Emails were contrary to policy and breached employer's trust
A Manitoba government employee irreparably damaged the employment relationship with inappropriate computer use at work for two years, an arbitrator has ruled.
The 54-year-old employee, referred to as K.S. in the decision, was a “designated officer” working as a court clerk in the maintenance enforcement program for the province of Manitoba. He worked for the province for 30 years with no performance problems. His only discipline came in 1997 when he suspended for seven days for placing “sexist, profane, vulgar, and in short highly objectionable” material on his government computer from correspondence between himself and others outside of the office. K.S. was told his computer was for work only and using it for personal matters was prohibited. K.S. admitted his misconduct and apologized. The province warned him similar conduct would be subject to discipline up to and including dismissal.
In fall of 2013, the province conducted an investigation into the conduct of several employees. The investigation revealed suspicious activity on K.S.'s office computer, so the city conducted an audit of his computer usage. The audit uncovered “hundreds of personal emails of an inappropriate nature” on his computer, including ones with pictures and jokes unrelated to his work. This included photographs of naked women, pictures of sexual activity, and lewd jokes. Most of the emails were ones K.S. sent — some to other government employees, some to outside people — though some he received. Very few were sent to co-workers in the maintenance enforcement program.
Some of the emails included negative and sarcastic remarks about the work of government employees. This angered K.S.’s director, who felt it encouraged an incorrect view of her staff who were hard-working.
The emails were spread over a period of two years and breached several government policies, of which all employees should have been aware, including that government computers should not be used for personal purposes or for accessing pornography.
It was decided K.S. should be dismissed, but the province called a meeting to give him a chance to explain his actions. K.S. didn’t apologize or acknowledge any wrongdoing, though he testified he would have if given a chance. A union representative told the director outside of the meeting that K.S. recognized what he did was wrong and asked if they would consider a six-month suspension. The director would not without a satisfactory explanation.
The province terminated K.S.’s employment for “an excessive amount of highly inappropriate, discrespectful, degrading, racist and sexual and lascivious communications” on a work computer, as well as for downloading personal photographs and video clips on a government computer.
Four other employees were investigated for improper computer use. Of these, three resigned while another retired.
The arbitrator found K.S.’s misconduct was “serious, persistent, and very troubling in terms of the nature and volume of the material he disseminated.” It could not be categorized as impulsive, since it took place over two years, and he had an instance of prior discipline for similar misconduct, said the arbitrator.
Though K.S. said he wasn’t given an opportunity to apologize, the arbitrator found he did have the opportunity at the meeting and did not provide any explanation or acknowledgment. Though K.S. testified he felt remorse for his actions, he made no attempt to express it before his grievance hearing. This raised the possibility his remorse came from his financial situation rather than his misconduct, said the arbitrator.The arbitrator agreed with the province that the extent of K.S.’s misconduct, considering he had previous discipline for similar misconduct, irreparably damaged the employment relationship. However, since other employees in similar situations were allowed to resign or retire, the arbitrator determined K.S. should be allowed to resign with its benefits and communications to third parties. If he did not resign within 30 days, the termination would remain in effect. See Manitoba (Province) and MGEU (S. (K.)), Re, 2015 CarswellMan 25 (Man. Arb.).