HomeMy WebLinkAbout2009-1144.Aboutaeib.11-11-25 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#2009-1144, 2009-1145
UNION#2009-0542-0008, 2009-0542-0007
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Aboutaeib/Carletti) Union
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The Crown in Right of Ontario
(Ministry of Community and Social Services) Employer
BEFORE Janice Johnston Vice-Chair
FOR THE UNION Robin Gordon
Ontario Public Service Employees Union
Grievance Officer
FOR THE EMPLOYER Benjamin Parry, Jamie Kneen
Ministry of Government Services
Labour Practice Group
Counsel
HEARING January 28, May 6, September 15 & 27,
October 1, 20 & 26, 2010
January 20, February 10 &11, March 7,
April 20, May 12, 16 & 30, June 15, 16 & 20,
July 22, September 12, 14, 15, 2011.
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Decision
[1] I have before me two discharge grievances. One pertains to the termination of the
employment of Mr. Abdeljalil (Jalil) Aboutaeib and the other to the termination of Mr.
Romano Carletti. Both employees were discharged for more than one reason. It
was agreed to hear their cases together as one of the grounds for termination relied
upon by the employer was the same for both Mr. Aboutaeib and Mr. Carletti. The
issue before me is whether the two grievors were discharged for just cause.
General Background
[2] Mr. Aboutaeib and Mr. Carletti were employed in the Client Services Branch, Family
Responsibilities Office “FRO”), which is part of the Ministry of Community and Social
Services (the “Ministry”). Both Mr. Aboutaeib and Mr. Carletti testified before me
and they were the only witnesses called by the union.
[3] On behalf of management the following individuals testified:
i) Ms. Nancy Liston, who at the time of the events dealt with in this case was the
Director of the Client Services Branch in the FRO;
ii) Mr. David Langille, IT Forensic Specialist employed in the Corporate Security
Branch of the Ministry of Government Services;
iii) Ms. Donna Holmes, Legal Director of FRO;
iv) Mr. Cody Allan Ferguson, IT Forensic Specialist employed in the Corporate
Security Branch of the Ministry of Government Services.
[4] FRO’s mandate is to work to ensure that support payments (both spousal and child)
are made by the person responsible for paying to the person who is entitled to
receive it. FRO employees enforce support orders made by the courts and domestic
contracts that are filed with the courts. FRO is responsible for enforcing all child and
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family support orders that are issued by or registered with Ontario courts. At the
time of the proceedings before me, the office was responsible for handling
approximately 200,000 cases. Approximately 88% of the cases pertain to child
support and the remaining 12% deal with support for spouses or spouses and
children. FRO is a neutral enforcement agency and one role performed by the
people who work there is to be a “relationship” builder between themselves and the
payer and payee. It is important that both parties trust their caseworker.
FRO’s vision, mission and statement of guiding principles reads:
Our Vision
Our vision is to work together with our clients and partners to ensure support
responsibilities are met. We do this by developing constructive relationships,
addressing challenges and treating everyone with fairness and respect.
Our Mission
Our mission is to help families meet their support responsibilities.
Our Guiding Principles
In fulfilling our mission, we are guided by the following principles:
• We are a community helping the community.
• We respect our clients and treat them fairly.
• We provide our clients with professional and timely services.
• We are dedicated to the work we do.
• We take responsibility for our actions.
• We foster an environment where staff respect each other.
• We embrace change and learn new things every day.
[5] Both Mr. Aboutaeib and Mr. Carletti were employed as Enforcement Services
Officers (“ESO”) at the time of their discharge. Much of the work performed by
employees in the FRO is with vulnerable members of society, particularly women,
who are seeking to get the payments to which they are entitled, on behalf of
themselves and their children. The ESOs deal with some of the most difficult issues
that families experience, such as family breakdown and economic hardship. ESOs
must be able to handle emotional clients with honesty and sensitivity and handle
large caseloads efficiently and effectively.
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[6] The ESOs work independently within a team environment. They have a high degree
of autonomy and responsibility in their work. They exercise significant discretion and
are unmonitored in the normal course. They have access to large amounts of
restricted confidential information such as addresses, birth dates, banking information
and driver’s licences in their case files. When performing their call centre duties, they
may deal with the clients of another ESO, therefore it is important that information is
accurately recorded and passed on to co-workers. The ESOs have to be able to work
effectively with their colleagues and have to be able to trust them to handle their
clients appropriately.
[7] Given the access that both grievors have to confidential information, they were
required to swear and sign and Oath of Office and Secrecy. It reads:
I, ..........., do swear (or solemnly affirm) that I will faithfully discharge my duties as
a civil servant and will observe and comply with the laws of Canada and Ontario,
and, except as I may be legally authorized or required, I will not disclose or give to
any person any information or document that comes to my knowledge or
possession by reason of my being a civil servant. So help me God. (Omit this
phrase in an affirmation.)
In the case of Mr. Aboutaeib, his document has the words “do swear” in the first line
and the words “so help me God” crossed out as he appears to have Affirmed. Both
grievors signed the Oath of Office and Secrecy.
[8] The ESOs are spread out over four floors at the Downsview location of the Ministry.
There are approximately one hundred client services staff (including twenty staff from
another FRO branch) on the fourth floor; approximately one hundred and fifty client
services staff on the sixth floor; and one team consisting of seventeen staff and a
manager on the seventh floor.
[9] Mr. Aboutaeib’s seniority dates back to October 16, 2000. He was hired initially as a
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Multilingual Outreach Clerk with the claims and registration branch of the Ministry of
Health and Long-Term Care. In this position, he was assessing eligibility for OHIP
coverage. Within the same Ministry, he later was successful in obtaining the position
of Medical Claims Assessor. In 2003, Mr. Aboutaeib moved to FRO. He was initially
classified as a Client Services Associate-Bilingual. The name of the position changed
to Enforcement Services Officer, but the duties remained the same. Mr. Aboutaeib is
fluent in English, Arabic, French, Spanish and Italian and has a working knowledge of
Portuguese.
[10] Mr. Aboutaeib described his duties as primarily to manage the resolution of family
support issues as per the provisions contained in court orders or other agreements.
He had to monitor compliance with the agreed-to or ordered provisions and did so by
accessing client cases on a daily basis. He checked to ensure that money was
flowing from the payer to the recipient, and this process involved a number of contacts
internally and externally. If there was a lack of compliance, Mr. Aboutaeib, as per The
Family Enforcement Act, had options available to him that ranged from relatively
passive to aggressive.
[11] Mr. Aboutaeib was also responsible for covering the call centre phones. He was
responsible for logging onto the phone as a call centre agent and performing tasks
associated with that job generally for two to three hours per day and occasionally for
one and a half hours per day. Generally, Mr. Aboutaeib performed call centre duties
from 8 a.m. until 11 a.m. and occasionally from 8 a.m. to 9:30 a.m. During this period
of time that he was performing call centre duties, Mr. Aboutaeib suggested that he
would be “doing nothing but responding to the public and clients for the specific three
hours per day except for the one day which was only 1.5 hours.”
[12] At the time of his termination, Mr. Aboutaeib worked on the seventh floor as part of the
Special Team Unit. This unit was responsible for handling high-profile cases and
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bilingual cases. Mr. Aboutaeib testified that he was in charge of the bilingual cases.
Prior to the creation of this unit and his move to the seventh floor, he worked on the
fourth floor. The fourth floor was populated by individuals organized in teams
performing call centre and enforcement duties.
At the time of his discharge, Mr. Aboutaeib's supervisor was Mr. Robert Rotondo.
Prior to that, his supervisors were Ms. Sylvia Durzo for the first year and then Mr.
Osmand Bangura for the period from 2004 to roughly the end of 2007.
[13] When he was working on the fourth floor, Mr. Aboutaeib described it as an open space
with workstations that had low partitions such that if you lifted yourself up slightly, you
could easily see those around you. His work space on the seventh floor was “more
remote” in terms of how he felt working there, and the partitions around his
workstation were his height when standing and were higher than those found on the
fourth floor.
[14] During the time period relevant to this proceeding, Mr. Aboutaeib’s hours of work were
from 7:45 a.m. to 3:45 p.m. There were no set break times and Mr. Aboutaeib took his
break at an appropriate time given his workload on a particular day. The same was
true for his lunch break. Mr. Aboutaeib indicated that he usually arrived for work
around 7 a.m. He came early to avoid the crowds and manage the public transit.
[15] Mr. Carletti commenced his employment with the government of Ontario in 1996 on a
short temporary contract with the Public Guardian. He then moved to the Family
Support Plan (“FSP”) office, which became FRO, and was there for most of his
thirteen years of employment. When he first became employed at the FSP office, he
worked in the call centre. He then became a Client Support Clerk and was eventually
employed in FRO as an Enforcement Services Officer. That was his position at the
time of his termination on June 24, 2009.
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[16] Mr. Carletti described the mandate of FRO as collecting child support. It was his job
to get the support to which a person was entitled through the use of a variety of
enforcement tools. He described things such as warning letters, phone calls and the
garnishment of the non-payer’s wages as passive enforcement. If those methods
were unsuccessful, then more aggressive measures were taken, such as the
suspension of the driver’s licence and passport of the person refusing to meet his
obligations. If that did not work, then the individual could be taken to court for a
default hearing, which could result in the issuance of a committal warrant.
[17] Mr. Carletti worked on the fourth floor at Downsview. He also worked occasionally on
the fifth and sixth floors, providing break and lunch relief to the people dealing with
walk-ins or individuals who came to the office to make a payment in person. He
worked from 9 a.m. to 5 p.m., Monday to Friday. As with Mr. Aboutaeib, his break and
lunch times were flexible. At the time of his discharge, Mr. Carletti was a union
steward for his area and had been for a number of years. His supervisor at the time
he was terminated was Mr. Osmand Bangura.
[18] Mr. Aboutaeib and Mr. Carletti indicated that they knew each other as they worked
together on the fourth floor for a period of time. They did not socialize with each other
outside work.
[19] On January 8, 2009, the IT forensics team that is part of the Corporate Security
Branch was requested by the Ministry of Community and Social Services to initiate an
investigation into a blog that had been created and was being used by the staff at
FRO in an exceedingly inappropriate manner. The address or website for the blog
was frontstaff.blogspot.com. Specifically, the IT team was asked to investigate the
use of IT resources by the employees of FRO to create, moderate and/or post
messages to the website.
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[20] David Langille, the IT forensic expert who led the investigation team and testified
before me, described a blog as a website that is set up by someone in order to pass
on information through posts to the blog. Posts can consist of text or pictures and
there is usually an opportunity to comment on posts. Therefore, there can be some
dialogue between the owner of the blog and the viewers. A common example of a
blog is a travel one that is used by someone to post pictures and comments about a
trip. Blogs can be moderated, which means that the owner of the blog wants to
control the materials posted, or unmoderated, which means that comments are just
posted on the blog as they are made. There is a setting on the blog that would allow
the owner of the blog to turn on or off the “moderator” setting so the owner could
choose to have this setting on or off at various times. Mr. Langille indicated that no
matter which type of blog it is, comments can always be deleted by the owner of the
blog. An email account is required to create a blog and is linked to the blog. If the
blog is one that is moderated, whenever a comment is posted on the blog, an email is
generated and sent to the email address linked to the blog. In the case before me, the
email account that was linked to the frontstaff.blogspot.com was
froblogger@yahoo.ca.
[21] It appears from a review of the excerpts of the blog that were provided to me that
there was more than one moderator. I will return to this point later in the specific
context of the involvement of Mr. Aboutaeib and Mr. Carletti with the blog.
[22] Mr. Aboutaeib's letter of termination reads as follows:
Delivered via in-person meeting on June 24, 2009
Dear Mr. Aboutaeib:
RE: Termination of Employment
As you are aware, the employer conducted an investigation into allegations against
you of misuse of government resources in contravention of the Workplace
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Discrimination and Harassment Prevention (WDHP) Policy and the Operating
Procedure on Usage of IT Resources (IT Usage Policy).
On June 17, 2009, you attended a predisciplinary meeting to discuss the
allegations that were set out to you in my letter of June 12, 2009. In attendance at
this meeting was Nancy Liston, Director, Client Services Branch; Robert Rotondo,
Manager, Enforcement Services; Heather Hanrahan, Human Resources Advisor;
and Brenda McCullagh, OPSEU representative. At this meeting you provided me
with a letter which stated you assisted in the design of a logo for 'Freedom
Mortgage and Finance Solutions', and you accessed froblogger@yahoo.ca, but
had no involvement or contribution to the frontstaff blog.
Based on the findings of the fact finding, the Ministry’s review of these findings and
the response that you set out above, the Ministry finds that the following
misconduct has been substantiated:
1. You accessed the email account froblogger@yahoo.ca which was used to
moderate frontstaff blog (frontstaff.blogspot.com) including reviewing and
publishing comments to the blog which contravened the Workplace Harassment
and Discrimination Prevention (WDHP) Policy.
Moreover, you accessed the email account frobIogger@yahoo.ca during work
hours using government resources. This is a violation of The Information &
Information Technology (I & IT) Operating Procedure for Use of I & IT Resources,
Section 4.3.
2. You used government I.T. resources for conducting non-government business
(‘Freedom Mortgage and Finance Solutions’) which is a violation of the Public
Service of Ontario Act (PSOA), Reg 381/07, Section 8 (1) (6), and The Information
& Information Technology (I & IT) Operating Procedure for Use of I & IT
Resources, Section 4.3.
I have concluded that your actions are just cause for dismissal. After considering
all the information at hand, including mitigating factors, by the authority delegated
to me under Section 44 of the Public Service of Ontario Act, I hereby dismiss you
for cause in accordance with Section 34 of the Act, effective immediately. You
have the right to grieve your dismissal.
Please identify and return any Ministry equipment in your possession to Robert
Rotondo by Friday, June 26, 2009.
Nancy Liston
Director, Client Services Branch
Family Responsibility Office
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[23] Therefore, Mr. Aboutaeib was terminated for his involvement in the blog and for
conducting non-government business on work time and using Ministry resources when
he was supposed to be working, contrary to the Public Service of Ontario Act. This
second ground was generally referred to by the parties as the “conflict of interest”
ground for Mr. Aboutaeib's dismissal.
Mr. Carletti's dismissal letter reads:
Delivered via in-person meeting on June 24, 2009
Dear Mr. Carletti:
RE: Termination of Employment
As you are aware, the employer conducted an investigation into allegations against
you of misuse of government IT resources in contravention of the Workplace
Discrimination and Harassment Prevention (WDHP) Policy and the Operating
Procedure on Usage of IT Resources (IT Usage Policy).
On June 17, 2009, you attended a predisciplinary meeting to discuss the
allegations that were set out to you in my letter of June 12, 2009. In attendance at
this meeting was Nancy Liston, Director, Client Services Branch; Suzi Ardito,
Manager, Enforcement Services; Heather Hanrahan, Human Resources Advisor;
and Brenda McCullagh, OPSEU representative. At this meeting you denied any
involvement in the frontstaff blog, and denied accessing the Ministry of
Transportation (MTO) database. You admitted to distributing inappropriate images
using your government computer and to storing documents related to your
personal business on your government computer.
Based on the findings of the fact finding exercise, the Ministry’s review of the
findings, and the response that you set out above, the Ministry finds that the
following misconduct has been substantiated:
1. You accessed the email account froblogger@yahoo.ca which was used to
moderate frontstaff blog (frontstaff.blogspot.com) including reviewing and
publishing comments to the blog which contravened the Workplace Harassment
and Discrimination Prevention (WDHP) Policy.
Moreover, you accessed the email accountfroblogger@yahoo.ca during work
hours using government resources. This is a violation of The lnformation &
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Information Technology (I & IT) Operating Procedure for Use of I & IT Resources,
Section 4.3.
2. You accessed the Ministry of Transportation (MTO) database for personal and
non-business purposes, which is a violation of the Requester Employee Security
Statement. You provided personal information from the MTO database to an
individual outside of the Family Responsibility Office (FRO) for non-business
purposes, which is a violation of the Oath of Office and Secrecy which you signed
on July 13, 1999.
3. You used government IT resources for conducting your own personal business
(‘Romano Business Enterprise’) which is a violation of the Public Service of Ontario
Act (PSOA), Reg 381/07, Section 8 (1) (6), and The Information and Information
Technology (I & IT) Operating Procedure for Use of I & IT Resources, Section 4.3.
4. You used government IT resources and government email to view and distribute
images of an inappropriate nature. The contents of these images ranged from
sexual content to images depicting violence, degradation, and dehumanization.
This is a violation of the Workplace Discrimination and Harassment Prevention
(WDHP) Policy, and a violation of The Information and Information Technology (I &
IT) Operating Procedure for Use of I & IT Resources, Section 4.3.
I have concluded that your actions are just cause for dismissal. After considering
all the information at hand, including mitigating factors, by the authority delegated
to me under Section 44 of the Public Service of Ontario Act , I hereby dismiss you
for cause in accordance with section 34 of the Act, effective immediately. You have
the right to grieve your dismissal.
Please identify and return any Ministry equipment in your possession to Suzi Ardito
by Friday, June 26, 2009.
Nancy Liston
Director, Client Services Branch
Family Responsibility Office
[24] Mr. Carletti’s termination was based on four grounds: his moderation of the blog; his
access and utilization of the MTO database for personal and non-business-related
purposes; his use of government resources to operate a personal business; and his
use of his government email address to receive, store and distribute pornographic
images depicting violence, degradation and the dehumanization of women contrary to
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WDHP policy.
[25] Both employees were terminated for their alleged involvement in the malicious,
unprofessional, hurtful blog I referred to above entitled frontstaff blog. It was (and
hopefully is no longer) located at frontstaff.blogspot.com.
The purpose of this blog was stated this way:
FROntline are the best
The intent of this blog is to provide a free and safe platform for all frontline staff at
the Family Responsibility Office (FRO), so they can share some of their stories,
and let the public know about their stress and frustration, and how they really care
about the people they serve.
With due respect to all agents, Frontline are the hardest working of all FRO staff,
yet they are the least appreciated, especially by the Office managers and
sometimes the public. The sad truth is neither managers nor the public really
understands what it means spending hours on the phone, listening to the most
miserable stories in the country, very often told by desperate, angry or sometimes
abusive clients.
The authors of this blog are current and ex Frontline agents who believe in a
different FRO that can make a difference.
So don’t be too shy. Share your thoughts with your colleagues and the public. Tell
everyone how you contribute to make many children smile everyday.
[26] Although I would like to think that initially this blog was intended as a positive thing, it
quickly degenerated into one of the most inappropriate, offensive, childish and simply
cruel communication vehicles I have ever seen in the workplace context. The
communications reflected on the blog consist mostly of contemptuous and
disrespectful attacks on management and fellow workers.
[27] The records before me indicate that the blog was up and running towards the end of
October, 2008. Set out below is a sampling of some of the comments that were
posted on the blog. I have deleted individual names and replaced them with initials.
Many of them pertain to allegations of preferential hiring practices and they get
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increasingly more vicious and personal as time goes on:
Alias: Anonymous
Date and Time: December 22, 2008 6:45 PM
Comment: “... Would you deny that K did not hire her brother, which resulted in a
grievance? Or that O never hired his friends. He even offered the post of OMB rep
to his long time friend right before he left and thank God he left. Would deny that J
did not hire her tenant and other friends? How about the pervert RR? Didn’t he hire
his current girl friend and her friends? They are even dating openly and he’s been
seen in the basement with female workers getting paid back ...”; “I know I didn't
have a job because I'm not attractive, I may not have the required boobs or legs,
and I don't spend time sweet talking in managers’ office under the pretext of
fundraising or other bullshit like those idiots on the 4th floor (who by the way got
the job!) but I do have a brain and the right experience to do a good job that will
benefit our clients. I decided to quit applying. I won’t give a chance to any pervert
to associate my resume with my body.”
Alias: Anonymous
Date and Time: January 3, 2009 3:43 PM
Comment: “ ... X on 4th,who is now on 6th ... It is obvious that you are a bit bitter
over not being attractive, popular, etc ... “; “It's a shame you have shown how
disgusted you are in your physical appearance in your Dec. 22 blog, perhaps take
a look at why you are such a failure? Don’t blame others for your stupidity, blame
YOURSELF.”
Alias: Anonymous
Date and Time: January 6, 2009 3:44 PM
Comment: “Just because you have NO interviewing skills you blame it on being
ugly or not sleeping with a manager?”
“...So before you start ripping this manager and that manager or saying that this
ESO or that one only got where they are because of who they know or are married
to PLEASE look in the mirror and put blame squarely where it belongs!”
Alias: Anonymous
Date and Time: January 8 2009 10:34 PM
Comment: “... “heavy feet” I assume means they’re fat. that should not be made an
issue, but when working in a professional office, it is rather inappropriate to be
seeing said “heavy footed” manager’s unshapely bottom and visible pantylines ....
(shudder)”
“... it is not that the girls who were hired, and are part of a “harem” are not doing
their jobs or are not capable. That’s not the the point ... is they got it over other
capable and senior E.S.R.’s due to connections and showing of skin, when it was
supposed to be a “fair” competition.”
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Alias: Anonymous
Date and Time: January 10 2009 9:20 PM
Comment: “Why are only men managers more understanding to their staff that
female managers? Easy. Male managers have more fun with female staff. Maybe
too much sex relaxes them. Female managers haven’t got that chance. Lack of
sex causes frustration and bitterness. This is scientifically proven.
I guess Male managers should donate some of their time to these frustrated
female managers.
TFT said...
You FRO managers should be prosecuted and thrown in jail for making FRO stinks
like a cesspool. Tell me what you’ve done to promote a professional working
environment. printing out agents’ stats? You can’t even call a client to resolve a
problem. Whenever you receive an escalated call, you become like dogs asking
case owners to call the clients back. Why should case owners call the client back
if the client wants to speak with you? Do you have a brain at all?
Get some work done and let us discuss our concerns in our blog. By the way I find
this blog the best thing that has ever happened to counter your ongoing shit.
January 24, 2009 8:53
On January 3 and 19, 2009, a blog moderator responded to some of the comments on
the blog as follows:
Comment: “We started this blog a few months ago when the situation at FRO
became unbearable for many, due to the unfairness and bullying attitude of some
management staff.”
“Furthermore, as some have suggested, and as long as the Government does
nothing about it, we will consider publishing details, including the name(s) of
whoever gets a position at FRO though special connections in any future
competition!”
Alias: FROntline Moderator
Date and Time: January 19, 2009 9:42 pm
Comment: “You may find this blog pathetic, but it is democratic and fair because
unlike FRO's “My way or the highway”, everyone here, including management staff
voices his/her opinion without censorship. The Moderators have decided to delete
a few comments, apparently from some angry managers (We still have copies and
may repost them) because they were extremely aggressive and call for hatred.
People don’t post their real names in any blog at all. That is not because they are
coward as you managers and management supporters call them. It is just not the
way it works. So when you call others “ ... cowards that hide behind the computer
screen” you must understand that the term applies to you as well because you do
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the same thing ... and would never have the courage to show their face and
discuss their concerns face to face in a civilized manner.”! Only a fool would
believe that there is management civility at FRO that accepts agents concerns and
address them. As mentioned before, those who have resorted to management to
solve their concerns ended up being the trouble makers, and you mangers are
good at making up stories to incriminate defenceless agents. Moreover, why
should one approach a manager to discuss a private or personal issue when we
know that the same issue will be discussed and laughed at between managers and
their girl friends within the same team? The truth behind FRO management anger
at this blog is that they can't do anything about it. Times are changing and
managers must get into this new reality. As to the Petition to demand a new
director, we are working on it and we are consulting with some experts. We will
advise of the proper way to initiate one without any risk of submitting names. This
blog was created to serve frontline agents. This blog will remain open.”
Alias: FROntline Moderator
Date and Time: February 2, 2009 9:23 pm
Comment: “FRO managers are among the worst beasts in the OPS and would not
hesitate, with little help from the good old N, to cause trouble to employees who
only seek a better working environment for the general interest of everyone.”
[28] The report prepared by the IT forensics team points out that an analysis of the
comments posted on the blog site concludes that approximately thirty-five comments
posted on the blog would be considered to be a violation of the WDHP policy and/or
personal harassment. In my view, the excerpts set out above accurately reflect just
how malicious the blog and the people who moderated it were.
[29] The Ministry and the union, both at the local level and corporately, unite in
condemning the blog and those who created it and moderated it. Counsel for the
union in final submissions stated that it is the position of the union that if it is proven
that either grievor was involved creating or moderating the blog, then the dismissal of
that person is warranted.
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A Few General Legal Considerations
[30] The parties agreed that for me to uphold the discharge of the grievors, the employer
must establish on the balance of probabilities, based upon clear, cogent and
convincing evidence, that the grievors engaged in the conduct for which they stand
accused. This is the standard that the employer needs to meet to establish that it had
just cause to discharge the grievors.
[31] In Re Canada Post Corporation (1983) 11 L.A.C. (3d) 368 (Arthurs) the following list of
factors to consider in assessing whether the disciplinary penalty imposed by the
employer should be upheld as appropriate in all of the circumstances or reduced was
provided. The considerations which follow if present may mitigate against the penalty,
in our case, discharge:
1. Bona fide confusion or mistake by the grievor as to whether he was entitled to
do the act complained of;
2. The grievor’s inability, due to drunkenness or emotional problems to appreciate
the wrongfulness of his acts;
3. The impulsive or non-premeditated nature of the acts;
4. The relative trivial nature of the harm done;
5. The frank acknowledgment of his misconduct by the grievor;
6. The existence of a sympathetic personal motive for dishonesty, such as family
need rather than hardened criminality;
7. The past record of the grievor;
8. The grievor’s future prospects for likely good behaviour, and
9. The economic impact of discharge in view of the grievor’s age, personal
circumstances, etc.
I would add to or elaborate on the list by including a few other grounds that are
typically considered such as: the employee’s length of service; the expression of
sincere remorse with a full apology; whether or not the actions of the employee
constituted a serious breach of trust such that the employment relationship was
irrevocably severed.
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[32] One of the central issues in this case is the assertion by the employer that neither of
the grievors has been honest either with their employer or in testifying before me. In
Workers’ Compensation Board of British Columbia v. Compensation Employees’
Union (2006) 84 C.L.A.S. 280 (McDonald), in dealing with the issue of the necessity
that a grievor be honest, the arbitrator referred to some of the relevant jurisprudence:
In Re Phillips Cables Ltd. and International Union of Electrical, Radio and Machine
Workers, Local 510 (1974) 6 L.A.C. (2d) 35 (Adams) at page 37:
“... honesty is a touchstone to viable employer-employee relationships. ...”
In Re Corporation of City of Calgary and Amalgamated Transit Union, Local 583
(1983) 35 L.A.C. (3d) 279 (Jones, Q.C. et al) at page 288:
The grievor lied about the incident when first confronted by Inspector
Guillemand, and continued denying its occurrence throughout the grievance
procedure. Although most of the cases relating to false testimony relate to
lying at the hearing, and not to false testimony to the employer prior to the
hearing, the rationale adopted by arbitrators for refusing to mitigate a
penalty where the grievor has not told the truth applies to the present case.
As stated in Re Great Atlantic & Pacific Co. of Canada and R.W.D.S.U.,
Loc. 414 (1978), 19 L.A.C. (2d) 189 (Burkett) at p. 145:
A grievor who has engaged in some misconduct and who then gives
false testimony in respect thereof is in effect telling the arbitrator that
he does not acknowledge his wrongdoing. An arbitrator must
conclude in these circumstances that the grievor may continue to
engage in the misconduct and consider this fact in conjunction with
whatever other facts are relevant to the exercise of his discretion.
(Emphasis Added.) Arbitrator Anderson made the same point in Canada
Safeway Ltd. and Alberta Food & Commercial Workers Union, Loc. 397,
December 6, 1988, unreported: “The grievor’s misconduct and then his
giving of false testimony in respect thereof is inconsistent with the
continuance of a proper employee-employer relationship.”
In Re Owens Corning (supra) at page 77:
The grievor also misled the Company during its investigation about sharing
his password. Again, he showed no apparent remorse or the least bit of
- 18 -
genuine contrition at the hearing for either sharing his password or for
misleading the Company during its investigation. Having regard to all the
relevant circumstances, the grievor has irreparably damaged the bond of
trust essential for a continuing employment relationship with the Company.
He alone bears responsibility for this.
In Re International Chemical Workers, Local 721, and Brockville Chemical
Industries Ltd. (1972) 23 L.A.C. 336 (Shime et. al) at page 342:
Further, while we might have considered acting within s. 37(8) of the Labour
Relations Act, R.S.O. 1970, c. 232 on the basis of the grievor’s lengthy
service in his position we do not feel it appropriate in this case because the
grievor engaged in a premeditated and deliberate act of lying to support Mr.
VanHiel. The utilization of this type of remedy requires that the grievor come
to the board with “clean hands”.
[33] Counsel for the employer stressed that the employment relationship is about trust.
The employer trusts that its employees will be honest and not act against the
employer’s interests. He suggested that in this case, the grievors have not been
honest and both have acted in a manner poisonous to the workplace either through
the moderation of the blog or, in the case of Mr Carletti, bringing pornography into the
workplace through his government email account. Both grievors are employed in a
position calling for a high degree of trust given that the work took place in a sensitive
environment involving the use of confidential information pertaining to vulnerable
clients.
[34] Credibility is also a central issue. In Re Ontario Liquor Boards Employees Union
(Massa) and The Crown in Right of Ontario (Liquor Control Board of Ontario) GSB #
2033/97, 384/98, 385/98 (Abramsky), Vice-chair Abramsky refers to the oft-quoted test
for credibility found in Faryna v. Chorney (1952) 2 DLR 344 (B.C.C.A.). The relevant
portion of the decision reads:
If a trial judge’s finding of credibility is to depend solely on which person he thinks
made the better appearance of sincerity in the witness box, we are left with a
purely arbitrary finding and justice would then depend upon the best actors in the
- 19 -
witness box. On reflection it becomes almost axiomatic that the appearance of
telling the truth is but one of the elements that enter into the credibility of the
evidence of a witness. Opportunities for knowledge, powers of observation,
judgment and memory, ability to describe clearly what he has seen and heard, as
well as other factors, combine to produce what is called credibility. ... A witness by
his manner may create a very unfavourable impression of his truthfulness upon the
trial Judge, and yet the surrounding circumstances in the case may point decisively
to the conclusion that is actually telling the truth. I am not referring to the
comparatively infrequent cases in which a witness is caught in a clumsy lie.
The credibility of interested witnesses, particularly in cases of conflict of evidence,
cannot be gauged solely by the test of whether the personal demeanor of the
particular witness carried conviction of the truth. The test must reasonably subject
his story to an examination of its consistency with the probabilities that surround
the currently existing conditions. In short, the real test of the truth of the story of a
witness in such a case must be its harmony with the preponderance of the
probabilities which a practical and informed person would readily recognize as
reasonable in that place and in those conditions.
[35] What follows is a summary of my findings for each of the two grievors broken down
based on the categories of alleged misconduct that led to each of their terminations.
In assessing the conduct and credibility of Mr. Aboutaeib and Mr. Carletti and the
appropriateness of the penalty of discharge, I will bear in mind and apply the legal
principles articulated above.
MR ABOUTAEIB
Mr. Aboutaeib and the blog
[36] The first step in the investigation done by the Corporate Security Branch was to ask
the Information Protection Centre for a list of the computers across the OPS that had
been accessing the blog. Each device accessing it has a unique address and from
this a number of individuals including Mr. Aboutaeib were identified as having
accessed the blog website. Individual email accounts were downloaded and copied
and the hard drives of the individuals being investigated were searched and copied.
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When conducting the IT investigation, Mr. Langille testified that he accessed the
Internet history for Mr. Aboutaeib and many others using software or tool called
Websense. The Websense report shows the Internet activity for a particular
workstation or computer. It is also possible to review the Internet history for a
particular computer from the hard drive. There is no material difference between the
Internet history from the Websense reports and the Internet history taken directly from
the hard drive on Mr. Aboutaeib’s computer.
[37] The Ministry provided me with copies of documents called webfilter logs, which, as I
understand it, are simply another name for the Websense reports, which were taken
from Mr. Aboutaeib’s workstation. These documents are extremely detailed and track
on a second-by-second basis the Internet access on Mr. Aboutaeib’s computer during
the relevant period. I was provided with the logs for the following thirteen days in
2008: October 30, 31; November 3-7 and November 10; and December 15-19. I was
also given the phone log in records for Mr. Aboutaeib’s telephone for the period
between October 2, 2008, until December 31, 2008. They show the exact time that
Mr. Aboutaeib logged unto his telephone to start the day. To log onto his telephone
he was required to utilize a password.
[38] The findings of the IT investigation referred to above pertaining to the involvement of
Mr. Aboutaeib in the blog were as follows:
1. Tuesday November 4th 2008 2:46 pm - Mr. Jalil Aboutaeib received an email
forward from Mr. Romano Carletti. This email was a forward of a message sent by
froblogger@yahoo.ca inviting users to visit the blog.
2. Friday November 7th 2008 3:14 pm - Mr. Jalil Aboutaeib forwarded the email
from Appendix B to MM (CSS) with the comment “FYI”
3. Monday November 10th 2008 7:04 am - 7:26 am - The Internet history acquired
from Mr. Jalil Aboutaeib’s government workstation shows activity demonstrating
administration of the blog on this date. Mr. Aboutaeib’s actions show him:
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. Reviewing and/or deleting comments on the blog
. Reviewing and/or setting permissions on the blog
. Reviewing and/or changing layout settings of the blog.
4. Monday November 10th 2008 3:23 pm - Two data files were found in Mr. Jalil
Aboutaeib’s temporary Internet files that show him logging into the
froblogger@yahoo.ca email account. These files could only be found on this
government workstation if he had logged in to the froblogger@yahoo.ca email
account. This is the account used to administer the blog and to send notifications
to employees.
. The first file (formpc[1]; dated November 10th, 2009 [sic] - 3:23 pm) contains an
email message with the following characteristics:
. From: romano.careletti@ontario.ca
. To: froblogger@yahoo.ca
. Sent: November 3rd 2008 at 10:07 am
. Subject: “RE: FROntline”
. Content: “Cheers!!” in reply to a prior message
. The second file (formpc[1].xml; dated November 10th 2009 [sic] - 3:23 pm) shows
the failure notices for two invitation emails returned to the froblogger@yahoo.ca
account due to incorrect email addresses.
. Subject: “FROntline”; dated: November 2nd 2008 6:36 pm
. Subject: “FROntline blog”; Dated: November 3rd 2008 7:47pm
5. Wednesday November 12th 2008 8:05 pm - A comment was made by
“FROntline moderator” to the “FROntline are the best” post: Unfortunately I had to
change the blog settings, so comments will be moderated first”. This may
correspond to the Internet history from Friday November 10th [sic] 2008 detailed
above.
6. Tuesday November 11th 2008 to Monday December 15th 2008 - The Internet
history acquired from Mr. Jalil Aboutaeib’s government workstation shows no
activity between these dates. This corresponds with vacation dates provided by
Human Resources: November 24th 2008 to December 15th 2008.
7. Tuesday December 16th 2008 7:10 am - 7:25 am - The Internet history acquired
from Mr. Jalil Aboutaeib’s government workstation shows activity demonstrating
administration of the blog on this date. Mr. Jalil Aboutaeib’s actions show him:
. Recovering his forgotten password for the blog
. Reviewing comments on the blog
. Reviewing and/or setting permissions of the blog
. Reviewing and/or changing layout settings of the blog
8. Tuesday January 13th 2009 9:51 am - Mr. Jalil Aboutaeib sent an email to ET
with an attached word document - psot.doc. The document contained the content
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of the post titled: “This post was suggested by: Y6"; dated Saturday, January 10,
2009
9. Wednesday February 4th 2009 9:43 am and 3:35 pm - The Internet history
acquired from Mr. Jalil Aboutaeib’s government workstation shows him accessing
the “Secretary of Cabinet’s Corner - Contact Shelly Jamieson” webpage at two
times during this day. This is the same day that an email was sent to Ms. Shelly
Jamieson from froblogger@yahoo.ca at 9:22 pm.
*numbers added at the hearing
The IT investigation concluded:
As per the initial request, a forensics investigation was completed on the access
and administration of the frontstaff.blogspot.com website using Government of
Ontario resources.
Mr. Jalil Aboutaeib
Our findings show that during work hours, Mr. Jalil Aboutaeib accessed the email
account (froblogger@yahoo.ca) used to administer the Frontstaff blog to review
comments posted to the blog. They also show that during work hours he accessed
the administrator section of the Frontstaff blog to review and/or delete comments,
recover his forgotten password, review and/or set permissions and review and/or
change layout settings.
Mr. Jalil Aboutaeib also used the Government of Ontario email system for
promotion of the blog to a co-worker.
[39] Additionally our findings show that Mr. Jalil Aboutaeib violated workplace
confidentiality and created a poisoned work environment by allowing comments to be
posted to the blog that contained inflammatory statements and confidential information
regarding fellow co-workers.
[40] There was no dispute between the parties that the workstation belonging to Mr.
Aboutaeib under his user name was utilized on at least two occasions, Monday
November 10, 2008, from 7:04 to 7:26 a.m., and Tuesday December 16, 2008, from
7:10 to 7:25 a.m., to access the email account used to administer the blog and to
moderate the blog. Mr. Langille testified that he found Internet history showing that
the froblogger@yahoo.ca email account had been logged into on Mr. Aboutaeib’s
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government computer and that the blog had then been logged into and administered.
[41] Mr. Aboutaeib testified that he first learned of the blog on November 4, 2008, when he
received the email from Mr. Carletti. At this time, the blog was big news in the office.
He indicated that everyone was excited and curious about it. In examination-in-chief,
he was asked about point number 4 in the findings set out above. It was put to him
“we heard that the computer record shows that the froblogger email account was
accessed from your computer. Do you recall doing it?” He responded, “Yes, I do
recall that it happened. I don't recall the specific date.” In cross-examination, he
agreed that the record indicated that he accessed the froblogger email account on
November 10, 2010, but he would not agree for certain that was the date he did so.
[42] By letter dated March 23, 2009, Mr. Aboutaeib was advised that the Ministry had
received information concerning allegations that he may have conducted himself
inappropriately as an employee of the Ministry and may have violated the WDHP and
IT policies. As an investigation was being conducted, he was required to attend a
fact-finding meeting with Ms. Donna Holmes, Director of Legal Services. The meeting
took place on March 30, 2009. Mr. Aboutaeib attended the meeting and answered the
questions put to him. A copy of the report of this meeting was provided to me and it
sets out the questions he was asked and the answers he gave. In the interview, Mr.
Aboutaeib indicated that although he had accessed the froblogger@yahoo.ca email
account, he never administered or moderated the blog as he only had access to the
blog to view it, not to do modifications.
[43] At the end of the interview, he was asked if he had anything to add and he gave the
following answer in part:
I received a letter in an FRO envelope in my box - July, August timeframe - saying
we have established a FRO magazine. I don’t have a copy of the letter. It said I
- 24 -
had been selected to join. It wasn’t indicated where the letter came from. It wasn’t
on FRO letterhead. I didn’t take it too seriously but searched Google and yahoo for
it. I shared the letter with Romano Carletti. He didn’t know what it was. I threw it
out. But then we received these emails about the blog at work a month later - email
and password. I accessed the email account to see, spoke with Romano, he had
no idea. When I received the mail it started to get serious but I didn’t do anything. I
accessed it another time when everyone was talking about it. I tried another time
but was denied. ...
Therefore, in March, 2009 Mr. Aboutaeib told management that in July/August, 2008,
he initially received a letter with information regarding a FRO magazine in it and that a
month or so later he received an email with the froblogger@yahoo.ca email account
and password to the account in it.
[44] Before me, Mr. Aboutaeib testified that he received two anonymous communications.
He said the second one was in November and the first one was a month or so earlier.
He testified that the first communication was a regular piece of paper in an office
envelope indicating that he was selected to join a FRO online magazine. He said he
went downstairs and discussed the note with Mr. Carletti. He said Mr. Carletti tried to
Google the information but got no hits so they threw the paper away in the shredder
bin located near Mr. Carletti’s desk. Mr. Aboutaeib testified that the first letter did not
have the froblogger@yahoo.ca email account on it. Mr. Aboutaeib indicated that the
second communication he received a month or so later was in the same format as the
first, that it was a second letter, just as anonymous as the first one, in the same
format, on regular photocopy paper in an office envelope. The letter directed him to
the froblogger@yahoo.ca email account and also contained the password to the
account on it. Mr. Aboutaeib testified that he used the information to access the
account on his workplace computer, but that he could not remember when he did it.
He denied ever sending any emails from the froblogger@yahoo.ca email account or
changing the settings or moderating the blog in any way. He indicated that he just
accessed it quickly, then put the note aside. He indicated that on November 12 he
- 25 -
took the letter downstairs to show Mr. Carletti. He said Mr. Carletti then accessed the
froblogger@yahoo.ca email account on his computer. Afterwards, Mr. Aboutaeib said,
he again threw the paper with the information on it into the shredder bin near Mr.
Carletti’s desk.
[45] I have concerns about Mr. Aboutaeib’s insistence that he was in no way involved with
the administration of the blog as it is not in dispute that administration or moderation of
the blog was done by someone on his computer on two occasions. While he admitted
that he accessed the froblogger email account and that it may have been on
November 10, 2008, he repeatedly denied that he had ever moderated or
administered the blog on that date. Yet on November 10th the blog was moderated by
someone on his workplace computer under his user name or log-in. His claim that he
was able to access the froblogger email account on or around November 10, 2008,
because he received the email address, froblogger@yahoo.ca, and the password for it
from some unknown person is, frankly, difficult to believe. I will come back to this
point later in this decision.
[46] There is no dispute that the workstation belonging to Mr. Aboutaeib was utilized on a
second occasion to administer or moderate the blog on December 16, 2008. Once
again, Mr. Aboutaeib claims that it was not he who did it.
[47] Mr. Aboutaeib testified regarding his usual morning routine. He indicated that he took
public transit to work and got off the bus at a stop on Wilson Avenue in front of the
Downsview location. From there, it would take him five to ten minutes to walk to his
cubicle. Once in his cubicle, he would log into his telephone as that tells the system
that he is in the office. He has his own password and he did not think he had ever
given it to anyone. He would next turn on his computer and log into it, once again
using his unique password, which he had not shared with anyone. Mr. Aboutaeib
testified that he would then leave his office and go put his lunch in the refrigerator.
- 26 -
Occasionally, he would go to the fourth floor to check to see if he had received any
faxes. As Mr. Aboutaeib used to work on the fourth floor, he would often spend a few
minutes chatting with former colleagues.
[48] On other occasions, after dropping off his lunch, Mr. Aboutaeib would go back outside
and get a coffee from a shop located at the corner of Keele and Wilson or go to the
Metro grocery store, which was also nearby and pick up a few groceries. As it was
approximately a ten-minute walk to the coffee shop, the round trip would take about
twenty to twenty five minutes (as presumably it took a few minutes to order and
receive his coffee). Mr. Aboutaeib went to this coffee shop as the one in the building
in which he worked was not yet serving coffee and because he “enjoyed going out as I
knew I would be stuck the rest of the day in my workstation.” He also indicated that
“usually when I get to the bus stop I am loaded down with my bag and stuff so to go to
the coffee shop and the Metro and get more stuff is not pleasant - to walk with more
stuff in your hands.”
[49] If it was slow during the day, Mr. Aboutaeib would often surf the Internet and use it for
non-work-related purposes. He visited news agencies and religious sites. He never
went to CNN or CBC, but he frequently went to a news website called
www.aljazeera.net or www.english.aljazeera.net. The first website is in Arabic and the
second is the English version. Mr. Aboutaeib is fluent in Arabic and can also read it. He
testified in chief that he would check his personal email account rarely and not every
day. Mr. Aboutaeib also visited the TD Bank website frequently and admitted that he
banked there.
[50] Mr. Aboutaeib took vacation from November 24, 2008, to December 15, 2008. During
this time, he went on the Hajj, which is an annual religious pilgrimage for Muslims that
takes place in the city of Mecca in Saudi Arabia. In the period immediately prior to his
vacation, Mr. Aboutaeib frequently visited travel sites or travel agencies pertaining to
- 27 -
the Hajj.
[51] Counsel for the Ministry cross-examined Mr. Aboutaeib for approximately six days.
Much of the cross-examination focused on his Internet usage. While testifying before
me about this Internet usage, Mr. Aboutaeib was evasive and non-responsive on
many occasions. In cross-examination, counsel for the Ministry would frequently refer
Mr. Aboutaeib to the webfilter logs that had been taken from his workstation and ask
about the Internet usage detailed there. As I noted before, these documents are
extremely detailed and track on a second-by-second basis the computer Internet
access on Mr. Aboutaeib’s computer during the relevant period. There was no dispute
that they were accurate.
[52] Mr. Aboutaeib was asked questions on several days during the cross-examination
about the news website called www.aljazeera.net. On one occasion, counsel asked
him, “Is there any reason to believe that anyone else was sitting at your desk at 7:48
a.m. surfing the al-Jazeera website?” He responded, “I don’t know.” Later, he was
asked, “So is it safe to say that you likely surfed al-Jazeera for four minutes, then
moved to the English version?” He answered, “It could be.” When asked if he exited
al-Jazeera and then went to check his email account, he stated, “It could be, but I
don’t know exactly what happened.” The records were clear that Mr. Aboutaeib did
exactly that, but he could not or would not simply admit it.
[53] As noted earlier, Mr. Aboutaeib went on the Hajj, which is an annual religious
pilgrimage for Muslims, while he was on vacation from November 24, 2008, to
December 15, 2008. Prior to going on vacation, he admitted that he surfed the Internet
looking at travel websites dealing with the Hajj and religious websites. After the cross-
examination set out above, Ministry counsel asked Mr. Aboutaeib about some of these
websites. He then asked if it was probably Mr. Aboutaeib surfing the Net at his
workstation at that time and Mr. Aboutaeib replied, “Probably.” He was then asked,
- 28 -
“What other explanation is there if it was not you?” His response was, “If the
technology is correct - someone else could have done it.” He was then asked if there
is anyone near his workstation who also reads Arabic and he said, “I’m not sure.” I find
it incredible that Mr. Aboutaeib would not know if someone working near him shares
his ability to speak and read Arabic.
[54] After a few more questions, counsel put to him, “I find it difficult to believe that this
Internet surfing on this day was done by anyone but you and if there are other
reasonable explanations for this date, I would like to hear what they are or if it was
you, I would like to hear that.” Mr. Aboutaeib answered, “If it was me - I did not deny it
was me and I did not confirm it was me. As these are websites I went to, it could have
been me, but I cannot confirm really that I did access them - probably me or probably
not - no logical explanation. If it is correct, it could be me or it could be somebody
else.” He was then asked, “Who do you think it probably was? You or somebody
else?” and he stated, “I don’t know.”
[55] Another example of Mr. Aboutaeib’s evasiveness or attempt to minimize his conduct
pertains to the frequency with which he accessed his personal email account while at
work. When he was first asked if he ever accessed it from his workstation, he
answered, “I think I did.” He was then asked if he accessed it daily, he replied, “Not
during most days, no.” And when next asked if it was rare for him to access it during
work, he agreed that he did so rarely.
[56] I have reviewed the records detailing Mr. Aboutaeib’s Internet usage for the thirteen-
day period provided to me by the Ministry. On twelve of the thirteen days, Mr.
Aboutaeib visited his email account at least once per day. If we extrapolate from that
ratio, it seems to me that it is not accurate for Mr. Aboutaeib to state that he “rarely”
accessed his email account while at work. Given the frequency, you would also think
that Mr. Aboutaeib would be able to indicate that he definitely accessed it most days at
- 29 -
least once and would have remembered with some certainty this pattern of behaviour.
[57] There is absolutely no doubt that the blog was moderated by someone using Mr.
Aboutaeib’s work computer. Mr. Aboutaeib denies that it was he who moderated the
blog and suggests that someone else used his computer after he logged onto it. He
suggests that while he was away from his computer, someone else used it to
moderate the blog. In support of this theory, I heard that he usually logs onto his
computer first thing in the morning and then often goes back outside to a coffee shop.
The bus stop was virtually beside the coffee shop. Yet he would come into the
building and then spend approximately twenty-five minutes going back out over the
same ground he had just covered to get a coffee? He said he didn’t want to add to the
“stuff” he was carrying by getting a coffee before he entered the building and that he
wanted to go out as he would be stuck inside for the rest of the day. This explanation
is completely unrealistic and unbelievable. I do not accept as truthful Mr. Aboutaeib’s
testimony on this point and do not find him to be credible. Mr. Aboutaeib also said in
support of his denial that he was a blog moderator that he would log onto his computer
in the morning and then go to the fourth floor to check his emails and talk to his former
teammates. He gave as an example of someone he spoke to an individual who I will
refer to as P.S. but this person was never called as a witness to corroborate this story.
No one was called to support his testimony on this point.
[58] If Mr. Aboutaeib fabricated the explanation about the coffee shop, I have no doubt that
he would not hesitate to make up the story about having received an anonymous letter
containing the address of the email account utilized to administer the blog and the
password for it. No reason as to why someone would send him this information was
ever provided.
[59] The fact that Mr. Aboutaeib never told anyone other than Mr. Carletti that he had in his
possession at one time this second letter with the password to the email address that
- 30 -
was being used to moderate the blog is also of concern to me. He described the blog
as “wicked” and Ms. Liston testified that the impact of the blog in the workplace was
devastating. If Mr. Aboutaeib felt so strongly about the inappropriateness of the blog,
why did he not tell management about the fact that he had once had in his possession
the password to the email account used to administer the blog and had accessed it on
his work computer? It is possible that this information could have been used to shut
down the blog. But he remained silent - until he was being investigated as a possible
administrator or moderator of the blog. In addition, it is very convenient that Mr.
Aboutaeib could not produce the note containing the address of the email account
utilized to administer the blog and the password for it as he said he did not keep it but
shredded it.
[60] Mr. Carletti was called to corroborate this testimony with regard to the anonymous
letter. Given the fact that he also stands accused of having moderated the blog, I find
this evidence to be self-serving. In addition, for reasons I will detail later, I do not find
Mr. Carletti to be a credible witness either.
[61] I have carefully reviewed my notes of the evidence given by Mr. Aboutaeib with regard
to his Internet usage. I conclude that the Internet activity on his workstation that
surrounds the time during which the moderation of the blog took place is completely
consistent with the type of Internet activity or usage regularly engaged in by Mr.
Aboutaeib and with his telephone log-in. As I noted earlier, included in this Internet
usage are visits to a news website called www.aljazeera.net, which is in Arabic. No
evidence was called to indicate that there were any employees in the office who read
Arabic other than Mr. Aboutaeib.
[62] The evidence before me is undisputed that on November 10 and December 16, 2008,
the blog was administered or moderated by someone at Mr. Aboutaeib’s workstation.
The specific records for those dates show the blog moderation that took place at Mr.
- 31 -
Aboutaeib’s workstation. On November 10, the Internet history acquired from Mr.
Aboutaeib’s government workstation shows that from 7:04 a.m. to 7:26 a.m. the blog
was being administered or moderated - for example, comments were deleted from the
blog. The webfilter logs also confirm this. At 7:10 a.m., Mr. Aboutaeib’s telephone was
logged into. At 7:26:12, the moderator logged out of the blog. At 7:26:40, the
www.aljazeera.net was accessed. Given that as far as we know only Mr. Aboutaeib
knew his telephone password, that puts him at his workstation during the period in
which blog moderation was occurring. Also, www.aljazeera.net, an Arabic website that
Mr. Aboutaeib frequented, was accessed 28 seconds after the blog was logged out of.
[63] On December 16, the records show that Mr. Aboutaeib was checking his email account
until 7:09 a.m. and that someone went to a website used to moderate the blog at 7:10
a.m. Then moderation of the blog took place until 7:25:49. At 7:28, after a brief
Google search, the website www.darelsalem.ca, a religious website that Mr. Aboutaeib
accessed frequently, was visited.
[64] I do not find Mr. Aboutaeib to be a credible witness. Applying the test set out in the
Faryna decision, “the real test of the truth of the story of a witness in such a case must
be its harmony with the preponderance of the probabilities which a practical and
informed person would readily recognize as reasonable in that place and in those
conditions,” I conclude that his denial that he ever administered or moderated the blog
is not reasonable in the circumstances. Computer records do not lie. The records
obtained from Mr. Aboutaeib’s workstation are very clear and I am not satisfied with the
vague, evasive and untruthful explanations or excuses proffered by Mr. Aboutaeib to
allegedly explain the records.
[65] I do not accept Mr. Aboutaeib’s explanations as to how the blog came to be
administered and moderated from his office computer. Based on the preponderance of
probabilities, I conclude that when the blog was moderated from Mr. Aboutaeib’s
- 32 -
workstation, it was in fact him doing so. Mr. Aboutaeib was evasive, non-responsive
and, frankly, dishonest while testifying before me. The employer has established on
the balance of probabilities based on clear, cogent and convincing evidence that Mr.
Aboutaeib was one of the moderators of the blog found at frontstaff.blogspot.com.
[66] As I noted at the outset, the union, both at the local level and corporately, condemned
the blog and those who created and moderated it. It was the position of the union that
if it is proven that Mr Aboutaeib was involved in creating or moderating the blog, then
dismissal was warranted. As I have concluded that Mr. Aboutaeib was moderating the
blog, that finding is sufficient to uphold his discharge.
Mr. Aboutaeib’s involvement in Freedom Mortgage and Finance Solutions
[67] Mr. Aboutaeib’s discharge was also based on the allegation that he used government
IT resources for conducting non-government business pertaining to a company called
Freedom Mortgage and Finance Solutions (“FMFS”), which was a violation of the
Public Service of Ontario Act (PSOA), Reg 381/07, Section 8 (1) (6), and The
Information & Information Technology (I & IT) Operating Procedure for Use of I & IT
Resources, Section 4.3. I would like to briefly address this second ground for
discharge.
[68] Mr. Aboutaeib was terminated for conducting non-government business on work time
and using Ministry resources when he was supposed to be working, contrary to the
Public Service of Ontario Act. These actions were generally referred to by the parties
as the “conflict of interest” ground for Mr. Aboutaeib’s dismissal and they referred to his
involvement in FMFS, a mortgage brokerage company apparently owned by a former
FRO manager, Mr. Osmand Bangura.
[69] As was his pattern when testifying about his involvement (or lack of) in the blog, Mr.
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Aboutaeib flatly denied any involvement in FMFS and then, as the records were put to
him, his evidence changed and he invented elaborate and unbelievable explanations
for his obvious involvement.
The IT investigation into Mr. Aboutaeib’s involvement in FMFS concluded:
Personal Business
76 emails were sent and received between April 5th 2007 and August 21st 2008,
related to Mr. Osmand BANGURA’s mortgage brokerage company. Mr. Jalil
ABOUTAEIB assisted with the design and development of a website, logos and
flyers.
4 link files were found on Mr. Jalil ABOUTAEIB’s workstation in the “Recent” folder
demonstrating that in June 2008, he accessed files on a removable drive, with
filenames suggestive of Mr. Osmand BANGURA’s website.
[70] Ms. Donna Holmes, Director of Legal Services, continued her investigation into
allegations raised against Mr. Aboutaeib. An additional fact-finding meeting was held
on June 8, 2009, that Mr. Aboutaeib was required to attend. Mr. Aboutaeib attended
the meeting and again answered the questions put to him. A copy of the report of this
meeting was provided to me and it sets out the questions Mr. Aboutaeib was asked
and the answers he gave. At this meeting he was asked about his involvement in
FMFS.
Q. Do you own or are you otherwise associated with a business called “Freedom
Mortgage and Finance Solutions”? If so, is it a registered business? What is the
nature of your association if not an owner?
A. No. I don’t know if it’s registered. I was told it would be but don’t know whether or
not it was. No association at all, no affiliation or share or stakes. Never worked for
any transactions or helped in any shape or form.
[71] Therefore, Mr. Aboutaeib’s response on June 8, 2009, was that he never worked on
any transactions or helped in any shape or form. The records from Mr. Aboutaeib’s
computer and the conclusions reached in the IT investigation prove otherwise. On
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June 16, 2009, Mr. Aboutaeib wrote a letter that he gave to Ms. Nancy Liston at a pre-
disciplinary meeting held on June 17, 2008. That letter contained the following
description of his involvement in FMFS. It reads in part:
Mr. Osmand Bangura shared with me information about his intended business and
asked me to assist him in reviewing the logo and some content of his website. He
did not consult me as a business partner, nor as a design or mortgage expert
because I am none of these. I understood that his intent was to get some friendly
assistance only.
My only involvement as friendly assistance was to address the logo, together with
Mr. Osmand Bangura, who suggested the colors, a friend from outside who copied
it in different formats, and a designer at the printing shop who decided the size and
other features. I also helped in proofreading some of the content of his website.
None of this work was done using the government equipment or premises. Mr.
Osmand Bangura used his own laptop.
[72] So after having had an opportunity to consider the computer records documenting his
involvement, Mr. Aboutaeib’s story changes from no involvement in any shape or
form to admitting some involvement but minimizing it. He also states that none of the
work was done using government equipment or on the premises. This is simply untrue
as multiple emails were found on Mr. Aboutaeib’s workstation related to Mr. Osmand
Bangura’s mortgage brokerage company FMFS.
[73] In cross-examination, Mr. Aboutaeib reluctantly and begrudgingly admitted providing
further assistance to Mr. Bangura. I have carefully reviewed all of the emails taken
from Mr. Aboutaeib’s workstation and there are examples that establish that Mr.
Aboutaeib was involved in the design and set-up of the FMFS company and that he
used his workplace computer during normal work hours in this regard. I am not going
to set out these computer records. They demonstrate that using his work email, which
identifies him as a government employee, he sent and received emails to and from
people he was dealing with; that he used his government computer to review the new
business’s website and to set up an email address under Mr. Bangura’s web account
for Mr. Bangura and for two other individuals, DA and IL. He was not frank or
- 35 -
forthcoming about this; it had to be dragged out of him.
[74] At one point in the cross-examination of Mr. Aboutaeib on this issue, counsel for the
Ministry asked, “You understand that this is a big issue for the employer?” Mr.
Aboutaeib’s response was quite instructive. He launched into a lengthy answer during
which he said things such as:
“I believe the employer is associating me with an individual who is the
owner/manager responsible for the business - incriminating me by association is
unacceptable.”
“So if this is the issue - conducting a business - we know that means involving
parties and deals - buying and selling - then show me one instance where this
explanation or description of a business occurred.”
“So I was a scapegoat ... this whole issue - this fantasy business was just an add-
on so the employer could reinforce their case and fire me.”
“I hope this is the time for the employer to face this huge error and injustice that
was inflicted on me and remediate them.”
[75] In giving this evidence, Mr. Aboutaeib was arrogant and somewhat aggressive. This
attitude is indicative of the fact that he does not see anything wrong in his conduct. He
clearly used government resources and worked on government time to assist another
employee in setting up a business. Whether or not at the time he did so the company
was still in its infancy and was not active is irrelevant. Whether or not there were
customers and business transactions occurring is also irrelevant. It is the use of his
employer’s resources and use of time for which he was receiving wages to perform
work not related to his job at FRO, which is wrong. But he simply does not see that.
He claims to never have been paid for all of his assistance but that once again is not
the point. Whether he was or was not paid for the work he did for Mr. Bangura, in the
context of this case, does not matter.
[76] Based on the documents and the evidence before me, I conclude that Mr. Aboutaeib
- 36 -
was actively involved in assisting Mr. Bangura in setting up the business FMFS and
that he spent time during which he was receiving payment from FRO in doing so. Just
as with the blog, instead of just admitting his involvement in FMFS, he once again tried
to minimize or deny everything. Again, he concocted excuses to explain black and
white computer records.
[77] In giving his evidence, Mr. Aboutaeib showed no remorse for his actions and did not
appear to believe he had done anything wrong. If this is the case, then it is highly likely
that he might do something like this again. This raises the issue of trust as the
employer cannot be certain that he will not repeat this misconduct.
MR. CARLETTI
[78] I would now like to deal with the grievance pertaining to Mr. Carletti. As noted earlier in
this decision, Mr. Carletti’s termination was based on: his moderation of the blog; his
access and utilization of the MTO database for personal and non-business-related
purposes; his use of government resources to operate a personal business; and his
use of his government email address to receive, store and distribute pornographic
images depicting violence, degradation and the dehumanization of women contrary to
WDHP policy.
Mr. Carletti’s Use of the Ministry of Transportation (“MTO”) Database
[79] There is no dispute at this point that on March 9, 2009, Mr. Carletti accessed the MTO
database at the request of a former colleague and friend, Ms. M. At that time, Ms. M
was not employed at FRO but working in another area of the provincial government.
The email records from Mr. Carletti’s workplace computer clearly show that Ms. M
contacted Mr. Carletti and asked him to confirm an address for her. Mr. Carletti then
went to the MTO database, looked up the name given him by Ms. M and sent her the
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address.
[80] While Mr. Carletti eventually admitted to the fact that, at the request of a former
colleague and friend, he went to the MTO database, looked up the name given him by
this person and then sent her the address, what is much more important in my view is
the history leading up to this admission.
[81] On May 6, 2009, Mr. Carletti was interviewed by Ms. Donna Holmes as part of a fact-
finding process with regard to his alleged misuse of government resources. He was
asked in this meeting a series of questions about this incident involving the use of the
MTO database:
Q. Did you use the MTO database to access personal information for MM?
A. I remember these requests. I don’t remember using the MTO database. I didn’t
access MTO for this purpose. I might have used other means than the MTO. I
remember her request. But that is the reason ... I didn’t use MTO database. I used
other means. There are many ways to find this out. I use the simplest way to find
this inform’n.
Q. Why did you provide this information to AM from MGS?
A. I thought she needed help ... with her support. I know she mentioned MTO. I did
not use MTO database.
Q. Were you authorized by management to access the MTO database to search for
personal information on MM?
A. No. I was not. We don’t require mgt approval to trace.
Q. Have you ever searched the MTO database for personal information for
individuals for non-work related purposes? If so, when and who, and for what
purpose?
A. No.
[82] In these answers, Mr. Carletti said categorically, “I didn’t access MTO database for
- 38 -
this purpose” and “I did not use the MTO database.” He explicitly denied it. He also
clearly indicated that he was not authorized by management to access the MTO
database to search for personal information on MM, as management approval was not
required. He was asked if he had ever searched the MTO database for personal
information for individuals for non-work-related purposes, and he answered flatly “no.” I
would note that this meeting took place approximately two months after the alleged
inappropriate access took place. At the time of this meeting, Ms. Holmes had the email
records of the conversation between Ms. M and Mr. Carletti and these were shown to
him. She did not have documented proof of the fact that Mr. Carletti had accessed the
MTO database at that meeting.
[83] On June 17, 2009, approximately three months after the incident with regard to Mr.
Carletti’s use of the MTO database was alleged to have occurred, a pre-disciplinary
meeting was held. Ms. Liston was present at this meeting. At the meeting, Mr. Carletti
again categorically denied accessing the MTO database for non-business purposes.
Ms. Liston testified that “he denied it and indicated he would never do that.” When
asked if he accessed the MTO database on the occasion alleged, he stated that he did
not.
[84] The hearing before me commenced on September 12, 2010. In her opening
statement, counsel for the union indicated that Mr. Carletti accessed the MTO
database on one single occasion and that he had spoken to his manager and had
received authorization to do so. Naturally this change in position came as a bit of a
surprise to the employer. Ms. Liston testified that this was the first she had heard of
this information and this position. She stated in her testimony, “This information and
this position is completely contradictory to Mr. Carletti’s earlier position when he was
directly asked. He stated with full conviction that he had not gone to the MTO
database and that he would never do that. As I understand it, his position now is that
he did do it and had the permission of his manager to do so.”
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[85] Mr. Carletti’s manager at the time was Mr. Osmand Bangura. At the time of the
hearing, his employment had been terminated. After Mr. Carletti was discharged, he
got in touch with Mr. Bangura to obtain a letter of reference. Although Mr. Carletti had
been in touch with him, Mr. Bangura was not called to testify before me.
[86] In his evidence before me in chief, Mr. Carletti admitted that he had used the MTO
database to look up information for Ms. M. He indicated that he didn’t remember at the
time he was asked about it at both the May fact-finding meeting and the June pre-
disciplinary meeting. When he was asked if when he met with Ms. Liston he denied
using the database, he stated that it happened a long time ago and if he did access the
database, then it was something he was accountable for. He went on to add that
although in a normal work situation he did not need his supervisor’s permission to
access the database, in the situation regarding Ms. M, he “brought it to his
[supervisor’s] attention and we talked about it, we figured she needed help and we
didn’t find anything wrong in providing that information.”
[87] In cross-examination, he elaborated on his story and testified that before Ms. M left the
FRO unit to go on an acting assignment, she told him about her personal problems,
which included the fact that she had two kids, was having trouble finding her ex-
husband and was having financial problems. Within what he thought was about a
month, he received the email from her asking for his assistance in locating her ex-
husband. In cross-examination, Mr. Carletti clearly admitted accessing the MTO
database to obtain information for a colleague and finally admitted that in doing so “the
parameters for accessing the database were stretched and I apologize.” He said,
“When the evidence was presented to me, it became clear to me that I had accessed
the data - it confirmed that I had accessed the database.” So in the face of irrefutable
evidence, Mr. Carletti finally admitted “stretching” the parameters for accessing the
MTO database.
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[88] When he was asked by counsel for the employer when he remembered that he had
spoken to his supervisor about the situation, he answered, “I remembered that I spoke
to him, but it was not disclosed when questions were being asked - when I was being
interviewed.” Counsel then asked him about the answers set out above that he gave to
the questions asked in the fact-finding meeting. Mr. Carletti stated that when he was
asked, “Were you authorized by management to access the MTO database to search
for personal information on Mr. M,” his answer, “No I was not. We don’t require mgt
approval to trace,” was directed to whether he needed approval to use the database,
not whether he had discussed it with his supervisor. He went on to say “they should
have asked me for more clarification. I didn’t know that they were asking me to
disclose my conversation with my manager - I would have answered differently” and
“maybe I misunderstood the question.”
[89] Let us walk through the sequence of Mr. Carletti’s shifting version of what took place.
Mr. Carletti is interviewed on May 6 and June 17, 2009, a few months after the
inappropriate access to the MTO database took place. He flatly denies accessing the
database and states that he was not authorized by management to do so. At the time
of the hearing, he suddenly remembers that maybe he did access the database.
Eventually he admits that he did do it and that in doing so he was “stretching” the
parameters for accessing the MTO database. Then we hear him recount the alleged
conversation with his manager for the first time more than a year and a half after the
conversation supposedly happened. He testified that he discussed accessing the
database in the circumstances with his supervisor and they “didn’t find anything wrong
in providing that information.”
[90] Ms. Liston was the decision-maker for the termination of both Mr. Carletti and Mr.
Aboutaeib. In reaching the decision to discharge Mr. Carletti, she indicated that his
lack of truthfulness and his unwillingness to take ownership and be accountable for his
inappropriate use of the MTO database was certainly one factor she considered.
- 41 -
[91] The Ministry of Community and Social Services has a formal contract with the Ministry
of Transportation. Ms. Liston indicated that her organization works very hard to gain
access to tools from other Ministries and that the protection of the information her staff
have access to is paramount in continuing to maintain this status. Breaches such as
Mr. Carletti’s inappropriate use of this particular database was especially serious in her
view as the ability to access this database is a critical enforcement tool that could be
lost. There are clear guidelines in place for the appropriate use of this tool.
[92] There are two primary reasons why an ESO might use the MTO database. It might be
used to locate an individual so that enforcement steps can take place. The ability to
access the database also gives ESOs the ability to access an individuals driver’s
licence and driving record and to potentially suspend the non-payer’s driver’s licence if
that individual continues to refuse to pay. Based on staff feedback, it is the most
effective tool ESO staff possess.
[93] In allowing access to this type of database as well as others containing private and
personal information pertaining to the people they served, Ms. Liston stressed, it was
crucial that the ESOs could be trusted to utilize it appropriately. In her view, there is no
position of greater trust as the employer and the government expect the ESOs to
ensure that the privacy of their clients is maintained and that the information provided
will be kept secure. The ease with which Mr. Carletti used this tool inappropriately was
very troubling to Ms. Liston. Staff at FRO are given access to a great deal of
confidential and private information and they are trusted to be cautious, respectful,
truthful and honest with regard to the use of this sensitive information. Mr. Carletti
violated this trust.
[94] In utilizing the MTO database in the manner that he did, Mr. Carletti did more than just
“stretch” the parameters, he broke them. Although he maintained that he did not think
that he had done “anything wrong in providing that information,” clearly he did
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something very seriously wrong. I find his evidence about having had a conversation
with his supervisor about it and the reasons why he never mentioned this supposed
conversation at the time he was interviewed on two separate occasions to be
completely unbelievable.
[95] It is not that Mr. Carletti inappropriately used the database that is of paramount
concern to me. It is that he was dishonest about it until faced with irrefutable evidence
that he did in fact do it. Before me, he initially said that maybe he did it and then
ultimately begrudgingly admitted having done so. Then, instead of simply admitting it
was wrong, he went on to weave this incredibly tangled web of lies about a
conversation with his supervisor and excuses as to why he answered the interview
questions the way he did. By the end of his testimony, the fact that he didn’t bring up
this conversation with his manager initially was because he was not asked the right
questions!
[96] As was noted in the Faryna decision, “the real test of the truth of the story of a witness
in such a case must be its harmony with the preponderance of the probabilities which a
practical and informed person would readily recognize as reasonable in that place and
in those conditions.” Applying this test to the facts before me, it is readily apparent that
Mr. Carletti attempted to justify his inappropriate actions by creating an implausible
story about having spoken to his supervisor, Mr. Bangura. If that conversation had
taken place and was true, why did he not admit the personal use of the MTO database
and right from the beginning rely on that excuse? If he had spoken to Mr. Bangura, it
would have been much more logical and consistent with normal behaviour for Mr.
Carletti to have disclosed that from the beginning, as that puts the blame elsewhere.
This explanation for his conduct was not raised at the interviews on May 6 and June
17, 2009, as one would have reasonably expected, if in fact it was true. After his
termination, Mr. Carletti contacted Mr. Bangura to obtain a letter of reference and was
given one. Yet Mr. Bangura was not called to corroborate this testimony about a
- 43 -
conversation. I do not believe that there was a conversation with Mr. Bangura as
described by Mr. Carletti.
[97] When considering whether it is appropriate to reinstate Mr. Carletti, his lack of
honesty is a crucial consideration. If Mr. Carletti cannot be trusted to tell the truth
before me, how can his employer trust him? As noted earlier, a grievor who has
engaged in some misconduct and then gives false testimony about the incident is in
effect telling the arbitrator that he does not acknowledge the wrongdoing. It is
appropriate to conclude in these circumstances that the grievor may continue to
engage in the misconduct (see in this regard Re Great Atlantic & Pacific Co. of
Canada and R.W.D.S.U., Loc. 414, supra).
[98] If I were to contemplate reinstating Mr. Carletti, I need to be confident that he has
admitted that what he did was wrong, has learned his lesson and would not repeat
this inappropriate behaviour. But that is not the case. Based on his final version of
the events, he discussed the matter with Mr. Bangura and they did not find anything
wrong in providing the information. Although he admitted that his acts “stretched”
the parameters, Mr. Carletti never came clean and candidly admitted what he did
was absolutely and without qualification wrong. He was unwilling to take ownership
and be accountable for his inappropriate actions. It was a breach of the Oath of
Office and Secrecy that he had sworn and it was a serious breach of the trust placed
in him by his employer. Because of his lack of honesty and candour in admitting his
wrongdoing, I am not confident that he would not do it again.
Mr. Carletti’s violation of the WDHP policy
[99] It was not disputed that Mr. Carletti had received, stored and forwarded
inappropriate pornographic emails on his workplace computer between March, 2007,
and December, 2008. It was also not disputed that Mr. Carletti, in engaging in this
conduct, violated the employer’s Workplace Discrimination and Harassment
Prevention (WDHP) policy. I heard extensive evidence from Mr. Langille, the IT
forensic expert who led the investigation team with regard to the emails and images
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they contained that were taken from Mr. Carletti’s workplace computer. Mr. Carletti’s
workplace email account was romano.carletti@ontario.ca and he was identified as
Romano (CSS) Carletti. As such, his work email makes it clear that he is a
government of Ontario employee. The report prepared by the forensic team
concluded as follows:
WDHP
Mr. Romano CARLETTI sent 45 inappropriate emails to internal and external
addresses with content ranging from “sexual content” to “violence, degradation
and dehumanization”.
Mr. Romano CARLETTI received 29 inappropriate emails from internal and
external addresses with content ranging from “sexual content” to “violence,
degradation and dehumanization”.
The inappropriate material found in Mr. Romano CARLETTI’s email was
reviewed and organized in the following categories.
Images
Category Received
and deleted
Received
and saved
Received and
distributed
Distribute
d
Distributed
W/comments Total
Sexual Content 14 23 37
Nudity 5 5 5 15
Exposed genitalia 0
Sexually graphic 0
Violence, degradation
dehumanization 0
Other/racial ethnic,
place of origin, sexual
orientation, etc.
0
Total
5 19 28 0 0 52
Powerpoint Images
Category Received
and deleted
Received
and saved
Received and
distributed
Distribute
d
Distributed
W/comments
Total
Sexual Content 35 6 25 66
Nudity 66 105 171
Exposed genitalia 45 121 166
Sexually graphic 15 8 23
Violence, degradation
dehumanization 51 24 75
Other/racial ethnic,
place of origin, sexual
orientation, etc.
0
Total 0 212 264 0 25 501
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Videos
Category Received
and deleted
Received
and saved
Received and
distributed
Distribute
d
Distributed
W/comments
Total
Sexual Content 2 2
Nudity 0
Exposed genitalia 0
Sexually graphic 0
Violence, degradation
dehumanization 8 8
Other/racial ethnic,
place of origin, sexual
orientation, etc.
0
Total 0 2 8 0 0 10
[100] Mr. Langille explained how the IT forensics team works in conjunction with the group
of employees who make up the team responsible for WDHP investigations in a
situation such as the one we are dealing with. The IT forensics team does a lot of
investigations concerning WDHP material and frequently works closely with the
WDHP team. The WDHP team is responsible for categorizing the images, videos
and other type of material provided to them by the forensics team. In the case before
me, based on the definitions provided to them by the WDHP team, the IT forensics
team went through all of the emails, images, PowerPoint images and videos found
on Mr. Carletti’s workplace computer and did an initial sort of the content. This initial
report and data was then given to the WDHP group and they are responsible for
reviewing it and making the final decision.
[101] Mr. Langille explained and defined the various categories set out above. “Sexual
content” is the mildest form of content and “violence, degradation and
dehumanization” is the severest. Sexual content is sexually suggestive and is not
appropriate in the workplace. Nudity is primarily topless images since if genitals
were exposed, it would fall into the next category. Exposed genitalia are images in
which the genitalia are focussed on and you can see them easily. Sexually graphic
refers to images containing sexual intercourse, interaction with genitals, fellatio or
other type of sexual activity. Violence, degradation and dehumanization show
people being hurt or killed, sexual interaction with animals or other assaults that are
- 46 -
more than just a sexual image. Other contains jokes or cartoon pictures and text
having to do with general WDHP issues.
[102] The workplace computer belonging to Mr. Carletti contained emails from each of the
categories set out above. It ranged from shots of topless women on public beaches
to extremely offensive images. Some of the more extreme images were shocking.
There were images of what appeared to be the bondage of naked or nearly naked
women in incredibly painful positions. There were pictures and video in which
women were being humiliated and degraded. There was a video in which a man
attacks women ripping off their clothes while it is videoed by another person. There
were dehumanizing, nauseating and horrific images of bloody accident carnage
involving shots of naked people and dismembered body parts.
[103] The evidence before me is clear that Mr. Carletti received these inappropriate emails
and then, throughout the day, controlled, manipulated, kept, revisited and forwarded
them to government colleagues and to individuals employed elsewhere. His editorial
comments on the emails he forwarded included warnings such as “careful” or “for
your eyes only”. It is important to note that once Mr. Carletti sent an email to one of
his associates, he has no control over what that individual will do with it. The fact
that it was sent from a government email is obvious as Mr. Carletti’s government
email was romano.carletti@ontario.ca.
[104] In the fact-finding interview, Ms. Holmes asked Mr. Carletti if he was aware of the
WDHP policy and he said yes and agreed that he had received training on it. She
then showed Mr. Carletti a number of the images that had been found on his
computer and asked him questions about them. Mr. Carletti indicated that he
remembered seeing some of it, was not aware of the content of the emails, was not
aware in 2007 of the implications of receiving these sorts of emails, did not recall
sending them to others and at the time did not realize how it would reflect on his
image. After indicating that a couple of the images he had been shown disturbed
him, he said, “I have to take it as a learning about the proper use of resources. I
would gladly take training on the proper use of resources. I’m not here to damage
- 47 -
anyone. I’m proud of what I do and don’t want to see that affected.”
[105] In the pre-disciplinary meeting on June 17, 2009, the notes of Mr. Carletti’s
responses indicate the following: “regrets the images, very inappropriate. If he was
doing it he has stopped. Sent to personal email, doesn’t approve of images, send
him on training, doesn’t want to be punished for training issue.”
[106] When Mr. Carletti was asked by his counsel about the images, he agreed that it was
inappropriate to have had them in his work email account. He stated that he hadn’t
thought about how it would damage his credibility and all his hard work. When
asked if he would handle the email differently now, he said that it would never
happen again and that it was a lesson to be learned. He went on to say, “Just think
about all the work I did - those images ruined all my work and I was a fool for not
stopping them right away.” Mr. Carletti then went on to testify that he wanted his job
back, would be a trustworthy employee and could work with the people who had
been involved in his discharge in a professional manner. He testified that he had a
passion for his work, was good at it and enjoyed helping families get the support
they are entitled to.
[107] In cross-examination, Mr. Carletti admitted that he had not been truthful in his
interview with Ms. Liston when he indicated that he did not remember sending the
images via email to others. He indicated that he did remember sending some of
them. He also stated, “I regret those images - although I had no control over the
content - they should have been stopped more promptly than I did.”
[108] At one point during the cross-examination, employer counsel was questioning Mr.
Carletti regarding comments he put on some of the emails before he forwarded
them. When Mr. Carletti was being asked about an email he received from another
government employee, he responded by asking where that other employee was now
and why that individual was not facing the consequences he was. He then asked, in
an aggressive manner, what happened to the people he received emails from.
When counsel responded by asking him if he didn’t think he should have been
- 48 -
disciplined, Mr. Carletti backed down.
[109] Prior to making any decision with regard to the discipline of Mr. Carletti, Ms. Liston
had to view the images. She described it, putting it mildly, as a highly unpleasant
experience. She described some of the images as unforgettable and unlike anything
she had ever seen before. She found it all offensive but particularly so the
gruesome images of partly clad accident victims whose bodies had been torn apart.
She suggested that to describe it as offensive was too mild a term. I agree that the
images of the accident carnage were very shocking and disturbing.
[110] Ms. Liston pointed out that although the clients at FRO are male and female, the
focus is generally on the female clients. These women share with staff their most
personal family and life situations. As is all too common in family breakdowns there
is a history of family violence. Ms. Liston found the fact that anyone who was a
member of the FRO staff was spending time looking at and distributing these images
while supposed to be working was offensive, inappropriate and unacceptable
behaviour. If the clients served by the FRO knew that employees engaged in
conduct such as Mr. Carletti did, they would lose all confidence in the ability of FRO
to treat them and their families with the dignity and respect that they have a right to.
[111] Although Mr. Carletti initially suggested that maybe he should have received training
on the proper use of resources. He eventually admitted that he was aware of the
WDHP policy and had received training on it. In OPSEU (Hastie et al.) v. Ministry of
Natural Resources, GSB #0542/01 et al., January 23, 2003 (Petryshen) (the “Hastie”
decision), Vice-Chair Petryshen concluded that while generally employers should
advise employees about what behaviour will result in discipline and how severe the
discipline might be, there is some conduct that any employee should recognize as
unacceptable even without a rule or some sort of notice from the employer. He
concluded that receiving and forwarding pornographic material with a high degree of
offensiveness falls into this category of conduct and I totally agree with this
conclusion. It is simply common sense that this behaviour is inappropriate in the
workplace.
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[112] As before when testifying about his inappropriate use of the MTO database, Mr.
Carletti was evasive and admitted to something only when he was faced with
irrefutable proof and had to admit it. His story with regard to the pornography on his
workstation changed as time went on and he was untruthful at times. When he was
initially interviewed, he said that he had to take it as “a learning” about the proper
use of resources and would gladly take training on the proper use of resources. In
the pre-disciplinary meeting, he stated that if he had done it, management should
send him on training and that he didn’t want to be punished for a training issue. If he
had done it? There was absolutely do doubt that he had. He was aware of the
WDHP policy, had received WDHP training and yet he needed to receive more
training to know that it was inappropriate to send and receive images on his
workplace computer depicting violence and degradation towards women?
[113] While discharge cases turn on their facts, a review of the jurisprudence shows that
arbitrators, in assessing the egregiousness of the employment offence of
pornography in the workplace and determining the appropriate penalty for such
conduct, take into account a variety of factors including:
1. The degree of offensiveness of the material or the nature of the material;
2. What the recipient does with the material upon receipt of it. Does the
employee store it or destroy it? Does the employee review it? Is it the distributed
to others within the organization?
3. Does the employee receive material from and send it to individuals in other
organizations using a workplace computer?
4. What is the workplace culture. Is it one in which this type of behaviour is
accepted and condoned or even encouraged? Was there management
involvement and condonation?
5. Did the behaviour occur when the employee should have been working?
[114] Arbitrators often analyse and differentiate between the degree of offensiveness of
the material or the nature of the material (see in this regard Re Telus Mobility and
T.W.C. (Lee) (2001) 102 L.A.C. (4th) 239 (Sims) and the Hastie decision).
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Consideration is also given to the workplace culture. A factor considered is whether
the culture is one in which this type of behaviour is accepted, condoned or even
encouraged (see in this regard Re Consumers Gas v. Communications, Energy and
Paperworkers Union (Primiani Grievance) (1999) O.L.A.A. No. 649 (Kirkwood)).
[115] Clearly, management involvement in the dissemination of the offensive material is
also a significant factor (see the Hastie decision in this regard). In some
circumstances, the nature of the pornographic material in conjunction with the
workplace in which the offence occurred makes the conduct an even more serious
offence. For example, viewing, storing and redirecting child pornography,
particularly in a setting in which the accused has access to children such as in a
school setting, is at the far end of the spectrum in terms of seriousness.
[116] Counsel for the union referred to OPSEU (Wickett et al.) v. The Crown in Right of
Ontario (Ministry of Natural Resources), GSB #2001-0542 et al., August 12, 2005
(Petryshen), the follow-up decision to the Hastie decision. In Wickett, VC Petryshen
reinstated four employees who had been discharged for receiving and distributing
pornographic material on their workplace computer contrary to employer policy. In
that case, in reinstating the grievors, VC Petryshen took into account: the fact that
management had also been involved in the misconduct and condoned it; the
discipline-free records of the employees; the length of service of some of the
grievors; that some of the facts relied upon for the discharge had been proven
untrue; that the email activity did not occur while the employees were supposed to
be working; and most importantly that the employees were sincerely remorseful and
that they were unlikely to re-offend. The facts of the Wickett case are different from
the facts of the case before me in many significant respects.
[117] In British Columbia v. British Columbia Government and Service Employees’ Union
(Grierson Grievance) (2010) 194 L.A.C. (4th) 97 (Steeves), the arbitrator, in dealing
with a situation bearing striking similarity to the one before me, observed:
... What is required by employees is the exercise of some judgment about what
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is appropriate for the workplace. In this case, despite the high level of trust and
responsibility reposed in them by the Employer, the Grievors were not able to
make this kind of judgment. More seriously, they knew from the applicable
standards of conduct and other policy that their conduct was not acceptable and
they deliberately violated those standards and policy. ...
[118] In the case before me, the type of pornographic images, the fact that Mr. Carletti
exchanged emails containing these images during work hours when he should have
been working with others employed outside of his workplace and the work
environment in which Mr. Carletti was employed are critical factors.
[119] Mr. Carletti had various types of pornography on his computer ranging from shots of
topless women on public beaches to the extreme, which were images involving what
appeared to be the bondage of women in incredibly painful positions, pictures and
video in which women were being humiliated and degraded and photos of bloody
accident carnage involving shots of dismembered body parts. Mr. Carletti’s conduct
was taking place in the FRO office, in an open cubicle. Given the culture of that
office and the work performed there, Mr. Carletti’s behaviour in sending, storing and
receiving these images is even more offensive.
[120] FRO employees fight to ensure that their clients, mainly women, are being paid the
support they are entitled to. As noted by Ms. Liston, these women share with staff
their most personal family and life situations. In family breakdowns, there may be a
history of family violence. Mr. Carletti is receiving, viewing and distributing violent
and degrading pornographic images in this environment, during work hours, on a
government computer, while at his workstation, which is an open cubicle. I agree
with Ms. Liston that if the clients served by the FRO knew that employees engaged
in conduct such as Mr. Carletti did, they could lose all confidence in the ability of
FRO to treat them and their families with the dignity and respect that they have a
right to. The fact that Mr. Carletti, who is a member of the FRO staff, was spending
time looking at and distributing these images while he was supposed to be working
is offensive, inappropriate and unacceptable behaviour.
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[121] The offensive images found on Mr. Carletti’s computer were degrading towards and
exploitive of women. They were found on a computer in an office whose primary
mandate is to work with women and families. Mr. Carletti was employed by the
provincial government performing work of a sensitive nature. He was sending and
receiving pornographic images on his work computer, which identified him as an
employee of the government of Ontario within this context. The potential for
considerable embarrassment for himself and his employer should his activities have
become known to his clients and the clients in general is significant. The context
within which he was employed makes Mr. Carletti’s behaviour even more egregious
and insensitive. I question how someone whose views of women, as reflected in the
pornographic images he had on his computer and frequently shared with others,
should or could ever be permitted to work in an environment such as FRO in the
future. There was no condoning of this conduct by management in any form.
[122] Union counsel argued that just as in the Wickett case, Mr. Carletti had
acknowledged that what he had done was wrong and that he would not repeat the
behaviour if he was returned to the workplace. She pointed to the fact that Mr.
Carletti was passionate about his job and that was a positive factor in assessing
whether or not he is likely to re-offend in terms of the misconduct that led to his
termination.
[123] The union did not dispute that the conduct of Mr. Carletti was a violation of the
WDHP policy and that discipline was warranted but argued that discharge was too
severe a penalty. Counsel argued that Mr. Carletti admitted what he had done was
wrong and was remorseful. I agree that Mr. Carletti admitted that what he had done
was wrong and that he was embarrassed about it. While Mr. Carletti apologized for
the fact that he engaged in serious misconduct in the workplace and indicated that
he would not do it again, he never apologized for the impact that his conduct had or
could have had on others. While he used words to indicate that he was sorry, I was
left with the impression that he felt sorry for himself, as “those images” cost him his
job. He never expressed sincere remorse or even said that he was sorry that others,
such as Ms. Liston, had to view these images and deal with them. Mr. Carletti never
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clearly and without qualification took responsibility for having engaged in totally
unacceptable conduct, which was exacerbated by the particular workplace in which
he was employed.
[124] I have carefully reviewed and considered the testimony given by Mr. Carletti on this
issue. Although he said some of the right words and admitted that what he had
done was wrong, I have concluded that he still does not accept the seriousness of
his actions, given the work that he does and the clientele he works with. I am not
certain that he even now comprehends the gravity of what he did, given the
circumstances in this case. I do not feel that his apology was heartfelt and sincere.
He shows no remorse for the impact his actions had on others. As employer
counsel pointed out, he minimized his conduct when ever possible and shifted blame
in a nuanced manner.
Mr. Carletti’s use of government resources to run a business
[125] Once again, the story told by Mr. Carletti with regard to his use of government
resources pertaining to a business owned and run by him, Romano Business
Enterprise, was an ever-changing story. Again, he initially denied or minimized what
he had done but gradually, when confronted with proof, admitted to having done
more.
[126] The company owned by Mr. Carletti provided cleaning services to offices or
buildings. It appeared that at the relevant time, he had a contract to provide
cleaning services to one building. He contracted with a family who took care of the
actual cleaning and he handled the contract, including invoicing the owner of the
building for the services provided. Mr. Carletti indicated that he would invoice the
owner and then pay the family for the work they had done.
[127] At the fact-finding meeting with Ms. Holmes, it was pointed out to Mr. Carletti that the
IT forensics investigation had determined that he was using his government
computer to store documents relating to his personal business. When questioned as
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to why he was doing so, he indicated that he used it as a back-up for his home
computer and that he was not aware that he was breaching policy by doing so. Mr.
Carletti was then asked if he ever operated his personal business during work hours
and he said, “No, I don’t.”
[128] Mr. Carletti indicated that as he had problems on his home computer with viruses,
he would put the invoices on a USB key and upload them onto his work computer or
email them to his work computer and then place them in a file folder on his work
computer for storage. In addition to mere storage, Mr. Carletti indicated in his
evidence in chief that he would also open them up, change a few things such as the
date and then email them back to his home computer to work on when he got home.
[129] In cross-examination, he was asked if he ever sent any invoices from his work
computer to a client and he stated that he didn’t believe so. However, a couple
minutes later, he did admit that he would access the invoices he had stored on his
computer, make changes to them and send them to his home email account. Then
while at work he would access his home or personal email account and send the
invoice to his client. If there was a response, he would open his personal email
while at work and read it. Therefore, while he was not using his government email
account to send and receive these emails, he was accessing his home email on his
government work computer and using it to send the emails from his home address.
Mr. Carletti suggested that all of this work regarding his personal business was done
by him while on his lunch or breaks.
[130] Although the differences between Mr. Carletti’s original admission in the fact-finding
meeting to the final story is not as drastic as with his inappropriate use of the MTO
database, there were changes. It went from merely storing the invoices, to making
minor changes to them and forwarding them to his home computer to work on later,
to an admitting that after he forwarded a modified invoice to his home computer he
would access it from work and deal with his clients while at work. All of this
inappropriate use of government resources was done by Mr. Carletti during his lunch
period and breaks.
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[131] Mr. Carletti used government IT resources in the workplace to operate his personal
business. As union counsel pointed out in her final submissions, it was a minor
amount of computer usage and this type of computer usage is common in every
workplace. It appears that it was a small business and the use of resources was not
significant. I agree with counsel for the union that Mr. Carletti’s use of his work
computer to do a small amount of personal business, in and of itself, is not grounds
for significant discipline.
[132] But once again it is not just Mr. Carletti’s conduct in the workplace that concerns me,
it is his unwillingness or inability to openly and candidly take full responsibility for
what he has done and to be contrite for it. He kept pointing out that the work was
done during his lunch and break periods without ever acknowledging that he should
not have been using government resources to do the work at all. And when he
described what he had done, it went from mere storage initially to employer counsel
eventually dragging out of him that he was actively performing work associated with
his personal business while at work. At one point, he said, “I had no intention to
break the policy ... but if I did I apologize I didn’t mean to - just wanted to store the
invoices and about the policy I guess I was not quite clear on how I was breaking it.”
So even though he apologizes it’s only “if” he did it when we all know he did. And he
suggests that he didn’t know he was breaking the policy. So are we to infer that
means no fault on his part? Although Mr. Carletti uses the word “apologize”, he is
not really admitting any wrongdoing nor is he expressing sincere remorse.
Mr. Carletti and the blog
[133] As Mr. Carletti was suspected of being a moderator of the blog, the IT investigation
led by Mr. Langille examined his workplace computer and concluded that Mr. Carletti
was in fact one of the blog moderators. This conclusion was based on the fact that:
the first blog-related email was sent to Mr. Carletti with the blog website address; Mr.
Carletti was the first FRO employee to visit the blog and during the first three days
he visited the website sixteen times whereas other staff who visited it did so no more
than twice; he promoted the blog sending emails to fifteen co-workers; and he
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accessed the frobloggerr@yahoo.ca email account, which was the email account
used to administer the blog.
[134] The computer records establish that Mr. Carletti accessed the frobloggerr@yahoo.ca
email account on only one occasion, November 12, 2008. That was the date that
Mr. Aboutaeib supposedly brought the paper with the email address and password
to his attention and the two of them logged on at Mr. Carletti’s workstation.
[135] I have carefully reviewed the evidence with regard to this allegation that Mr. Carletti
was a blog moderator and it is not clear to me that Mr. Carletti was in fact a
moderator of the blog. I am not satisfied that the employer, on the balance of
probabilities, has established that Mr. Carletti was a moderator of the blog.
[136] However, it is very clear to me that the pattern exhibited by Mr. Carletti in terms of
the quality of his evidence continued. While testifying about the blog, he was again
evasive, unresponsive and, quite frankly, absolutely unbelievable at times. For
example, his testimony with regard to whether or not the screen viewed by himself
and Mr. Aboutaeib was blank or not was constantly in flux. He also stated
categorically in cross-examination that he did not know what a moderator was or
how blogs operated until the arbitration proceedings. Yet the notes taken at the pre-
discipline meeting on June 17, 2009, show him commenting, “Another employee
came to him as a member of LERC. Once he realized it was an invitation to become
a moderator told Jalil not to participate in this forum. ... He’s not the moderator, no
proof who is moderating.” Mr. Carletti knew what a moderator was before the
hearing before me commenced.
Conclusions
[137] Counsel for the union referred to the Wickett et al decision at page 34, where it was
noted that “arbitrators have held that discharge should not only fit the offence, but
also that it should only be utilized where it is unlikely that a lesser penalty would be
sufficient to correct the inappropriate behaviour.” She stressed that the arbitrator
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concluded that it was appropriate to apply the principle of progressive discipline
even in the context of pornography in the workplace. In doing so, counsel pointed
out that the Arbitrator took into account the discipline-free records of the employees.
I do not disagree in principle that this is the appropriate approach. However,
depending on the conduct for which an employee has been discharged and all of the
circumstances flowing from and following the misconduct, termination may be the
appropriate response even if it is the employee’s first offence.
[138] Counsel for the employer pointed out that even though Mr. Carletti had been in
touch with Mr. Bangura after his discharge, the union did not call Mr. Bangura as a
witness in the proceedings before me. He suggested that I should draw an adverse
inference from that fact. Counsel for the union pointed out that as Mr. Bangura had
been terminated by the employer in 2009, clearly any evidence that he might have
come to give would have been easily questioned as to credibility in light of his
personal circumstances with the employer.
[139] Mr. Bangura could have testified with regard to the explanations given by both Mr.
Aboutaeib and Mr. Carletti with regard to certain aspects of the grounds giving rise
to their terminations. While I do not disagree that the fact that he had been
terminated by his employer might have caused me to question his testimony,
depending on what that testimony was and the manner in which it was given, I might
just as easily have found him to be a credible witness. However, he was not called
and the evidence of Mr. Aboutaeib and Mr. Carletti stands on its own.
[140] Counsel for the employer provided me with several decisions on each of the grounds
that led to the discharge of the two grievors. I am not going to set all of them out or
review them in any more detail than I already have in this decision, although I have
read them. Counsel for the union in final submissions correctly suggested in my
view that the case before me did not turn on the case law, as the outcome in
discharge cases always comes down to an analysis of the key facts and issues with
regard to the individual employee. For the most part, the legal principles are not in
dispute; it is the application of them. She argued that predominantly the employer’s
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cases either did not deal specifically with an issue in dispute in the case we are
dealing with, or they addressed very different facts. I agree.
[141] As I noted at the outset, the parties agreed that the employer must establish on the
balance of probabilities, based upon clear, cogent and convincing evidence, that the
grievors engaged in the conduct for which they stand accused. This is the standard
that the employer needs to meet in this case. Counsel for the employer asserts that
it has met that standard and established that there was just cause to dismiss both of
the grievors.
[142] In final submissions, employer counsel argued in the alternative that should I
conclude that just cause for termination had not been established, I should exercise
my discretion not to reinstate the grievors and award damages in lieu of
reinstatement. Counsel for the union resisted this suggestion. I am not going to
recount these submissions, as in my view it is not an appropriate response in this
case to award damages.
Mr. Jalil Aboutaeib
[143] As I noted earlier in this award, the union, both at the local level and corporately,
condemned the blog and those who created it and moderated it. Counsel for the
union in final submissions stated that if it was proven that either grievor was involved
creating or moderating the blog, then the dismissal of that person is warranted.
[144] I have no doubt that Mr. Aboutaeib was a moderator of the blog. Therefore, on this
ground alone, his discharge was warranted. His actions in moderating the blog were
damaging, destructive and poisoning to the work environment. He has not been
frank, forthcoming or truthful about his involvement with it. I have also found that Mr.
Aboutaeib used government IT resources to conduct non-government business
pertaining to the design and set-up of the FMFS company. I concluded earlier in this
award that he was very actively involved in assisting Mr. Bangura in setting up
FMFS and that he spent time during which he was receiving payment from FRO in
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doing so. His actions in doing so were grounds for discipline and support the
decision of the employer to discharge him.
[145] There is one more issue that I would like to briefly address pertaining to Mr.
Aboutaeib. As I noted earlier, counsel for the employer cross-examined Mr.
Aboutaeib for approximately six days. At the end of this lengthy cross-examination,
Mr. Aboutaeib alleged that the references and questions pertaining to his religion
and the fact that he spoke Arabic constituted discrimination on behalf of employer
counsel. I completely disagree with this assertion. Mr. Aboutaeib refused to admit
that he was the individual moderating the blog at his workstation. He claimed that
someone else used his computer to moderate the blog. He raised the question as to
who was operating his computer at the relevant time. Therefore, the employer had
to prove that it was Mr. Aboutaeib using the computer and accessing the Internet
immediately before and after the moderation or administration of the blog took place.
[146] The line of questioning objected to by Mr. Aboutaeib was entirely appropriate and
highly relevant as it went to establishing the identity of the individual operating the
computer in Mr. Aboutaeib’s workstation. The questions asked established that the
person moderating the computer spoke Arabic and visited Islamic religious websites.
Prior to asking about the specific dates upon which the moderation of the blog took
place, employer counsel had to establish that Mr. Aboutaeib spoke Arabic and was a
member of the Islamic religion to ultimately prove that there could be no doubt that
Mr. Aboutaeib was the person moderating the blog at the relevant time. The fact
that Mr. Aboutaeib speaks Arabic and is a member of Islam are part of who he is
and coincide with the fact that the person moderating the blog visited Islamic
religious websites and an Arabic-speaking news service immediately around the
time that the moderation of the blog took place. By refusing to admit that he was the
moderator, Mr. Aboutaeib opened the necessity of this line of questioning. Mr.
Aboutaeib’s allegation that the line of questioning utilized by counsel was
discriminatory and inappropriate is completely unfounded and is dismissed.
[147] Just before leaving this, I would note that at no time did the union agree with this
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position being taken by Mr. Aboutaeib. Discrimination was not alleged in the
grievance, was not a part of the union’s case and as such was not thoroughly
canvassed during the hearing and was not argued by the union.
[148] On the basis of my review of the clear and cogent evidence before me, I am satisfied
that the employer has established on a balance of probabilities that just cause for
the discharge of Mr. Aboutaeib existed. I am satisfied that he was a moderator of
the blog and that he used government IT resources to improperly assist in the set-up
of a non-government business, Freedom Mortgage and Finance Solutions, which
was a conflict of interest. The grievance filed by the union on behalf of Mr. Jalil
Aboutaeib is hereby dismissed.
Mr. Romano Carletti
[149] A critical factor to be considered when deciding if it is appropriate to overturn a
discharge and return an employee to the workplace is an assessment of the
likelihood that the individual might again engage in the conduct that led to the
discharge. Another important consideration in the case of Mr. Carletti is whether or
not he can be trusted by his employer in the future. In answering these questions, I
have carefully reviewed the ever-shifting testimony of Mr. Carletti. In the case
before me, he was often not truthful and if he did admit engaging in inappropriate
conduct, it was only when he had been backed into a corner. He continually tried to
minimize any wrongdoing on his part and sought to place the blame elsewhere.
[150] The actions of Mr. Carletti in accessing the MTO database in the unacceptable
manner in which he did and then disclosing confidential information out of this
restricted database could potentially jeopardize a critical relationship based on trust
between the Ministry he worked in and the Ministry of Transportation. The ability to
access the MTO database is an important enforcement tool and his violation of the
trust placed in him to use this tool appropriately is a serious matter.
[151] Although counsel for the union stressed that there was only a single incident of
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access, in my view it was a very serious breach, which is compounded by Mr.
Carletti’s untruthfulness about it. Mr. Carletti attempted to justify his improper
actions by creating a totally implausible story about having spoken to his supervisor.
The part that concerns me the most is that in this supposed conversation he and his
supervisor discussed the situation and didn’t find anything wrong in providing the
information. If that is the case, then clearly it is possible that Mr. Carletti could in the
future violate the trust placed in him and engage in this type of behaviour. Mr.
Carletti never came clean and candidly admitted what he did was wrong and a
serious breach of the trust placed in him by his employer. In my view, given he felt
he had done nothing wrong, it is highly likely that Mr. Carletti might again engage in
this misconduct, which was one of the grounds for his discharge.
[152] Mr. Carletti’s attempt to downplay his misconduct with regard to the pornography
found on his computer and initially characterize it as a training issue is also very
troubling to me. Although he eventually admitted that his conduct was wrong, his
lack of remorse for the harm caused to others by having to view the images and the
absence of a sincere apology for this completely inappropriate workplace behaviour
does not work in his favour. His conduct in receiving, viewing, controlling,
manipulating and forwarding the pornography found on his computer constitutes a
very significant breach of the trust placed in him by his employer. This breach is
greatly exacerbated by the nature of the work performed in Mr. Carletti’s workplace
and the clientele served. He worked in an area serving vulnerable clients and had
access to highly sensitive and confidential information about these clients. He
abused the autonomy and freedom enjoyed by the ESOs working there. An ESO is
trusted to perform his or her duties in a professional and caring manner and to deal
respectfully with the individuals dependent on their services.
[153] Ms. Liston was the decision-maker with regard to the termination of Mr. Carletti and
Mr. Aboutaeib. When asked for her view of the trust relationship between Mr.
Carletti and the employer, she indicated that the relationship was irreparable. She
felt that Mr. Carletti was either not forthcoming or not truthful with the fact finder and
herself. In every forum when Mr. Carletti had the opportunity to speak to his
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violations, she felt that he either chose to be dishonest or at a minimum to not be
forthcoming. I agree with these conclusions and it is this lack of honesty and
candour, particularly when Mr. Carletti was testifying before me, that buttresses the
employer’s decision to terminate the employment of Mr. Carletti. It is not just that I
have concluded that Mr. Carletti engaged in misconduct, it is his evasiveness and
lack of honesty before me that makes it so much worse. Based on the evidence
given by Mr. Carletti, I find that the trust relationship between him and his employer
has been irrevocably broken and cannot be rehabilitated.
[154] Mr. Carletti had thirteen years of service and a clean record. He loved his work and
at the time of the hearing he had been unable to find employment comparable to his
work at FRO. While these are factors that could potentially mitigate against his
discharge, in the circumstances of this case, they are not simply not sufficient.
[155] Although I am not prepared to conclude that the employer has proven that Mr.
Carletti was a moderator of the blog, I am satisfied that the employer has proven on
a balance of probabilities based on clear, cogent and convincing evidence that Mr.
Carletti: inappropriately accessed the MTO database for personal and non-business
purposes contrary to policy; used government IT resources for conducting his own
personal business, Romano Business Enterprise, which was a conflict of interest;
and used government IT resources and government email to view and distribute
pornographic images.
[156] Accordingly, for all of the reasons stated, the discharge of Mr. Carletti is upheld and
the grievance is dismissed.
[157] The hearing in this case was very long and dealt with difficult and troubling issues.
Both counsel are experienced and approached the case in a thoughtful and
insightful fashion. They were always prepared and although the hearing was
lengthy, but for their ability to keep the hearing focussed, it could actually have taken
much longer. I would like to thank both counsel for their thoroughness and, above
all, their professionalism.
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[158] I shall remain seized in the event that there are any issues with regard to the
interpretation or implementation of this decision.
Dated at Toronto this 25th day of November 2011.
Janice Johnston, Vice-Chair