SHP556
IN THE MATTER OF AN ARBITRATION
BETWEEN
(the "Company")
AND
NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND
GENERAL WORKERS UNION OF CANADA (CAW-TCA) LOCAL 100
(the “Union")
SOLE ARBITRATOR: Michel G. Picher
Appearing For The Union:
J. R. Moore-Gough - National Representative, Chatham
Bryon DeBaets - President, Local 100, Windsor
John Burns - Vice-President, Local 100, Langley
R. J. McDonald - Local Chairman, Lodge 280, Langley
Dave McConnell - Grievor
Appearing For The Company:
Donald N. Kruk - Counsel, Edmonton
Rob Reny - Manager, Human Resources, Vancouver
Ian Campbell - General Supervisor, Mechanical B.C.S., Vancouver
William Dutton - Mechanical Supervisor, Surrey
Kara Lee Lupachow - Manager, Corp. Information Security, Montreal
A hearing in this matter was held in Montreal on Friday, April 12, 2002
This arbitration concerns the grievance against discharge brought on behalf of Car Mechanic Dave McConnell of Vancouver. The dispute and joint statement of issue document, filed at the hearing, reflects the general nature of the dispute between the parties. That document reads as follows:
DISPUTE:
The discharge of car mechanic Dave McConnell (the "grievor"), effective 26 October 2001, for alleged "conduct unbecoming an employee and in violation of company policies in utilization of company computer equipment and systems in acquiring and retaining pornographic material".
JOINT STATEMENT OF ISSUE:
The grievor was employed as a car mechanic with twenty-seven years' service with the Company. At the time of the dispute the grievor worked at the Company's facilities in Vancouver, British Columbia. On 3 October 2001, the grievor was required to attend a formal investigation concerning alleged retention of pornographic material and misuse of company computer equipment. He was further required to attend a supplementary investigation into the matter on 22 October 2001. Effective 26 October 2001, the grievor was discharged by the Company.
It is the Union's contention that the discipline assessed to the grievor was too severe, was inconsistent with what other employees received for similar or identical incidents, was discriminatory, and failed to take into account mitigating circumstances such as the grievor's twenty-seven years of discipline-free service and his physical disability that severely reduces any chance of future employment with other employers. The Union also contends that the Company singled out the grievor solely for the purposes of discharging him in order to avoid having to deal with the issue of the grievor's right to be accommodated due to his physical disability.
The Union requests in settlement of this matter that the grievor be reinstated with full service and seniority and that he be compensated for any wages and benefits lost as a result of the discharge. Further, the Union requests that the Company be directed to pay to the grievor the sum of twenty thousand dollars ($20,000.00) in damages as a result of its having discharged the grievor for the purpose of avoiding the duty to accommodated the grievor's disability, as required by the Canadian Human Rights Act.
The Company disagrees with the Union's contentions and believes its actions were appropriate in the circumstances. The Company also believes that it had acted in accordance with its obligations under the Canadian Human Rights Act concerning the grievor.
The facts material to the grievance are not in substantial dispute. The grievor, who was forty-five years of age at the time of his discharge, had over twenty-seven years of service with the Company. At the time of the incidents giving rise to his termination he was employed as an AAR biller. He was originally hired as a carman at Port Mann, British Columbia and worked thereafter in Prince George. In 1993, as a result of a physical disability, the grievor became wheelchair bound. To accommodate his physical disability he was placed into a lead hand's position at the car shop at Prince George. In May of 1999 Mr. McConnell was re-assigned to Thornton Yard in Vancouver, to allow him closer proximity to his personal physician. His duties as an AAR Biller were then sedentary, involving the use of a computer.
The evidence discloses that the Company made a number of accommodations at Thornton Yard to facilitate Mr. McConnell's work situation, including a work site ergonomic assessment, which resulted in the Company supplying the grievor with a new ergonomic chair, foot rest and mouse pad. It appears that Mr. McConnell was also allowed to park his vehicle in closer proximity to his workplace to accommodate his disability. As the grievor's condition was in the nature of one which was expected to deteriorate, the Company undertook, in April of 2001, to make other changes to further facilitate Mr. McConnell's access to work, including alterations to the entrance to the building, the installation of low level shelving and washroom modifications. The renovations in question were completed by May 18, 2001.
In September of 2001 the Company received a complaint from a fellow worker to the effect that Mr. McConnell had downloaded offensive pornographic material onto his computer. As a result of an investigation, it was discovered that Mr. McConnell's computer did contain pornographic material, both on his C drive and inside his own directory on the Company's network system, referred to as his "U drive". Following a disciplinary investigation held on September 25 and October 17, 2001 the grievor was discharged effective December 26, 2001 for the reasons related in the dispute and statement of issue.
Mr. McConnell acknowledges that he downloaded and kept pornographic material on his computer. There is no dispute that his actions in that regard violated an established Company policy with respect to the utilization of computer equipment. While at one point during his investigation Mr. McConnell admitted to having downloaded pornography onto the U drive, he expressed his belief that he did not do so with respect to what was found on his C drive, and suggested that others with access to his computer might have been responsible for those downloads. In the Arbitrator's view there is little to be resolved with respect to that evidence, as Mr. McConnell openly admits to having downloaded and stored pornographic material on his computer system, contrary to Company policy.
The substantial issue in the case at hand is the appropriate measure of discipline to be assessed against Mr. McConnell. A related issue is the suggestion of the Union that in fact the grievor was subjected to discriminatory treatment, and assessed an excessive penalty as a means of removing from service an employee with physical disabilities, contrary to the Canadian Human Rights Act.
The Arbitrator deals with the latter issue first. The allegation made by the Union is extremely serious, suggesting as it does not only illegality in the actions of the Company, but an egregious level of motivation verging on the inhumane. An allegation so serious must, in accordance with established arbitral principle, be supported by a commensurate standard of compelling evidence. There is, very simply, no such evidence in the record before the Arbitrator. It appears that there was some tension between Mr. McConnell and Company supervisors, apparently relating to a request by the grievor to be allowed to perform his work from his home. As the record discloses, the Company did not agree that it was necessary to make such an adjustment. More significantly, as noted above, substantial and long term physical alterations to the premises were made to further accommodate the grievor's physical disabilities.
It is arguable that in and of itself the discharge of an employee of twenty-seven years' service for an infraction of this kind might suggest some ulterior motive. A closer examination of the evidence concerning the Company's own perception, however, does give an explanation for its view of the facts. It appears that Company supervisors were under the impression that Mr. McConnell had been counselled in the past with respect to the Company's policy concerning the content of his computers. The Company's belief in that regard is based on secondary information provided to it by an outside computer consultant, Mr. Jas Chouhan, the Pacific Division coordinator for EDS Canada Inc., the private company which services the employer's computers at Vancouver. While the arbitrator has some difficulty with the quality of the evidence concerning the clarity of any communication between Mr. Chouhan and the grievor, a matter discussed below concerning the merits of the grievance, it does not appear disputed that the Company's supervisors, in considering the measure of discipline appropriate in the case at hand, formed the view that there had been counselling provided to Mr. McConnell by Mr. Chouhan "on several occasions in the past" as stated in the Company's brief to the Arbitrator. On the whole, the evidence does not suggest an opportunistic or discriminatory gesture by the Company to rid itself of a disabled employee without sufficient cause. For these reasons the Arbitrator cannot accept the submission of the Union that the Company's actions constituted a violation of the Canadian Human Rights Act.
The issue then becomes the appropriate measure of discipline to be assessed against Mr. McConnell in the circumstances. When regard is had to all of the facts, the Arbitrator has some difficulty with the Company's suggestion that Mr. McConnell should be viewed as an individual who was subject to prior counselling by the Company. As noted above, Mr. Chouhan is not a Company employee, much less a Company supervisor. He is a privately employed computer consultant retained by the Company for technical services. While it is open to the Company to rely on information from a consultant in the position of Mr. Chouhan, it is the employer which ultimately bears the obligation to properly administer and record any discipline to an employee who falls under the terms of a collective agreement.
The record discloses that Mr. McConnell was never disciplined by any Company officer or supervisor at any time prior to his discharge relating to the discovery of pornographic material on his computer. Assuming, without necessarily finding, that the grievor was in some fashion spoken to or "counselled" by the private consultant computer technician, there is no procedure by which any such counselling could be challenged, through the grievance process or otherwise, as it would not amount to discipline. It is precisely for that reason that in matters of discipline boards of arbitration tend to limit an employee's prior record to those matters which are recorded in his or her file, and which could have been the subject of grievance.
To support the discharge of a twenty-seven year employee an employer must establish that the discharge is justified as the next step in a system of progressive discipline, or that the misconduct is so grave as to justify dismissal regardless of the employee's record. For reasons which it best understands, the Company took no such disciplinary steps against Mr. McConnell in the past in relation to the content of his computer, whether in the form of a written reprimand, suspension or otherwise. It is arguable that an employee who receives nothing more than a passing comment from a contractor technician about the content of his or her computer, with no follow up from a Company supervisor, may be lulled into the view that the offence is not taken very seriously. Additionally, as reflected in materials filed before the Arbitrator by the Union, it is clear that the Company has at other locations, and on other occasions, issued discipline short of discharge on a first offence to other employees found to have offensive material on their computer. For example, a Winnipeg employee was assessed fifty-five demerits for using a Company computer to e-mail pornographic material to other employees. Those who received and held the pornographic material on their own computers were assessed twenty demerits. No one was discharged.
There are other mitigating factors to consider. Firstly, as noted by the Union, there is no evidence to the effect that the grievor was involved in e-mailing the content of the material on his computer to other employees, or to anyone else. Secondly, while it appears that there may have been some comments made to Mr. McConnell by an outside contractor, there was no prior discipline, disciplinary warning or even any non-disciplinary counselling given to him with respect to the content of his computer by any Company supervisor. The evidence does not sustain the position of the Company that the grievor can be characterized as a "repeat offender' for disciplinary purposes. The record discloses that in fact over a career of twenty-seven years of service Mr. McConnell was never once disciplined, at any level, for any infraction whatsoever.
The Arbitrator appreciates the importance of the Company developing and enforcing a responsible e-mail and computer content policy. Its concerns in that regard, however, cannot be applied in disregard of well-established principles of progressive discipline. In the case at hand, bearing in mind that Mr. McConnell had never been spoken to or disciplined by any Company supervisor, whether in the form of a warning or otherwise, with respect to the content of his computer in the past, the situation is one of a first infraction. It is arguable, as noted above, that it may also be viewed as a first infraction prompted by a course of Company inaction.
When the whole of the file is reviewed, the Arbitrator is satisfied that in the case at hand there was a degree of shared responsibility. Clearly Mr. McConnell knew that he was in violation of the employer's policy. While the Arbitrator is in some doubt as to the clarity of any communication made to him by Mr. Chouhan, who was not called or made available as a witness at the arbitration hearing, there can be little doubt that Mr. McConnell proceeded in the full knowledge that what he did was improper. By the same token, the Company, in summarily dismissing an employee for a first infraction, given twenty-seven years of discipline free service, plainly went beyond what was reasonable in the circumstances.
In the result, the grievance is allowed, in part. The Arbitrator directs that the grievor be reinstated into his employment forthwith, with full compensation for all wages and benefits lost, and without loss of seniority. His disciplinary record shall be assessed at the level of thirty demerits for his violation of the Company's e-mail and computer policy by downloading and retaining pornographic material.
The Arbitrator retains jurisdiction in the event of any dispute between the parties concerning the interpretation or implementation of this award.
Dated at Toronto, this 16th day of May 2002
_____________________________
MICHEL G. PICHER