This article was originally published in Blakes Bulletin on Labour & Employment in February 2005
Article by John-Paul Alexandrowicz & Lyndsay Wasser, ©2005 Blake, Cassels & Graydon LLP
Recent arbitration awards have addressed four potential grounds for discipline or discharge of interest to unionized employers.
Disclosure of Confidential Documents and Public CriticismsThis topic is increasingly of interest to employers balancing the need for employee loyalty with employees’ privacy rights. Where the employer is a public body, arbitrators have also considered the need to maintain the public’s trust and keep the public informed of the government’s activities.
Two arbitration awards are noteworthy because of concerns that have arisen following the 9/11 terrorist attacks. Both Treasury Board (Health Canada) and British Columbia (Morris) involved government employees who either publicly criticized government actions or revealed confidential information they had discovered in the course of their duties.
In Treasury Board, the grievor was suspended for five days for making critical comments to the media regarding the Canadian government’s decision to stockpile antibiotics and smallpox vaccines. The grievor was a microbiologist employed to evaluate drug and food safety for Health Canada, but was not a member of the group responsible for the stockpiling decision. Though he had been advised by his employer to make it clear to the news media that he was speaking as a private citizen, he neglected to do so.
The arbitrator stated that federal employees have a duty of loyalty that includes a requirement to attempt to resolve concerns internally before publicly criticizing a government policy. He found this duty exists unless the matter is urgent or it would be inappropriate or impossible to proceed via internal mechanisms. The arbitrator concluded that public servants’ right to free speech carries some obligations and the five-day suspension was justified in light of the fact that the grievor’s comments were “theatrical,” “derogatory” and “unproven.”
In British Columbia (Morris), the grievor was suspended and then discharged for disclosing a confidential government document to an ex-lover, who then created a “highly publicized media frenzy”. The employee admitted she acted wrongly, but claimed that termination was too severe in light of her long service, clean disciplinary record, good performance evaluations, immediate acknowledgement of guilt and sincere apology.
The arbitrator concluded the grievor’s actions were not premeditated, because she did not anticipate her ex-lover would disclose the document. He also concluded the grievor was unlikely to repeat her mistake. He substituted a six-month suspension for the discharge, conditional upon a one-year probationary period regarding all confidential aspects of her employment.
Slightly different considerations arise in cases involving non-governmental employers, since arbitrators do not need to consider the public interest in protecting the ability of the government to function effectively. Nevertheless, arbitrators still face the difficult task of balancing the employee’s right to free speech with the employer’s right to demand loyalty from its employees.
In a 2004 case involving the University of Manitoba, the grievor was discharged for publishing accusations and criticisms regarding his university employer on a web site that he created for that purpose. The grievor was highly concerned about the presence and handling of asbestos at the university and had tried unsuccessfully to address his concerns through multiple avenues, including complaints to his union and to a workplace safety and health officer.
The arbitrator reinstated the grievor to his previous position, with compensation for lost wages and benefits, holding that an employee’s duty of fidelity must be balanced against his or her constitutional right to freedom of expression. He noted the grievor was genuinely concerned over the health threats posed by asbestos. The arbitrator stated that an individual’s freedom of expression does not provide absolute protection and the employer may have been entitled to discipline the grievor under different circumstances. However, in this case, he found the dismissal to be unwarranted because there was no progressive discipline, the issue was one of public interest, the conduct did not create a serious problem for the employer or impact its asbestos control program, and other acts of insubordination were not “sufficiently grave” to destroy the employer-employee relationship.
Taken together, the awards in this area indicate that most arbitrators feel that some discipline is warranted when an employee speaks out against his or her employer in an inappropriate manner. However, arbitrators also recognize employees’ rights to free speech and dismissal was not found to be appropriate in any of the above cases.
Misuse of E-Mail
Recently, there have been numerous discipline and discharge cases involving employees who use workplace e-mail accounts for personal, and sometimes inappropriate, purposes. Again, arbitrators must balance employees’ rights to privacy against employers’ rights to control the use of work-related resources.
The misuse of computers by employees has recently received media attention in a case involving the use, downloading and transmission of pornographic materials by 90 Yukon government workers. The government’s investigation of the matter led to protests by the workers and it was dubbed a “witch-hunt” by the union. The government and the union settled the matter with the assistance of a mediator. Employee suspensions were reduced in most cases, but letters of reprimand remained in employee files and two discharged employees were not reinstated.
Similar incidents of widespread misuse of company e-mail accounts were brought to arbitrators in British Columbia and Ontario in 2003. In those cases, relevant issues considered by employers in meting out discipline included the nature and volume of the material transmitted, the level of offensiveness of the material, length of service, employment and performance records, and acknowledgement of responsibility. In some cases, the employer had a computer-use policy, which banned communications involving documents containing pornography, nudity and sexual acts and also circulated a policy stating e-mail may be monitored for routine analysis or in response to a complaint. However, arbitrators have also noted that some behaviour is unacceptable in the workplace even without any notice from the employer.
An arbitrator in one case concluded the employees’ behaviour warranted discipline since the vulgar e-mails violated the employer’s policies and would bring the employer into disrepute. The arbitrator also found that the grievors knew, or should have known, about the employer’s policies. The arbitrator concluded the level of discipline imposed on the grievors was appropriate because the employer had not acted in an arbitrary or discriminatory manner.
The misuse of e-mail arose in a slightly different context in the 2003 case of Naylor Publications Co. There was no widespread problem of e-mail abuse nor was there any activity involving pornographic material, but the grievor had used her work e-mail account to send personal e-mails to her partner and her friends. These personal communications contained insubordinate comments and derogatory remarks about her co-workers, as well as some suicidal and threatening remarks. The grievor claimed she was just “blowing off steam”.
The grievor was discharged on the basis of her “extreme animosity towards Naylor and co-workers.” The employer argued that even if the grievance were upheld, reinstatement would not be appropriate because the grievor’s co-workers had been shown the derogatory emails and did not want her to return to the office.
The arbitrator concluded the dismissal was excessive and the grievor should be reinstated. The arbitrator did not find the grievor had a reasonable expectation of privacy because the employer had a well-known policy of monitoring e-mail. The arbitrator did not accept that the grievor was “just blowing off steam.” He agreed that all workplace threats are inappropriate and must be taken seriously, even though it was unlikely the grievor actually intended to commit workplace violence.
The arbitrator concluded that although discharge may have been appropriate in these circumstances, the employer was precluded from taking such action in this case because of the failure to refer to the grievor’s misuse of the e-mail system in an earlier warning letter. The arbitrator also considered the grievor’s insight into her wrongdoing and remorse for her actions, as well as her ability to respond appropriately to discipline in the past. The arbitrator found there was no just cause to dismiss the grievor and this was not an extraordinary case where damages should be substituted for reinstatement.
These arbitration awards clearly illustrate that employees’ privacy rights are not absolute. If an employer has a policy of monitoring or reviewing e-mail and that policy is known to employees, it seems clear that arbitrators will not protect employees who misuse their workplace e-mail accounts.
Threats of Violence
Over the past few years, there have been many awards involving discipline for threats against individuals, as well as vague and indefinite threatening comments. Both employers and arbitrators have begun to take threats more seriously and to discipline them more severely.
In the 2003 case of Ajax Pickering Transit Authority, the grievor was frustrated with his inability to change his status from a casual employee to a part-time employee. During a telephone conversation regarding the issue, he uttered a statement to the effect of, “What do I have to do to be heard around here, come in and shoot someone?”
The arbitrator noted that generalized or implied threats of violence must be taken seriously. He also stated that regardless of whether the employee actually intends to harm anyone, he or she should realize that the purpose of threatening words is to intimidate others. The arbitrator concluded the grievor intended his statement to be intimidating, because his goal was to draw attention to his concerns. The arbitrator found it was reasonable for the employer to treat the grievor’s statement as a threat, regardless of whether he “had the means or moral capacity to carry it out.”
The arbitrator noted that threats do not warrant discharge in all cases. In this case, the arbitrator indicated the employer should have known that the grievor was experiencing significant stress and anger as a result of his perception that he was being treated unfairly, given his “obsessive insistence on reiterating his status at every opportunity.” The arbitrator concluded the employer should have addressed the grievor’s concerns and emotional state earlier. Also, the employee had no record of prior discipline and no history of violence. The arbitrator reinstated the grievor without back pay, but also ordered him to be examined by a medical specialist familiar with the issues of occupational stress and workplace violence. The employer was not required to assign any work to the grievor until he received medical clearance.
In the Ajax Pickering Transit Authority case, the arbitrator was not willing to take arbitral notice of a general increase in workplace violence. However, in another recent case, the arbitrator did consider “the impact of increased violence in society generally and particularly in workplaces”. In that case, the arbitrator was prepared to recognize the upward trend in workplace violence in determining whether the discipline imposed upon a particular employee was appropriate.
In a 2003 arbitration case, Aradco Management Ltd., an employee’s discharge was upheld despite the fact that the threats uttered by the grievor were not directed at any particular individual. The grievor was angry about criticism directed at him for leaving his workstation without permission. He made comments over the course of two days that before quitting or being fired he would “break somebody’s head/neck” or “do something you’ve never seen before.” The grievor denied making the threatening comments.
In determining that dismissal was justified in this case, the arbitrator stated that the conduct was extremely serious, given that it involved a threat of bodily harm and possibly actions causing large-scale property damage. Further, the outburst was not fleeting, but persisted over the course of two days. Also, the arbitrator felt that there was no true apology in this case.
These recent cases involving threats of workplace violence show that arbitrators may take different approaches to the appropriateness of explicitly noting general increases in workplace violence, but in most cases they will support employers who respond to all threats, whether they be vague or specific, jokes or spontaneous utterances, with severe discipline.
Sometimes, there may be a higher standard of behaviour required of employees who act as role models for others or for employees that work in close proximity to vulnerable persons. This higher standard of behaviour can extend to employees even when they are not on-duty.
One example of an employee who occupies such a position is a teacher. Other employees who have contact with children may also be judged differently from employees who do not occupy such roles. Correctional officers also tend to be subject to increased scrutiny, even with regard to their off-duty conduct, because they are supposed to act as role models to inmates.
In the 2004 case of Catholic District School Board of Eastern Ontario, the employer discharged the male grievor for sending several sexually explicit e-mails to two male students (nine to a 15-year-old student and two to a 17-year-old student) over a period of five months. When the police interviewed the grievor he denied any sexual attraction to children. The police did not bring any criminal charges against the grievor because the e-mails did not contain child pornography and they were not obscene under the criminal law. The grievor explained his actions as “an error in judgement” and presented psychiatric evidence to support that explanation.
The arbitrator determined that discharge was an appropriate response and that a lesser penalty should not be substituted. There was no compelling explanation for the grievor’s behaviour and the grievor did not seem to grasp the seriousness of his conduct or the vulnerability of the students involved. The arbitrator did not feel that the grievor could be trusted to refrain from similar conduct in the future because the grievor could not provide an explanation for why he sent the e-mails in the first place.
Sometimes, teachers may also be disciplined for bad judgment when actions occur while off-duty. In the 2003 case of Kootenay-Columbia School District No. 20, a teacher was suspended for her behaviour outside of school hours in a bar. The teacher was drunk and had engaged in an altercation with a bartender who was attempting to get an underage student to show identification proving her age.
Although the arbitrator reduced the teacher’s suspension from three days to one, the arbitrator held that the teacher should have known her intervention would be seen by the student, the bartender and other observers as an attempt to protect the student from the consequences of her illegal actions. The arbitrator noted that off-duty conduct should only be disciplined if the teacher’s conduct is serious enough to potentially bring the administration of the school system into disrepute or to undermine confidence in the teacher and the public school system.
Teachers are not the only school employees whose conduct is subject to a different level of scrutiny than employees who do not work in close proximity to children. In the 2004 Ottawa-Carleton District School Board case, a custodian at a secondary school was terminated for using marijuana on school property and during working hours when a “coffee house” event for students was underway nearby. The arbitrator ultimately upheld the dismissal despite the grievor’s eight years of service and lack of a prior disciplinary record. This result is interesting because the arbitrator concluded the conduct did not actually violate any law, since the grievor’s use of marijuana occurred during a period when a section of the Controlled Drugs and Substances Act was temporarily suspended by a court ruling that the law prohibiting possession of marijuana was unconstitional. The employer, however, did have a substance abuse policy, which applied to all controlled and restricted drugs and promoted a drug-free environment and an anti-drug culture in the schools. Even though the custodian was not expected to act as a role model to students, the arbitrator found that the employee’s proximity to children justified dismissal in this case.
Arbitrators have also held corrections officers to a higher standard, even with regard to their off-duty conduct. For instance, in Alberta (Crepeau), the arbitrator found that the employer was justified in dismissing a corrections officer for unproven but highly publicized drug and weapons-related criminal charges. The arbitrator found that the grievor’s behaviour harmed the employer’s reputation and made it impossible for the officer to exercise his authority over detainees on any moral ground, given that many inmates were convicted of activities similar to those that the grievor was charged with committing.
These awards illustrate that employees who act as role models for others must be cognizant of that responsibility at all times. Behaviour that may be tolerable in some employees will be unacceptable where the employee’s position involves guardianship over others.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.