'[It's] a very broad interpretation of workplace, but I think it's fair because it's in the course of their work duties'
A B.C. arbitrator has upheld a written warning against a worker who was observed by co-workers viewing pornography on his cellphone during his lunch break.
Even though the incident occurred in a public park, it was sufficiently connected to the workplace to fall under the employer’s broad respectful workplace policy, says James Kondopulos, a partner at Roper Greyell in Vancouver.
“[The arbitrator] appreciated that it was during the lunch break on a personal phone and [the worker] did not intend for other employees to hear it,” says Kondopolus. “However, he's still in the workplace – a very broad interpretation of workplace, but I think it's fair because it's in the course of their work duties in the presence of other employees – that's the connection to the workplace because it's objectionable or unwelcome to another employee.”
Porn a public park
The 57-year-old worker was employed with the City of West Kelowna, performing maintenance in public parks since 2017. The city had a Respectful Workplace Policy stating that any behaviour that ran contrary to employee being treated with respect, honesty, and dignity, would not be tolerated.
On Aug. 17, 2021, the worker was with two student employees. While reversing their city vehicle at a public park, the worker struck a parked trailer. There was no damage and the worker went to speak to the other driver. While he did that, the two student employees went to a picnic table nearby.
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According to the worker, after he finished speaking to the other driver, he ate his lunch in the vehicle. However, the student employees said he joined them at the picnic table. One of the student employees went to get his lunch and when he came back, both student employees heard pornographic sounds coming from the worker’s cellphone. The first student employee also saw pornographic images on the phone as he walked behind the worker.
A few days later, the first student employee learned how to submit a workplace complaint. He took home a complaint form and, after consulting with his mother, he submitted a complaint to the city on Aug. 24 stating that he noticed the worker viewing “naked photos of young women on his personal cellphone” and then heard “moaning sounds and slapping sounds,” which made him uncomfortable.
Quick action from employer
Two days later, the city began an investigation. The director of HR met with the worker and described the complaint but didn’t provide the name of the complainant or witness. The worker denied having lunch with other employees or looking at pornographic images on his phone that day. He also said that the second student employee had a “hate on for him” and could have encouraged the other to make a complaint about him.
The HR director interviewed the two student employees and then the worker a second time, telling him that it was a chance for him to change his statements. The worker reiterated his denials.
The city accepted the complaint as true and issued a written warning to the worker for making a co-worker uncomfortable and for breaching the Respectful Workplace Policy.
The employer was prudent in acting on the matter quickly once it received the student employee’s complaint, says Kondopulos.
“[The city] took the complaint seriously – as it should have – and acted on it quickly,” he says. “And that's exactly what needs to be done when a complaint like this is filed.”
Credibility issue
The union grieved the discipline and the worker submitted his phone for a forensic audit, which found no inappropriate browsing history at the time in question. The union argued that the investigation was hasty and ill-conceived, denying the worker a chance to fully respond to the allegations. It said the accounts of the two student employees weren’t credible and, even if true, the worker’s conduct occurred while off-duty and using his personal cellphone.
The union also said that there was animosity against the worker because of concerns he had raised about other employees, which encouraged the two student employees to fabricate the complaint.
The arbitrator noted that the case boiled down to credibility between the worker and the two student employees.
The arbitrator found that the first student employee was consistent. There may have been slight variations in details between his complaint and his testimony, but there was no substantive change between the accounts, said the arbitrator.
The second student employee was also consistent and described essentially the same circumstances, which corroborated the complaint, said the arbitrator.
The evidence indicated that the worker wasn’t well-liked, but there was nothing supporting the union’s claim that there was general animosity towards him, said the arbitrator, adding that the complainant was new and had no motivation to file a false complaint.
Read more: An arbitrator didn’t buy a worker’s claim that his addiction to internet pornography was a disability after the worker was fired for spending hundreds of hours at work browsing online.
The credibility issue came down to balancing the complainant’s and witness’ story with the surrounding circumstances, says Kondopulos.
“Where I think [the worker] ran into trouble is the university student employee – who's in his first year of employment – reported the incident to his mother,” he says. “And the arbitrator said it was unlikely that if he was fabricating the story, he would have involved his mother in the fabrication.”
“[The arbitrator] also considered consistency in the stories of the two co-workers,” adds Kondopulos. “The arbitrator rejected the conspiracy theory, which the union advanced, that these two fellow employees were just out to get the [worker] because they didn't like him and it was payback for the way he had behaved in the past on the job.”
The arbitrator found that the forensic audit of the phone didn’t prove anything because the expert evidence indicated that web browsers had a private mode that prevents browsing history from being recorded.
The arbitrator agreed with the union that the investigation had some problems, as the city should have interviewed the complainant and witness before the worker and provided the worker with the complainant’s name. However, this didn’t hurt the worker’s ability to raise additional information in his defense, said the arbitrator.
“What the arbitrator contemplated is a process where first you talk to the complainant, you talk to any witnesses, and then you interview the respondent and provide details of the complaint,” says Kondopulos. “[The arbitrator said] that there wasn't enough prejudice to the respondent because he had sufficient information to be able to respond, but you can imagine a situation where the respondent doesn't really know what he or she is being accused of and how that might be a problem – this was simply not a case where it was a problem.”
Broad interpretation of ‘workplace’
The arbitrator also found that, although the worker was on his lunch break and using his personal phone, the park was his workplace and doing it in the presence of other employees was a breach of the policy. In addition, the worker denied it, making discipline necessary to ensure that the misconduct did not continue, said the arbitrator in dismissing the grievance.
The arbitrator’s finding that the incident happened in the workplace was an interesting part of the decision, says Kondopulos.
“I think the connection to the job is the fact that this misconduct occurred in the presence of co-workers,” he says. “Yes, it's a lunch break, but remember these fellows were parks maintenance people, and they're driving to the job or from the job.”
“It's a personal phone, but his behaviour caused his co-worker to feel uncomfortable, and the respectful workplace policy was broad enough in its language to cover that behaviour and give the employer an interest in discipline,” says Kondopulos, noting if the same circumstances happened outside of work hours and they happened to run into each other, it likely wouldn’t be sufficiently connected to the workplace to fall under the policy.
“[The policy stated that] every instance of appropriate or inappropriate behavior cannot be itemized in general terms – the kinds of behaviour that are to be encouraged which support and create a respectful workplace, inappropriate behaviours that which is objectionable and or unwelcome to an individual,” he says.
“Viewing porn in the workplace in the presence of other employees is objectionable and he's still in the workplace – a very broad interpretation of workplace, but I think it's fair because it's in the course of their work duties in the presence of other employees.”
“I think as well what sunk [the worker], frankly, is the fact he denied it – he squarely contradicted his coworkers and got into that credibility contest,” says Kondopulos. “If he had fallen on his sword, acknowledged that this was inappropriate, there's a chance that the written warning might not have stuck.
“I think he irritated the arbitrator with essentially being defiant.”
See West Kelowna (City) and Assn. of Local Government Employees’ Union (Graham), Re, 2022 CarswellBC 1780.
