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HomeMy WebLinkAbout2001-0542.Hastie et al.03-01-23 Decision Crown Employees Commission de tij Grievance Settlement reglement des griefs Board des employes de la Couronne "'11_'" Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 0542/01 0559/01 0560/01 0561/01 0831/01 0908/01 UNION# 01F478 01C400 01C401 01C402,01B275 01B298 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (HastIe et al ) Grievor - and - The Crown In RIght of Ontano (Mimstry of Natural Resources) Employer BEFORE Ken Petryshen Vice-Chair FOR THE UNION Donald Eady PalIare Roland Rosenberg RothensteIn LLP Barnsters and SOlICItorS FOR THE EMPLOYER Stephen Patterson AssocIated DIrector Labour PractIce Group Management Board Secretanat HEARING November 22,2001 January 14 June 25 26 27 July 9 16 17 & 18 2002 2 DECISION After an InVestIgatIOn Into the Inappropnate use of e-maIl by employees wIthIn the Mimstry of Natural Resources ("the MNR") the Employer dIscIplIned 66 employees for contravemng the Workplace DISCnmInatIOn and Harassment PreventIOn operatIng polIcy ("the WDHP PolIcy") and the OperatIng Procedure on Usage ofI.T Resources ("the IT PolIcy") The Outlook e-maIl accounts of these employees contaIned Inappropnate matenal whIch was sexually explICIt. The dIscIplIne Imposed Includes letters of repnmand, suspenSIOns of varyIng lengths to a maXImum of20 days and the dIsmIssal of 6 employees There was no challenge to my JunsdIctIOn to hear and determIne the 26 gnevances referred to the Gnevance Settlement Board. The partIes agreed to first deal wIth the gnevances of the dIscharged employees, namely Mr J Vallee, Mr L Wickett, Mr T Walmsely Mr R. Nadeau, Mr J HastIe and Mr P CurtIS ("the gnevors") Although concedIng that the gnevors engaged In conduct deservIng of dIscIplIne, the Umon took the posItIOn that dIscharge was an exceSSIve response In the CIrcumstances Confronted wIth the prospect of many heanng days, the partIes agreed to a process whereby the Employer would set out ItS best case to support the dIscharges and counsel would make theIr submIssIOns on whether the dIscharges could pOSSIbly be upheld In the CIrcumstances It was agreed that In determInIng whether the dIscharges could pOSSIbly be upheld, I could take Into account the gnevors' dIscIplInary records If! determIned that the dIscharges could not be upheld on the basIs of the Employer's best case and that reInstatement was an appropnate remedIal response 3 In the cIrcumstances, I would reInstate the gnevors and the partIes would then have to deal wIth the Issue of what penalty should be substItuted for the dIscharges If! determIned that the dIscharges could possibly be upheld on the basIs of the Employer's best case, the partIes would then have to address whether the dIscharges could In fact be upheld, takIng Into account any mItIgatIOn or other relevant eVIdence Of course, because the CIrcumstances of each gnevor are not IdentIcal, It IS possIble that the result could vary for each gnevor Even If the gnevors were not reInstated at thIS stage of the proceedIng, the partIes recogmzed that It was lIkely that the heanng of all of the gnevances would proceed more expedItIOusly havIng first dealt wIth the dIscharges on the basIs of the Employer's best case Due to the volume of the matenal and the thoroughness of counsel's submIssIOns, the heanng to deal wIth the Employer's best case reqUIred 7 heanng days As part of the matenal for ItS best case, the Employer filed a statement of facts whIch deals wIth the CIrcumstances gIVIng nse to ItS InVestIgatIOn and the nature of ItS InVestIgatIOn, WIth reference to the eVIdence gathenng, the fact findIng and the dIscIplIne stages The statement of facts, absent references to the supportIng matenal, reads as follows A. The Beginning of the Complaints 1) Bancroft DIstnct ComplaInt ("Field ComplaInt") 3 On or about January 17 2001 Dan SmIth ("SmIth") Enforcement SupervIsor Bancroft DIstnct, telephoned Janet Addyman ("Addyman") the Workplace DISCnmInatIOn and Harassment PreventIOn ("WDHP") Co- ordInator for the Mimstry of Natural Resources ("MNR") to advIse her that one of hIS employees had showed hIm matenal whIch was potentIally Inappropnate under the WDHP PolIcy SmIth advIsed Addyman that, as he 4 was walkIng by the work area of ConservatIOn Officer Marcel Lamont ("Lamont") he overheard Lamont speakIng to Barry Wilson ("Wilson"), a ConservatIOn Officer about "hand warmers" When SmIth walked by Lamont's desk area, Lamont showed SmIth a graphIc Image of three nude women. 4 As SmIth was Lamont's dIrect supervIsor SmIth called Lamont Into hIS office and advIsed hIm that such matenal was Inappropnate In the workplace, wIth the use ofMNR eqUIpment. Further SmIth questIOned Lamont about where he got the Image and Lamont advIsed that he had receIved the Image bye-mall from a co-worker Barry Wilson. 5 SmIth then spoke to Wilson about the dIstnbutIOn of Inappropnate matenal In the workplace, wIth the use ofMNR eqUIpment. Wilson admItted that he had receIved Inappropnate matenal for a long penod of tIme from co-worker Richard Nadeau ("Nadeau") MNR ConservatIOn Officer 6 Addyman then commenced an InVestIgatIOn and Instructed the IT Branch to copy OUTLOOK accounts for Lamont, Wilson and Nadeau. The OUTLOOK account of an MNR employee contaInS the user's e-maIls sent and receIved from the user's e-maIl address, and any e-maIl stored on the user's computer 11) Chrysler ComplaInt 7 On or about January 18 2001 Addyman receIved an e-maIl and a telephone call from Sue Rooney ("Rooney"), ActIng ExecutIve AssIstant to the AssIstant Deputy Mimster Corporate ServIces DIvIsIOn. Rooney advIsed that Thomas E Cross ("Cross") Manager Industnal Secunty at Daimler-Chrysler Canada, had called her to advIse that an MNR employee had sent Inappropnate e-maIls to Chrysler employees on two separate occaSIOns 8 AccordIng to Rooney Cross had provIded Rooney wIth the Inappropnate e- malls that were sent to the Chrysler employee, and she then forwarded the e- malls to Addyman. The e-maIls IndIcated that Jim HastIe, MNR OperatIOns Co-ordInator ImtIally sent the Images to Al Matthews, MNR OperatIOns Co- ordInator The e-maIls also showed that Al Matthews had forwarded the Inappropnate Images externally to the Chrysler employee The first Included eIght Images of a woman named Amber and the second e-maIl Included an Image of a woman entItled Superheroes 5 9 On or about January 18 2001 Addyman requested the IT Branch of MNR to retneve and copy the OUTLOOK accounts for Al Mathews and Jim HastIe 10 A reVIew of HastIe's and Al Mathews' accounts uncovered a large volume of Inappropnate matenal that was sent and receIved by both of them. In addItIOn, both accounts revealed the names of other MNR employees who had eIther sent or receIved Inappropnate matenals from Matthews and/or HastIe B. The Investigation of the Complaints 11 Because of the large volume and sensItIve nature of the Images and allegatIOns, MNR made a decIsIOn to retaIn an external consultant to lead the InVestIgatIOn. Grace Shore who IS affilIated wIth the firm of Charles Novogrodsky & AssocIates ("CN & AssocIates") was retaIned as the InVestIgator 12 Because of the large number of employees and Images Involved In the InVestIgatIOn, It was determIned that It would be too tIme consumIng and costly to have Shore reVIew each of the OUTLOOK accounts by herself As a result, It was decIded that another external InVestIgator Edward Laas ("Laas"), and Addyman would also assIst Shore wIth the eVIdence-gathenng component of the InVestIgatIOn. 13 The eVIdence gathenng process of the InVestIgatIOn commenced In late January 2001 14 In the eVIdence gathenng stage, Shore created an eVIdence summary sheet. ThIS was a document that IdentIfied the partIcular employee, hIS or her posItIOn, and a summary of the type of matenal that was found on the employee's OUTLOOK account. Shore, Addyman and Lass then completed these sheets for those employees who were IdentIfied as potentIally havIng Inappropnate matenal on theIr OUTLOOK accounts The actual Inappropnate Images were pnnted and attached to the eVIdence summary sheets These eVIdence summary sheets, wIth the noted attachments, were forwarded to Shore In groups, as soon as they were completed. 15 After the eVIdence was compIled and forwarded to Shore, she revIewed each employee file to determIne the type of Images found on the employee's file the number of Images or text; whether the Images or text were sImply receIved 6 by the employee or whether the employee actIvely dIstnbuted Images or text; and the frequency and/or volume of the exchange or receIpt of matenals 16 The eVIdence gathenng component of the InVestIgatIOn was a very long process A reVIew of one employee's account would lead to the IdentIficatIOn of other employees who had not been IdentIfied through other accounts Once reference to a new employee name was found, Addyman contacted the IT Branch and requested a copy of theIr OUTLOOK account. 17 After conductIng thIS reVIew Shore determIned that there were a number of employees who had a relatIvely mInor number of Inappropnate e-maIls that were not nearly as explIcIt as the matenal found on other employee e-maIl accounts A reVIew of the relatIvely mIld Images/text IndIcated that they were In a dIfferent class than that of the other matenal that was found. A companson of the two groups of e-maIls made It clear that the recIpIents dId not warrant the same InVestIgatIve process 18 The employer then made a decIsIOn to dIvIde the employees Into two dIStInCt groups One group the A-LISt, would Include those employees who had a large volume of Inappropnate matenal found on theIr e-maIl accounts as well as those employees who were Involved wIth dIstnbutIng Inappropnate e- malls ThIS group would also Include those employees wIth any Images or text that were ObvIOusly Inappropnate The second group the B-LISt, would Include those employees who had a very small number 1 e less than five, of mIld Images found on theIr accounts and employees who receIved questIOnable matenal, but dId not dIstnbute them. 19 Shore was responsible for determInIng whether an employee belonged to the A-LISt or the B-LISt. She determIned that 90 employees were on the A-LISt. Of these, sIxteen (16) were In management or management excluded posItIOns and 74 were umomzed. Ninety-mne (99) employees were placed on the B- LISt. 20 MNR decIded It would not reqUIre employees on the B-LISt to partIcIpate In the same type of IntervIews as employees on the A-LISt. Instead, employees on the B-LISt were reqUIred to have formal meetIngs wIth theIr managers and were provIded wIth copIes of the WDHP PolIcy and summary sheets The maJonty of these Informal meetIngs occurred dunng or around the week of May 7 2001 and were not dIscIplInary In nature There was no dIscIplInary actIOn taken as a result of these Informal meetIngs 21 CommencIng on or about March 20 2001 and contInuIng untIl about June 2001 employees on the A-LISt were provIded wIth a letter adVISIng them that a management ImtIated WDHP InVestIgatIOn concermng allegatIOns of Inappropnate computer usage was underway It advIsed the partIcular 7 employee that he or she had been IdentIfied as a respondent In the InVestIgatIOn and that hIS or her semor manager would be In contact to set up an IntervIew 22 To a large extent, thIS process contInued untIl late spnng because other employees, wIth Inappropnate matenal, contInued to be IdentIfied. At the end of the eVIdence gathenng component of the InVestIgatIOn, a total of 189 MNR employees had been IdentIfied as havIng Inappropnate matenal 23 The fact findIng component of the InVestIgatIOn Involved IntervIeWIng the employees, adVISIng them of the allegatIOns that were beIng made agaInst them, and provIdIng the employees wIth an opportumty to respond to the allegatIons 24 Shore prepared a set of standard IntervIew questIOns for bargaInIng umt employees and another set of questIOns for employees occupYIng managenal or excluded posItIOns For some partIcular employees, supplemental questIOns were added to the standardIzed questIOns because those employees had partIcular eVIdence on theIr accounts 25 In or about the thIrd week of March 2001 It was decIded that the matenals Shore had prepared for the employee IntervIews would be useful In the InVestIgatIOn of the Chrysler complaInt. Thus, by mId-March the two InVestIgatIOns were largely merged Into one InVestIgatIOn process 26 MeetIngs/teleconferences were held on or about March 21 2001 and March 22,2001 The purpose of these meetIngs/teleconferences was to advIse and/or update managers who had employees ImplIcated In the InVestIgatIOn, on the InVestIgatIOn process The meetIngs/teleconferences were also to prepare managers for the IntervIew process Shore revIewed the IntervIew questIOns she had prepared and dIscussed the process and procedure for the IntervIews WIth managers at the meetIngs/teleconferences 27 There were approxImately thIrty managers who conducted the vanous IntervIews For each employee's IntervIew there were two (2) managers In the SMG 1 and/or SMG 2 classIficatIOn present for the meetIng. About thIrty (30) managers were Involved In the entIre IntervIew process 28 After the IntervIews were conducted wIth the employees wIthIn the A-LISt, the managers returned the IntervIew packages to Addyman. These packages consIsted of the IntervIew questIOns and hand-wntten answers of the managers, an eVIdence summary sheet, and appended Images that were found on the employee's account. The completed packages were sent to Addyman who In turn forwarded them to Shore so that she could begIn on the analysIs component of the InVestIgatIOn. The eVIdence packages were sent to Shore In groups, as soon as Addyman receIved them 8 29 Shore was the only person Involved In completIng the analysIs and draft report component of the InVestIgatIOn. In prepanng these drafts Shore made reference to the e-maIls, the polIcIes, the IntervIew documents and any letters provIded by the employees In prepanng these reports Shore summansed the eVIdence on a form whIch was provIded to her by MNR, and whIch reqUIred the IdentIficatIOn of the eVIdence on cntena of volume, nature of Involvement by the employees and nature of the matenals ThIS form provIded a rough way In whIch to summanze the nature of the employee's conduct. 30 Shore began draftIng reports In the begInmng of Apnl2001 Shore drafted reports on IndIVIdual employees and then forwarded them In groups to Addyman to dIstnbute to the employees Addyman began to dIsclose the draft InVestIgatIOn reports to employees on or around May 7 2001 Along wIth the draft InVestIgatIOn reports, MNR Included a letter askIng the employees to respond wIth theIr comments or concerns wIthIn five days of reCeIVIng the draft reports The Employer also advIsed the employees that extensIOns to the five day penod would be provIded If necessary 31 Addyman provIded respondent comments to Shore as she receIved them, and Shore then prepared a final report for each respondent. 32 Shore revIewed the responses provIded by the employees and determIned whether the employees' response changed the findIngs of the report. Not all the employees provIded responses to the draft InVestIgatIOn report. Shore began provIdIng Addyman wIth final reports as they were prepared, wIth most final reports provIded by the week of May 28 2001 33 Addyman was the mImstry contact responsIble for acceptIng or reJectIng the InVestIgator's findIngs In each case UltImately she accepted the findIngs In all the reports 34 Out of the 90 employees on the A-LISt, allegatIOns agaInst 83 of the employees were substantIated, and 7 were not substantIated. 35 BegInmng on or around June 4 2001 the letters were delIvered to respondents, adVISIng them that they were found to have vIOlated the IT and WDHP polIcIes The letter also advIsed that theIr manager would be meetIng wIth them In the near future to dISCUSS the matter C. The Discipline Stage 36 On or about May 28 and 29 2001 a managers meetIng was held In Toronto The purpose of the conference was to advIse managers of the outcome of the InVestIgatIOn, detaIl next steps, provIde managers wIth tools to assIst them In 9 makIng dIscIplInary deCISIOns, and provIde InformatIOn on dealIng wIth workplace Issues ansIng from the InVestIgatIOn. On the Issue of dIscIplIne, pnor to the meetIng, managers were provIded wIth two Issue papers relatIng to dIscIplIne and the exerCIse of management dIscretIOn. Managers were asked to reVIew the Issue papers and at the meetIng, Lon AselstIne, Staff RelatIOns Officer MNR, revIewed the manager's responsibIlItIes for makIng dIscIplInary deCIsIOns wIth reference to the two Issue papers 37 At the meetIng, managers were also able to compare the eVIdence of theIr employees and the other employees Lon AselstIne provIded the managers wIth recommendatIOns on dIscIplIne AselstIne's recommendatIOns on dIscIplIne were based solely on the eVIdence packages, and dId not take Into account any mItIgatIng or aggravatIng factors The ultImate dIscIplInary deCIsIOn, takIng Into account any mItIgatIng or aggravatIng factors, rested wIth the manager wIth the delegated authonty 38 Managers began havIng theIr final dIscIplInary meetIngs wIth respondents begInmng on or around June 7 2001 These meetIngs were to provIde respondents wIth a final opportumty to raise explanatIOns of theIr conduct or to IdentIfy mItIgatIng factors that mIght affect the manager's decIsIOn regardIng what, If any dIsCIplIne would be Imposed. 39 Subsequent to those meetIngs, MNR Human Resources Branch was advIsed by each of the managers of the specIfic actIOn that was taken agaInst each respondent. In support of ItS best case the Employer filed seven boxes of matenal whIch provIded a complete documentary pIcture of ItS WDHP InVestIgatIOn and the dIscIplInary process relatIng to the IndIVIduals on the A-LISt. The matenal Includes the WDHP PolIcy the IT PolIcy a Memorandum to all MNR staff from the then Deputy Mimster dealIng wIth the WDHP PolIcy and the two Issue papers provIded to the managers The matenal also Includes documents relatIng to each person on the A-LISt, such as the dIscIplIne letter executed by the manager the letter from Mr D Lynch, DIrector Human Resources Branch, notIfYIng each person of the InVestIgatIOn and the IntervIew the two sets of IntervIew questIOns and responses prepared by the two managers at each IntervIew the draft and final InVestIgatIve reports prepared by the external WDHP 10 InVestIgator and any response to the report by the person under InVestIgatIOn and a manager's chart prepared by each manager Involved In dIscIplImng an IndIVIdual The bulk of the matenal consIsts of the text and Images reproduced from the Outlook accounts, along wIth the e-maIl cover sheets The Employer also filed CDs whIch contaIned the matenal retneved from Outlook accounts and relIed upon by the Employer For each employee the Employer filed a summary chart and an eVIdence table The summary chart provIdes some basIc InformatIOn about the matenal In each person's Outlook account, such as the date who the matenal was receIved from and/or sent to the subJect and content of each Item and whether It was deleted. The eVIdence table prepared for each person provIdes another useful summary of the Inappropnate matenal contaIned In the Outlook accounts and Illustrates the manner In whIch the Employer analyzed the matenal One column separates the Items on the basIs of "receIved and deleted" "receIved and saved" "receIved and dIstnbuted" "dIstnbuted" and "dIstributed wIth comments" Another column categonzes the matenal on the basIs of "sexual content" "nudIty" "exposed gem talI a" "sexually graphIC" "vIOlence/ degradatIOn/and dehumamzatIOn" and "other/racIal, ethmc, place of on gIn, sexual onentatIOn, etc" Although there were some errors made on the summary sheets and eVIdence tables for the gnevors, they were mInor In nature and they dId not, In my VIew alter the essence of each gnevor's conduct. The Employer also filed 39 "wIll-say statements" from IndIVIduals who the Employer would have called as wItnesses There are wIll-say statements by the persons referred to In the statement of facts and the managers who were Involved In decIdIng what dIscIplInary response was appropnate for persons on the A- LISt. 11 HavIng regard to the nature of the submIssIOns, I revIewed the matenal relatIng to the gnevors, as well as the matenal relatIng to others on the A-LISt, IncludIng managers and employees who were Issued sIgmficant suspensIOns ThIS was a tIme consumIng process and gIven the nature and volume of the Inappropnate matenal, It was not a pleasant exerCIse Although the Umon raised some process concerns and suggested that the Employer "rushed to Judgement" and felt compelled to dIscharge some employees sImply because of ItS zero tolerance approach, a reVIew of the matenal suggests otherwIse It appears from the matenal that the Employer conducted a careful and extensIve InVestIgatIOn and that the dIscIplInary process was handled In a fair and professIOnal manner As well, an eXamInatIOn of all of the matenal confirms the OpInIOn I formed at the heanng to the effect that the IndIVIduals responsIble for gathenng and orgamZIng the matenal for the Employer's best case dId a very thorough and competent Job At the conclusIOn of the heanng, counsel for the Umon commended the Employer for ItS efforts In thIS regard and I echoed that sentIment. In my VIew the nature of the matenals filed wIll lIkely ensure that the gnevances wIll be addressed more expedItIOusly than would otherwIse have been the case As noted prevIOusly the Employer alleges that the dIscIplIned employees contravened the WDHP PolIcy and the IT PolIcy The Umon does not dIspute that the employees who were dIscIplIned faIled to comply wIth the IT PolIcy The IT PolIcy filed wIth me IS dated July 21 2000 I was referred by counsel to the folloWIng sectIOns of the IT PolIcy 12 PURPOSE To protect the government's Interest In ensunng that InformatIOn Technology Resources are used only for government busIness and other approved purposes PRINCIPLES User Accountabilitv Unacceptable use of InformatIOn and InformatIOn Technology Resources may result In restncted Access to those resources and/or dIscIplInary actIOn. Business Purposes InformatIOn and InformatIOn Technology Resources are to be used for government busIness purposes that support the goals and obJectIves of mImstnes and agencIes Use of government computers, Networks, systems and software may be subJect to momtonng. Unauthorized Use of Resources Computer systems and Networks must not be used for Illegal or unacceptable actIvIty Unacceptable activity In the context of I. T resources, unacceptable actIvIty Includes - Access, dIsplay or storage of any software, Data, graphIc or Image whIch IS offensIve and conducIve to a pOIsoned work envIronment (as per WDHP PolIcy) RESPONSIBILITIES Users Users are responsIble for - USIng InformatIOn Technology resources only when authonzed by management and only for government busIness or approved purposes Appendix Unacceptable and illegal activities Include but IS not lImIted to 13 Child pornography and obscenity possessIng or dIstnbutIng chIld pornography dISSemInatIng obscene matenals Hatred wIlfully promotIng hatred agaInst any IdentIfiable group by commumcatIng such statements outsIde of pnvate conversatIOns The computer system provIdes a warmng on every mImstry computer whIch appears before entenng the user's name and password. The user IS warned that unauthonzed use of the computer system IS prohIbIted. A second warmng appears before loggIng onto the Outlook e-maIl account. The user must clIck the OK box below the warmng to acknowledge readIng the advIsory notIce before proceedIng. ThIS warnIng reads as follows As wIth other government resources, InformatIOn Technology (IT) resources [e g. EmaIl, Internet/Intranet] are to be used exclusIvely for government busIness, unless authonzed by the employee's manager As has always been the case, the government has an Interest In ensunng that government resources are used by employees only for busIness purposes SpecIfically IT resources are not to be used for purposes that the OperatIng Procedure on Usage ofIT Resources lIsts as unacceptable, such as to access, dIsplay or store offensIve data, for personal or pnvate busIness, or to send anonymous messages Consequently If the government has reasonable belIef that IT resources are beIng used Inappropnately by an employee, It wIll momtor thIS usage to determIne whether any dIscIplInary or other actIOn should be taken. The full text of the OperatIng Procedure IS avaIlable for reVIew at Intra.cpb.gov.on.ca By selectIng the box IndIcated below you acknowledge that you have read thIS advIsory notIce One of the ways the Employer has attempted to create a workplace envIronment consIstent WIth the obJectIves of the Ontano Human RIghts Code ("the Code") IS WIth the creatIOn and enforcement of the WDHP PolIcy ThIS polIcy was first Introduced In 1990 wIth the current verSIOn effectIve from 1998 The WDHP polIcy IS Intended to promote fair employment practIces and to Improve the workIng envIronment for all employees In 14 addressIng the Inappropnate use of e-maIl In thIS Instance It appears that the Employer's pnmary focus was on thIS polIcy Counsel referred me to the folloWIng aspects of the WDHP PolIcy PURPOSE ThIS polIcy supports - a posItIve and respectful workplace that IS free from dISCnmInatIOn and harrassment based on the Ontano Human RIghts Code - preventIng, IdentIfYIng and correctIng actIOns of one employee toward another that, left unchecked, would result In employment-related dISCnmInatIOn or harassment. APPLICATION AND SCOPE ThIS polIcy covers - the Code's prohIbIted grounds of employment-related dISCnmInatIOn and harassment whIch are race, ancestry place of on gIn, color ethmc on gIn, cItIzenshIp creed, sex (includIng pregnancy), sexual onentatIOn, age, record of offences, mantal status, famIly status or handIcap (dIsabIlIty) - behavIOrs and practIces based on prohIbIted grounds, IncludIng 0 creatIng, contnbutIng or condomng a pOIsoned work envIronment. 0 faIlure of management, In keepIng wIth ItS authonty to respond adequately to InformatIOn about dISCnmInatIOn, harassment or pOIsoned work envIronment; such faIlure may be consIdered condomng of dISCnmInatIOn and/or harassment. PRINCIPLES The OPS as an employer IS commItted to - zero tolerance of dISCnmInatIOn and harassment - proactIve, preventIOn-onented and cost-effectIve practIces - alternate dIspute resolutIOn processes, and - resolutIOn of dISCnmInatIOn and harassment, as soon as possIble, and In a way that least dISruptS ongoIng workIng relatIOnshIps - All aspects of workplace dISCnmInatIOn and harassment preventIOn processes wIll be fair responSIve, tImely confidentIal, professIOnal, ImpartIal, 15 consIstently applIed, and wIll aim to preserve the dIgmty self-respect and nghts of all partIes - Responses to dISCnmInatIOn and harassment wIll aim to correct IdentIfied problems and to prevent repeated vIOlatIOns of thIS polIcy MANDA TORY REQUIREMENTS PreventIOn, commumcatIOn and educatIOn - Employees must not be subJected to offensIve remarks, behavIOr or surroundIngs (based on the prohIbIted grounds) that create IntImIdatIng or humIlIatIng workIng condItIOns PenaltIes - Employees found to have vIOlated thIS polIcy wIll receIve penaltIes, If appropnate (dependIng on the CIrcumstances of each case) up to and IncludIng dIsmIssal RESPONSIBILITIES Managers and Supervisors - ensunng that theIr workplaces are free from dISCnmInatIOn and harassment; IncludIng clanfYIng the type of workplace behavIOr expected under thIS polIcy ALL EMPLOYEES All employees are responsIble for - refraInIng from dISCnmInatIOn and harassment, IncludIng offensIve remarks or other actIOns that create IntImIdatIng hostIle or humIlIatIng workIng condItIOns based on the prohIbIted grounds of thIS polIcy - adhenng to thIS polIcy and related mImstry processes Employees are encouraged, where possible, to tell alleged offenders about unwelcome conduct or actIOns perceIved to be dISCnmInatory WhIle employees cannot be reqUIred to report expenences of dISCnmInatIOn or harassment, they are also encouraged to qUIckly notIfy the first level of management not Involved In the complaInt (free of bIas or conflIct of Interest) about alleged vIOlatIOns of the polIcy ThIS procedure helps to resolve Issues qUIckly and In the least adversanal way 16 DEFINITIONS Poisoned work environment An Infnngement of every person's nght to equal treatment wIth respect to employment whIch refers to comments, behavIOur or work envIronment that ndIcules, belIttles or degrades people or groups IdentIfied by one or more prohIbIted grounds of thIS polIcy A pOIsoned work envIronment could result from a senous and sIngle event, remark or actIOn and need not be dIrected at a partIcular IndIVIdual In July 1998 Deputy Mimster R. Vrancart Issued a memorandum ("the Deputy's memorandum") to all MNR staff about the WDHP PolIcy and zero tolerance For purposes of the Employer's best case, I wIll assume that the gnevors receIved or were aware of thIS com mum catIOn. The relevant paragraphs of the Deputy's memorandum read as follows The Mimstry of Natural Resources has a zero tolerance polIcy wIth respect to dISCnmInatIOn and harassment In the workplace ThIS polIcy IS called the Workplace DISCnmInatIOn and Harassment PreventIOn (WDHP) OperatIng PolIcy As the Deputy Mimster I am commItted to thIS zero tolerance polIcy ThIS polIcy applIes to dISCnmInatIOn In all aspects of employment such as recruItment, promotIOn, traInIng, Job transfer receIpt of benefits, dIsmIssal, dIscIplIne and performance appraisals All MNR employees have the nght to fair and eqUItable treatment In employment wIthout dISCnmInatIOn or harassment based on specIfic grounds as outlIned In the Ontano Human RIghts Code Those grounds are race ancestry place of on gIn, color ethmc ongIn, cItIzenshIp creed, sex (includIng pregnancy), sexual onentatIOn, age, record of offences, mantal status or handIcap (dIsabIlIty) SImIlarly no employee IS to be subJected to a pOIsoned work envIronment or partIcIpate In the creatIOn of one A pOIsoned work envIronment IS charactenzed by comments or behavIOrs that ndIcule, belIttle or degrade people or groups IdentIfied by one or more prohIbIted grounds ThIS behavIOr does not need to be dIrected at specIfic IndIVIduals The number of WDHP complaInts InvestIgated Increased over the last year IndIcatIng a need to reInforce the mImstry's zero tolerance polIcy Please beadvIsed that as deputy Mimster I take these matters very senously and It IS my expectatIOn that all staff are able to work free of dISCnmInatIOn and harassment. 17 It has been brought to my attentIOn that there IS a dIsturbIng new trend that many employers, IncludIng MNR, are currently expenenCIng - specIfically the use of mImstry computers to access pornographIc and other questIOnable matenal from the Internet. It goes wIthout saYIng that the use of computers for anythIng other than government busIness IS not allowed. However you also need to be made aware that the acceSSIng, presence and/or dIsplaYIng of pornographIc or other offensIve matenals on mImstry computers can create a pOIsoned work envIronment and may be In dIrect vIOlatIOn of the WDHP polIcy DependIng on the matenal, there may also be ImplIcatIOns under the CnmInal Code of Canada. The use of mImstry eqUIpment and/or work tIme to access offensIve matenals of any kInd IS unacceptable and wIll not be tolerated. It wIll result In dIscIplInary actIOn, up to and IncludIng dIsmIssal As the computer eqUIpment and systems are the property of the Mimstry to be used solely for busIness related purposes, the Mimstry maIntaInS the nght to momtor computer use and content from tIme to tIme as deemed appropnate and wIthout notIce to the employee As the matenal filed dIscloses, the problem of e-maIl abuse was qUIte wIdespread, gIven the number of IndIVIduals who were InvestIgated relatIve to the total number ofMNR employees Inappropnate matenal was found In the Outlook accounts of OPSEU employees, some employees represented by AMAPCEO Human Resources staff and a WDHP advIsor As well, there were a fairly sIgmficant number of managers on the A- LISt. There are examples of employees sendIng Inappropnate e-maIl to managers and managers sendIng such matenal to employees Although the maJonty of persons on the A-LISt are males, there are a number of women on that lIst, some of whom were dIscIplIned. The persons who were dIscIplIned sent and receIved Inappropnate e-maIl to and from persons both wIthIn and outsIde the MNR. It appears that the recIpIents of the Inappropnate Items dId not consIder the matenal offensIve Many of the Items were attempts at humor and at the tIme many employees dId not VIew theIr conduct as senous 18 Dunng the InVestIgatIOn the employees dId not deny the actIvIty as reflected In theIr Outlook accounts The Inappropnate matenal was sent to and dIstnbuted by the MNR employees wIthout any employee complaInIng In general or under the WDHP PolIcy One of the dIsputes between the partIes concerns the sIgmficance of there beIng no such complaInt. IndIvIduals were asked dunng the IntervIew process whether they had receIved WDHP traInIng and Invanably the response was In the affirmatIve The Employer provIdes employees wIth extensIve WDHP traInIng. However there IS no IndIcatIOn In the matenal that the WDHP traInIng addressed Inappropnate computer and e-maIl usage and what Impact the dIstributIOn of pornography bye-mall can have In the workplace The final WDHP report for each gnevor provIdes a summary of the Inappropnate e-maIl actIvIty from theIr Outlook account. Although some mInor InaccuracIes are contaIned In the final reports, whIch IS not surpnSIng, the reports do provIde the essentIal actIvIty upon whIch the Employer based ItS decIsIOn to dIscharge each gnevor I do not Intend to detaIl the nature of the matenal contaIned In the Outlook account of each gnevor or the matenal In the accounts of those persons who receIved sIgmficant suspensIOns Although some of the Items In the gnevors' accounts are racIst, homophobIC and contaIn bestIalIty many of the Items obJectIfy demgrate and show hoStIlIty to women. The depIctIOn of women ranges from the dIsplay of breasts and other parts of the female anatomy to women engaged In a vanety of sexual acts Some of the Items InvolVIng women are vIOlent and degradIng. One of the most offensIve Items, an 19 InteractIve vIdeo cartoon entItled "DIrty Sanchez" was found In the Outlook accounts of Mr Walmsely Mr HastIe and Mr CurtIS There IS lIttle doubt that but for the presence of thIS Item In hIS Outlook account, Mr Walmsely would not have been termInated. The folloWIng descnptIOn of thIS Item IS accurately set out In Mr CurtIS' final WDHP report as follows " The sInger Bntney Spears' face IS supenmposed on a women cartoon figure She IS beIng spanked and beaten dunng Intercourse The man then Inserts hIS Index finger Into her anus, removes It, smffs It and then smears feces across Bntney Spear's upper IIp The words DIRTY SANCHEZ appear After VIeWIng thIS you may select three optIOns 1) Do It agaIn 2) KICk her out of the WIndow or 3) Snuff mOVIe By selectIng #1 the vIdeo cartoon repeats Itself By selectIng #2, you see a cryIng Bntney Spear saYIng he used and degraded me whIle she IS kIcked out a glass WIndow fallIng to her death. By selectIng #3 you see a cryIng Bntney Spear saYIng he used and degraded me SILENCE OF THE LAMB S appears across the screen and the VIewer gets to select where to shoot her wIth a sIlencer on a gun. A vIdeo message appears YOU SADISTIC BASTARD Throughout the whole vIdeo laughIng IS heard." Before reVIeWIng the summary paragraphs contaIned In each gnevor's final WDHP report, I note that at the heanng counsel for the Employer wIshed to enter and rely on some Inappropnate matenal sent or receIved by some of the gnevors whIch was not referred to In the WDHP reports There were not many such Items and counsel noted that they dId not sIgmficantly alter the charactenzatIOn of each gnevor's conduct. SInce these Items were avaIlable to the Employer but were not relIed upon when decIdIng dIscIplIne counsel for the Umon took the posItIOn that the Employer should not be permItted to rely on these Items at thIS stage It IS my conclusIOn that the Employer cannot rely on these addItIOnal Items because they were avaIlable to the Employer pnor to the dIsmIssals See, Dupont Canada Inc V CommumcatIOn, Energy and Paperworkers Umon of Canada, Local 28-0 [2001] O.L AA No 676 (Roach) In any event, I also 20 agree wIth counsel for the Employer's assessment that these addItIOnal Items do not affect the analysIs of the conduct of each gnevor Jean-Jaques Vallee At the tIme of hIS dIsmIssal, Mr Vallee worked In the MNR as a Semor Fish and WildlIfe SpecIalIst. He was a classIfied employee based out of Chapleau In the Northeast RegIOn. ThIrty Items were IdentIfied In Mr Vallee's Outlook account, wIth 27 Items receIved and 3 sent. The final WDHP report summanzes hIS Inappropnate e-maIl actIvIty as follows Of the twenty-seven Items receIved they were charactenzed In the folloWIng manner SIX Items contaIned matenals wIth sexual content; SIX Items contaIn- ed Items contaIned matenals wIth nudIty three Items contaIned matenals wIth exposed gemtalIa, SIX Items contaIned sexually graphIc matenals and, SIX Items contaIned matenals wIth degradIng, dehumamzIng and racIal content. The respondent redIstnbuted mne Items eIther InsIde the MNR or outsIde the OPS and deleted the remaInIng 18 Items Of the three Items sent by the respondent, two Items contaIned nudIty and one Item contaIned degradIng matenal The respondent dIstnbuted these Items eIther InsIde the MNR or outsIde the OPS Larry Wickett Mr Wickett was an unclassIfied employee who at the tIme of hIS dIsmIssal, worked as a Highway 407 ProJect BIOlogISt, based out of the Aurora DIstnct. Of the 55 Items IdentIfied on hIS Outlook account, Mr Wickett receIved 47 Items and sent 8 Items His final WDHP report contaInS the folloWIng summary Of the 47 Items receIved 45 EmaIls contaIned matenals that were charactenzed In the folloWIng manner 13 Items contaIned matenals wIth sexual content; 10 Items contaIned nudIty 10 Items contaIned matenals wIth exposed gem talI a, five Items 21 contaIned sexually graphIc matenals and, seven Items WIth degradIng, dehumamzIng and vIOlent matenals The respondent re-forwarded seven Items InsIde the MNR and outsIde the OPS stored 32 Items and deleted the remaInIng SIX Items Of the eIght Items dIstnbuted by the respondent, eIght EmaIls were charactenzed In the folloWIng manner three Items contaIned sexual content; three Items contaIned nudIty one Item contaIned exposed gemtalIa. These matenals were dIstnbuted InsIde the MNR and outsIde the OPS Terry Walmsely Mr Walmsely was an unclassIfied employee who worked In the MNR as a FIshenes TechmcIan, based out of Owen Sound. Of the 9 Items IdentIfied on hIS Outlook account, he receIved 8 Items and sent 1 Item. There were 5 addItIOnal Items that were cross referenced from other MNR accounts His final WDHP report contaInS the folloWIng summary Of the eIght Items receIved they contaIned matenals that were charactenzed In the folloWIng manner 5 Items contaIned matenals wIth nudIty 2 Items contaIn- ed sexually graphIc matenals and one Item WIth degradIng, dehumamzIng and vIOlent matenal The respondent re forwarded all of these Items outsIde the OPS The one Item dIstnbuted by the respondent contaIned ethmc and sexual content and was dIstnbuted InsIde the MNR. Of the five cross-referenced Items three Items contaIned exposed gemtalIa, one Item contaIned degradIng matenal and one Item contaIned sexual and racIal content. These five Items were deleted. Richard Nadeau Mr Nadeau was a classIfied employee who worked In the MNR as a ConservatIOn Officer based out of the Hearst DIstnct In the Northeast RegIOn. A dIstInctIOn between Mr Nadeau and the other gnevors IS the Employer's relIance on the fact that he subscnbed to Inappropnate web sItes and downloaded matenal from those 22 sItes There were actually 46 Items IdentIfied on hIS Outlook account. Of these Items, 43 were receIved and 3 Items were sent. There were 3 Items ongInatIng from Mr Nadeau whIch were cross-referenced from other MNR accounts His final WDHP report contaInS the folloWIng summary The 43 EmaIls receIved contaIned matenals that were charactenzed In the folloWIng manner 19 Items contaIned matenals wIth sexual content; two Items contaIned matenals wIth nudIty 7 Items contaIned matenals wIth exposed gemtalIa, 8 Items contaIned sexually graphIc matenals four Items WIth degradIng, dehumamzIng matenals and 3 Items WIth sexual onentatIOn and place of ongIn content. The respondent re-forwarded 11 of these Items, stored seven Items and deleted 26 Items from hIS account. Of the three Items dIstnbuted by the respondent, one was IdentIfied as contaInIng sexual content. ThIS Item was dIstnbuted InsIde and outsIde the OPS The three cross-referenced matenals were charactenzed as follows one Item contaIned exposed gemtalIa, one Item was sexually graphIc and one Item contaIned degradIng matenal These Items were dIstnbuted InsIde the MNR, InsIde the OPS and outsIde the OPS Jim HastIe Mr HastIe was a classIfied employee who worked In the MNR as an OperatIOns CoordInator based out of Owen Sound. Of the 76 Items IdentIfied on hIS Outlook account, Mr HastIe receIved 53 Items and sent 23 Items The summary set out In hIS final WDHP report IS as follows Of the 53 Items receIved 53 EmaIls contaIned matenals that were charactenzed In the folloWIng manner 15 Items contaIned matenals wIth sexual content; 14 Items contaIned matenals wIth nudIty mne Items contaIned exposed gemtalIa, SIX Items contaIned sexually graphIc matenals and eIght Items WIth degradIng, dehumamzIng and vIOlent matenals The respondent re-forwarded 18 Items WIthIn the MNR, stored two Items and deleted the remaInIng Items Of the 23 Items dIstnbuted by the respondent, 23 EmaIls were charactenzed In the folloWIng manner 6 Items contaIned sexual content; 10 Items contaIned nudIty SIX Items contaIned exposed gemtalIa, one Item contaIned sexually graphIc matenal three Items contaIned Images that were eIther vIOlent, degradIng or 23 dehumamzIng; and one Item contaIned racIal content. These matenals were dIstnbuted InsIde the MNR and outsIde the OPS PhIl CurtIS Mr CurtIS was an unclassIfied employee who worked In the MNR as an Assessment TechmcIan SInce Apnl2nd, 2001 based In Owen Sound. Pnor to Apnl2nd, 2001 he worked as a Harvest Survey TechmcIan. Of the 50 Items IdentIfied on hIS Outlook account, he receIved 22 Items and sent 28 Items The summary In hIS final WDHP report references the folloWIng actIvIty Of the 22 Items receIved 18 EmaIls contaIned matenals that were charactenzed In folloWIng manner 4 Items contaIned matenals wIth sexual content; 8 Items contaIned matenals wIth nudIty 2 Items contaIned sexually graphIc matenals, and, four Items WIth degradIng, dehumamzIng and vIOlent matenals The respondent re-forwarded all of these Items InsIde the MNR and outsIde the OPS Of the 28 Items dIstnbuted by the respondent, 28 EmaIls were charactenzed In the folloWIng manner 12 Items contaIned sexual content; 4 Items contaIned nudIty 3 Items contaIned exposed gemtalIa, five Items contaIned sexually graphIc matenal and four Items contaIned Images that were eIther vIOlent, degradIng or dehumamzIng. These matenals were dIstnbuted InsIde the MNR and outsIde the OPS Three Items were personal correspondence contaInIng offensIve language and sexual dIscussIOn. Ms Lon AselstIne, a Staff RelatIOns Officer In the Human Resources Branch of the MNR, played a sIgmficant role In the dIscIplInary decISIOn makIng process Her pnmary role was to ensure consIstency Her wIll-say statement refers to part of her efforts In thIS regard as follows 29 Between May 8 and May 24 2001 I revIewed each and every pIece of eVIdence In the eVIdence package for each respondent, and read the correspondIng draft report. I began to orgamze the eVIdence packages by 24 lImng up files, based on content only In a rough order from least to most offensIve When I began to relatIvely order/orgamze the eVIdence packages, they seemed to gravItate Into three natural groupIngs I dId not set out to create three groupIngs I sImply started separatIng the eVIdence packages based on theIr levels of offensIveness, and the matenals naturally gravItated to three groups 30 We revIewed a number of eVIdence packages In the three dIfferent groupIngs, and determIned a range of dIscIplIne for each of the three groupIngs GrouPIng #1 from a non-dIscIplInary letter of counsel up to five days suspenSIOn wIthout pay Group #2 from five days up to 15 days dIscIplInary suspensIOn wIthout pay Group #3 from 10 days dIscIplInary suspensIOn wIthout pay up to dIsmIssal I made a conscIOUS decIsIOn to have an overlap of potentIal dIscIplInary suspensIOn between GrouPIngs 2 & 3 31 After havIng orgamzed the eVIdence packages Into three maIn groupIngs, and settIng a range of dIscIplIne for each of the three groupIngs, I further compared eVIdence packages wIthIn each maIn groupIng, and further subdIvIded each maIn groupIng Into three sub-groups ThIS resulted In mne sub-groupIngs 32 HavIng come to a decIsIOn regardIng the appropnate level of dIscIplIne for these specIfic respondents, I then revIewed all of the remaInIng respondents' files agaIn, and determIned a recommended level of dIscIplIne for each of the remaInIng respondents 33 My recommendatIOns on dIscIplIne were based solely on the eVIdence packages My recommendatIOns dId not take Into account any mItIgatIng or aggravatIng factors that mIght have applIed In partIcular cIrcumstances 34 I produced a spreadsheet that IdentIfied my categonzatIOn of each respondent's eVIdence package, and my recommendatIOn on dIscIplIne I Included a column for any changes that mIght occur In my recommendatIOn, as well as a column for the manager's final decIsIOn In each case At the manager's conference In Toronto on May 28 and 29 2001 a process occurred whIch resulted In some changes to Ms AselstIne's recommendatIOns She descnbes that process In her wIll-say statement as follows 39 I encouraged managers to reVIew theIr respondents' eVIdence packages and dIscIplInary recommendatIOns and to compare them to other cases around the 25 room. I asked them to IdentIfy what they thought to be relatIve InCOnsIstencIes In my categonzatIOn of the eVIdence or dIscIplInary recommendatIOns Where managers IdentIfied potentIal InCOnsIstencIes to me, we revIewed the eVIdence packages agaIn. In some cases I changed my categonzatIOn or recommendatIOn where I was convInced that my decIsIOns were not relatIvely consIstent. In other cases I dId not change my categonzatIOn or recommendatIOn where I was convInced that my decIsIOns were relatIvely consIstent. In determInIng whether the Employer was consIstent In ItS applIcatIOn of dIscIplIne In thIS stage of the proceedIng, It IS necessary to focus on the recommendatIOns ofMs AselstIne whIch were made as of the manager's conference In May 2001 pnor to the consIderatIOn of mItIgatIng and other factors by the managers As of the manager's conference the recommendatIOn was that each gnevor be dIsmIssed. Although Ms AselstIne recommended that Mr B PeterkIn also be dIsmIssed, hIS manager gave hIm a 20-day suspensIOn after consIdenng mItIgatIng factors Counsel for the Employer submItted that the Inappropnate conduct of the gnevors contravened the IT PolIcy and the WDHP PolIcy and raises an Important human nghts Issue Counsel argued that the conduct of the gnevors created a pOIsoned work envIronment, one that IS hostIle to women, IS racIally taInted and homophobIc Confronted wIth a pOIsoned work envIronment that was "tOXIC In the extreme" In effect "a tIckIng tIme bomb" counsel submItted that, when facIng the nsks assocIated wIth such an envIronment, the Employer was reqUIred to take strong measures to meet ItS oblIgatIOns to create a workplace conSIstent WIth the obJectIves of the Code To demonstrate that employers are reqUIred to take posItIve, strong and effectIve measures to address Code Issues, counsel referred to Magill v Atlantic Turbines Inc (1997),28 26 C.H.R.R. D/293 (PEl. Bd. Inq) 25 Burton v Chalifour Bros. Construction Ltd (1994), 21 C.H.R.R. D/501 (B C C.H.R.) 45 Ferguson v Muench Works Ltd (1997),33 C.H.R.R. D/87 (B C C.H.R.) 9 SInce the Umon dId not dIspute the Employer's oblIgatIOns In thIS regard, It IS unnecessary to reVIew these decIsIOns In assessIng the nature of the conduct at Issue, counsel submItted that It IS appropnate for an employer to take Into account the degree of offensIveness of the matenal Contrary to the Umon's VIew counsel also submItted that, not only stonng and dIstnbutIng Items, but In thIS context the receIpt and deletIOn of pornographIc Items IS dIscIplInable conduct. Counsel argued that the sImple receIpt and deletIOn of Inappropnate matenalIs not a paSSIve actIvIty when IndIVIduals explIcItly or ImplIcItly IndIcate that they are wIllIng to receIve such matenal Counsel argued, agaIn contrary to the Umon's posItIOn, that there need not be a complaInt from an employee before there can be a contraventIOn of the WDHP PolIcy Counsel also submItted that the presence of the Inappropnate matenal In the workplace, by Itself, contnbutes to a pOIsoned work envIronment. In what he charactenzed as a common sense proposItIOn, counsel argued that the presence of pornography pOIsons the work envIronment and contnbutes to the creatIOn of a culture InCOnsIstent WIth the Code Over the Umon's obJectIOn, counsel filed what he descnbed as an expert OpInIOn to support the Employer's contentIOn about the effects of pornography In the workplace If there had been any doubt about the matter counsel submItted that the Deputy's 27 memorandum made a clear lInk for employees between pornography on mImstry computers and a pOIsoned work envIronment. In consIdenng the appropnate penalty for the gnevors, counsel argued that the Employer dId take Into account the pnncIple of progressIve dISCIplIne Counsel argued that the conduct of the gnevors was dIfferent In qualIty from the others who were InvestIgated, partIcularly the employees who were gIven 20-day suspensIOns When asseSSIng the volume and nature of theIr Inappropnate e-maIl actIvIty as well as the extremely offensIve nature of the matenal, counsel argued that dIscharge was the necessary response, even though the gnevors had not prevIOusly been dIscIplIned. Although the matenal was not cnmInal In nature and It was not argued that the gnevors engaged In the Inappropnate conduct when they should have been workIng, the Employer took the posItIOn that the conduct of the gnevors was so egregIOus that dIscharge was not only appropnate, but a necessary response In the CIrcumstances In support of the posItIOn that the conduct of the gnevors constItuted a dIsmIssIble offense, counsel relIed on he folloWIng three decIsIOns In Re Telus Mobility and T W C (Lee) (2001), 102 L AC (4th) 239 (SIms) the gnevor a two year employee wIth no dIscIplInary record, was termInated for mISUSIng the Employer's e-maIl to receIve and transmIt some pornographIc Images The dIscovery of Inappropnate pornographIc matenal sent by the gnevor to another employee led hIS manager wIthout refernng to the Inappropnate matenal, to reVIew WIth the gnevor a recently developed Code of EthICS and to advIse hIm that e-maIl was not to be used for sexually offensIve matenal The gnevor's demal of havIng receIved thIS dIrectIOn from the manager was not belIeved by 28 the arbItrator Less than a month after the dIscussIOn wIth hIS manager the gnevor sent a vIdeo clIp graphIcally depIctIng bestIalIty to two people outsIde the company and hIS Outlook account contaIned two stIll graphIc files shoWIng a woman's breasts clothed In a brassIer bUIlt to look lIke a man's hands The arbItrator determIned that, although the employer had a rule whIch addressed the conduct at Issue no rule was needed SInce any employee would realIze that It IS unacceptable to send senously pornographIc matenal to other employees or elsewhere He also found that by Ignonng hIS manager's warmng, the gnevor added an element of InsubordInatIOn to the offense The arbItrator was persuaded thIS was a senous offense for the folloWIng reasons " FIrst, there IS the partIcularly offensIve nature of the "mInIstal" attachment and sImIlarly of the "flamIngass" attachment. Only the first clIp IS dIrectly the subJect of dIscIplIne, but the eXIstence of the second reInforces my conclusIOn that the gnevor was eXerCISIng lIttle or no dIscretIOn about the nature of the matenals he chose to dISSemInate The nature of the matenalIs an Important consIderatIOn. WhIle some mIght argue "beauty IS In the eye of the beholder" (or at least the pornographIc eqUIvalent of beauty), thIS IS only part of the Issue That IS because the employee dISSemInatIng such matenal maIntaInS lIttle control over who the beholder mIght be An employer has a legItImate Interest In preventIng ItS employees from exposure to matenals of thIS type ThIS exposure mIght occur as a result of It beIng sent to a co-worker who contrary to the sender's expectatIOns, found It offensIve ThIS mIght occur accIdentally or IndIrectly as It dId here where managers dIscovered It or had to deal wIth It as part of theIr legItImate actIvItIes ThIS mIght also occur by accIdent, as It IS not uncommon for e-maIl messages to accIdentally get sent to the wrong recIpIent or even a lIst of recIpIents Many VIew expenence of thIS type ofmatenal as a form of workplace harassment partIcularly because of the degradIng manner It whIch It portrays women. The Employer IS subJect to a legal duty to prevent such harassment, IncludIng that whIch anses by umntended but aVOIdable exposure" 29 The fact that no one complaIned about havIng receIved the matenal dId not Influence the arbItrator as he explaIns as follows "the gnevor also relIes on the proposItIOn that no one complaIned and no one was hurt by hIS havIng sent out these matenals ThIS IS basIcally a "we were all con- sentIng adults" defense I accept as true that none of the dIrect recIpIents com- plaIned. I also accept that the fact telus net was used In the e-maIl address, although sIgmficant, IS of less Importance However I do not accept that no one was affected by thIS dISSemInatIOn. The way the IndIVIduals In management came across he matenal was qUIte legItImate, and It meant they were exposed to thIS matenal, somethIng that they clearly wIshed they had not had to deal wIth. In addItIOn, as noted above, the gnevor had no effectIve controls to prevent It comIng Into the wrong hands The employee IS perfectly free to CIrculate such matenal wIth other consentIng adults away from work, but I do not find that lIne of defense persuaSIve In the workplace on company tIme and eqUIpment and partIcularly In the face of an express warmng." GIven hIS VIew of the senousness of the matter the arbItrator dId not conSIder It a case for the applIcatIOn of progressIve dIscIplIne and he elected In the CIrcumstances not to Interfere WIth management's decIsIOn to termInate the gnevor In Re Consumers Gas v Communications Energy and Papen",orkers Union (PnmIam Gnevance), [1999] O.L AA No 649 (KIrkwood) the gnevor was dIscharged for reCeIVIng and dIstnbutIng pornographIc matenal USIng her computer at work. In partIcular she was dIscharged for the storage and transmISSIOn of two A VI's, one marked "awful" whIch was a vIdeo InvolvIng bestIalIty and the other marked "cokecan" whIch Involved a half-nude woman USIng a "cokecan" for sexual purposes The gnevor dIstnbuted "cokecan" to 3 people Internally and 12 people externally under the company name The employer's InVestIgatIOn, whIch was ImtIated when messages sent by her manager to the gnevor and others contaInIng the two vIdeos at Issue crashed the employer's gateway resulted In approxImately 60 employees beIng dIscIplIned. The 30 gnevor was a short-term employee, apparently wIthout a dIscIplInary record. Although the gnevor was unaware of the employer's polIcy prohIbItIng pornography the arbItrator concluded that a reasonable employee would realIze that the storage and transmISSIOn of sexual matenal was unacceptable and that the gnevor's use of the computer was well beyond acceptable It IS clear from the decIsIOn that the nature of the matenal and the gnevor's actIvIty IncludIng the dIstnbutIOn of "cokecan" externally contnbuted to the senousness of the offence Because of the permISSIve culture In eXIstence at the workplace, whIch Included management partIcIpatIOn, the lack of momtonng and dIrectIOn of the workforce and the penaltIes gIven to others, the arbItrator substItuted a one-month suspenSIOn for the dIscharge No relIance was made on the fact that no one complaIned about the gnevor's conduct and no specIfic reference was made to the pnncIple of progressIve dIscIplIne In Re Greater Toronto Airports Authority and P S.A.C (GorskI) (2001) 101 L.AC (4th) 129 (Murray) the gnevor the presIdent of the local umon and an 18-year employee, was dIscharged for VIeWIng pornographIc matenal USIng the Internet. A female employee observed hIS actIvIty on at least one occaSIOn and a male secunty guard observed the behavIOur at other tImes Samples of the matenal vIewed by the gnevor consIsted of over 500 pages of photographs, "mostly of young adult women In vanous stages of undress or exotIc dress, some engagIng In sexual actIvItIes of va no us sorts" The VIeWIng and downloadIng of matenal occurred after normal workIng hours When management was advIsed that the computer was beIng used Improperly although the gUIlty party was unknown, management warned the day staff, IncludIng he gnevor 31 agaInst engagIng In such conduct. The employer eventually determIned that the gnevor was the gUIlty party The arbItrator concluded that the gnevor was creatIng a pOIsoned work envIronment by engagIng In the Inappropnate conduct over many months He also determIned that the gnevor' s satIsfactory record and hIS long servIce were not sufficIent mItIgatIng factors In the CIrcumstances The arbItrator concluded that reInstatement would send an Inappropnate message to other employees and that bnngIng such pornographIc matenal Into the workplace IS the type of conduct whIch cannot be expunged by a lengthy suspenSIOn. Counsel for the Employer submItted that these authontIes demonstrate that the conduct engaged In by the gnevors warrants dIscharge In hIS VIew any other conclusIOn would send the message that a lower standard eXIsts In the OPS and that a culture created by the dIstnbutIOn of pornography IS "not so bad" In the alternatIve, the Employer took the pOSItIOn that a conclusIOn that the dIscharge of any of the gnevors cannot be sustaIned should not lead, In these cIrcumstances, to the reInstatement of a gnevor In counsel's submIssIOn, thIS was the type of case whIch necessItated a remedIal response other than reInstatement and he referred to the folloWIng two deCISIOns In Re York Region Board of Education and o SSTF (1999) 84 LAC (4th) 90 (ShIme) the gnevor a teacher for many years, was dIagnosed WIth mamc depressIOn In 1987 and was prescnbed LIthIUm by hIS psychIatnst. After he stopped takIng LIthIUm In 1994 the gnevor engaged In Inappropnate conduct WIth students, a colleague and a parent, and he refused to Implement a markIng scheme 32 ThIS conduct ultImately led to hIS dIscharge After takIng Into account certaIn mItIgatIng factors, IncludIng the gnevor's Illness, the arbItratIOn board concluded that there was not Just cause for dIsmIssal However the gnevor's refusal to acknowledge any wrongdoIng, hIS refusal of any help and uncertaInty about whether he would take proper medIcatIOn, convInced the board of arbItratIOn that the gnevor would lIkely repeat hIS Inappropnate behavIOur The gnevor was awarded 6 months compensatIOn, rather than reInstatement. In Re Communty Living South Muskoka and o.p SE. U (Walla) (2000) 92 L AC (4th) 384 (Mikus) the gnevor engaged In a pattern of sexual harassment over a long penod of tIme WIth the vIctIms remaInIng sIlent. Even though It apparently found that the employer dId not have Just cause for dIscharge, the arbItratIOn board refused to reInstate the gnevor because It was unlIkely the gnevor could successfully return to the workplace In the CIrcumstances As noted prevIOusly the Umon conceded that the gnevors contravened the IT PolIcy and that they were deservIng of dIscIplIne but that dIscharge was not an appropnate penalty In hIS submIssIOns, counsel referred to a number of matters whIch, In the Umon' s VIew should lead to the conclusIOn that the dIscharge of the gnevors cannot be upheld on the basIs of the Employer's best case Counsel emphasIzed the Importance of consIdenng the folloWIng contextual matters In order to assess the conduct of each gnevor The number of IndIVIduals InvestIgated represents a sIgmficant proportIOn of the MNR staff and those dIscIplIned Include managers, OPSEU employees, members of AMAPCEO Human Resources staff and a WDHP advIsor There eXIsted, In the Umon' s VIew a workplace culture whIch encouraged and condoned the Inappropnate 33 behavIOur at Issue Employees who receIved Inappropnate matenal dId not find It offensIve and employees who dIstnbuted Inappropnate matenal sent It to persons, whether wIthIn or outsIde the MNR, who they belIeved were Interested In reCeIVIng the Items and they dId not find them offensIve The IndIcatIOn from many of the persons InvestIgated or dIscIplIned was that they dId not apprecIate at the tIme that they were engagIng In senous mIsconduct. No one complaIned to the Employer about havIng receIved offensIve pornographIc matenal Counsel argued that SInce the e-maIl abuse had become so IngraIned as a part of the workplace culture, It was Inappropnate and an over-reactIOn In the CIrcumstances for the Employer to sIngle out the SIX gnevors for dIscharge Counsel argued that the sIgmficant scope of the e-maIl abuse In the MNR suggests that the message the Employer was attemptIng to convey wIth WDHP traInIng was not gettIng through to a sIgmficant number of employees He noted that many IndIVIduals had IndIcated that they would not have engaged In the conduct If they had known that the Employer took the VIew that such mIsconduct was very senous Counsel argued that the absence of any IndIcatIOn that the subJects of e-maIl abuse and the Employer's VIew on the lInk between pornographIc matenal and a pOIsoned work envIronment were addressed In WDHP traInIng IS a sIgmficant factor In thIS case Counsel submItted that It would not necessanly be ObVIOUS to employees that the dIstnbutIOn of pornography bye-mall could create a pOIsoned work envIronment and consIdered so senous that It could subJect them to dIscharge In counsel's VIew the 34 faIlure of the Employer to so advIse employees IS relevant to asseSSIng the degree of theIr culpabIlIty Counsel for the Umon argued that the absence of a vIctIm or of an IndIVIdual complaInIng about a matter covered by the WDHP PolIcy means that there has not been a contraventIOn of that polIcy He noted that the provIsIOns of the WDHP PolIcy IndIcate that It IS a complaInt dnven process and, In thIS Instance, no one complaIned that the Inappropnate matenal offended or otherwIse affected them. Counsel also took Issue WIth the Employer's posItIOn that the e-maIl abuse In thIS Instance resulted In a pOIsoned work envIronment. Counsel submItted that there IS no IndIcatIOn that any of the employees InvestIgated actually engaged In conduct toward another employee whIch contravened the Code or that the e-maIl abuse that occurred here would ever lead to an overt contraventIOn of the Code Counsel stated that the Employer could make the dIstnbutIOn of pornography bye-mall a specIfic contraventIOn of the WDHP PolIcy but It has clearly not done so Counsel argued that the Employer's relIance on a contraventIOn of the WDHP PolIcy and ItS faIlure to establIsh such a contraventIOn should lead In thIS case to a reductIOn In the gnevors' dIscharges, and In support of thIS posItIOn he relIed on Re Western Star Trucks Inc and I.A.M Lodge 2710 (Demers) (1997) 69 L AC (4th) 250 (Bruce) In thIS decIsIOn the gnevor was dIscIplIned for vIOlatIng the employer's sexual harassment polIcy Although he may have deserved some dIscIplIne, the arbItrator concluded that the gnevor dId not engage In sexual harassment and that the faIlure of the employer to show a vIOlatIOn of the relevant polIcy meant that the gnevance was allowed. 35 In determInIng whether the dIstnbutIOn of pornography bye-mall creates or contnbutes to a pOIsoned work envIronment, counsel submItted that I should not admIt the expert's report filed by the Employer In Re British Columbia (MinistlY of Attorney General-Sheriffs) and B C G.E.U (1996),57 L.AC (4th) 391 (Greyell) after reVIeWIng the relevant case law the arbItrator concluded that " An expert OpInIOn wIll satIsfy the cntena of necessIty If the OpInIOn offered by the expert would provIde InformatIOn "whIch IS lIkely to be outsIde the expenence and knowledge of a Judge or JUry" (per DIckson, J In R. v Abbey [1982] 2 S C.R. 24 (S C C )) or where the subJect matter of the eVIdence IS "such that ordInary people are unlIkely to form a correct Judgement about It, If unassIsted by persons WIth specIal knowledge" In counsel's submIssIOn, the expert OpInIOn offered by the Employer does not satIsfy the cntena of necessIty set out above Counsel also argued that the Employer dId not appear to apply the concept of progressIve dIscIplIne GIven that the gnevors had not been dIscIplIned for thIS type of conduct, or at all for that matter counsel submItted that for thIS reason alone It was Inappropnate to dIscharge the gnevors He argued that the type of offense In thIS Instance IS not so senous that the concept of progressIve dIscIplIne can be Ignored. Counsel noted that thIS concept IS a feature of both the WDHP PolIcy and the Employer's general dIscIplInary approach. Counsel argued that the applIcatIOn of progressIve dIscIplIne should have led to lesser penaltIes for the gnevors Counsel referred to the folloWIng deCISIOns for theIr commentary on progressIve dISCIplIne Re Dupont Canada Inc v Communication, Energy and PapelYf,orkers Union of Canada, Local 28-0 (Panter Gnevance) [2001] O.L AA No 676 Re Westcoast Energy Inc and c.E.P Loc 686B 36 (Bourdon) (1999),84 L AC (4th) 185 The Union of Northern Workers and The Minister Responsible for the Public Service Act (2002) unreported award of T JollIffe dated Apnl 25 2002, and Re Oshalta Foods Division and UF C W Loc 175 (Rushton) (1993),35 L.AC (4th) 31 (Starkman) Counsel referred to some factors whIch should be consIdered when asseSSIng the conduct of the gnevors, such as the subJectIve nature of determInIng the degree of offensIveness of the Items In theIr accounts, the fact that some IdentIcal Items In dIfferent accounts were labeled dIfferently because there were three persons Involved In eVIdence gathenng and, further that Items whIch were sImply receIved and deleted were Included as part of the Inappropnate matenal Counsel argued that the act of reCeIVIng Inappropnate matenal and deletIng It IS not a dIscIplInary offense and he submItted that If one dIscounted those Items whIch the gnevors sImply receIved and deleted, the conduct of the gnevors would be vIewed as less senous Counsel referred to a number of decIsIOns to Illustrate the approach arbItrators have taken when asseSSIng dIscIplIne for thIS kInd of mIsconduct. In Re Dupont Canada Inc v c.E.P Loca128-0 supra, the gnevor was termInated for Inappropnate computer use on two days In December 2000 On the first day he downloaded at work at hIS wIfe's request a newsletter contaInIng sexually explIcIt pIctures and text and transferred the matenal to hIS Yahoo account. On the second occaSIOn, the gnevor transferred 24 pIctures descnbed as "sunshIne gIrlS" and not pornographIc to hIS Yahoo account through hIS HotmaIl account. In October 1998 the gnevor had receIved a 10-hour suspensIOn for 37 accessIng Internet sItes at work. The gnevor's conduct dId not Involve dIstnbutIng Inappropnate matenal to other employees and hIS actIvItIes were detected by a momtonng system, not as a result of a complaInt. After consIdenng vanous mItIgatIng factors and the doctnne of progressIve dIscIplIne, the arbItrator substItuted a four-month suspenSIOn for the dIscharge The Umon also relIed on the comments relatIng to the permISSIve culture and InCOnsIstent penaltIes made by arbItrator KIrkwood In the Consumers Gas decIsIOn, supra. In Re Westcoast Energy Inc and CE.P Loc 686B (1999), 84 L AC (4th) 185 (AlbertIm), the gnevor sent Inappropnate matenal anonymously to a female employee on four separate occaSIOns whIch led to the findIng that the gnevor dId sexually harass the female employee After consIdenng all of the cIrcumstances, IncludIng the gnevor's 24 years of servIce and dIscIplIne free record, the arbItrator substItuted a 6-month suspensIOn for the dIscharge and Imposed a number of condItIOns In Re Ontario Polter Generation Inc and Polter Worker Union (Stewart) an unreported decIsIOn dated June 26 2000 mne employees were Issued dIscIplIne rangIng from a repnmand to a three day suspenSIOn for reCeIVIng and stonngJuvemle "Jokes" of a sexual nature Some employees dIstnbuted the matenal to other employees The gnevors were long servIce employees wIthout dIscIplInary records who expressed remorse for theIr actIOns The arbItrator determIned that one employee should receIve an oral repnmand and that those who faced suspenSIOn should receIve a wntten repnmand. In Re Hydro One Ne~orks Inc and Polter Workers Union (Stewart), an unreported decIsIOn dated August 27 2001 the gnevor was termInated for USIng the Internet to access pornographIc sItes whIle at work. Some of these sItes depIcted scenes of rape and vIOlence towards women. The gnevor dId not cIrculate the matenal to anyone and hIS 38 actIvItIes were dIscovered when the employer conducted a reVIew of Internet usage among employees TakIng Into account the gnevor's nearly 20 years of servIce, hIS acknowledgement of wrongdoIng and hIS SIncere apology at the heanng, the lIkelIhood that he would not repeat such conduct and the fact that another employee was suspended for five days for conduct somewhat sImIlar to the gnevors, although the matenal accessed by the gnevor was more egregIOus In nature, the arbItrator substItuted a 15 day suspenSIOn for the dIscharge Counsel for the Umon also submItted that I should not accept the Employer's alternatIve posItIOn WIth respect to reInstatement. He argued that the CIrcumstances In thIS case are unlIke those In the decIsIOns referred to by the Employer In counsel's submIssIOn, the CIrcumstances here do not IndIcate that the employment relatIOnshIp between the gnevors and the Employer has been Irrevocably broken or that the gnevors could not successfully return to the workforce In addressIng the Issue of whether the dIscharges can be upheld on the basIs of the Employer's best case, havIng regard to the conduct of the gnevors, It IS Important to agaIn note what matters are not before me at thIS stage of the proceedIng. SInce the partIes agreed that the Issue of mItIgatIOn IS not before me at thIS tIme, factors such as semonty the recogmtIOn and acknowledgement of wrongdoIng and an assessment of whether It IS lIkely a gnevor wIll engage In sImIlar conduct In the future If reInstated, are not now relevant. The one exceptIOn to thIS general approach IS that I can consIder the dIscIplInary records of the gnevors In order to deal wIth the Issue of progressIve 39 dIscIplIne Although counsel for the Umon made submIssIOns on condonatIOn, the partIes also agreed that thIS Issue IS for the next stage These matters whIch are not now before me, of course wIll be relevant In determInIng whether the dIscharges can be sustaIned or what penalty should be substItuted for the dIscharges If reInstatement IS an optIOn. The Issues now before me can be framed by the folloWIng questIOns Is the conduct of the gnevors so senous that dIscharge could be an appropnate response? At the conclusIOn of the May 2001 conference wIth the managers, the Employer concluded that some of the Inappropnate matenal In each of the gnevors' Outlook accounts was very offensIve and that theIr Inappropnate e-maIl actIvIty was senous enough to warrant dIscharge If I conclude that thIS assessment was Incorrect for any of the gnevors, then reInstatement becomes an optIOn. A second questIOn for consIderatIOn IS whether the Employer has been consIstent In ItS applIcatIOn of dIscIplIne In thIS sItuatIOn. IrrespectIve of how senous the conduct of the gnevors may be, reInstatement may stIll be an optIOn If the other IndIVIduals who were dIscIplIned engaged In sImIlar conduct to the gnevors, but were only suspended. In the course of addressIng these Issues, I wIll deal wIth those matters referred to by counsel In theIr submIssIOns HavIng made reference In some detaIl to the decIsIOns relIed on by the partIes, I note that the result, of course In each of the decIsIOns IS determIned by theIr partIcular facts However they do provIde some general approaches to addressIng the Issues related to e-maIl abuse I also note that In dealIng the matters before me I have taken Into 40 account the fact that the adJudIcatIOn of the dIscharges and the other gnevances IS not complete When determInIng the senousness of an offense of the sort engaged In by the gnevors, the arbItral Junsprudence clearly IndIcates that It IS appropnate and necessary to consIder the degree of offensIveness of the matenal Rather than put all Inappropnate matenal, IrrespectIve of how offensIve It IS, In the same category arbItrators take Into account the nature of the Inappropnate matenal when determInIng the senousness of the conduct at Issue Although some of the Umon' s submIssIOns appeared to suggest otherwIse, thIS approach has consIderable ment. For example, the dIstributIOn of chIld pornography bye-mall at work and the dIstnbutIOn of pIctures of naked women are both Inappropnate but It IS ObVIOUS that the dIstnbutIOn of the former matenalIs consIderably more senous than the latter and generally would warrant a more severe dIscIplInary response The Employer determIned that the gnevors engaged In senous mIsconduct because It concluded that many Items In theIr Outlook accounts were very offensIve It appears that the Employer made an effort to assess the matenal based on obJectIve cntena so as to lImIt subJectIvIty Although some of the concerns raised by the Umon about how the matenal was classIfied and how each gnevors' conduct was categonzed are valId, they do not alter the essentIal nature of the e-maIl abuse engaged In by the gnevors What IS not tenable, In my VIew IS the Umon's posItIOn that the mere receIpt and deletIOn of Inappropnate matenal cannot be the subJect of dIscIplIne In these 41 CIrcumstances I agree wIth the posItIOn of the Employer that when asseSSIng the Inappropnate e-maIl actIvIty of these gnevors, the act of reCeIVIng and deletIng offensIve Items was not a paSSIve actIvIty whIch can be Ignored when aSseSSIng culpabIlIty The gnevors, and others, explIcItly In some Instances and certaInly ImplIcItly InvIted the receIpt of Inappropnate matenal The sItuatIOn In thIS case IS not one where an employee receIves pornographIc matenal bye-mall, deletes It and then advIses the sender not to send such matenal agaIn. Once the InVItatIOn IS made, the recIpIent has no control over what matenalIs sent and how offensIve It IS After reVIeWIng the matenal In the gnevors Outlook accounts at the heanng and agaIn after the heanng, It IS my conclusIOn that the Employer correctly assessed some of the Inappropnate matenal as very offensIve The demgratIOn and vIOlence towards women as contaIned In the DIrty Sanchez vIdeo IS partIcularly offensIve Although the Inappropnate matenal In the gnevors' accounts Includes some relatIvely Innocuous Items, they also Include Items of bestIalIty oral sex, pIctures of nude obese and elderly women and pIctures of sexual actIvIty that are degradIng and vIOlent to women. When companng the Inappropnate matenal the gnevors receIved or dIstnbuted, where It IS possIble to do so to the Items whIch led to dIscharges or lengthy suspenSIOns In the decIsIOns referred to by the partIes, many of the Items In the gnevors' accounts are generally more offensIve and the volume of actIvIty generally IS greater The gnevors dIstnbuted matenal not only to persons wIthIn the MNR, but also to persons outsIde the MNR and the OPS thereby creatIng the potentIal for consIderable embarrassment for themselves and the Employer One of the Items In the Chrysler ComplaInt ongInated 42 WI th Mr HastI e The receIpt and dIstnbutIOn of thIS type ofmatenal does have human nghts ImplIcatIOns and they contnbute to a culture InCOnsIstent WIth the obJectIves of the Code The offensIveness of the Inappropnate matenal In the gnevors' Outlook accounts and the senousness of theIr mIsconduct IS not altered by the fact that they dId not find the matenal offensIve or the fact that no one complaIned about the matenal The Inappropnate conduct of the gnevors In the decIsIOns I was referred to was not detected because someone complaIned, but for other reasons The faIlure of anyone to complaIn dId not Influence the arbItrator's VIew of the senousness of the conduct. The Umon argued that the absence ofWDHP traInIng on the appropnate use of computers and e-maIl and on the lInk between the receIpt and dIstnbutIOn of pornography bye-mall and a pOIsoned work envIronment are factors whIch should have the effect of negatIng the penalty of dIscharge Generally an employer should advIse employees about what behavIOur wIll result In dIscIplIne and how severe the dIscIplIne mIght be Employers commonly satIsfy thIS oblIgatIOn by ISSUIng rules and a range of penaltIes for a vIOlatIOn of a rule But there IS some conduct whIch any employee should recogmze as unacceptable even wIthout a rule or some other notIce from the Employer In the Telus Mobility and Consumers Gas decIsIOns, albeIt In dIfferent contexts, the arbItrators decIded that reasonable employees would understand that reCeIVIng and sendIng pornographIc and other Inappropnate matenal to employees or to others would be unacceptable to the Employer It IS a reasonable extensIOn of thIS approach to suggest that a reasonable employee, wIthout the benefit of notIce or traInIng, would also understand that the more offensIve the matenal, the more senous the offence and 43 consequences In thIS Instance, the Employer has clearly IndIcated to employees through the IT PolIcy and the warmngs on the computer system that the use of e-maIl for non- busIness purposes IS unacceptable and could lead to dIscIplIne HavIng been warned not to engage In such conduct and that dIscIplIne may result If they dId, It IS not open to employees to complaIn that they were unaware about what kInd of offensIve matenal dIstnbuted bye-mall could result In dIscharge or that such conduct created a pOIsoned work envIronment. I note that under the references to unacceptable actIvIty In the IT PolIcy a connectIOn IS made wIth the storage and dIsplay of offensIve matenal, a pOIsoned work envIronment and the WDHP PolIcy Although not related to WDHP traInIng per se, the Deputy's memorandum advIses employees that the presence of pornography or other offensIve matenal wIll not be tolerated at the workplace and wIll result In dIscIplInary actIOn, up to and IncludIng dIscharge In my VIew It would be dIfficult to conclude that the MNR employees were preJudIced by a lack ofWDHP traInIng relatIng to computer usage In the face of the message contaIned In the Deputy's memorandum I also find It dIfficult to accept that the dIstnbutIOn of pornographIc matenal by e- mall, by Itself, cannot create or contnbute to a pOIsoned work envIronment and that there cannot be a contraventIOn of the WDHP PolIcy wIthout a complaInt or wIthout specIfic conduct by an employee agaInst another employee In relatIOn to the Code's prohIbIted grounds I agree wIth the Umon that the expert OpInIOn proffered by the Employer to establIsh that pornography In the workplace contnbutes to a pOIsoned work envIronment does not meet the test of necessIty However I agree wIth the Employer's posItIOn that 44 the detnmentalImpact of pornography In the workplace IS a common sense proposItIOn denved from general expenence In my VIew the dIstnbutIOn of matenal In the workplace bye-mall or some other means whIch obJectIfies and demgrates women, and whIch depIcts acts of vIOlence agaInst women does pOIson the workplace, whether someone complaIns about the actIvIty or not, and such conduct fits wIthIn the defimtIOn of pOIsoned work envIronment contaIned In the WDHP PolIcy Whether someone complaIns about the Inappropnate actIvIty does not change the nature of the mIsconduct. The Umon conceded that the Employer could make It clear In the WDHP PolIcy that the dIstnbutIOn of pornography bye-mall would contnbute to a pOIsoned work envIronment. Although the matter IS not specIfically addressed In the WDHP PolIcy the Employer accomplIshed the same result when It dIstnbuted the Deputy's memorandum whIch makes the lInk between the dIstnbutIOn of pornography a pOIsoned work envIronment and the WDHP PolIcy It IS my conclusIOn that the conduct of the gnevors at Issue does contravene the WDHP PolIcy I agree that the pnncIple of progressIve dIscIplIne need not necessanly be abandoned when dealIng wIth senous offences of the kInd commItted by the gnevors GIven that the manager's chart for each gnevor refers to the employee's dIscIplInary record, It would appear that some consIderatIOn was gIven to progressIve dIscIplIne ProgressIve dIscIplIne would have been one factor among many others, the managers consIdered when decIdIng the Issue of penalty In my VIew It IS dIfficult to apply the concept of progressIve dIscIplIne In IsolatIOn when the conduct at Issue constItutes a senous matter In these sItuatIOns the practIce of arbItrators IS to consIder all of the 45 factors, IncludIng progressIve dISCIplIne, In order to determIne whether dIscharge IS appropnate or whether there IS a basIs for subStItutIng a lesser penalty Therefore, rather than addressIng the Issue of progressIve dISCIplIne now It IS appropnate to consIder the Issue along wIth the Issues of mItIgatIOn and condonatIOn, and any other factors relevant to the Issue of reInstatement. The Umon asserted that It was unfair and Inappropnate to dIscharge 6 employees, havIng regard to the scope of the problem concernIng e-maIl abuse and the creatIOn of a culture whIch encouraged and condoned thIS behavIOur As prevIOusly noted, the condonatIOn element IS not now before me The fact that a sIgmficant number of employees engaged In e-maIl abuse, by Itself, does not necessanly assIst the gnevors Unless It can be shown that the Employer was In some way responsIble for the culture or was aware of the problem but turned a blInd eye to It, the gnevors and the employees who were dIscIplIned wIll not be able to aVOId complete responsIbIlIty for theIr conduct. Even though the mIsconduct of the gnevors IS senous, the Employer must be consIstent In ItS dIscIplInary approach. If the conduct of other employees was sImIlar to the conduct of the gnevors and they were suspended, the Employer would be precluded from treatIng the gnevors dIfferently The Employer appears to have made consIderable effort to ensure consIstency In the applIcatIOn of dIscIplIne In thIS Instance In assessIng the nature of the actIvIty of the gnevors and the offensIve nature of the matenal In theIr Outlook accounts as compared to employees and managers who receIved lengthy 46 suspensIOns, I am satIsfied that the gnevors' conduct IS more senous than the conduct of the IndIVIduals who were suspended. In summary It IS my conclusIOn, on the basIs of the Employer's best case, that the dIscharge of the gnevors mIght be an appropnate response In CIrcumstances where the gnevors engaged In senous mIsconduct due to the receIpt or dIstributIOn of very offensIve matenal bye-mall, where employees had been warned that dIscharge could result from such conduct and where the Employer applIed dIscIplIne consIstently It IS dIfficult to conclude at thIS pOInt that the dIscharges could not be upheld. SInce I have decIded that It would not be appropnate to reInstate a gnevor at thIS tIme, It IS unnecessary to deal wIth the Employer's alternatIve posItIOn on reInstatement. Perhaps CIrcumstances relevant to thIS Issue may anse dunng the next phase of thIS proceedIng. The heanng of the gnevances shall contInue on the days prevIOusly scheduled. Dated at Toronto thIS 23rd day of January 2003