alternate explanation, it is reasonable to infer that the grievor – as someone obliged to keep his account password secure and not leave the keyboard of a workstation on which he was logged in without first logging out – is the person who made or consciously permitted the use of his account that the system recorded. 4 Ontario (Ministry of Community Services) v OPSEU (Beltrano), 2008 CarswellOnt 8757, 177 L.A.C. (4th ) 1 (Petryshen) at ¶137; Brewers Retail Inc. v. UFCW, Local 12R24 2008 CarswellOnt 6325, 168 L.A.C. (4th ) 85 (Shime) at ¶¶24-27. 5 [2008] 3 S.C.R. 41, 2008 SCC 53. 6 Id. at ¶¶40-49. - 10 - [26] Union counsel pointed to the fact that when Mr. McGillis interviewed him the grievor said at one point “maybe I left my (inaudible) and somebody brought that (inaudible)” and at another point “somebody might have gone into my (inaudible).” He asked me to conclude from the context in which those things were said that they were alternate explanations of how someone else might have used the grievor’s account in the manner that was being discussed at those points in the interview. Whatever the inaudible words were, these were mere speculations, not full explanations that took into account the grievor’s obligation to keep his password secure and not leave the keyboard of a workstation on which he was logged in without first logging out. More importantly, perhaps, these vague speculations were not repeated, referred to or explained during the grievor’s testimony. [27] Union counsel also pointed to the fact that the usage of the grievor’s account on March 26, 2010 continued to 22:33 EDT, while the machine that issues keys to YSOs recorded that the grievor picked up his key to the unit at “13:32” and returned it at “21:47” on March 26, 2010. My omission of a time zone for the recorded times of the key transactions is deliberate. The only testimony about this machine was given by the former Security Manager of the institution, who did not have administrative access to the machine’s operating system and could not say whether it would have been properly set up to advance to daylight savings time on the correct date in March 2010. The shift that the grievor was to have worked that day began at 15:00 EDT and ended at 23:00 EDT. It seems improbable that the grievor would have picked up the key almost an hour and a half before his shift was to start. He did not testify that he did so that day, or ever. On the evidence before me it seems more likely than not that the clock in the key machine was inaccurate by roughly an hour, and that the grievor was at work during the standard hours of his shift on March 26, 2010. [28] As I note later, when he was interviewed by Mr. McGillis the grievor seemingly admitted that he allowed young persons to use the workstation themselves. Apart from that, nothing in the grievor’s interview or testimony credibly displaces the natural inference that the grievor was the one who used his account in the manner described in the IT Forensics report. - 11 - [29] In any event, while the IT Forensics report establishes that the grievor must have breached IT policies in some way or other, it does not establish that the grievor gave young persons the inappropriate printed images that his account had been used to print,7 nor that the grievor had allowed young persons to view pornographic videos or to use the workstation themselves. The employer’s conclusion that the grievor did those things was based primarily on what he said to Mr. McGillis during the interview, as was its conclusion that he had not been forthright with Mr. McGillis. In the main, the parties’ factual dispute is about the implications of things that the grievor said in the interview and why he said them. [30] Mr. McGillis testified that when he interviews a subject employee he has an informal introductory discussion before beginning the formal interview, he records the formal interview, an assistant later transcribes the recording and he then checks that transcript against the recording to ensure that it is accurate. He did those things in this case. The transcript appears at pages 6 through 35 of his report. The report and the recording were produced to the union several weeks before Mr. McGillis testified. Before employer counsel concluded her examination-in-chief of Mr. McGillis she sought and obtained the union’s agreement that the transcript set out in the report was an accurate transcription of the recorded portion of Mr. McGillis’ interview of the grievor. [31] The grievor testified as part of the union’s case, which was presented after the employer had completed its case-in-chief. During his cross-examination on February 7, 2013, nearly six months after the union agreed that the transcript was accurate, the grievor testified to the effect that words that appear on page 10 of the McGillis report – that is, the fourth page of the transcript – were the first words Mr. McGillis spoke after he turned on the recording device. After a recess to consider its position, the union asked that it be allowed to resile from its earlier agreement that the transcript was accurate. Union counsel did not suggest that that agreement had been made without first comparing the transcript and the recording or seeking the input of the grievor and the local union President who had been present at the interview, or that the agreement 7 There is no evidence those prints were among the inappropriate prints found during the room searches on April 21, 2010. - 12 - was otherwise inadvertent or resulted from any misrepresentation by the employer. The sole explanation for the request was that the grievor had just given testimony inconsistent with the agreement. Employer counsel opposed the request. I ruled as follows: On August 28, 2012, the Union, through its counsel, agreed that the transcript that appears commencing at page 6 of Tab 9 of Exhibit 1 was an accurate transcription of the recorded portion of the interview of the grievor. For reasons to be delivered at a later date, if requested, I am not persuaded that the Union should now be permitted to resile from that agreement and attack the accuracy of the transcript. The grievor’s testimony to the contrary will be given no weight on the question whether the document is in fact an accurate transcript of the recorded portion of the interview. On that question I am bound by the parties’ agreement. Unsurprisingly, reasons for this ruling have not been requested by either party, and none need be provided here. The grievor’s having contradicted an agreed fact is one of many features of his testimony that left him without any credibility. [32] According to the transcript of it, Mr. McGillis began the formal interview by noting that he had been designated as a Ministry Inspector under the CFSA and that he was conducting an investigation into whether the grievor had accessed and printed material of a sexual nature and provided those printings to young persons at RMYC. When he asked the grievor whether he was intending to make a voluntary statement, the grievor read a statement apparently provided to him by the union, to the effect that because the CFSA required that he cooperate and make a statement or face discipline up to and including discharge any statement that he then made would not be voluntary. After asking for and receiving confirmation that the grievor understood that he had to be truthful and could be dismissed for withholding anything he required, Mr. McGillis then said MM As a consequence of your decision not to provide a voluntary statement, I am now advising you of the following: With authority delegated to me under Section 98 [sic] of the CFS Act, I am now compelling you to provide and/or furnish any information or knowledge you may possess surrounding your use of internet while on duty at the RMYC. Will you answer my questions surrounding the incident? - 13 - The grievor answered “Yes.” I have quoted this statement verbatim because it is the only statement the grievor identified when later challenged in cross-examination to point out what Mr. McGillis had said that had “forced” him to admit to things he testified he had not done. Providing printed images of an inappropriate sexual nature to young persons [33] After some further questions to confirm the grievor’s position and length of employment, Mr. McGillis asked: MM Will you now please provide me with a full and accurate account regarding the allegation that you accessed websites that contained images of a sexual nature, printed them off and provided them to Young Persons while on duty at the RMYC? The grievor’s rambling response included the following: KG … any time a kid comes to me for something, I go to the staff or any unit staff, this is what the kid wants. Should I do it? Am I allowed to do it? So if I will do it, I base it on what the unit staff will tell me. … … kids approach me, “oh, Kofi, we want this for school project; we want this for this.” I went to the staff, “are they allowed to have this?” Staff were like, “oh yeah, they’re allowed to have it. You could print it for them.” Even when I go to the computer, they have to show me, type it here, this is the address, type it here. I type it in, then I print it and I give it to them. … … So, to cut the long story short, I’m not here to lie. I did that. Based on what the unit staffs told me … In these and later extracts from the transcript, “MM” refers to Mr. McGillis, “KG” refers to the grievor and (where it appears) “BE” refers to Bruce England, the local union President. [34] In the context in which he said it, it was not entirely clear what the grievor was referring to when he said “I did that.” After a tangential discussion about something the grievor said had been printed or posted by others in the institution, the following exchange occurred: MM Okay, now, during your opening or during your comments, there, I want to be a little bit more specific. Did you access inappropriate sites? KG Pardon me? - 14 - MM Did you view inappropriate sites on the computer? KG Okay, like, I’m saying, when kids tell me and I ask, Okay, it will show and I will print it for them. So, this what would lead me to, like, say, I viewed the place or, I viewed the sites, you see. So, (inaudible), they showed — they showed me and it was confirmed that I — I can do it. Well, they gave me the site, I printed it — no, no, I put it on the address (inaudible) so, I’m not going to deny. MM Okay, so that’s what I’m asking you, did you access inappropriate sites on the computer? KG Yes, I did. MM Did you print them off? KG Yes, I did. MM Did you give them to the Young Persons? KG Yes. BE Not knowingly, though. You didn’t know — you didn’t know what the sites were. KG Yeah, I didn’t know because, like — Then, after a cursory discussion about what the IT Forensics Report said had been printed and what sites had been visited: KG Like I’m saying, okay, I just go to the sites. To be honest with you and before God, I didn’t even look. I just go to the site and I print. I give it to them. So, I’m not going to say it’s a lie or it’s not a lie. … MM … So, you’re saying the Young Persons would tell you what sites to go to? KG Yeah. I don’t — I don’t even know anything about, like a site to go – MM And, they — KG They would tell me and I show it to the staff. BE You would show it to the staff first and say, “is this appropriate?” and they would say, “yes”. Obviously. KG Obviously. Like I said, they took me a very, I didn’t get this job easy and I’m not here to do things to put my job at risk. MM Okay, I’ll show you a couple of pictures that were printed off. Do you remember printing those off? KG Yeah, what I’m saying is, I did, that it was based on what staff told me, that is okay to print. MM Okay, who told you it was okay to print it? KG Oh honestly – - 15 - MM Or to view it? KG Like, I can’t even mention names, but it’s like, I think I’ll show in the letter that (inaudible). MM There — there were videos that were viewed also and they were pornographic. These are some snap shots of pornographic videos that were on your computer. And, there’s a lot of different types of pornography. Did some staff tell you that it was okay to view those? KG Honest, I’m really shocked about all these things. Maybe I left my (inaudible) and somebody brought that (inaudible). I did print some for the kids; I’m not lying. MM That you printed some pornography, too? KG Yeah, all these are pornographic. MM Pardon? KG All these are pornographic. MM All of those are pornographic? KG Uh-huh. MM And you printed it for the Young Persons? KG Yeah, because I asked staff and they didn’t see it before printing. You see, like, I said (inaudible) computer. MM It’s on your computer screen and you have to hit — push the ‘print’ icon while it’s on your computer screen. KG Yes. MM So, you would’ve known what you’re printing? KG That is a mistake; I admit I should have looked. MM Well, you have to see it when you push ‘print’, right? KG Okay, if I push ‘print’ it will print. … MM But you’re saying you didn’t know what you printed. But I’m saying that you must’ve known what you printed. Did you know what you printed? KG Honestly, some of them I didn’t look. Okay, it will show up — MM But you’re not denying that you printed pornographic (no) material for the Young Persons? KG I’m not denying. MM Okay. KG It’s based on what they told me. I asked staff who have been on (inaudible) for long. BE It was appropriate. KG Yes. And, honestly, it was just recently we were told to take all these pictures from the kids’ room. I know for sure, like, I’m a youth pastor, I (inaudible) my - 16 - youth. I talk to them about these things. So, how come I would preach against what I teach. Come here. But, like, if you go to the units you see kids have rights. Even a kid can push you; I’ve experienced that so many times. You can’t — you can’t touch a kid. They have right; they can call who, they can do this, they can do that. So, who am I to refuse, like, if something they say is good for them and I don’t print it and I lose my job? That was my fear. MM So, the — KG So I’m not denying MM The Young Persons would ask and you would print because you felt you needed to? Is that what you’re saying? KG No, I don’t need it. BE No, he — sorry, Mark, if I could just clear it up; the Youth would ask him for specific sites. He then would go to the staff and ask if those sites were okay to print and staff would say, ‘yes’. Is that what I’m getting, Kofi? KG Yes. MM Now, what I kind of, I don’t know if that’s exactly what he was saying. Bruce, I, kind of, got that a Youth would ask you to go to a site, you would go there. And, then — BE No, he would ask the staff first. KG I would ask — right. You know the first statement I said, anything, even when they ask me, like, “Kofi, can I get this from the kitchen?” I go to staff, “Are they allowed to have that? Are they allowed to go in there?” MM Okay, now, do you feel it’s okay to view pornographic material on a Ministry computer? KG Okay, now I know it’s not. Now, I know it’s not. I was deceived, honestly. These excerpts from the transcript identify answers from which Mr. McGillis, and later the employer, concluded that the grievor was admitting that he accessed and printed images from the internet of an inappropriate sexual nature and provided the printed images to young persons. They also identify excuses he gave for having done so: that he had not known what he was printing, that he had been worried that he might breach the young persons’ rights and jeopardize his job if he did not print whatever they wanted, and in any event that other staff had told him that it was okay to print the very things that he printed for the young persons. [35] At arbitration, the grievor’s position was that he did not print inappropriate materials and give them to young persons at all. The grievor’s explanation of his admissions in the interview, at least initially, was that they were the result of confusion on his part. In the course of his examination-in-chief, and during his cross-examination, - 17 - his explanation became that he was forced to make the admission by Mr. McGillis, who he said had “powers to make me say what he wanted, not what I wanted.” [36] The claim that the admissions were a result of confusion was explained as follows. When Mr. McGillis referred to “inappropriate sites,” the grievor thought he was referring to sites that he admitted visiting that were not work related, like the Yahoo site where he checked his personal email and sites like GhanaWeb and GhanaExpo. When he saw the thick report that Mr. McGillis had with him he tried to remember what he might have printed and remembered printing (after a staff member told him he could) the entire 67 page manual for HPro, the software used at the institution for staf scheduling and other related functions. He testified that if he said “yes” to Mr. McGillis, he was referring to printing the HPro manual, not to the inappropriate materials that Mr. McGillis was talking about. As for giving prints to youths, he identified a number of appropriate things that had to be printed for youths in the ordinary course (“kids’ choice sheets, bedroom assignment sheets, visitors’ sheets” and two other sorts of documents that he could not remember) and said, or suggested, that his printing those things is what he had had in mind when he admitted in the interview to having given printings to youths. [37] This explanation is so obviously disingenuous, nonsensical and unworthy of belief that little need be said about it. The grievor was notified before the interview, and again at the beginning of the interview, that the investigation was focused on whether he had given young people access to materials of an inappropriate sexual nature. He knew it was not focused on whether he had printed obviously appropriate forms for young persons, nor on whether he had printed things, even voluminous things, for himself, nor even on whether he had viewed internet sites that were inappropriate because they were not work related. The claim that he thought he was admitting to something unrelated to giving printed images of an inappropriate sexual nature to youths in custody, something different from what it appears from the transcript that he admitted, leaves totally unexplained his verbal squirming over whether he had seen what he printed at the youths’ request and his lament that he had been “deceived” about whether it was okay for young persons to view pornography on a - 18 - Ministry computer. This confusion explanation is also inconsistent with his subsequent admission at the pre-disciplinary meeting and with his explanation of it, which was that he made that admission in the pre-disciplinary meeting in order to be consistent with what he had said to Mr. McGillis in the interview. [38] The grievor’s subsequent claim that Mr. McGillis “forced” him to make the admission is also nonsensical and unworthy of belief. Mr. England, who was present throughout the interview, did not testify that Mr. McGillis had done anything of that sort. Nothing in the transcript supports the claim. When pressed to identify something in it that did, the grievor identified the passage quoted earlier in paragraph [32], and particularly the use of the word “consequence.” That statement merely required that he answer questions truthfully. It did not force the grievor to say anything he thought was untrue. Even after Mr. McGillis bluntly said he did not believe it, the grievor continued to say that other staff had told him it was appropriate to give young persons prints of the images that he printed. His having persisted in that explanation despite what Mr. McGillis said about it is inconsistent with the grievor’s having felt compelled to say what he thought Mr. McGillis wanted to hear. [39] The grievor admitted during the interview, and again during the pre-disciplinary meeting, that he had printed images from the internet of an inappropriate sexual nature and provided the printed images to young persons. I find that the grievor knew that that was what he was admitting, and that he was not forced to admit it by anything other than its truth and, perhaps, his belief that video surveillance recordings existed, recordings that might have shown what he had done. [40] On the basis of those admissions I find that the grievor did print images from the internet of an inappropriate sexual nature and provided the printed images to young persons. Allowing young persons to view pornographic videos on a Ministry computer [41] Pornographic video files were found cached in the grievor’s Temporary Internet Files on the unit 5A staff workstation. Their dates were consistent with their having - 19 - been obtained from the internet between March 25, 2010, at 12:15 EDT and March 26, 2010, at 20:49 EDT, during times when the grievor was working on unit 5A. The first mention of these videos in the interview was in this portion: MM There — there were videos that were viewed also and they were pornographic. These are some snap shots of pornographic videos that were on your computer. And, there’s a lot of different types of pornography. Did some staff tell you that it was okay to view those? KG Honest, I’m really shocked about all these things. Maybe I left my (inaudible) and somebody brought that (inaudible). I did print some for the kids; I’m not lying. Mr. McGillis testified that at this point he was showing the grievor pages on which frames taken from the video files at periodic intervals had been printed. The grievor testified that Mr. McGillis merely flipped through pages in front of him and he did not see clearly what was on them. Whether the grievor saw the frames or not, the issue of “pornographic videos that were on your computer” had been introduced. After focusing on the printing for “kids” that the grievor had again admitted in his answer to this question, Mr. McGillis returned to the issue of the video files: MM But just common sense, that, do you think it’s appropriate to view pornographic videos on a Ministry computer? KG (inaudible) to me, not only even with a Ministry computer; on any computer, to me, is not appropriate. That is why I’m saying, I even destroyed my computer — MM So, did you view them or did the young persons view them? KG I will never view it, like, I come to — MM I showed you some of it; it’s very explicit, very hard-core pornographic, some of the videos. Did you view them yourself? BE Yes or no? KG No. MM And, who did? KG The young guys. MM The Young Persons did? KG Yes. MM On your computer? KG Yes. MM And, where was that computer? - 20 - KG Honestly, that is what I’m saying because we go from units to units. Even this one, I find it very difficult to say I printed it on, maybe say the (inaudible) side or 2B or 2A. MM So — KG It’s hard for me to say that. MM — did the Young Person type in the sites themselves? KG Yeah. They go on the computer, they go on the staff desk and they — they — they do that — MM They go on the staff desk and they go on? KG Yes. MM Do you think that’s appropriate? KG Honestly, I wish, like, I’m going to (inaudible), like I said, all these things, they are crazy. There are so many things I, myself, if I have the chance, I will kick against — I will kick against it. I had a chance of— there was a Code Blue or a Code Green at the unit and I had a chance to be at the debriefing. Honestly, I viewed — I — I said a lot because, I saw so many things since I start here, I saw so many things to me were not rightly put in place. But who am I to complain, who am I to complain? There are so many things. Even if I’m given the chance, I will invite pressmen to come and I tell them, but who am I to do that? I have to work in an environment where they say the kids have their right to do this, to do this, to do that. I would never (inaudible), I’m a 55 year old guy, I’m not a new guy. It took me years of toil and tears. Hard work to get this job. Why should I come? Okay, I have a computer at home, why should I come here, leave my computer home and look at the (inaudible) this thing. If I know — MM My role is to — my role, here, Kofi, is to — is to ask the questions and find out what happened and hopefully to get truthful answers. So, basically what I think I’m getting from you is that — that the Youth accessed the videos themselves on your computer. KG Sure. MM That it wasn’t you viewing them. KG Sure. What I printed, I did (m’hmm) but most of them, they viewed it. That is why I’m saying if, like you said, you provide a video, the video will show everything. That video will show where that person (right) was. The grievor’s reference to “video” in this last answer is apparently to recordings taken by surveillance cameras in the units, recordings that the grievor evidently thought the institution still had. It is not apparent whom “like you said” refers to in this context, since there is no earlier reference in the transcript to such videos. [42] The grievor testified that the other staff were much younger than he is, and that what he meant in the passage just quoted was that the young staff had been watching the pornographic videos. The obvious problem with this is that Mr. McGillis asked if he - 21 - meant that the “Young Persons” did that and he answered “yes.” The grievor’s explanation of this is that he thought Mr. McGillis was referring to young staff when he said “Young Persons.” When pressed on this is cross-examination he said that at numerous points in the interview Mr. McGillis had led him to believe that he meant young staff when he said “Young Persons.” [43] This is more nonsense. Nothing in the transcript supports the proposition that Mr. McGillis led the grievor to believe that when he said “Young Persons” he meant young staff. It is clear from the transcript that when he said “Young Persons” he meant youths in custody at RMYC. Mr. England testified in cross-examination that that is what he thought it meant. It is noteworthy that in the passage quoted the grievor answered “Sure” to the question whether “the Youth accessed the videos themselves on your computer.” [44] Although nothing about what the grievor said or appeared to say in the interview can be entirely free of doubt, I am persuaded by it, on a balance of probabilities, that the grievor permitted young persons to view some or all of the pornographic video files that were later found cached in the Temporary Internet Files folder of his account on the staff workstation on unit 5A. Allowing young persons to use a Ministry computer [45] During discussion in the interview of the printing of images from websites, there was the following exchange: MM M’hmm. Did you type in the websites or did the Young Persons? KG Okay, sometimes they would type. MM Sometimes they would type them? KG Yeah. MM Would you leave them alone at the computer? KG Oh, it’s only when they want me to print something, then when I click the site, I go and print it and bring it to them. So, like, say a few minutes they will be there. The staff (inaudible) there (inaudible). According to the IT Forensics report, of the 8 prints of inappropriate images made on March 25, 2010, using the grievor’s account, four were printed in a period of about one - 22 - minute beginning at about 13:45 EDT, and the other four were printed over a period of a few seconds beginning at about 14:38 EDT. I conclude that the grievor left young persons alone with a Ministry computer for “a few minutes” on at least two occasions on March 25, 2010. Not being forthright with a Ministry Inspector [46] During the interview the grievor repeatedly stated that he had only printed things that other staff had told him it was appropriate to print. Mr. McGillis repeatedly asked him to name those who had so advised him, as illustrated by the following extracts from the transcript: MM Okay, who told you it was okay to print it? KG Oh honestly- MM Or to view it? KG Like, I can’t even mention names, but it’s like, I think I’ll show in the letter that (inaudible). … MM Now, I just want to go back to one thing; you said that staff told you it was okay to print off those materials. You said you went to staff and asked them if it’s okay to print it off and give it to the Young Persons. KG Yes. MM Who said it was okay? KG Honestly, that is — I don’t want to point fingers, like, say who did it. … MM And, what I’m saying is that I don’t believe there is a staff in this building that would say to you it’s okay for the kids to watch a pornographic video. Is that true or not? KG You don’t believe. MM Is it true? I’m asking you. I don’t believe it but you can tell me. KG I’m telling you a hundred percent that it happens here. … MM Okay, now it’s up to you, if that’s your excuse or your reason for allowing the Youth to view the videos, who was it because I have to go ask them now? Who said it was okay? KG Okay, that is why — MM Was it a Youth Service Manager? - 23 - KG That is what I’m saying. If the video can — if I see that I — I was at this station, like say yesterday, then I can know. This — this is a very serious case. I don’t have to bring you somebody (inaudible). … MM Did a Youth Service Manager tell you it was okay to print off pictures of women? KG Yes. MM Okay and, who — who told you that? KG That is what I’m saying, I don’t want to put anybody — this is a very serious case. MM And, I’m compelling you to tell me who told you that. BE If a manager said it was okay to print those pictures off, he needs the name that manager. KG Yeah, Bruce, like, this is what I’m saying, I — I don’t — maybe I’m not trying to explain myself very well. I don’t want to put somebody in trouble. BE Then Kofi, you need to say no to the question, then. If you’re — if you’re going to say yes and you don’t want to say who that manager is, then you need to answer the question with a no, that no YSM gave you authority to print those pictures. That’s what he’s asking you. MM Did a YSM give you authority to print those pictures? BE Yes or a no? KG No. BE Then, no. MM Did any Youth Service Officers tell you it was okay to print those pictures and give them to the Young Persons? KG With pictures — MM Pardon? KG With pictures, you’re not saying pornography or whatever — whatever you say, pictures. MM I’m saying, well, I showed you a couple of examples and I’m going to call — what I’m going to say is inappropriate pictures of a sexual nature; that’s what I’m calling it. Did any Youth Services Officer tell you it was okay to print those off and give them to Young Persons? KG No, nobody told me print inappropriate pictures. Like, they told me, this all right, when they asked me — the kids will not tell you this is a pornographic (inaudible), we want you to print it. They won’t tell you that. Kofi, can you go to this site and get us this? Then I (inaudible). So, I’m very sure if they knew it was that, they would tell me not to do that because (inaudible) so many things — MM Well, that’s what I’m asking you because you’re using that as an excuse and I — I don’t — I don’t think that’s a valid excuse. I’m not — I don’t think someone, another worker, is going to see a pornographic video and say, “yeah, Kofi, that’s okay for the kids to watch that.” - 24 - KG Honestly, maybe you don’t get me, what I’m trying to say is, anytime the kids ask me something (m’hmm), I ask staff, “are they allowed to do this? Can I do this for them?” (M’hmm) And, staff will say “yes”. If the staff say “no” I don’t do it. So, like, I’m saying — … (In the discussion that occurred between the foregoing extracts and the next one, Mr. England asked if they could see the surveillance video and Mr. McGillis answered that there was no video when he was assigned the investigation.) … KG I asked staff — MM — and I’m disagreeing with you on that point. KG Okay, look at this — MM Because you can’t — you can’t name one Youth Services Manager or one Youth Services Officer who said it was okay. KG I can name hundreds. BE He could; he just doesn’t (inaudible). KG — unless I see the video. Like, I work with different staff. The union’s position is that the grievor was not being evasive in failing to name those who he claimed had told him it was appropriate to do what he did; it says he was a relatively new employee, he had worked on different units at different times and he simply did not know the names of the staff in question – hence the request to see the video. In his testimony the grievor said that he and Mr. England had also asked to see the sign-in sheets for the shifts in question and Mr. McGillis had denied their request. [47] The grievor’s first answers to those questions were not that he did not know the names of the staff members who allegedly approved his actions, they were that he did not want to get anyone in trouble. Although he seems to refer to surveillance videos before learning that none exist, it is only after learning that they do not exist that he seems to say he needs to see them in order to provide names. The transcript shows that Mr. McGillis told the grievor and Mr. England that he had the staff schedules, but it does not record any request by either of them to see those schedules or any sign-in sheets. Mr. England did not testify that he had been denied access to pertinent staff schedules or sign-in sheets either then or at any time thereafter. - 25 - [48] The claim that the grievor asked about surveillance video so he could identify the staff who approved what he did implies that he remembered their faces and could identify them if he saw them. If that were so, he could surely have put names to faces in the eight weeks that he continued to work between the interview and the pre- disciplinary interview of August 12th , or in the period between then and the meeting at which he was discharged. Yet no names were offered on either occasion. Over two years passed between his discharge and his testimony, yet there is no evidence to identify, or about attempt to identify, those who the grievor claimed had approved his actions. [49] Of course if, as he ultimately claimed, he had not given young persons the inappropriate printed images, nor allowed them to view pornographic videos, then there would have been no one who had told him it was appropriate to do so, no one who deceived him in that regard, no one whom he could have got in trouble by naming them, no one (named or unnamed) about whom he could have made those claims. Yet he did make those claims during the interview. No explanation of this was provided as part of the defense that the grievor’s admissions were the result of confusion or coercion. [50] Clearly Mr. McGillis challenged the grievor to name those who he claimed had given the conduct under investigation prior approval because he did not believe that there were any such persons. In all the circumstances, I do not believe it either. In that respect, the grievor was not forthright with the inspector. [51] It might be debated whether the grievor was “not forthright” precisely as described in the fourth bullet point of the discharge letter quoted in paragraph [14] above. That debate would be complicated by the fact that that bullet point could be interpreted as specifying only the occasion on which, rather than the manner in which, he was not forthright. Nothing turns on the outcome of such a debate, however. [52] I find that the grievor breached Ministry policy and misused Ministry IT resources by accessing and printing images from the internet of an inappropriate sexual nature and providing the printed images to young persons in the Ministry’s custody at RMYC. I find that he misused Ministry IT resources and breached Ministry policy by allowing such young persons to view pornographic videos on a Ministry computer on - 26 - which he was logged in and allowing them to use that computer while he was not present to supervise their use. I find that at his pre-disciplinary meeting he untruthfully denied having allowed young persons to view pornographic videos and to make use of the computer. Absent any mitigating factors, and apart from what one may make of the employer’s subsequent response to the misconduct of other YSOs, I am persuaded that discharge was within the range of appropriate disciplinary responses to this misconduct by a new, freshly trained YSO with only a few months of seniority. That would be so even if the misconduct was not coupled with a failure to be forthright with a Ministry Inspector. How does the employer’s subsequent response to other YSOs’ misconduct affect the analysis? [53] Union counsel argued that it cannot be just to discipline the grievor as harshly as the employer did when it responded to other subsequent instances of a YSO’s printing inappropriate images for young persons with written warnings and, in one case, counselling. Even if I find that the grievor did more than they did, he argued, their treatment illustrates that the employer does not regard what they did as very serious. He submitted that I should assess whatever I find the grievor did by a standard consistent with that treatment. He made reference to awards Re Partek Insulations Ltd. and CAW Loc. 456, [1989] OLAA No. 12, 3 LAC (4th ) 193 (Verity), Rockcliffe Nursing Home v. SEIU, Local 204, 1997 CarswellOnt 6175, 62 LAC (4th ) 316 (Abramsky), Re Magic Pantry Foods and BCT, Loc, 264, [1990] OLAA No. 32, 10 LAC (4th ) 327 (O’Shea), Hydro One Networks Inc. v. Power Workers’ Union (Barber Grievance), [2001] OLAA No. 758 (Stewart) and Ontario Public Service Employees Union v. Ontario (Ministry of Natural Resources) (Wickett Grievance), [2005] OGSBA No. 93, 143 LAC (4th ) 14 (Petryshen, Vice-Chair). [54] I am not persuaded that the principles identified in those cases, which I accept, bear application here. There are important distinctions between the grievor’s misconduct and that of the other four YSOs. The employer’s having discharged the grievor is not inconsistent with its subsequent discipline of them. - 27 - [55] I do not need to decide whether, as employer counsel argued, the grievor’s having printed images of an inappropriate sexual nature and given them to young persons would have been cause for discharge by itself, because I have found that the grievor’s misconduct went beyond that. If that aspect of his misconduct would not alone merit discharge, it would certainly merit serious discipline. I do not agree with union counsel that the subsequent treatment of the other four YSOs who did that demonstrates otherwise. What it demonstrates is the importance that the employer assigned to honesty, remorse and taking responsibility for one’s misconduct as mitigating factors in assessing the appropriate disciplinary response. [56] I cannot fault the employer’s having assigned that degree of importance to those factors. Employee honesty and trustworthiness is necessary in every employment relationship. It is particularly necessary in employment of this kind. The employee’s apparent willingness and capacity to improve are critical to any assessment of the appropriate disciplinary response to an employee’s misconduct including, and especially, serious misconduct. An employee’s admitting serious misconduct and demonstrating recognition of its impropriety are necessary prerequisites to improvement and may therefore result in lesser discipline for misconduct that would otherwise be cause for discharge. [57] The grievor did do what those four YSOs were disciplined or counselled for doing. The very significant difference between their cases and the grievor’s in that respect is that they admitted doing it, without equivocation. The one of them who was only counselled both reported and admitted his wrongdoing before he was aware that it was under investigation. The grievor admitted it when interviewed but, in effect, said other unnamed YSOs were responsible for his having done it. This is an evasion of responsibility whether he knew their names or not. He later denied having done it altogether, and falsely blamed the Ministry Inspector for having coerced him to admit it. None of the other four YSOs blamed anyone but themselves for having given young persons prints of inappropriate images. - 28 - [58] The grievor’s misconduct went beyond having done what the other four YSOs later admitted to doing. He allowed young persons to use the workstation on which he was logged in while he went to pick up the prints he had made for them. None of the other 4 YSOs did that. He also allowed the young persons to view pornographic videos on that workstation. None of the other four YSOs did that. [59] In the case of one of the four other YSOs, pornographic video files were found in the Temporary Internet Files folder of his account on a workstation. When asked about this he told the investigator that a fifth YSO, whom he named, had used the workstation on which he had been logged in to access and view those videos himself. The union does not challenge the employer’s conclusion that this explanation was true. Union counsel suggested, however, that the employer’s having not imposed greater discipline on this one of the four YSOs and having not imposed any discipline on the YSO who he said had accessed and viewed the videos was somehow inconsistent with its treatment of the grievor. I disagree. The employer’s treatment of these two YSOs reflects its focus on the exposure of young persons to pornography. No young persons viewed the pornographic video files that had been accessed using this other YSO’s account. In the grievor’s case, by contrast, the pornographic video files were present in the Temporary Internet Files folder of his account on a workstation because, as he admitted, he had allowed young persons to use the workstation to view them. Decision [60] I have found that while employed as a YSO the grievor printed images from the internet of an inappropriate sexual nature and gave the printed images to young persons in custody at RMYC, permitted young persons to view pornographic videos on a workstation on which he was logged in and permitted young persons to use that workstation while he was not present to supervise its use. In the circumstances then known to the employer, including the fact that the grievor had at first admitted all this and then later denied part of it, discharge was not an unreasonable response given the grievor’s minimal seniority. That would be so even if he had not also falsely told a - 29 - Ministry Inspector that other unidentified YSOs had told him that he could do as he did. [61] In exercising my discretion whether to substitute a lesser penalty I must consider whether there is any prospect of restoring the employment relationship. The positions he took and the testimony he gave in these proceedings leave me with no doubt that the grievor cannot be trusted to tell the truth about or to take responsibility for his actions and shows no potential for reform. This is not someone whom the employer should be required to restore to employment as a YSO. [62] I am not persuaded that the difference between the employer’s treatment of this grievor and its treatment of the other four YSOs to whom reference was made reflects or amounts to discrimination on the basis of race or place of origin. The difference in treatment is completely explained by differences between their conduct and the grievor’s, and especially their candour with the employer and his lack of it. [63] For these reasons, this grievance is hereby dismissed. [64] I would be remiss if I did not expressly complement the thorough and professional work of both counsel in this difficult matter. I cannot imagine what union counsel could have done or said on the grievor’s behalf that he did not do or say. Despite union counsel’s thoroughly professional efforts on the grievor’s behalf, the grievor’s artless evasions and falsehoods sealed his fate. Although I have made no direct reference to them, I should note that employer counsel made very thorough closing submissions on the arbitral approach to assessing cause and exercising the discretion to substitute a lesser penalty, particularly when a grievor attempts to mislead the employer and does the same with the arbitrator, citing numerous awards to illustrate the general principles. - 30 - I found it unnecessary to recite those submissions or review those awards here. Ultimately I accepted her very first submission in closing: that in this case there was overwhelming evidence to uphold the decision to dismiss for cause. Dated at Toronto this 30th day of May 2013. Owen V. Gray, Vice-Chair