June 17, 2015 By: Karine Dion
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Even though long-service employees often receive favourable treatment by arbitrators, that will generally not be a sufficient mitigating factor for those who view and handle a considerable amount of pornographic material at work over a lengthy time period, especially if they have a history of such behaviour. In such circumstances, the penalty of termination is in fact the most consistently applied in arbitral jurisprudence.

In the matter of Manitoba Government and General Employees’ Union v. Manitoba (Province), an employee filed a grievance following his dismissal by the Province of Manitoba’s Maintenance Enforcement Program (“MEP”) for accessing, receiving and disseminating pornographic material by way of email on his office computer. This employee had worked for the province for over 32 years and held the position of a designated officer for the MEP. He had a previously clean record except for a three-shift suspension in 1997 for similar conduct as that giving rise to this grievance. At the time of his suspension, the employee was advised that “further conduct of this nature will result in further disciplinary action up to and including dismissal”.

During an investigation into the conduct of another employee, the Director of MEP became aware of issues with the grievor’s computer usage, and ordered an audit of his computer over the previous 24 months. The audit revealed the existence of images and emails sent to and received by the grievor, and government and non-government staff, which contained lewd jokes and pornographic material.

The investigation concluded on November 5, 2013, at which time management provided the grievor with a termination letter, effective immediately. The grievor’s actions were deemed to be in violation of the employer’s Respectful Workplace Policy, the Employee Network Usage Policy and the Conflict of Interest Policy, in addition to time theft.

During arbitration, the union argued that the grievor’s dismissal was excessive, and that a lesser sanction ought to be substituted. Furthermore, as the other four employees who were found to have committed similar acts were permitted to retire and/or resign, the union also argued that a dismissal was out of line with the type of sanction usually imposed by the employer for this type of conduct.

Arbitrator Martin Freedman considered the grievor’s misconduct to be “serious, persistent, and very troubling” given the volume of material he disseminated, and also the fact that his actions spanned over two years. The arbitrator therefore agreed that the grievor’s discharge was warranted, noting that his actions were incompatible with the maintenance of an employment relationship, the relationship had been irreparably damaged and the confidence the employer once had in the grievor was now lost.

Although Arbitrator Freedman observed the grievor to be remorseful of his actions, the arbitrator also observed how the grievor did not contact the employer during the year between his dismissal and the hearing to offer any sort of apology.

Furthermore, although the grievor was a long-service employee, this was not as persuasive a mitigating factor given the fact that the grievor had been disciplined for the same conduct back in 1997:

While the past misconduct preceded the current by some 15 or more years, and is thus ‘stale’ to some extent, nevertheless it constitutes a relevant blemish on his record that the employer was entitled to consider when assessing whether there were mitigating factors, and whether there were ‘offsets’ to those factors.

In finding that the Province had failed to treat offending employees in like circumstances in a consistent manner, and wanting to instill some basic consistency in enforcement of policies and in treatment of similarly offending employees, Arbitrator Freedman also held that the employee should be given the option to retire or resign, as four other employees who were found to have engaged in the same type of behavior were also given that option. Therefore, he granted the grievor 30 days from the date of the award to tender a written resignation.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.

Service: Labour Law