The grievor had been assigned to a relatively junior job while he awaited a posting. He was bored and started to surf to porn sites on the web. When the employer found out, he was fired. The arbitrator reinstated him without back pay, pointing to his long, clean record and the failure of the employer to supervise him.
A senior analyst and policy advisor with more than 25 years in the public service was fired for inappropriate use of government property after it was discovered that he was using the Internet at work to look at pornographic images.
F.A. began his public service career in the Foreign Service in 1984. He had regular overseas postings until 2000. In 2007, he took a temporary assignment in Citizenship and Immigration while he sought a non-rotational position in the Foreign Service. He worked on assignments as directed. By July 2009 he had largely completed the tasks he was assigned and had little other work.
While some Internet research was necessary for his job, F.A. also used the Internet at work to keep abreast of current events and sports. At the end of July 2009, F.A. came across sexually explicit materials while viewing the photo-sharing website “flickr” at home.
F.A. began to view the site while at work and, on two occasions, he commented via the site’s chat function on posted material while he was at work. F.A. never sent the images to anyone else or shared them among his co-workers.
On Aug. 21, 2009 the employer’s IT Security department alerted the manager of Workplace Investigations and Ethics that F.A.’s non-work-related use of the Internet was very high. Security also said that F.A. was viewing pornographic materials.
Sexually explicit images
A copy of the images on the cache on F.A.’s computer made by IT on August 20 revealed 335 sexually explicit images. The images featured naked people engaging in sex acts and included some images of bondage. Police reviewed the images; however, there were no criminal aspects to the content.
F.A. was cooperative and forthright when he was approached about his computer usage. He expressed remorse and embarrassment. F.A. said that he was “undertasked.”
An examination of his Internet usage over the previous year showed that he spent upwards of 50 per cent of every day browsing on the Internet. Up to 75 per cent of that time was taken up with viewing non-work-related materials, including — increasingly — sexually explicit images.
F.A. was fired on November 3, 2009. The termination letter alleged inappropriate use of government property for non-work-related purposes, including using the department’s Internet access for viewing objectionable material of a sexually suggestive nature.
Before the Arbitrator, the employer argued that F.A.’s behaviour was chronic, persistent and offensive and that the bond of trust between the employer and the employee had been irretrievably broken.
Time theft alleged
Moreover, F.A.’s conduct amounted to time theft, the employer said, arguing that surfing sites of personal interest on the Internet for half a day while being paid is as fraudulent as falsifying a time card.
Termination was excessive, the union argued. F.A. had 27 years of service, a clear disciplinary record and exemplary performance appraisals to his credit. Inasmuch as there was little work at the time there was no real prejudice to the employer, the union said. This was not an excuse for F.A.’s behaviour but rather a factor to be considered in weighing the appropriate discipline. F.A. had not neglected his work. He had not illegally downloaded unlicensed software or circulated inappropriate or illegal materials.
Neither was the employer’s allegation of time theft appropriate, the union said. That charge was not made out in the employer’s letter of discharge and there was no element of fraudulent activity to support such a charge in any case.
The Arbitrator agreed.
“I do not think that the grievor’s excessive use of the employer’s Internet services for non-work-related purposes can or should be characterized as time theft …”
In this case it was not clear that there was any fraudulent intent, the Arbitrator said.
“[T]here can be no mistaking the intent to steal time when an employee has another employee punch his or her time card. But in an environment in which the personal use of the employer’s Internet services is permissible on an employee’s own time and in which employees do not punch time cards or actively record their working hours, it becomes much more difficult to infer the requisite intent for a charge of time theft.”
Responsibility to supervise
The Arbitrator accepted, too, that F.A. was indeed “undertasked” and that his managers should have been more proactive. “It seems clear to me that there was some failure on the part of the grievor’s managers to manage him. While both his supervisors contended that they should not have to supervise minutely an employee at the grievor’s classification level, I believe they have some responsibility to supervise, which they do not seem to have done in this case.”
Nevertheless, the Arbitrator did not accept that there was no prejudice to the employer. Significant discipline was warranted for behaviour that was “inappropriate and offensive.”
“The grievor violated a number of employer policies, clearly misused the property and equipment he was entrusted to use for work purposes, and engaged in behaviour that has no place at work.”
Discharge was not appropriate given F.A.’s length of service and clear disciplinary record. The Arbitrator ruled that a long suspension was sufficient to recognize the seriousness of the offence and meet the employer’s need for deterrence. F.A. was ordered reinstated without back pay for the 21-month period following his termination.
