Press operator suspended without pay for photocopying company documents

North Bay Nugget was justified in disciplining worker; arbitrator says employers don't have to stamp documents 'confidential' to protect them from misuse
|employmentlawtoday.com

An Ontario newspaper was justified in suspending a unionized worker for three days without pay after he photocopied company records without permission, an Ontario Arbitration board has ruled.

Dan Seguin was a press operator for the

North Bay Nugget

, the daily newspaper in North Bay, Ont. He was also the local union president of North Bay Newspaper Guild, Local 30241 and a member of the union’s bargaining committee.

Between February and April 2004 the union and the paper held bargaining sessions for the renewal of a collective agreement. During a bargaining session on Feb. 24, 2004, Seguin accused the newspaper of delaying or failing to file forms with the Workplace Safety and Insurance Board (WSIB).

Seguin said the union was concerned about a “major claw-back” of employees’ sick leave benefits the company was proposing. Seguin felt the company was reducing its WSIB premiums by underreporting workplace accidents and shifting that liability to the sick-leave plan, which it was then attempting to rein in.

At this point in the negotiations the employer asked Seguin to prove the allegation and said it would look into the issue if he had any evidence. On March 18, Seguin got the evidence he wanted.

At 6 a.m. on that day he went into the supervisor’s office and removed the time book. Employees regularly had access to the office, and often checked the time book to ensure it was accurate.

Seguin took it to the nearest photocopier and made copies of portions of two pages that recorded employees’ attendance for the month of September 2003. Another employee saw him do this and reported the incident to management.

Formal investigation meeting

A formal investigation meeting was held between the company, Seguin and the union on March 23 to discuss the photocopying incident.

Seguin admitted taking and photocopying the time book and that he did so in response to the WSIB issue raised during collective bargaining. In deciding on a punishment for Seguin, the company looked at his prior employment record. Under the terms of the collective agreement, the employer could keep any discipline on the record for two years.

In the prior two-year period Seguin’s disciplinary record consisted of a one-day suspension without pay issued June 16, 2003, for reporting to work while “impaired by alcohol.” That level of discipline was justified by a previous verbal warning on June 20, 2001, issued for the same reason.

Having regard for what it considered to be Seguin’s serious misconduct in photocopying the documents, something it characterized as a “breach of trust,” and after reviewing his disciplinary record, the employer imposed a three-day unpaid suspension.

Photocopies proved nothing

Bargaining resumed on April 20 when Seguin’s allegations about the WSIB forms was revisited. The union presented the company with the names of the pressroom employees it obtained from the photocopied pages of the time book, including Seguin, who the union said had not been properly reported as having suffered workplace injuries.

The employer looked into the allegation and addressed the circumstances of each of the named employees. The explanation satisfied the union that the newspaper was not neglecting or delaying its obligation to file paperwork under the

Workplace Safety and Insurance Act

and it dropped the matter.

The arbitration hearing

The union filed a grievance for the three-day suspension, arguing it was excessive in the circumstances.

Seguin admitted he was wrong to have taken and photocopied the time book without permission, though he didn’t think he was doing anything wrong at the time. He said he took the photocopy in an honest belief he was responding to the employer’s challenge to bring proof of his allegation and his intention was not malicious.

The employer’s position:

The employer said there were two simple questions for determining this case. Was Seguin’s conduct a breach of trust? And, if so, did that breach of trust warrant a three-day suspension?

The fact Seguin used the photocopy of the time book for collective bargaining purposes instead of personal gain or any other reason made no difference, the employer said.

Given his past disciplinary record and the seriousness of this incident, the employer said a three-day suspension without pay was appropriate, was consistent with its progressive disciplinary scheme and there were no mitigating factors to justify a reduction in the penalty.

The union’s position:

The union said that, in the unique circumstances of this case, either no or only minimal discipline was warranted.

Seguin reasonably believed he was responding to the company’s challenge to bring proof of his allegation to the bargaining table. The time book was kept in an open area that was freely accessible to everyone. The pressroom employees regularly reviewed it and Seguin was responsible for making entries in the book when acting as supervisor.

If Seguin was guilty of anything, it was poor judgment that was committed in good faith and not a breach of trust. It said, at most, a mild written warning was justified.

Since the one-day suspension for showing up impaired was completely unrelated to the photocopying incident, the union said the employer was not justified in relying upon Seguin’s existing disciplinary record to support a higher level of discipline.

The arbitrator’s decision

The arbitrator said Seguin was motivated by a genuine desire to prove the union’s allegation at the bargaining table and not by any personal gain or malevolence.

But the board said Seguin knew he was doing something wrong when he photocopied the book. He never asked permission to do so and did it early in the morning when few others were around.

It said arbitrators have upheld significant disciplinary penalties for the unauthorized possession and use of company documents even where personal gain did not motivate the misconduct and the documents were readily accessible and not marked confidential.

For example, in

Re Hydro-Electric Commission of City of Ottawa

three grievors with clear disciplinary records entered their supervisor’s unlocked office and out of “curiosity” opened an unlocked desk drawer to read the supervisor’s notes about an issue involving another worker.

The notes weren’t marked confidential and the employees had previously been allowed in the office “to borrow things” from the supervisor’s desk required in their work. A two-month suspension without pay for each was appropriate, the arbitrator ruled.

In

Re Storwal International Inc.

a payroll clerk who picked up a “salary adjustment log book” from her supervisor’s desk and leafed through it was fired. The arbitrator reinstated her but imposed a one week suspension without pay.

Documents don’t have to be stamped confidential

Those cases and others indicate that a company document does not have to be stamped “confidential” for employees to know that it is not to be disclosed or used outside of its business intention, the arbitrator said in the newspaper ruling.

This applies even if the document is freely accessible without supervision, the arbitrator said.

“A written rule is not necessary to bring the employee’s duty of fidelity to his or her attention,” the arbitrator said. “That duty includes the obligation to keep the employer’s documentation and by necessary inference the information it contains safe of any possession, reproduction, dissemination and/or use beyond its reasonably intended purpose.”

It said absence of a motive of personal gain by an employee breaching this obligation is not license to take “self-help” measures in support of a cause.

The arbitrator said Seguin’s actions clearly warranted discipline.

“Taking the pressroom time book and photocopying it for purposes outside of its reasonably understood purpose was minimally an error in judgment that is not excusable by (Seguin’s) motivation to use the information solely for collective bargaining with the employer,” the arbitrator said. “Otherwise, it might be considered proper for any aggrieved individual to take and/or surreptitiously reproduce company (or for that matter union) documents in support of any grievance or other righteous cause, thereby undermining any semblance of mutual trust essential to the running of the workplace.”

But Seguin’s conduct was not the act of an inherently dishonest person not worthy of the employer’s future trust, it said. So what was the appropriate penalty?

Factors to consider

The

Labour Relations Act, 1995

permits arbitrators to substitute for the penalty issued one that “seems just and reasonable in all the circumstances.”

In

Re Quality Meat Packers Limited

, the arbitrator listed the following factors arbitrators might consider in determining whether to exercise their discretion for the penalty issued by an employer:

•the grievor’s seniority and work record;

•whether

bona fide

confusion or mistake contributed to the misconduct;

•whether the grievor acted impulsively or in a premeditated way;

•the nature of the harm done;

•whether the grievor has acknowledged or apologized for his misconduct;

•the grievor’s motives; and

•the effect of discharge on the grievor.

Applying those factors to this case, the arbitrator said Seguin had not been clear of discipline in the two-year period for which his work record may be considered under the terms of the collective agreement.

“While he believed he was acting in response to a challenge by the employer’s spokesperson, I have found that he knew he did not have permission to take and photocopy the time book,” the arbitrator said. “He acted with premeditation and did not apologize at his first opportunity. However, to his credit, (Seguin) acknowledged his wrongdoing at arbitration and came across on the witness stand as an honourable individual who was only acting out of concern for what he believed to be in the best interests of bargaining unit members.”

But his noble intentions and lack of personal gain simply did not outweigh the seriousness of breaching the fundamental duty of fidelity, the arbitrator said.

Consequently, the board dismissed the grievance.

For more information see:

North Bay Nugget v. North Bay Newspaper Guild, Local 30241

, 2005 CarswellOnt 4810, [2005] L.V.I. 3587-5 (Ont. Arb. Bd.)

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