Ontario must reinstate workers fired for porn

Arbitrator orders province to give six Ministry of Natural Resources staff their jobs back
By Todd Humber
|employmentlawtoday.com

Six workers fired from their jobs at Ontario’s Ministry of Natural Resources for circulating graphic pornography images and videos to co-workers and workers outside the government have been awarded their jobs back by an arbitrator.

The decision to force the Ontario government to hire the six men back was made at a hearing in June. Arbitrator Ken Petryshen has yet to release the full judgment so the reasoning behind his decision isn’t clear at this point.

The six men were fired following an intensive investigation of staff at the Ministry of Natural of Resources. Nearly 100 employees were investigated, 66 were reprimanded with penalties ranging from letters to 20-day suspensions, and six were ultimately fired.

Commenting in a Jan. 23, 2003, decision in the same case Petryshen detailed the graphic nature of the e-mails sent around the ministry and, in one case, to a few employees at DaimlerChrysler from government computers.

“After reviewing the material in the grievors’ Outlook accounts at the hearing and again after the hearing, it is my conclusion that the employer correctly assessed some of the inappropriate material as very offensive,” said Petryshen. “Although the inappropriate material in the grievors’ accounts includes some relatively innocuous items, they also include items of bestiality, oral sex, pictures of nude obese and elderly women and pictures of sexual activity that are degrading and violent to women.”

He said the material in the e-mail accounts of the six who were fired were “generally more offensive and the volume of activity is generally greater” than those were were disciplined with a less severe penalty.

At that time he said the firing of the six men “might be an appropriate response” by the government.

“In circumstances where the grievors engaged in serious misconduct due to the receipt or distribution of very offensive material by e-mail, where employees had been warned that discharge could result from such conduct and where the employer applied discipline consistently, it is difficult to conclude at this point that the discharges could not be upheld.”

In the Jan. 23, 2003, ruling he decided it would not be appropriate to reinstate the workers “at this time” but added that “perhaps circumstances relevant to this issue may arise during the next phase of this proceeding.”

The province has suggested it might appeal the decision, but it’s waiting for the arbitration board’s final decision on what the punishment will be for the six workers. They will undoubtedly face some sort of discipline, but the arbitrator ruled that dismissal was too harsh a punishment.

David Ramsay, Ontario’s Minister of Natural Resources, said he was “very unhappy” with the arbitrator’s decision and hopes the six will still face stiff punishment.

“I can assure you that the ministry definitely does not condone this kind of behaviour,” said Ramsay.

He said passing explicit material around the office “poisons the workplace and threatens and intimidates people.”

This is the second high-profile case involving public-sector workers and pornography. In late 2002 a similar problem arose among employees with the Yukon government. Two employees were fired and more than 500 investigated. (For more on the Yukon case, see page 3172 in CELT #406, Feb. 4, 2004.)

For more information see:

For more information on the Jan. 23, 2003, ruling check out

O.P.S.E.U. v. Ontario (Ministry of Natural Resources)

, 2003 CarswellOnt 3343 (Ont. C.E.G.S.B.).

Other cases where discipline didn’t hold up

By Natalie C. MacDonald

The reinstatement of six workers at Ontario’s Ministry of Natural Resources has brought the issue of disciplining employees for misuse of computers to the forefront of many employer’s minds. Below are a couple of recent examples of how courts handled cases involving employers who disciplined workers for abusing computer privileges at work.

In Manchulenko v. Hunter Line Checking Ltd., the British Columbia Supreme Court addressed the issue of whether Manchulenko had abused his privilege of limited personal use of the Internet at work. It was alleged he violated company policy when he used company computers to receive and send pornographic materials, jokes and other inappropriate material.

Before firing Manchulenko the company had sent warnings to all its employees. In 2000, employees were told use of the Internet and computer systems for non-business related purposes constituted an abuse of the system and would not be tolerated. In 2001 another memo was sent to all staff explaining e-mail would be monitored randomly and employees held accountable for anything not related to work done during regular office hours.

Specific warnings, however, were never provided to Manchulenko.

The court found the only person he forwarded the offensive e-mail to was his brother. Therefore, while finding the employee was foolish and careless regarding his use of the company’s resources, the court held the evidence failed to indicate there was any excessive amount of material involved, a significant amount of time wasted or any problem to the company’s system. It also found there was no evidence of any distribution of this material to co-workers or customers.

In Consumers Gas v. Communications Energy & Paperworkers Union a woman was discharged for the inappropriate use of her computer because she was receiving and distributing pornographic material. The arbitrator found the permissive culture which had developed through the participation of management in the transmission of jokes of a sexual nature, the lack of monitoring and the lack of direction all contributed to his finding there was no cause to discharge the woman.

The length of service of the employee is another important factor. In West Coast Energy Inc. v. C.E.P. Local 686B (Bourdon) a male employee had sent inappropriate material anonymously to a female staff member on four occasions.

The employee used the employer’s computer to transmit e-mails. The e-mails were not sent through the employer’s e-mail provider but through a personal account that could be accessed through the Internet. The employee lied about his involvement both to West Coast Energy and to his union representative.

West Coast Energy said the dismissal was justifiable given the repeated nature of the offence, the fact the victim was frightened for her safety and the employee’s refusal to admit to his actions. But the arbitrator found because he had been with the company for 24 years, with no record of discipline, discharge was not warranted.

For more information see:

Manchulenko v. Hunter Line Checking Ltd., 2002 CarswellBC 1527 (B.C. S.C.)

Consumers Gas v. Communications Energy & Paperworkers Union [1999], O.L.A.A. No. 649 (Ont. Arb. Bd.)

West Coast Energy Inc. v. C.E.P. Local 686B, 1999 CarswellBC 3243, 84 L.A.C. (4th) 185 (B.C. Arb. Bd.)

Natalie MacDonald is an associate with Grosman, Grosman & Gale, a Toronto-based law firm specializing in employment law. She can be reached at (416) 364-9599 or nmacdonald@grosman.com.

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