AH – 473
IN THE MATTER OF AN ARBITRATION
CANADIAN PACIFIC RAILWAY COMPANY
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS
RE: DISMISSAL OF MR. A. LAHAIE
Sole Arbitrator: Michel G. Picher
Appearing For The Union:
J. Platt – International Representative
L. Couture – Senior System General Chairman
Appearing For The Company:
D.E. Freeborn – Labour Relations Officer
R.C. Felstead – S & C Standards, Regulatory & Staff Development Officer
L.M. Dillon – Supervisor Maintenance S & C
A hearing in this matter was held in Toronto on March 8, 2000.
This arbitration concerns the termination of Signals and Communication Maintainer Apprentice A.L. Lahaie of Midhurst Ontario. The grievor was discharged for having cheated on a correspondence course and for the improper use of the Company’s e-mail system in the transmission of inappropriate personal messages.
The facts in relation to the grievor’s discharge are not in dispute. In January of 1997 the grievor, who was first hired in 1991 as an S & C Gang Helper commenced the apprenticeship program towards becoming an S & C Maintainer. As an apprentice he was required to undergo a basic electronics training program. It was in the form of a correspondence course administered on a multi-media basis by the National Radio Institute. In addition to that course he was required to successfully complete more formal classroom studies. It is common ground that the electronics component of the grievor’s training, being the NRI course, has not been mandatorily required of persons who already hold the position of S & C Maintainer. It is, however, required for apprentices being newly trained into that position, as a means of ensuring their currency in basic electronics.
The evidence discloses that Mr. Lahaie had access to the Company’s internal computer communication system, known as Merlin. He did not have his own personal Merlin account but shared Merlin access with a number of others. The Company came to discover that the grievor, and apparently some other employees, succeeded in utilizing the Merlin system to break out of the Company’s mainframe, thereby gaining the ability to communicate by e-mail on the Internet. A review of certain of the messages sent and received by the grievor disclosed that he was involved in obtaining answers to certain of the tests in the correspondence course. It is common ground that the grievor was then making his second attempt at the course, in September 1998 and had been reminded that his deadline for completion was approaching.
When the Company had reason to believe that a number of employees were misusing the Merlin system, it undertook a thorough investigation of some four individuals, including the grievor. The investigation, which included an interview of the grievor in which he admitted his wrongdoing, ultimately revealed that Mr. Lahaie and another employee, Apprentice J.F. Connoly, had been involved in receiving test answers from another S & C Maintainer, as well as a Technician, which resulted in their falsifying answers on their course materials. The same investigation revealed that as well as using the e-mail system for transmitting answers relating to the correspondence course, Mr. Lahaie had also used it to engage in personal communication with other employees as well as his girlfriend, who is not employed by the Company. Some of those communications contained off-colour jokes, a few derogatory comments about another employee and arguably disrespectful remarks about supervisors in general.
When the investigations were completed the S & C Technician who had provided test responses, Technician D. Goddart, was assessed 40 demerit marks. Likewise S & C Maintainer R. Winter, who also provided test answers to the grievor, was assessed 40 demerits. The other S & C Maintainer Apprentice who involved himself in receiving and using the answers so obtained, Mr. J. Connoly, was assessed 45 demerits. The Arbitrator was advised that all three of those employees are presently grieving the discipline so imposed.
The sole issue is whether the facts as disclosed justify the termination of Mr. A. Lahaie. In approaching that issue the Arbitrator has a degree of difficulty with respect to the position of the Company. Firstly, for reasons it best appreciates, by the assessment of 45 demerits against Mr. Connoly the employer acknowledges that cheating on the correspondence course was deserving of something less than discharge. To the extent that the grievor had a previously unblemished record through the nine years of his service, the well established principle that like conduct should attract like discipline would suggest that the Company would not have discharged Mr. Lahaie solely on the basis of his fraudulent obtaining of answers to tests in the NRI course. The issue then becomes whether, on the whole of the evidence, the balance of the grievor’s activity, namely the misuse of the Merlin system, and its use to go beyond the Company’s mainframe to send and receive personal e-mail messages containing off-colour jokes and comments about others justified the grievor’s discharge.
There can be little doubt but that the content of many of the grievor’s personal e-mail messages was in extremely bad taste. Messages to his girlfriend contained jokes which ridiculed women and gays, in language liberally sprinkled with four letter words. In fact, it appears from the review of the e-mails, all of which were submitted to the Arbitrator, that only one of the grievor’s messages contained off colour jokes, although it was sent repeatedly a number of times late in the evening of June 4, 1998, as it seems the grievor was uncertain as to whether he was being successful in breaking out of the mainframe system.
A review of the balance of the e-mail communications sent by the grievor reveal that they were largely in the nature of lighthearted communication about the grievor’s taste in rock music and concerts, his plans for weekend outings at a nearby beach, his exploits at parties, and similar communications not altogether unusual for a 26 year old. On one occasion he makes a derogatory reference to another employee, who is never identified by name. On the whole the messages cannot be fairly characterized as disrespectful of authority, although they occasionally reflect a mild case of barracks’ humour. In one message Mr. Lahaie states to a fellow employees: “I was just wondering if you got one of these ‘reminders’ from our (not) caring bosses.” The same message, dated July 8, 1998 uses a four letter term to express indifference to the apparent anger of a supervisor said to be not pleased by the fact that no employees had bid on a permanent job in White River.
The Company’s representative submits that the content of the grievor’s personal e-mails constitute a violation of the Company’s Harassment and Discrimination Policy, and amount to theft by the unauthorized use of the Company’s property and resources. The Arbitrator appreciates the obligation of the Company to take all necessary steps to prevent the development of a poisoned work environment, and to maintain standards of conduct and communication among its employees which protect them from undue discrimination and harassment from verbal abuse or otherwise. In fairness, however, when regard is had to the nature of communications engaged in by Mr. Lahaie, they are plainly more immature and tasteless than harmful or harassing in nature. As noted above, only one of the e-mails, being the message to his girlfriend, contains tasteless jokes of the Howard Stern variety. The bulk of his communications, sent to employee friends, consists of largely insignificant chit chat which is neither scandalous nor particularly interesting.
On the whole, the Arbitrator is inclined to agree with the Union’s representative who characterizes the Company’s reaction to the grievor’s misuse of the Merlin system as excessive, given the content of his messages. It is clear that the Company has a legitimate concern for the misuse of its internal e-mail system. While the grievor did misconduct himself by breaking out of the mainframe to access the Internet for the purpose of personal communication, so as to attract discipline, it is not clear to the Arbitrator that the content of his messages was so egregious as the Company would have it. They were plainly not addressed to any individual who would have been the victim of specific harassment or abuse, and while they did contain one or two references to others in less than flattering terms, they would not, in my view, standing on their own be justification for the discharge of a nine year employee with no prior discipline. The Arbitrator also finds a degree of hyperbole in the Company’s characterization of the grievor’s misuse of the e-mail system as “theft” justifying his discharge. To be sure, the grievor did misuse the Company’s equipment and communication facilities for his own purposes. To elevate that misconduct to the level of theft, however, is questionable. There is no suggestion that there was additional expense incurred by the Company, or any quantifiable material loss suffered as a result of the grievor’s actions. Absent any evidence which would, for example, show additional expense to the Company as might be established if an employee had improperly incurred substantial long distance charges for personal purposes, it is difficult to share the Company’s characterization of the grievor’s actions as meaningful theft for the purposes of discipline. Nor is it clear to the Arbitrator that the grievor’s misuse of the Company’s system, at least as so far as it related to the trafficking in test answers for the NRI course, can be viewed as different from the same conduct apparently engaged in by Mr. Connoly.
The Arbitrator shares the Company’s view that it was highly inappropriate for Mr. Lahaie to make use of the Merlin system, particularly in the context of generic user codes accessible to a number of persons, for the transmission of personal messages of questionable taste. Such conduct is plainly deserving of discipline. In CROA 2731 and 2732 the Arbitrator sustained discipline, albeit short of discharge, against two employees who misused an internal Company e-mail system to exchange amorous messages and tasteless comments about others. Internal communication systems are obviously to be used in a professional and responsible manner. Mr. Lahaie clearly violated acceptable standards in his abuse of the Merlin system and thereby rendered himself liable to a serious degree of discipline. He was likewise subject to serious discipline for his fraudulent obtaining of test answers through the use of the Merlin system, and the Arbitrator would not be inclined to disturb the 45 demerits assessed against him on that basis. However, when regard is had to the whole of the evidence, I consider that his discharge for the added personal use of Merlin for communicating socially with his girlfriend and other friends among the employees is excessive, particularly having regard to the fact that he has never before been disciplined for any reason.
In the result, the Arbitrator directs that the grievor be reinstated into his employment, without loss of seniority and without compensation, with the period from the date of his discharge to the date of his reinstatement to be registered as a suspension against his record for the offence of having falsified answers in the correspondence course, and conduct unbecoming an employee in the misuse and abuse of the Merlin system. I retain jurisdiction in the event of any dispute between the parties concerning the interpretation or implementation of this award.
Dated at Toronto this 14th day of March, 2000.
(signed) MICHEL G. PICHER