The grievor’s conviction for internet luring of a minor made it impossible to continue his current duties, in which he was required to go to individual residences. And, although there had been no publicity identifying the company, the threat to reputation was still real and significant.
First suspended pending the outcome of his trial, a Customer Service Technician for a telephone, cable and internet provider was fired following his criminal conviction for “internet luring.”
R.S. was employed as a Customer Service Technician (CST) by a telephone, cable and internet provider. In 2008, he was caught up in an internet sting operation run by the Child Exploitation Unit of a municipal police force.
Following sexually explicit internet chat communications between R.S. and a police officer who was posing as a 13-year-old boy, an internet “IP address” linked to an unsecured wireless router was identified.
On September 25, 2008, a search warrant was executed at R.S.’s house. Two computers were seized, one of which belonged to the employer and was assigned to R.S.
R.S. was charged under section 172.1(2)(a) of the Criminal Code with using a computer to communicate with a person believed to be under the age of 14 for the purpose of facilitating an offence under section 152 (invitation to sexual touching). He was also charged with unlawfully gaining access to the internet through an unprotected wireless router.
R.S. engaged in the alleged illicit internet chat room activity on his own time.
R.S. was suspended with pay. On May 11, 2009 that suspension was modified to suspension without pay. Following his conviction and sentencing on February 4, 2010, R.S. was fired on February 25, 2010.
Activities undermined trust
The letter of termination alleged cause. The employer said that R.S.’s criminal activity had undermined the trust necessary to maintain his employment.
R.S.’s criminal activity made it impossible for him to continue to work unsupervised in customers’ homes as CSTs do, the employer said. Moreover, R.S.’s use of the employer’s computer and a corporate IP address brought the employer into a criminal investigation and created the potential for significant damage to the company’s reputation.
The union grieved.
Given sentencing conditions that prohibited R.S. from being near children while unsupervised until 2013, there was no argument that he should be returned to his previous position as a CST. However, the union argued that it would be appropriate to reinstate R.S. as a Customer Service Representative.
Both the union and the employer agreed that Millhaven Fibres was the appropriate test to determine whether or not R.S.’s off-duty conduct warranted termination.
The Millhaven Fibres test requires employers to establish on a balance of probabilities that an employee’s off-duty misconduct will: (1) harm the company’s reputation or product; (2) render the employee unable to perform his or her duties satisfactorily; (3) lead to refusal, reluctance or inability of other employees to work with him or her; (4) constitute a serious breach of the Criminal Code sufficient to cause injury to the general reputation of the company and its employees; or (5) make it difficult for the company to efficiently manage its works and direct its workforce.
It is not necessary for the employer to prove all five.
The grievance was dismissed. The Arbitrator found that the evidence strongly supported positive findings for parts one, two and five of the test and that there were legitimate concerns about factors three and four.
Serious discipline was certainly warranted. The only question was whether or not R.S.’s conduct justified termination. The Arbitrator said that it did.
No direct publicity
While the union argued that there was no direct publicity about the case to cause injury to the company’s reputation, the Arbitrator noted that the company felt compelled to cancel a “cyber safe” training and promotional campaign for CSTs. The company was fearful of negative publicity in the event that knowledge of R.S.’s conviction became widespread.
“The case thus stands for the sensible proposition that while the presence or absence of publicity may be relevant to the issue of harm to reputation, a finding of potential injury or harm can be made even in the absence of publicity,” the Arbitrator said.
The prohibition against R.S. being alone with children would prevent him from undertaking his normal installation duties in peoples’ homes, the Arbitrator said. This prohibition would clearly render R.S. unable to perform his duties satisfactorily as per part two of the test.
Part five was also problematic. Reinstatement of R.S. would present “difficulties” for the employer because of the difficulty involved in limiting R.S.’s computer and internet access while still allowing him to work in technology saturated environment.
“The termination is warranted in relation to [R.S.’s] criminal misconduct in accordance with the Millhaven Fibres analysis. The grievance cannot succeed even in partial terms,” the Arbitrator said.
Reference: CEP Atlantic Communications Council, Local 2289 and Bell Aliant Regional Communications L.P. Bruce P. Archibald – Sole Arbitrator. Dan Ingersoll for the Employer and Ronald E. Pizzo for the Union. December 31, 2010. 49 pp.
