Ontario (Ministry of Natural Resources) and O.P.S.E.U. (Re), 2003 CanLII 89534

Re The Crown in right of Ontario (Ministry of Natural Resources) and Ontario Public Service Employees Union

[Indexed as: Ontario (Ministry of Natural Resources) and O.P.S.E.U. (Re)] File Nos. 0542/01; 0559/01; 0560/01; 0561/01; 0831/01; 0908/01 Ontario Crown Employees Grievance Settlement Board K Petryshen

Heard: November 22, 2001, January 14, June 25, 26 and 27, July 9, 16, 17 and 18, 2002 Decision rendered: January 23, 2003

EMPLOYEE GRIEVANCES alleging unjust discharge. Preliminary assessment of penalty on basis of employer's best case.

D. Eady, for the union. S. Patterson, for the employer.

AWARD

After an investigation into the inappropriate use of e-mail by employees within the Ministry of Natural Resources ("the MNR"), the Employer disciplined 66 employees for contravening the Workplace Discrimination and Harassment Prevention operating policy ("the WDHP Policy") and the Operating Procedure on Usage of I.T. Resources ("the TT Policy"). The Outlook e-mail accounts of these employees contained inappropriate material which was sexually explicit. The discipline imposed includes letters of reprimand, suspensions of varying lengths to a maximum of 20 days and the dismissal of 6 employees. There was no challenge to my jurisdiction to hear and determine the 26 grievances referred to the Grievance Settlement Board.

The parties agreed to first deal with the grievances of the discharged employees, namely Mr. J. Vallee, Mr. L. Wickett. Mr. T. Walmsely, Mr. R. Nadeau, Mr. J. Hastie and Mr. P. Curtis ("the grievors"). Although conceding that the grievors engaged in conduct deserving of discipline, the Union took the position that discharge was an excessive response in the circumstances. Confronted with the prospect of many hearing days, the parties agreed to a process whereby the Employer would set out its best case to support the discharges and counsel would make their submissions on whether the discharges could possibly be upheld in the circumstances. It was agreed that in determining whether the discharges could possibly be upheld, I could take into account the grievors' disciplinary records. If I determined that the discharges could not be upheld on the basis of the Employer's best case and that reinstatement was an appropriate remedial response in the circumstances, I would reinstate the grievors and the parties would then have to deal with the issue of what penalty should be substituted for the discharges. If I determined that the discharges could possibly be upheld on the basis of the Employer's best case, the parties would then have to address whether the discharges could in fact be upheld, taking into account any mitigation or other relevant evidence. Of course, because the circumstances of each grievor are not identical, it is possible that the result could vary for each grievor. Even if the grievors were not reinstated at this stage of the proceeding, the parties recognized that it was likely that the hearing of all of the grievances would proceed more expeditiously having first dealt with the discharges on the basis of the Employer's best case. Due to the volume of the material and the thoroughness of counsel's submissions, the hearing to deal with the Employer's best case required 7 hearing days.

As part of the material for its best case, the Employer filed a statement of facts which deals with the circumstances giving rise to its investigation and the nature of its investigation, with reference to the evidence gathering, the fact finding and the discipline stages. The statement of facts, absent references to the supporting material, reads as follows:

A. The Beginning of the Complaints

i) Bancroft District Complaint ("Field Complaint")

3. On or about January 17, 2001, Dan Smith ("Smith"), Enforcement Supervisor, Bancroft District, telephoned Janet Addyman ("Addyman") the Workplace Discrimination and Harassment Prevention ("WDHP") Co-ordinator for the Ministry of Natural Resources ("MNR"), to advise her that one of his employees had showed him material which was potentially inappropriate under the WDHP Policy. Smith advised Addyman that, as he was walking by the work area of Conservation Officer Marcel Lamont ("Lamont"), he overheard Lamont speaking to Barry Wilson ("Wilson"), a Conservation Officer, about "hand warmers". When Smith walked by Lamont's desk area, Lamont showed Smith a graphic image of three nude women.

4. As Smith was Lamont's direct supervisor, Smith called Lamont into his office and advised him that such material was inappropriate in the work-place, with the use of MNR equipment. Further, Smith questioned Lamont about where he got the image and Lamont advised that he had received the image by e-mail from a co-worker, Barry Wilson.

5. Smith then spoke to Wilson about the distribution of inappropriate material in the workplace, with the use of MNR equipment. Wilson admitted that he had received inappropriate material for a long period of time from co-worker Richard Nadeau ("Nadeau"), MNR Conservation Officer.

6. Addyman then commenced an investigation and instructed the IT Branch to copy OUTLOOK accounts for Lamont, Wilson and Nadeau. The OUTLOOK account of an MNR employee contains the user's e-mails sent and received from the user's e-mail address, and any e-mail stored on the user's computer.

ii) Chrysler Complaint

7. On or about January 18, 2001, Addyman received an e-mail and a telephone call from Sue Rooney ("Rooney"), Acting Executive Assistant to the Assistant Deputy Minister, Corporate Services Division. Rooney advised that Thomas E. Cross ("Cross"), Manager, Industrial Security at Daimler-Chrysler Canada, had called her to advise that an MNR employee had sent inappropriate e-mails to Chrysler employees on two separate occasions.

8. According to Rooney, Cross had provided Rooney with the inappropriate e-mails that were sent to the Chrysler employee, and she then forwarded the e-mails to Addyman. The e-mails indicated that Jim Hastie, MNR Operations Co-ordinator, initially sent the images to Al Matthews, MNR Operations Co-ordinator. The e-mails also showed that Al Matthews had forwarded the inappropriate images externally to the Chrysler employee. The first included eight images of a woman named Amber and the second e-mail' included an image of a woman entitled Superheroes.

9. On or about January 18, 2001, Addyman requested the IT Branch of MNR to retrieve and copy the OUTLOOK accounts for Al Matthews and Jim Hastie.

10. A review of Hastie's and Al Matthews' accounts uncovered a large volume of inappropriate material that was sent and received by both of them. In addition, both accounts revealed the names of other MNR employees who had either sent or received inappropriate materials from Matthews and/or Hastie.

B. The Investigation of the Complaints

11. Because of the large volume and sensitive nature of the images and allegations, MNR made a decision to retain an external consultant to lead the investigation. Grace Shore, who is affiliated with the firm of Charles Novogrodsky & Associates ("CN & Associates") was retained as the investigator.

12. Because of the large number of employees and images involved in the investigation, it was determined that it would be too time consuming and costly to have Shore review each of the OUTLOOK accounts by herself. As a result, it was decided that another external investigator, Edward Laas ("Laas"), and Addyman would also assist Shore with the evidence-gathering component of the investigation.

13. The evidence gathering process of the investigation commenced in late January 2001.

14. In the evidence gathering stage, Shore created an evidence summary sheet. This was a document that identified the particular employee, his or her position, and a summary of the type of material that was found on the employee's OUTLOOK account. Shore, Addyman and Lass then completed these sheets for those employees who were identified as potentially having inappropriate material on their OUTLOOK accounts. The actual inappropriate images were printed and attached to the evidence summary sheets. These evidence summary sheets, with the noted attachments, were forwarded to Shore in groups, as soon as they were completed.

15. After the evidence was compiled and forwarded to Shore, she reviewed each employee file to determine: the type of images found on the employee's file; the number of images or text; whether the images or text were simply received by the employee or whether the employee actively distributed images or text; and the frequency and/or volume of the exchange or receipt of materials.

16. The evidence gathering component of the investigation was a very long process. A review of one employee's account would lead to the identification of other employees who had not been identified through other accounts. Once reference to a new employee name was found, Addyman contacted the IT Branch and requested a copy of their OuTLooK account.

17. After conducting this review, Shore determined that there were a number of employees who had a relatively minor number of inappropriate e-mails that were not nearly as explicit as the material found on other employee e-mail accounts. A review of the relatively mild images/text indicated that they were in a different class than that of the other material that was found. A comparison of the two groups of e-mails made it clear that the recipients did not warrant the same investigative process.

18. The employer then made a decision to divide the employees into two distinct groups. One group, the A-List, would include those employees who had a large volume of inappropriate material found on their e-mail accounts as well as those employees who were involved with distributing inappropriate e-mails. This group would also include those employees with any images or text that were obviously inappropriate. The second group, the B-List, would include those employees who had a very small number, i.e. less than five, of mild images found on their accounts and employees who received questionable material, but did not distribute them.

19. Shore was responsible for determining whether an employee belonged to the A-List or the B-List. She determined that 90 employees were on the A-List. Of these, sixteen (16) were in management or management excluded positions and 74 were unionized. Ninety-nine (99) employees were placed on the B-List.

20. MNR decided it would not require employees on the B-List to participate in the same type of interviews as employees on the A-List. Instead, employees on the B-List were required to have formal meetings with their managers and were provided with copies of the WDHP Policy and summary sheets. The majority of these informal meetings occurred during or around the week of May 7, 2001 and were not disciplinary in nature. There was no disciplinary action taken as a result of these informal meetings.

21. Commencing on or about March 20, 2001, and continuing until about June 2001, employees on the A-List were provided with a letter advising them that a management initiated WDHP investigation concerning allegations of inappropriate computer usage was underway. It advised the particular employee that he or she had been identified as a respondent in the investigation and that his or her senior manager would be in contact to set up an interview.

22. To a large extent, this process continued until late spring because other employees, with inappropriate material, continued to be identified. At the end of the evidence gathering component of the investigation, a total of 189 MNR employees had been identified as having inappropriate material.

23. The fact finding component of the investigation involved interviewing the employees, advising them of the allegations that were being made against them, and providing the employees with an opportunity to respond to the allegations.

24. Shore prepared a set of standard interview questions for bargaining unit employees and another set of questions for employees occupying managerial or excluded positions. For some particular employees, supplemental questions were added to the standardized questions because those employees had particular evidence on their accounts.

25. In or about the third week of March 2001, it was decided that the materials Shore had prepared for the employee interviews would be useful in the investigation of the Chrysler complaint. Thus, by mid-March the two investigations were largely merged into one investigation process.

26. Meetings/teleconferences were held on or about March 21, 2001 and March 22, 2001. The purpose of these meetings/teleconferences was to advise and/or update managers who had employees implicated in the investigation, on the investigation process. The meetings/teleconferences were also to prepare managers for the interview process. Shore reviewed the interview questions she had prepared and discussed the process and procedure for the interviews with managers at the meetings/teleconferences.

27. There were approximately thirty managers who conducted the various interviews. For each employee's interview there were two (2) managers in the SMG 1 and/or SMG 2 classification present for the meeting. About thirty (30) managers were involved in the entire interview process.

28. After the interviews were conducted with the employees within the A-List, the managers returned the interview packages to Addyman. These packages consisted of the interview questions and hand-written answers of the managers, an evidence summary sheet, and appended images that were found on the employee's account. The completed packages were sent to Addyman who in turn forwarded them to Shore so that she could begin on the analysis component of the investigation. The evidence packages were sent to Shore in groups, as soon as Addyman received them.

29. Shore was the only person involved in completing the analysis and draft report component of the investigation. In preparing these drafts Shore made reference to the e-mails, the policies, the interview documents and any letters provided by the employees. In preparing these reports Shore summarized the evidence on a form which was provided to her by MNR, and which required the identification of the evidence on criteria of volume, nature of involvement by the employees and nature of the materials. This form provided a rough way in which to summarize the nature of the employee's conduct.

30. Shore began drafting reports in the beginning of April 2001. Shore drafted reports on individual employees and then forwarded them in groups to Addyman to distribute to the employees. Addyman began to disclose the draft investigation reports to employees on or around May 7, 2001. Along with the draft investigation reports, MNR included a letter asking the employees to respond with their comments or concerns within five days of receiving the draft reports. The Employer also advised the employees that extensions to the five day period would be provided if necessary.

31. Addyman provided respondent comments to Shore as she received them, and Shore then prepared a final report for each respondent.

32. Shore reviewed the responses provided by the employees and determined whether the employees' response changed the findings of the report. Not all the employees provided responses to the draft investigation report. Shore began providing Addyman with final reports as they were prepared, with most final reports provided by the week of May 28, 2001.

33. Addyman was the ministry contact responsible for accepting or rejecting the investigator's findings in each case. Ultimately, she accepted the findings in all the reports.

34. Out of the 90 employees on the A-List, allegations against 83 of the employees were substantiated, and 7 were not substantiated.

35. Beginning on or around June 4, 2001, the letters were delivered to respondents, advising them that they were found to have violated the IT and WDHP policies. The letter also advised that their manager would be meeting with them in the near future to discuss the matter.

C. The Discipline Stage

36. On or about May 28 and 29, 2001, a managers meeting was held in Toronto. The purpose of the conference was to advise managers of the outcome of the investigation, detail next steps, provide managers with tools to assist them in making disciplinary decisions, and provide information on dealing with workplace issues arising from the investigation. On the issue of discipline, prior to the meeting, managers were provided with two Issue papers relating to discipline and the exercise of management discretion. Managers were asked to review the Issue papers and at the meeting, Lori Aselstine, Staff Relations Officer, MNR, reviewed the manager's responsibilities for making disciplinary decisions with reference to the two Issue papers.

37. At the meeting, managers were able to compare the evidence of their employees and the other employees. Lori Aselstine provided 'the managers with recommendations on discipline. Aselstine's recommendations on discipline were based solely on the evidence packages, and did not take into account any mitigating or aggravating factors. The ultimate disciplinary decision, taking into account any mitigating or aggravating factors, rested with the manager with the delegated authority.

38. Managers began having their final disciplinary meetings with respondents beginning on or around June 7, 2001. These meetings were to provide respondents with a final opportunity to raise explanations of their conduct or to identify mitigating factors that might affect the manager's decision regarding what, if any, discipline would be imposed.

39. Subsequent to those meetings, MNR Human Resources Branch was advised by each of the managers of the specific action that was taken against each respondent.

In support of its best case, the Employer filed seven boxes of material which provided a complete documentary picture of its WDHP investigation and the disciplinary process relating to the individuals on the A-List. The material includes the WDHP Policy, the IT Policy, a Memorandum to all MNR staff from the then Deputy Minister dealing with the WDHP Policy and the two Issue papers provided to the managers. The material also includes documents relating to each person on the A-List, such as the discipline letter executed by the manager, the letter from Mr. D. Lynch, Director Human Resources Branch, notifying each person of the investigation and the interview, the two sets of interview questions and responses prepared by the two managers at each interview, the draft and final investigative reports prepared by the external WDHP investigator and any response to the report by the person under investigation and a manager's chart prepared by each manager involved in disciplining an individual. The bulk of the material consists of the text and images reproduced from the Outlook accounts, along with the e-mail cover sheets. The Employer also filed CDs which contained the material retrieved from Outlook accounts and relied upon by the Employer. For each employee the Employer filed a summary chart and an evidence table. The summary chart provides some basic information about the material in each person's Outlook account, such as the date, who the material was received from and/or sent to, the subject and content of each item and whether it was deleted. The evidence table prepared for each person provides another useful summary of the inappropriate material contained in the Outlook accounts and illustrates the manner in which the Employer analyzed the material. One column separates the items on the basis of "received and deleted", "received and saved", "received and distributed", "distributed" and "distributed with comments". Another column categorizes the material on the basis of "sexual content", "nudity", "exposed genitalia", "sexually graphic", "violence/ degradation/and dehumanization" and "other/racial, ethnic, place of origin, sexual orientation, etc.". Although there were some errors made on the summary sheets and evidence tables for the grievors, they were minor in nature and they did not, in my view, alter the essence of each grievor's conduct. The Employer also filed 39 "will-say statements" from individuals who the Employer would have called as witnesses. There are will-say statements by the persons referred to in the statement of facts and the managers who were involved in deciding what disciplinary response was appropriate for persons on the A-List.

Having regard to the nature of the submissions, I reviewed the material relating to the grievors, as well as the material relating to others on the A-List, including managers and employees who were issued significant suspensions. This was a time-consuming process and given the nature and volume of the inappropriate material, it was not a pleasant exercise. Although the Union raised some process concerns and suggested that the Employer "rushed to judgment" and felt compelled to discharge some employees simply because of its zero tolerance approach, a review of the material suggests otherwise. It appears from the material that the Employer conducted a careful and extensive investigation and that the disciplinary process was handled in a fair and professional manner. As well, an examination of all of the material confirms the opinion I formed at the hearing to the effect that the individuals responsible for gathering and organizing the material for the Employer's best case did a very thorough and competent job. At the conclusion of the hearing, counsel for the Union commended the Employer for its efforts in this regard and I echoed that sentiment. In my view, the nature of the materials filed will likely ensure that the grievances will be addressed more expeditiously than would otherwise have been the case. As noted previously, the Employer alleges that the disciplined employees contravened the WDHP Policy and the IT Policy. The Union does not dispute that the employees who were disciplined failed to comply with the IT Policy. The IT Policy filed with me is dated July 21, 2000. I was referred by counsel to the following sections of the IT Policy:

PURPOSE

To protect the government's interest in ensuring that Information Technology Resources are used only for government business and other approved purposes.

PRINCIPLES User Accountability

Unacceptable use of Information and Information Technology Resources may result in restricted Access to those resources and/or disciplinary action.

Business Purposes Information and Information Technology Resources are to be used for government business purposes that support the goals and objectives of ministries and agencies. Use of government computers, Networks, systems and software may be subject to monitoring.

Unauthorized Use of Resources Computer systems and Networks must not be used for illegal or unacceptable activity.

Unacceptable activity:

In the context of I.T. resources, unacceptable activity includes:

— Access, display or storage of any software, Data, graphic or image which is offensive and conducive to a poisoned work environment (as per WDHP Policy).

RESPONSIBILITIES

Users Users are responsible for: — using Information Technology resources only when authorized by management and only for government business or approved purposes.

Appendix Unacceptable and illegal activities include but is not limited to: Child pornography and obscenity: possessing or distributing child pornography; disseminating obscene materials.

Hatred: wilfully promoting hatred against any identifiable group by communicating such statements outside of private conversations.

The computer system provides a warning on every ministry computer which appears before entering the user's name and password. The user is warned that unauthorized use of the computer system is prohibited. A second warning appears before logging onto the Outlook e-mail account. The user must click the OK box below the warning to acknowledge reading the advisory notice before proceeding. This warning reads as follows:

As with other government resources, Information Technology (IT) resources [e.g. E-mail, Internet/Intranet] are to be used exclusively for government business, unless authorized by the employee's manager. As has always been the case, the government has an interest in ensuring that government resources are used by employees only for business purposes. Specifically, IT resources are not to be used for purposes that the Operating Procedure on Usage of IT Resources lists as unacceptable, such as to access, display or store offensive data, for personal or private business, or to send anonymous messages. Consequently, if the' government has reasonable belief that IT resources are being used inappropriately by an employee, it will monitor this usage to determine whether any disciplinary or other action should be taken. The full text of the Operating Procedure is available for review at Intra.cpb.gov.on.ca. By selecting the box indicated below, you acknowledge that you have read this advisory notice.

One of the ways the Employer has attempted to create a workplace environment consistent with the objectives of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 ("the Code"), is with the creation and enforcement of the WDHP Policy. This policy was first introduced in 1990, with the current version effective from 1998. The WDHP policy is intended to promote fair employment practices and to improve the working environment for all employees. In addressing the inappropriate use of e-mail in this instance, it appears that the Employer's primary focus was on this policy. Counsel referred me to the following aspects of the WDHP Policy:

PURPOSE This policy supports: — a positive and respectful workplace that is free from discrimination and harassment based on the Ontario Human Rights Code.

— preventing, identifying and correcting actions of one employee toward another that, left unchecked, would result in employment-related discrimination or harassment.

APPLICATION AND SCOPE

This policy covers: — the Code's prohibited grounds of employment-related discrimination and harassment which are race, ancestry, place of origin, color, ethnic origin, citizenship, creed, sex (including pregnancy), sexual orientation, age, record of offences, marital status, family status or handicap (disability).

— behaviors and practices based on prohibited grounds, including:

— creating, contributing or condoning a poisoned work environment. — failure of management, in keeping with its authority, to respond adequately to information about discrimination, harassment or poisoned work environment; such failure may be considered condoning of discrimination and/or harassment.

PRINCIPLES The OPS, as an employer, is committed to: — zero tolerance of discrimination and harassment — proactive, prevention-oriented and cost-effective practices — alternate dispute resolution processes, and — resolution of discrimination and harassment, as soon as possible, and in a way that least disrupts ongoing working relationships.

— All aspects of workplace discrimination and harassment prevention processes will be fair, responsive, timely, confidential, professional, impartial, consistently applied, and will aim to preserve the dignity, self-respect and rights of all parties.

— Responses to discrimination and harassment will aim to correct identified problems and to prevent repeated violations of this policy.

MANDATORY REQUIREMENTS Prevention, communication and education — Employees must not be subjected to offensive remarks, behavior or surroundings (based on the prohibited grounds) that create intimidating or humiliating working conditions.

Penalties — Employees found to have violated this policy will receive penalties, if appropriate (depending on the circumstances of each case) up to and including dismissal.

RESPONSIBILITIES

Managers and Supervisors — ensuring that their workplaces are free from discrimination and harassment; including clarifying the type of workplace behavior expected under this policy.

Au. EMPLOYEES All employees are responsible for: — refraining from discrimination and harassment, including offensive remarks or other actions that create intimidating hostile or humiliating working conditions based on the prohibited grounds of this policy.

— adhering to this policy and related ministry processes.

Employees are encouraged, where possible, to tell alleged offenders about unwelcome conduct or actions perceived to be discriminatory. While employees cannot be required to report experiences of discrimination or harassment, they are also encouraged to quickly notify the first level of management not involved in the complaint (free of bias or conflict of interest) about alleged violations of the policy. This procedure helps to resolve issues quickly and in the least adversarial way.

DEFINITIONS

Poisoned work environment: An infringement of every person's right to equal treatment with respect to employment which refers to comments, behaviour or work environment that ridicules, belittles or degrades people or groups identified by one or more prohibited grounds of this policy. A poisoned work environment could result from a serious and single event, remark or action and need not be directed at a particular individual.

In July 1998, Deputy Minister R. Vrancart issued a memorandum ("the Deputy's memorandum") to all MNR staff about the WDHP Policy and zero tolerance. For purposes of the Employer's best case, I will assume that the grievors received or were aware of this communication. The relevant paragraphs of the Deputy's memorandum read as follows:

The Ministry of Natural Resources has a zero tolerance policy with respect to discrimination and harassment in the workplace. This policy is called the Workplace Discrimination and Harassment Prevention (WDHP) Operating Policy. As the Deputy Minister, I am committed to this zero tolerance policy.

This policy applies to discrimination in all aspects of employment such as: recruitment, promotion, training, job transfer, receipt of benefits, dismissal, discipline, and performance appraisals. All MNR employees have the right to fair and equitable treatment in employment without discrimination or harassment based on specific grounds as outlined in the Ontario Human Rights Code. Those grounds are: race, ancestry, place of origin, color, ethnic origin, citizenship, creed, sex (including pregnancy), sexual orientation, age, record of offences, marital status or handicap (disability). Similarly, no employee is to be subjected to a poisoned work environment or participate in the creation of one. A poisoned work environment is characterized by comments or behaviors that ridicule, belittle or degrade people or groups identified by one or more prohibited grounds. This behavior does not need to be directed at specific individuals.

The number of WDHP complaints investigated increased over the last year indicating a need to reinforce the ministry's zero tolerance policy. Please be advised that as deputy Minister I take these matters very seriously and it is my expectation that all staff are able to work free of discrimination and harassment.

It has been brought to my attention that there is a disturbing new trend that many employers, including MNR, are currently experiencing — specifically, the use of ministry computers to access pornographic and other questionable material from the Internet. It goes without saying that the use of computers for anything other than government business is not allowed. However, you also need to be made aware that the accessing, presence and/or displaying of pornographic or other offensive materials on ministry computers can create a poisoned work environment and may be in direct violation of the WDHP policy. Depending on the material, there may also be implications under the Criminal Code of Canada. The use of ministry equipment and/or work time to access offensive materials of any kind is unacceptable and will not be tolerated. It will result in disciplinary action, up to and including dismissal. As the computer equipment and systems are the property of the Ministry to be used solely for business related purposes, the Ministry maintains the right to monitor computer use and content from time to time, as deemed appropriate, and without notice to the employee.

As the material filed discloses, the problem of e-mail abuse was quite widespread, given the number of individuals who were investigated relative to the total number of MNR employees. Inappropriate material was found in the Outlook accounts of OPSEU employees, some employees represented by AMAPCEO, Human Resources staff and a WDHP advisor. As well, there were a fairly significant number of managers on the A-List. There are examples of employees sending inappropriate e-mail to managers and managers sending such material to employees. Although the majority of persons on the A-List are males, there are a number of women on that list, some of whom were disciplined.

The persons who were disciplined sent and received inappropriate e-mail to and from persons both within and outside the MNR. It appears that the recipients of the inappropriate items did not consider the material offensive. Many of the items were attempts at humour and at the time many employees did not view their conduct as serious. During the investigation the employees did not deny the activity as reflected in their Outlook accounts. The inappropriate material was sent to and distributed by the MNR employees without any employee complaining in general or under the WDHP Policy. One of the disputes between the parties concerns the significance of there being no such complaint.

Individuals were asked during the interview process whether they had received WDHP training and invariably the response was in the affirmative. The Employer provides employees with extensive WDHP training. However, there is no indication in the material that the WDHP training addressed inappropriate computer and e-mail usage and what impact the distribution of pornography by e-mail can have in the workplace.

The final WDHP report for each grievor provides a summary of the inappropriate e-mail activity from their Outlook account. Although some minor inaccuracies are contained in the final reports, which is not surprising, the reports do provide the essential activity upon which the Employer based its decision to discharge each grievor. I do not intend to detail the nature of the material contained in the Outlook account of each grievor, or the material in the accounts of those persons who received significant suspensions. Although some of the items in the grievors' accounts are racist, homophobic and contain bestiality, many of the items objectify, denigrate and show hostility to women. The depiction of women ranges from the display of breasts and other parts of the female anatomy, to women engaged in a variety of sexual acts. Some of the items involving women are violent and degrading. One of the most offensive items, an interactive video cartoon entitled "Dirty Sanchez", was found in the Outlook accounts of Mr. Walmsely, Mr. Hastie and Mr. Curtis. There is little doubt that but for the presence of this item in his Outlook account, Mr. Walmsely would not have been terminated. The following description of this item is accurately set out in Mr. Curtis's final WDHP report as follows:

The singer Britney Spears' face is superimposed on a women cartoon figure. She is being spanked and beaten during intercourse. The man then inserts his index finger into her anus, removes it, sniffs it and then smears feces across Britney Spear's upper lip. The words DIRTY SANCHEZ appear. After viewing this you may select three options: 1) Do it again 2) Kick her out of the window or, 3) Snuff movie. By selecting #1, the video cartoon repeats itself. By selecting #2, you see a crying Britney Spear saying he used and degraded me, while she is kicked out a glass window, falling to her death. By selecting #3, you see a crying Britney Spear saying he used and degraded me. SILENCE OF THE LAMBS appears across the screen and the viewer gets to select where to shoot her with a silencer on a gun. A video message appears You SADISTIC BASTARD. Throughout the whole video laughing is heard.

Before reviewing the summary paragraphs contained in each grievor's final WDHP report, I note that at the hearing counsel for the Employer wished to enter and rely on some inappropriate material sent or received by some of the grievors which was not referred to in the WDHP reports. There were not many such items and counsel noted that they did not significantly alter the characterization of each grievor's conduct. Since these items were available to the Employer but were not relied upon when deciding discipline, counsel for the Union took the position that the Employer should not be permitted to rely on these items at this stage. It is my conclusion that the Employer cannot rely on these additional items because they were available to the Employer prior to the dismissals. See, Re Dupont Canada Inc. and C.E.P., Loc. 28-0, [2001] O.L.A.A. No. 676 (QL) (Roach) [summarized 66 C.L.A.S. 3241 In any event, I also agree with counsel for the Employer's assessment that these additional items do not affect the analysis of the conduct of each grievor.

Jean-Jaques Vallee

At the time of his dismissal, Mr. Vallee worked in the MNR as a Senior Fish and Wildlife Specialist. He was a classified employee based out of Chapleau in the Northeast Region. Thirty items were identified in Mr. Vallee's Outlook account, with 27 items received and 3 sent. The final WDHP report summarizes his inappropriate e-mail activity as follows:

Of the twenty-seven items received they were characterized in the following manner: six items contained materials with sexual content; six items contained items contained materials with nudity; three items contained materials with exposed genitalia; six items contained sexually graphic materials; and, six items contained materials with degrading, dehumanizing and racial content. The respondent redistributed nine items either inside the MNR or outside the OPS and deleted the remaining 18 items.

Of the three items sent by the respondent, two items contained nudity and one item contained degrading material. The respondent distributed these items either inside the MNR or outside the OPS.

Larry Wickett

Mr. Wickett was an unclassified employee who, at the time of his dismissal, worked as a Highway 407 Project Biologist, based out of the Aurora District. Of the 55 items identified on his Outlook account, Mr. Wickett received 47 items and sent 8 items. His final WDHP report contains the following summary:

Of the 47 items received 45 Emails contained materials that were characterized in the following manner: 13 items contained materials with sexual content; 10 items contained nudity; 10 items contained materials with exposed genitalia; five items contained sexually graphic materials; and, seven items with degrading, dehumanizing and violent materials. The respondent re-forwarded seven items inside the MNR and outside the OPS, stored 32 items and deleted the remaining six items.

Of the eight items distributed by the respondent, eight Emails were characterized in the following manner: three items contained sexual content; three items contained nudity; one item contained exposed genitalia. These materials were distributed inside the MNR and outside the OPS.

Terry Walmsely

Mr. Walmsely was an unclassified employee who worked in the MNR as a Fisheries Technician, based out of Owen Sound. Of the 9 items identified on his Outlook account, he received 8 items and sent 1 item. There were 5 additional items that were cross-referenced from other MNR accounts. His final WDHP report contains the following summary:

Of the eight items received they contained materials that were characterized in the following manner: 5 items contained materials with nudity; 2 items contained sexually graphic materials; and one item with degrading, dehumanizing and violent material. The respondent re-forwarded all of these items outside the OPS.

The one item distributed by the respondent contained ethnic and sexual content and was distributed inside the MNR.

Of the five cross-referenced items three items contained exposed genitalia; one item contained degrading material; and one item contained sexual and racial content. These five items were deleted.

Richard Nadeau

Mr. Nadeau was a classified employee who worked in the MNR as a Conservation Officer based out of the Hearst District in the Northeast Region. A distinction between Mr. Nadeau and the other grievors is the Employer's reliance on the fact that he subscribed to inappropriate web sites and downloaded material from those sites. There were actually 46 items identified on his Outlook account. Of these items, 43 were received and 3 items were sent. There were 3 items originating from Mr. Nadeau which were cross-referenced from other MNR accounts. His final WDHP report contains the following summary:

The 43 Emails received contained materials that were characterized in the following manner: 19 items contained materials with sexual content; two items contained materials with nudity; 7 items contained materials with exposed genitalia; 8 items contained sexually graphic materials; four items with degrading, dehumanizing materials; and 3 items with sexual orientation and place of origin content. The respondent re-forwarded 11 of these items, stored seven items and deleted 26 items from his account.

Of the three items distributed by the respondent, one was identified as containing sexual content. This item was distributed inside and outside the OPS. The three cross-referenced materials were characterized as follows: one item contained exposed genitalia; one item was sexually graphic; and one item contained degrading material. These items were distributed inside the MNR, inside the OPS and outside the OPS.

Jim Hastie

Mr. Hastie was a classified employee who worked in the MNR as an Operations Coordinator based out of Owen Sound. Of the 76 items identified on his Outlook account, Mr. Hastie received 53 items and sent 23 items. The summary set out in his final WDHP report is as follows:

Of the 53 items received 53 Emails contained materials that were characterized in the following manner: 15 items contained materials with sexual content; 14 items contained materials with nudity; nine items contained exposed genitalia; six items contained sexually graphic materials; and eight items with degrading, dehumanizing and violent materials. The respondent re-forwarded 18 items within the MNR, stored two items and deleted the remaining items.

Of the 23 items distributed by the respondent, 23 Emails were characterized in the following manner: 6 items contained sexual content; 10 items contained nudity; six items contained exposed genitalia; one item contained sexually graphic material; three items contained images that were either violent, degrading or dehumanizing; and one item contained racial content. These materials were distributed inside the MNR and outside the OPS.

Phil Curtis

Mr. Curtis was an unclassified employee who worked in the MNR as an Assessment Technician since April 2, 2001, based in Owen Sound. Prior to April 2, 2001, he worked as a Harvest Survey Technician. Of the 50 items identified on his Outlook account, he received 22 items and sent 28 items. The summary in his final WDHP report references the following activity:

Of the 22 items received 18 Emails contained materials that were characterized in following manner: 4 items contained materials with sexual content; 8 items contained materials with nudity; 2 items contained sexually graphic materials; and, four items with degrading, dehumanizing and violent materials. The respondent re-forwarded all of these items inside the MNR and outside the OPS.

Of the 28 items distributed by the respondent, 28 Emails were characterized in the following manner: 12 items contained sexual content; 4 items contained nudity; 3 items contained exposed genitalia; five items contained sexually graphic material; and four items contained images that were either violent, degrading or dehumanizing. These materials were distributed inside the MNR and outside the OPS. Three items were personal correspondence containing offensive language and sexual discussion.

Ms. Lori Aselstine, a Staff Relations Officer in the Human Resources Branch of the MNR, played a significant role in the disciplinary decision-making process. Her primary role was to ensure consistency. Her will-say statement refers to part of her efforts in this regard as follows:

29. Between May 8 and May 24, 2001, I reviewed each and every piece of evidence in the evidence package for each respondent, and read the corresponding draft report. I began to organize the evidence packages by lining up files, based on content only, in a rough order from least to most offensive. When I began to relatively order/organize the evidence packages, they seemed to gravitate into three natural groupings. I did not set out to create three groupings; I simply started separating the evidence packages based on their levels of offensiveness, and the materials naturally gravitated to three groups.

30. We reviewed a number of evidence packages in the three different groupings, and determined a range of discipline for each of the three groupings: Grouping #1 from a non-disciplinary letter of counsel up to five days suspension without pay; Group #2 from five days up to 15 days disciplinary suspension without pay; Group #3 from 10 days disciplinary suspension without pay up to dismissal. I made a conscious decision to have an overlap of potential disciplinary suspension between Groupings 2 & 3.

31. After having organized the evidence packages into three main groupings, and setting a range of discipline for each of the three groupings, I further compared evidence packages within each main grouping, and further subdivided each main grouping into three sub-groups. This resulted in nine sub-groupings.

32. Having come to a decision regarding the appropriate level of discipline for these specific respondents, I then reviewed all of the remaining respondents' files again, and determined a recommended level of discipline for each of the remaining respondents.

33. My recomméndations on discipline were based solely on the evidence packages. My recommendations did not take into account any mitigating or aggravating factors that might have applied in particular circumstances.

34. I produced a spreadsheet that identified my categorization of each respondent's evidence package, and my recommendation on discipline. I included a column for any changes that might occur in my recommendation, as well as a column for the manager's final decision in each case.

At the manager's conference in Toronto on May 28 and 29, 2001, a process occurred which resulted in some changes to Ms. Aselstine's recommendations. She describes that process in her will-say statement as follows:

39. I encouraged managers to review their respondents' evidence packages and disciplinary recommendations and to compare them to other cases around the room. I asked them to identify what they thought to be relative inconsistencies in my categorization of the evidence or disciplinary recommendations. Where managers identified potential inconsistencies to me, we reviewed the evidence packages again. In some cases I changed my categorization or recommendation where I was convinced that my decisions were not relatively consistent. In other cases I did not change my categorization or recommendation where I was convinced that my decisions were relatively consistent.

In determining whether the Employer was consistent in its application of discipline in this stage of the proceeding, it is necessary to focus on the recommendations of Ms. Aselstine which were made as of the manager's conference in May 2001, prior to the consideration of mitigating and other factors by the managers. As of the manager's conference, the recommendation was that each grievor be dismissed. Although Ms. Aselstine recommended that Mr. B. Peterkin also be dismissed, his manager gave him a 20-day suspension after considering mitigating factors.

Counsel for the Employer submitted that the inappropriate conduct of the grievors contravened the IT Policy and the WDHP Policy and raises an important human rights issue. Counsel argued that the conduct of the grievors created a poisoned work environment, one that is hostile to women, is racially tainted and homophobic. Confronted with a poisoned work environment that was "toxic in the extreme", in effect "a ticking time bomb", counsel submitted that, when facing the risks associated with such an environment, the Employer was required to take strong measures to meet its obligations to create a workplace consistent with the objectives of the Code. To demonstrate that employers are required to take positive, strong and effective measures to address Code issues, counsel referred to: Magill a Atlantic Turbines Inc. (1997), 28 C.H.R.R. D/293 (P.E.I. Bd. Inq.): 25; Burton v Chalifour Bros. Construction Ltd. (1994), 21 C.H.R.R. D/501 (B.C.H.R.C.): 45; Re Ferguson and Muench Works Ltd. (1997), 33 C.H.R.R D/87 (B; C.C.H.R.): 9. Since the Union did not dispute the Employer's obligations in this regard, it is unnecessary to review these decisions.

In assessing the nature of the conduct at issue, counsel submitted that it is appropriate for an employer to take into account the degree of offensiveness of the material. Contrary to the Union's view, counsel also submitted that, not only storing and distributing items, but in this context the receipt and deletion of pornographic items is disciplinable conduct. Counsel argued that the simple receipt and deletion of inappropriate material is not a passive activity when individuals explicitly or implicitly indicate that they are willing to receive such material.

Counsel argued, again contrary to the Union's position, that there need not be a complaint from an employee before there can be a contravention of the WDHP Policy. Counsel also submitted that the presence of the inappropriate material in the workplace, by itself, contributes to a poisoned work environment. In what he characterized as a common sense proposition, counsel argued that the presence of pornography poisons the work environment and contributes to the creation of a culture inconsistent with the Code. Over the Union's objection, counsel filed what he described as an expert opinion to support the Employer's contention about the effects of pornography in the workplace. If there had been any doubt about the matter, counsel submitted that the Deputy's memorandum made a clear link for employees between pornography on ministry computers and a poisoned work environment.

In considering the appropriate penalty for the grievors, counsel argued that the Employer did take into account the principle of progressive discipline. Counsel argued that the conduct of the grievors was different in quality from the others who were investigated, particularly the employees who were given 20-day suspensions. When assessing the volume and nature of their inappropriate e-mail activity, as well as the extremely offensive nature of the material, counsel argued that discharge was the necessary response, even though the grievors had not previously been disciplined. Although the material was not criminal in nature and it was not argued that the grievors engaged in the inappropriate conduct when they should have been working, the Employer took the position that the conduct of the grievors was so egregious that discharge was not only appropriate, but a necessary response in the circumstances. In support of the position that the conduct of the grievors constituted a dismissible offence, counsel relied on the following three decisions. In Re Telus Mobility and T.W.U. (Lee) (2001), 102 L.A.C. (4th) 239 (Sims), the grievor, a two-year employee with no disciplinary record, was terminated for misusing the Employer's e-mail to receive and transmit some pornographic images. The discovery of inappropriate pornographic material sent by the grievor to another employee led his manager, without referring to the inappropriate material, to review with the grievor a recently developed Code of Ethics and to advise him that e-mail was not to be used for sexually offensive material. The grievor's denial of having received this direction from the manager was not believed by the arbitrator. Less than a month after the discussion with his manager, the grievor sent a video clip graphically depicting bestiality to two people outside the company and his Outlook account contained two still graphic files showing a woman's breasts clothed in a brassiere built to look like a man's hands. The arbitrator determined that, although the employer had a rule which addressed the conduct at issue, no rule was needed since any employee would realize that it is unacceptable to send seriously pornographic material to other employees or elsewhere. He also found that by ignoring his manager's warning, the grievor added an element of insubordination to the offence. The arbitrator was persuaded this was a serious offence for the following reasons [pp. 260-61]:

First, there is the particularly offensive nature of the "ministal" attachment and similarly of the "flamingass" attachment. Only the first clip is directly the subject of discipline, but the existence of the second reinforces my conclusion that the grievor was exercising little or no discretion about the nature of the materials he chose to disseminate. The nature of the material is an important consideration. While some might argue "beauty is in the eye of the beholder" (or at least the pornographic equivalent of beauty), this is only part of the issue. That is because the employee disseminating such material maintains little control over who the beholder might be.

An employer has a legitimate interest in preventing its employees from exposure to materials of this type. This exposure might occur as a result of it being sent to a co-worker who, contrary to the sender's expectations, found it offensive. This might occur accidentally or indirectly, as it did here where managers discovered it or had to deal with it as part of their legitimate activities. This also might occur by accident, as it is not uncommon for e-mail messages to accidentally get sent to the wrong recipient or even a list of recipients.

Many view experience of this type of material as a form of workplace harassment particularly because of the degrading manner in which it portrays women. The Employer is subject to a legal duty to prevent such harassment, including that which arises by unintended but avoidable exposure.

The fact that no one complained about having received the material did not influence the arbitrator, as he explains as follows [p. 262]:

The grievor also relies on the proposition that no one complained and no one was hurt by his having sent out these materials. This is basically a "we were all consenting adults" defence. I accept as true that none of the direct recipients complained. I also accept that the fact telus.net was used in the e-mail address, although significant, is of less importance. However, I do not accept that no one was affected by this dissemination. The way the individuals in management came across the material was quite legitimate, and it meant they were exposed to this material, something that they clearly wished they had not had to deal with. In addition, as noted above, the grievor had no effective controls to prevent it coming into the wrong hands. The employee is perfectly free to circulate such material with other consenting adults away from work, but I do not find that line of defence persuasive in the workplace, on company time and equipment and particularly in the face of an express warning.

Given his view of the seriousness of the matter, the arbitrator did not consider it a case for the application of progressive discipline and he elected in the circumstances not to interfere with management's decision to terminate the grievor.

In Re Consumers Gas and C.E.P. (Primiani), [1999] O.L.A.A. No. 649 (QL) (Kirkwood) [summarized 57 C.L.A.S. 306], the grievor was discharged for receiving and distributing pornographic material using her computer at work. In particular, she was discharged for the storage and transmission of two AVIs, one marked "awful" which was a video involving bestiality and the other marked "cokecan" which involved a half-nude woman using a "cokecan" for sexual purposes. The grievor distributed "cokecan" to 3 people internally and 12 people externally under the company name. The employer's investigation, which was initiated when messages sent by her manager to the grievor and others containing the two videos at issue crashed the employer's gateway, resulted in approximately 60 employees being disciplined. The grievor was a short-term employee, apparently without a disciplinary record. Although the grievor was unaware of the employer's policy prohibiting pornography, the arbitrator concluded that a reasonable employee would realize that the storage and transmission of sexual material was unacceptable and that the grievor's use of the computer was well beyond acceptable. It is clear from the decision that the nature of the material and the grievor's activity, including the distribution of "cokecan" externally, contributed to the seriousness of the offence. Because of the permissive culture in existence at the workplace, which included management participation, the lack of monitoring and direction of the workforce and the penalties given to others, the arbitrator substituted a one-month suspension for the discharge. No reliance was made on the fact that no one complained about the grievor's conduct and no specific reference was made to the principle of progressive discipline.

In Re Greater Toronto Airports Authority and P.S.A.C. (Gorski) (2001), 101 L.A.C. (4th) 129 (Murray), the grievor, the president of the local union and an 18-year employee, was discharged for viewing pornographic material using the Internet. A female employee observed his activity on at least one occasion and a male security guard observed the behaviour at other times. Samples of the material viewed by the grievor consisted of over 500 pages of photographs, "mostly of young adult women in various stages of undress or exotic dress, some engaging in sexual activities of various sorts" [p. 131]. The viewing and downloading of material occurred after normal working hours. When management was advised that the computer was being used improperly, although the guilty party was unknown, management warned the day staff, including the grievor, against engaging in such conduct. The employer eventually determined that the grievor was the guilty party. The arbitrator concluded that the grievor was creating a poisoned work environment by engaging in the inappropriate conduct over many months. He also determined that the grievor's satisfactory record and his long service were not sufficient mitigating factors in the circumstances. The arbitrator concluded that reinstatement would send an inappropriate message to other employees and that bringing such pornographic material into the workplace is the type of conduct which cannot be expunged by a lengthy suspension.

Counsel for the Employer submitted that these authorities demonstrate that the conduct engaged in by the grievors warrants discharge. In his view, any other conclusion would send the message that a lower standard exists in the OPS and that a culture created by the distribution of pornography is "not so bad".

In the alternative, the Employer took the position that a conclusion that the discharge of any of the grievors cannot be sustained should not lead, in these circumstances, to the reinstatement of a grievor. In counsel's submission, this was the type of case which necessitated a remedial response other than reinstatement and he referred to the following two decisions. In Re York Region Board of Education and O.S.S.T.E (1999), 84 L.A.C. (4th) 90 (Shime), the grievor, a teacher for many years, was diagnosed with manic depression in 1987 and was prescribed Lithium by his psychiatrist. After he stopped taking Lithium in 1994, the grievor engaged in inappropriate conduct with students, a colleague and a parent, and he refused to implement a marking scheme. This conduct ultimately led to his discharge. After taking into account certain mitigating factors, including the grievor's illness, the arbitration board concluded that there was not just cause for dismissal. However, the grievor's refusal to acknowledge any wrongdoing, his refusal of any help and uncertainty about whether he would take proper medication, convinced the board of arbitration that the grievor would likely repeat his inappropriate behaviour. The grievor was awarded 6 months' compensation, rather than reinstatement. In Re Community Living South Muskoka and O.P.S.E.U. (Walla) (2000), 92 L.A.C. (4th) 384 (Mikus), the grievor engaged in a pattern of sexual harassment over a long period of time, with the victims remaining silent. Even though it apparently found that the employer did not have just cause for discharge, the arbitration board refused to reinstate the grievor because it was unlikely the grievor could successfully return to the workplace in the circumstances.

As noted previously, the Union conceded that the grievors contravened the IT Policy and that they were deserving of discipline, but that discharge was not an appropriate penalty. In his submissions, counsel referred to a number of matters which, in the Union's view, should lead to the conclusion that the discharge of the grievors cannot be upheld on the basis of the Employer's best case. Counsel emphasized the importance of considering the following contextual matters in order to assess the conduct of each grievor. The number of individuals investigated represents a significant proportion of the MNR staff and those disciplined include managers, OPSEU employees, members of AMAPCEO, Human Resources staff and a WDHP advisor. There existed, in the Union's view, a workplace culture which encouraged and condoned the inappropriate behaviour at issue. Employees who received inappropriate material did not find it offensive and employees who distributed inappropriate material sent it to persons, whether within or outside the MNR, who they believed were interested in receiving the items and they did not find them offensive. The indication from many of the persons investigated or disciplined was that they did not appreciate at the time that they were engaging in serious misconduct. No one complained to the Employer about having received offensive pornographic material. Counsel argued that since the e-mail abuse had become so ingrained as a part of the workplace culture, it was inappropriate and an overreaction in the circumstances for the Employer to single out the six grievors for discharge. Counsel argued that the significant scope of the e-mail abuse in the MNR suggests that the message the Employer was attempting to convey with WDHP training was not getting through to a significant number of employees. He noted that many individuals had indicated that they would not have engaged in the conduct if they had known that the Employer took the view that such misconduct was very serious. Counsel argued that the absence of any indication that the subjects of e-mail abuse and the Employer's view on the link between pornographic material and a poisoned work environment were addressed in WDHP training is a significant factor in this case. Counsel submitted that it would not necessarily be obvious to employees that the distribution of pornography by e-mail could create a poisoned work environment and considered so serious that it could subject them to discharge. In counsel's view, the failure of the Employer to so advise employees is relevant to assessing the degree of their culpability.

Counsel for the Union argued that the absence of a victim or of an individual complaining about a matter covered by the WDHP Policy means that there has not been a contravention of that policy. He noted that the provisions of the WDHP Policy indicate that it is a complaint-driven process and, in this instance, no one complained that the inappropriate material offended or otherwise affected them. Counsel also took issue with the Employer's position that the e-mail abuse in this instance resulted in a poisoned work environment. Counsel submitted that there is no indication that any of the employees investigated actually engaged in conduct toward another employee which contravened the Code or that the e-mail abuse that occurred here would ever lead to an over contravention of the Code. Counsel stated that the Employer could make the distribution of pornographic material by e-mail a specific contravention of the WDHP Policy, but it has clearly not done so. Counsel argued that the Employer's reliance on a contravention of the WDHP Policy and its failure to establish such a contravention should lead in this case to a reduction in the grievors' discharges, and in support of this position he relied on Re Western Star Trucks Inc. and LA.M., Lodge 2710 (Demers) (1997), 69 L.A.C. (4th) 250 (Bruce). In this decision the grievor was disciplined for violating the employer's sexual harassment policy. Although he may have deserved some discipline, the arbitrator concluded that the grievor did not engage in sexual harassment and that the failure of the employer to show a violation of the relevant policy meant that the grievance was allowed.

In determining whether the distribution of pornography by e-mail creates or contributes to a poisoned work environment, counsel submitted that I should not admit the expert's report filed by the Employer. In Re British Columbia (Ministry of Attorney General — Sheriffs) and B.C.G.E.U. (Holbeche) (1996), 57 L.A.C. (4th) 391 (Greyell), after reviewing the relevant case law, the arbitrator concluded that [p. 395]:

... an expert opinion will satisfy the criteria of necessity if the opinion offered by the expert would provide information "which is likely to be outside the experience and knowledge of a judge or jury" (per Dickson, J. in R. a Abbey, [1982] 2 S.C.R. 24 (S.C.C.)) or where the subject matter of the evidence is "such that ordinary people are unlikely to form a correct judgment about it, if unassisted by persons with special knowledge".

In counsel's submission, the expert opinion offered by the Employer does not satisfy the criteria of necessity set out above.

Counsel also argued that the Employer did not appear to apply the concept of progressive discipline. Given that the grievors had not been disciplined for this type of conduct, or at all for that matter, counsel submitted that for this reason alone it was inappropriate to discharge the grievors. He argued that the type of offence in this instance is not so serious that the concept of progressive discipline can be ignored. Counsel noted that this concept is a feature of both the WDHP Policy and the Employer's general disciplinary approach. Counsel argued that the application of progressive discipline should have led to lesser penalties for the grievors. Counsel referred to the following decisions for their commentary on progressive discipline: Re Dupont Canada Inc. and C.E.P., Loc. 28-0 (Panter), [2001] O.L.A.A. No. 676 (QL) (Roach) [summarized 66 C.L.A.S. 324], Re Westcoast Energy Inc. and C.E.P., Loc. 686B (Bourdon) (1999), 84 L.A.C. (4th) 185 (Albertini), Re Northwest Territories (Minister Responsible for the Public Service Act) and Union of Northern Workers (del Valle) (2002), unreported award of T. Jolliffe dated April 25, 2002 [summarized 68 C.L.A.S. 196], and Re Oshawa Foods Division and U.FC.W., Loc. 175 (Rushton) (1993), 35 L.A.C. (4th) 31 (Starkman).

Counsel referred to some factors which should be considered when assessing the conduct of the grievors, such as the subjective nature of determining the degree of offensiveness of the items in their accounts, the fact that some identical items in different accounts were labeled differently because there were three persons involved in evidence gathering and, further, that items which were simply received and deleted were included as part of the inappropriate material. Counsel argued that the act of receiving inappropriate material and deleting it is not a disciplinary offence and he submitted that if one discounted those items which the grievors simply received and deleted, the conduct of the grievors would be viewed as less serious.

Counsel referred to a number of decisions to illustrate the approach arbitrators have taken when assessing discipline for this kind of misconduct. In Re Dupont Canada Inc. and C.E.P., Loc. 28-0, supra, the grievor was terminated for inappropriate computer use on two days in December 2000. On the first day he downloaded at work at his wife's request a newsletter containing sexually explicit pictures and text and transferred the material to his Yahoo account. On the second occasion, the grievor transferred 24 pictures described as "sunshine girls" and not pornographic to his Yahoo account through his Hotmail account; In October 1998, the grievor had received a 10-hour suspension for accessing Internet sites at work. The grievor's conduct did not involve distributing inappropriate material to other employees and his activities were detected by a monitoring system, not as a result of a complaint. After considering various mitigating factors and the doctrine of progressive discipline, the arbitrator substituted a four-month suspension for the discharge. The Union also relied on the comments relating to the permissive culture and inconsistent penalties made by arbitrator Kirkwood in the Consumers Gas decision, supra. In Re Westcoast Energy Inc. and C.E.P., Loc. 686B (Bourdon) (1999), 84 L.A.C. (4th) 185 (Albertini), the grievor sent inappropriate material anonymously to a female employee on four separate occasions which led to the finding that the grievor did sexually harass the female employee. After considering all of the circumstances, including the grievor's 24 years of service and discipline-free record, the arbitrator substituted a 6-month suspension for the discharge and imposed a number of conditions. In Re Ontario Power Generation Inc. and P.W.U. (Stewart), an unreported decision dated June 26, 2000, nine employees were issued discipline ranging from a reprimand to a three-day suspension for receiving and storing juvenile "jokes" of a sexual nature. Some employees distributed the material to other employees. The grievors were long-service employees without disciplinary records who expressed remorse for their actions. The arbitrator determined that one employee should receive an oral reprimand and that those who faced suspension should receive a written reprimand. In Re Hydro One Networks Inc. and P.W. U. (Stewart), an unreported decision dated August 27, 2001 [summarized 65 C.L.A.S. 342], the grievor was terminated for using the Internet to access pornographic sites while at work. Some of these sites depicted scenes of rape and violence towards women. The grievor did not circulate the material to anyone and his activities were discovered when the employer conducted a review of Internet usage among employees. Taking into account the grievor's nearly 20 years of service, his acknowledgement of wrongdoing and his sincere .apology at the hearing, the likelihood that he would not repeat such conduct and the fact that another employee was suspended for five days for conduct somewhat similar to the grievor's, although the material accessed by the grievor was more egregious in nature, the arbitrator substituted a 15-day suspension for the discharge.

Counsel for the Union also submitted that I should not accept the Employer's alternative position with respect to reinstatement. He argued that the circumstances in this case are unlike those in the decisions referred to by the Employer. In counsel's submission, the circumstances here do not indicate that the employment relationship between the grievors and the Employer has been irrevocably broken or that the grievors could not successfully return to the workforce.

In addressing the issue of whether the discharges can be upheld on the basis of the Employer's best case, having regard to the conduct of the grievors, it is important to again note what matters are not before me at this stage of the proceeding. Since the parties agreed that the issue of mitigation is not before me at this time, factors such as seniority, the recognition and acknowledgement of wrongdoing and an assessment of whether it is likely a grievor will engage in similar conduct in the future if reinstated, are not now relevant. The one exception to this general approach is that I can consider the disciplinary records of the grievors in order to deal with the issue of progressive discipline. Although counsel for the Union made submissions on condonation, the parties also agreed that this issue is for the next stage. These matters which are not now before me, of course, will be relevant in determining whether the discharges can be sustained or what penalty should be substituted for the discharges if reinstatement is an option.

The issues now before me can be framed by the following questions. Is the conduct of the grievors so serious that discharge could be an appropriate response? At the conclusion of the May 2001 conference with the managers, the Employer concluded that some of the inappropriate material in each of the grievors' Outlook accounts was very offensive and that their inappropriate e-mail activity was serious enough to warrant discharge. If I conclude that this assessment was incorrect for any of the grievors, then reinstatement becomes an option. A second question for consideration is whether the Employer has been consistent in its application of discipline in this situation. Irrespective of how serious the conduct of the grievors may be, reinstatement may still be an option if the other individuals who were disciplined engaged in similar conduct to the grievors, but were only suspended. In the course of addressing these issues, I will deal with those matters referred to by counsel in their submissions.

Having made reference in some detail to the decisions relied on by the parties, I note that the result, of course, in each of the decisions is determined by their particular facts. However, they do provide some general approaches to addressing the issues related to e-mail abuse. I also note that in.dealing the matters before me I have taken into account the fact that the adjudication of the discharges and the other grievances is not complete.

When determining the seriousness of an offence of the sort engaged in by the grievors, the arbitral jurisprudence clearly indicates that it is appropriate and necessary to consider the degree of offensiveness of the material. Rather than put all inappropriate material, irrespective of how offensive it is, in the same category, arbitrators take into account the nature of the inappropriate material when determining the seriousness of the conduct at issue. Although some of the Union's submissions appeared to suggest otherwise, this approach has considerable merit. For example, the distribution of child pornography by e-mail at work and the distribution of pictures of naked women are both inappropriate, but it is obvious that the distribution of the former material is considerably more serious than the latter, and generally would warrant a more severe disciplinary response.

The Employer determined that the grievors engaged in serious misconduct because it concluded that many items in their Outlook accounts were very offensive. It appears that the Employer made an effort to assess the material based on objective criteria so as to limit subjectivity. Although some of the concerns raised by the Union about how the material was classified and how each grievor's conduct was categorized are valid, they do not alter the essential nature of the e-mail abuse engaged in by the grievors. What is not tenable, in my view, is the Union's position that the mere receipt and deletion of inappropriate material cannot be the subject of discipline in these circumstances. I agree with the position of the Employer that when assessing the inappropriate e-mail activity of these grievors, the act of receiving and deleting offensive items was not a passive activity which can be ignored when assessing culpability. The grievors, and others, explicitly in some instances and certainly implicitly, invited the receipt of inappropriate material. The situation in this case is not one where an employee receives pornographic material by e-mail, deletes it and then advises the sender not to send such material again. Once the invitation is made, the recipient has no control over what material is sent and how offensive it is.

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. The denigration and violence towards women as contained in the Dirty Sanchez video is particularly offensive. 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. When comparing the inappropriate material the grievors received or distributed, where it is possible to do so, to the items which led to discharges or lengthy suspensions in the decisions referred to by the parties, many of the items in the grievors' accounts are generally more offensive and the volume of activity generally is greater. The grievors distributed material not only to persons within the MNR, but also to persons outside the MNR and the OPS, thereby creating the potential for considerable embarrassment for themselves and the Employer. One of the items in the Chrysler Complaint originated with Mr. Hastie. The receipt and distribution of this type of material does have human rights implications and they contribute to a culture inconsistent with the objectives of the Code. The offensiveness of the inappropriate material in the grievors' Outlook accounts and the seriousness of their misconduct are not altered by the fact that they did not find the material offensive or the fact that no one complained about the material. The inappropriate conduct of the grievors in the decisions I was referred to was not detected because someone complained, but for other reasons. The failure of anyone to complain did not influence the arbitrator's view of the seriousness of the conduct.

The Union argued that the absence of WDHP training on the appropriate use of computers and e-mail and on the link between the receipt and distribution of pornography by e-mail and a poisoned work environment are factors which should have the effect of negating the penalty of discharge. Generally, an employer should advise employees about what behaviour will result in discipline and how severe the discipline might be. Employers commonly satisfy this obligation by issuing rules and a range of penalties for a violation of a rule. But there is some conduct which any employee should recognize as unacceptable even without a rule or some other notice from the Employer. In the Telus Mobility and Consumers Gas decisions, albeit in different contexts, the arbitrators decided that reasonable employees would understand that receiving and sending pornographic and other inappropriate material to employees or to others would be unacceptable to the Employer. It is a reasonable extension of this approach to suggest that a reasonable employee, without the benefit of notice or training, would also understand that the more offensive the material, the more serious the offence and consequences. In this instance, the Employer has clearly indicated to employees through the IT Policy and the warnings on the computer system that the use of e-mail for non-business purposes is unacceptable and could lead to discipline. Having been warned not to engage in such conduct and that discipline may result if they did, it is not open to employees to complain that they were unaware about what kind of offensive material distributed by e-mail could result in discharge or that such conduct created a poisoned work environment. I note that under the references to unacceptable activity in the IT Policy, a connection is made with the storage and display of offensive material, a poisoned work environment and the WDHP Policy. Although not related to WDHP training per se, the Deputy's memorandum advises employees that the presence of pornography or other offensive material will not be tolerated at the workplace and will result in disciplinary action, up to and including discharge. In my view, it would be difficult to conclude that the MNR employees were prejudiced by a lack of WDHP training relating to computer usage in the face of the message contained in the Deputy's memorandum.

I also find it difficult to accept that the distribution of pornographic material by e-mail, by itself, cannot create or contribute to a poisoned work environment and that there cannot be a contravention of the WDHP Policy without a complaint or without specific conduct by an employee against another employee in relation to the Code's prohibited grounds. I agree with the Union that the expert opinion proffered by the Employer to establish that pornography in the workplace contributes to a poisoned work environment does not meet the test of necessity. However, I agree with the Employer's position that the detrimental impact of pornography in the workplace is a common sense proposition derived from general experience. In my view, the distribution of material in the workplace by e-mail or some other means which objectifies and denigrates women, and which depicts acts of violence against women does poison the workplace, whether someone complains about the activity or not, and such conduct fits within the definition of "poisoned work environment" contained in the WDHP Policy. Whether someone complains about the inappropriate activity does not change the nature of the misconduct. The Union conceded that the Employer could make it clear in the WDHP Policy that the distribution of pornography by e-mail would contribute to a poisoned work environment. Although the matter is not specifically addressed in the WDHP Policy, the Employer accomplished the same result when it distributed the Deputy's memorandum which makes the link between the distribution of pornography, a poisoned work environment and the WDHP Policy. It is my conclusion that the conduct of the grievors at issue does contravene the WDHP Policy.

I agree that the principle of progressive discipline need not necessarily be abandoned when dealing with serious offences of the kind committed by the grievors. Given that the manager's chart for each grievor refers to the employee's disciplinary record, it would appear that some consideration was given to progressive discipline. Progressive discipline would have been one factor, among many others, the managers considered when deciding the issue of penalty. In my view, it is difficult to apply the concept of progressive discipline in isolation when the conduct at issue constitutes a serious matter. In these situations the practice of arbitrators is to consider all of the factors, including progressive discipline, in order to determine whether discharge is appropriate or whether there is a basis for substituting a lesser penalty. Therefore, rather than addressing the issue of progressive discipline now, it is appropriate to consider the issue along with the issues of mitigation and condonation, and any other factors relevant to the issue of reinstatement.

The Union asserted that it was unfair and inappropriate to discharge 6 employees, having regard to the scope of the problem concerning e-mail abuse and the creation of a culture which encouraged and condoned this behaviour. As previously noted, the condonation element is not now before me. The fact that a significant number of employees engaged in e-mail abuse, by itself, does not necessarily assist the grievors. Unless it can be shown that the Employer was in some way responsible for the culture or was aware of the problem but turned a blind eye to it, the grievors and the employees who were disciplined will not be able to avoid complete responsibility for their conduct.

Even though the misconduct of the grievors is serious, the Employer must be consistent in its disciplinary approach. If the conduct of other employees was similar to the conduct of the grievors and they were suspended, the Employer would be precluded from treating the grievors differently. The Employer appears to have made considerable effort to ensure consistency in the application of discipline in this instance. In assessing the nature of the activity of the grievors and the offensive nature of the material in their Outlook accounts as compared to employees and managers who received lengthy suspensions, I am satisfied that the grievors' conduct is more serious than the conduct of the individuals who were suspended.

In summary, it is my conclusion, on the basis of the Employer's best case, that the discharge of the grievors might be an appropriate response. 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. Since I have decided that it would not be appropriate to reinstate a grievor at this time, it is unnecessary to deal with the Employer's alternative position on reinstatement. Perhaps circumstances relevant to this issue may arise during the next phase of this proceeding.

The hearing of the grievances shall continue on the days previously scheduled.