Worker had to ‘prodded’ by union to apologize: Arbitrator
During a night shift at the Calgary freight depot for Purolator, a line-haul truck driver was seen publicly viewing sexually explicit images on a computer.
On Feb. 7, 2018, Darrell Trainor was in the lunch room during a break. When two other employees walked into the room, they saw the images as Trainor was viewing them.
Nick Caron and Keith Raymond testified they saw Trainor looking at the images, but the browser window was quickly minimized after they walked into the room. Trainor quietly said an expletive as he closed the windows on the screen, said Caron.
After all three employees left the lunch room, Caron returned and maximized the browser window. He saw the images were still there and he took a picture of the screen with his phone.
Caron then texted the image to Dave Koczkur, terminal manager.
At 8 a.m. on Feb. 8, IT employees attempted to retrieve the images but they found that the history was erased and they couldn’t see any incriminating evidence. Later that day, Trainor was asked about the images. He repeatedly denied viewing the images.
Trainor testified that he felt the employer didn’t have any direct evidence that proved he viewed any sexually explicit images. However, he was sent home later that day, pending further investigation.
Raymond said he saw Trainor at the computer a few days before the Feb. 7 incident. Trainor called him over and showed him a method to evade the company’s efforts to block certain websites. The images he saw were “disturbing,” said Raymond.
During a Feb. 15 meeting, Trainor was fired for breaking the company’s code of business conduct and ethics for “displaying pornographic material or sexually suggestive objects or pictures in the workplace,” which was considered harassment.
As well, Trainor’s dishonesty during the investigation was cited. The union, Teamsters, Local 987, filed a grievance on Feb. 20.
Later, during a Feb. 28 grievance hearing, Trainor admitted his wrongdoing.
Arbitrator Phyllis Smith dismissed the grievance. “None of the factors which are normally relied upon in the jurisprudence to substitute a lesser penalty assist (Trainor) in this case. But in this case, given the seriousness of the offences and the dishonesty of (Trainor) during the investigation, I am unable to conclude that the employer’s decision was unfair or unjust.”
Two previous disciplinary notices were also on Trainor’s record, which rightly played a part in the decision to terminate, said Smith.
Trainor’s behaviour during the investigation and afterward did not show much remorse, said the arbitrator.
“Furthermore, the step 1 response after he was terminated and when he wanted to get his job back would not give the employer any confidence that he appreciated the seriousness of his wrongdoing or that he sincerely regretted or that they could trust this short-term employee without a clean service record to return to the workplace and behave properly. He had to in fact be prodded by his union to express what little regret he had and that regret was not with respect to the effect on the employer but the effect on him,” said Smith.
And Trainor’s own testimony sealed his fate, according to the arbitrator. “He admitted that he simply took a chance after due consideration that he could escape any consequences because he thought the employer was bluffing and could not prove its case. This was done in circumstances where he did not think he could get fired for the offence so he was not overcome by the fear and stress of termination. Rather, he wanted to escape any responsibility. In this case, I am not inclined to discount the failure to admit wrongdoing at the first opportunity as a just basis for termination.”
Reference: Purolator and Teamsters, Local 987. Phyllis Smith — arbitrator. Gurjit Brar for the employer. Clayton Cook for the employee. Feb. 14, 2019. 2019 CarswellNat 367
On Feb. 7, 2018, Darrell Trainor was in the lunch room during a break. When two other employees walked into the room, they saw the images as Trainor was viewing them.
Nick Caron and Keith Raymond testified they saw Trainor looking at the images, but the browser window was quickly minimized after they walked into the room. Trainor quietly said an expletive as he closed the windows on the screen, said Caron.
After all three employees left the lunch room, Caron returned and maximized the browser window. He saw the images were still there and he took a picture of the screen with his phone.
Caron then texted the image to Dave Koczkur, terminal manager.
At 8 a.m. on Feb. 8, IT employees attempted to retrieve the images but they found that the history was erased and they couldn’t see any incriminating evidence. Later that day, Trainor was asked about the images. He repeatedly denied viewing the images.
Trainor testified that he felt the employer didn’t have any direct evidence that proved he viewed any sexually explicit images. However, he was sent home later that day, pending further investigation.
Raymond said he saw Trainor at the computer a few days before the Feb. 7 incident. Trainor called him over and showed him a method to evade the company’s efforts to block certain websites. The images he saw were “disturbing,” said Raymond.
During a Feb. 15 meeting, Trainor was fired for breaking the company’s code of business conduct and ethics for “displaying pornographic material or sexually suggestive objects or pictures in the workplace,” which was considered harassment.
As well, Trainor’s dishonesty during the investigation was cited. The union, Teamsters, Local 987, filed a grievance on Feb. 20.
Later, during a Feb. 28 grievance hearing, Trainor admitted his wrongdoing.
Arbitrator Phyllis Smith dismissed the grievance. “None of the factors which are normally relied upon in the jurisprudence to substitute a lesser penalty assist (Trainor) in this case. But in this case, given the seriousness of the offences and the dishonesty of (Trainor) during the investigation, I am unable to conclude that the employer’s decision was unfair or unjust.”
Two previous disciplinary notices were also on Trainor’s record, which rightly played a part in the decision to terminate, said Smith.
Trainor’s behaviour during the investigation and afterward did not show much remorse, said the arbitrator.
“Furthermore, the step 1 response after he was terminated and when he wanted to get his job back would not give the employer any confidence that he appreciated the seriousness of his wrongdoing or that he sincerely regretted or that they could trust this short-term employee without a clean service record to return to the workplace and behave properly. He had to in fact be prodded by his union to express what little regret he had and that regret was not with respect to the effect on the employer but the effect on him,” said Smith.
And Trainor’s own testimony sealed his fate, according to the arbitrator. “He admitted that he simply took a chance after due consideration that he could escape any consequences because he thought the employer was bluffing and could not prove its case. This was done in circumstances where he did not think he could get fired for the offence so he was not overcome by the fear and stress of termination. Rather, he wanted to escape any responsibility. In this case, I am not inclined to discount the failure to admit wrongdoing at the first opportunity as a just basis for termination.”
Reference: Purolator and Teamsters, Local 987. Phyllis Smith — arbitrator. Gurjit Brar for the employer. Clayton Cook for the employee. Feb. 14, 2019. 2019 CarswellNat 367
