Inappropriate emails lead to termination

Content objectifies women, termination should be upheld, arbitrator rules

Roy Ludlow became an ex-employee after he accessed X-rated content using his company email account.

Ludlow was fired after his employer, Invista (Canada) Company, found him in violation of its Acceptable Electronic Use and Offensive or Harassing Communications policies. He was discharged after the Kingston, Ont.-based employer discovered Ludlow attempted to forward three "inappropriate and unacceptable" emails from his company account to his personal external email address on Jan. 9, 2013.

The discovery was made after the company’s image analysis tool tagged several emails from Ludlow’s account as containing inappropriate material. Following an investigation it was found Ludlow received several inappropriate emails with embedded photographs, and that he retained the inappropriate material on his company email account for up to 12 weeks.

The employer found Ludlow to have engaged in serious culpable misconduct and dismissed him on Jan. 17, 2013.

Ludlow’s union, the Kingston Independent Nylon Workers Union, filed a grievance on his behalf, requesting the termination be substituted for a lesser penalty.

The emails were sent to Ludlow by his girlfriend’s brother-in-law. In total, six emails containing 80 explicit photos were sent to Ludlow between Oct. 29, 2012, and Jan. 5, 2013. On Jan. 9, 2013, Ludlow forwarded three of the emails to his personal email address. Afterward, he deleted the emails from his company account.

At a meeting with his supervisors the following day Ludlow admitted he knew the emails contained inappropriate material when he opened them. The email subject lines included "Fw: No Small Eyes!!!XXX" and "FW: I KNOW ALL THE BOYS NEED A LITTLE HOLIDAY CHEER XXX." He said he forwarded the emails to his home account in an effort to move them off the company system. Ludlow said he could not remember if he had opened each email in question and said he did not recall looking at the explicit photos in each email.

When asked about the long period of time he retained the emails, Ludlow said vacation time and work restrictions prevented him from thoroughly checking all of his emails. In arbitration, however, Ludlow testified he checks his work email twice every day. He testified that what he did was wrong, saying he had learned his lesson and would not make the same mistakes again.

The employer requested Ludlow’s grievance be denied, emphasizing the seriousness of his violations as well as his attempts to minimize his misconduct and his dishonesty during the investigation process. The employer also emphasized the importance of deterrence against future violations.

The union requested Ludlow’s seniority, disciplinary record and performance evaluations be taken into consideration in support of substituting another penalty for discharge. Additionally, the union asked Ludlow’s acknowledgement of his culpability be considered.

"There is no dispute that the embedded photographs as a whole were degrading, and were disrespectful to women," sole arbitrator Randy L. Levinson said in his ruling. "They objectify women, and have no place at the Invista site."

Taking into account both the employer and the union’s arguments, as well as Ludlow’s testimony, however, Levinson found it was Ludlow’s discharge that was inappropriate. He substituted the dismissal for a suspension without compensation, but without a loss of seniority.

"I am satisfied that Mr. Ludlow is truly contrite, that he has learned from his mistakes, and that he will not repeat his inexplicable behavior, given the experience of his many years of service, his minor disciplinary record, and his most recent performance evaluations, where he met expectations for compliance."

Reference: Invista Company and the Kingston Independent Nylon Workers Union. Randy L. Levinson — arbitrator. Robert W. Little for the company, Michael Hancock for the union. May 5, 2014.

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