Termination for computer misuse, harassment

The two grievors worked under minimal supervision and enjoyed the employer’s confidence. When the agency discovered that they were misusing their computers, one grievor’s claims of innocence and the other’s lack of remorse didn’t help them.

Two frontline social services workers were fired for misuse of government resources and violating workplace policies against harassment.

The workers were alleged to have moderated and/or posted offensive comments about colleagues and management on an Internet web log (“blog”). Both workers were also charged with using government resources to operate personal businesses.

In addition, there were charges that one of the workers violated confidentiality requirements and also used government computers to access and circulate pornography.

J.A. and R.C. were Enforcement Service Officers (ESOs) employed by a provincial social services ministry. The workers knew each other but did not socialize outside of work.

ESOs work to generate voluntary compliance with court-ordered arrangements with respect to child and family support orders following family break-ups.

ESOs work independently within a team environment. They are largely unmonitored and exercise significant discretion in the course of their work. They have access to restricted personal information and are required to swear and sign an “Oath of Office and Secrecy.”

Offensive blog

On Jan. 8, 2009, the employer’s IT forensics team from Corporate Security began investigations to determine the source of an Internet blog that was posting offensive comments about staff and management at the ministry.

Emails to the blog provided IT with the unique IP addresses attached to every computer. Scans of the Internet history of both J.A.’s and R.C.’s computers revealed that posts to the blog in question had been made from the computers at their workstations. The scans of their computers also revealed that personal commercial business had been conducted from their computers. As well, the scans of R.C.’s computer showed that he had accessed violent and degrading pornographic images and distributed them using a government email address.

The workers were fired.

J.A.’s letter of termination said that computer records established that he had been involved in the offensive blog, which featured language and discussion that violated workplace policies on harassment. It also charged that J.A. used government resources for non-government business.

J.A. acknowledged he had accessed the blog a few times. However, he denied any significant role in shaping content on the blog either as a moderator or as a contributor. He similarly minimized his participation in a former colleague’s mortgage brokerage business.

The Arbitrator found that the evidence indicated otherwise.

In the face of forensic evidence showing the blog had been moderated from his computer, J.A. maintained someone else must have used his computer while he was away from his desk.

This was simply not credible, the Arbitrator said. Similarly — faced with evidence of significant email traffic between the mortgage brokerage company and the computer at his workstation — J.A.’s denials about using government resources to pursue private business interests were not believable either.

The employer established on a balance of probabilities that J.A. was one of the moderators of the blog, the Arbitrator said. That alone was sufficient grounds for his termination. However, the evidence was also compelling that J.A. was using government resources and his paid time to conduct work not related to his job. The termination was warranted.

R.C.’s termination was also warranted.

Evidence showed that R.C. violated confidentiality requirements by inappropriately accessing another ministry’s database for a colleague who was trying to trace someone. First he denied the charge. Then he changed his story.

Degrading and disturbing images

The evidence also established that R.C. used his government computer and his government email address to collect, store and circulate disturbing and degrading pornographic images.

R.C. did not deny these actions and he did express remorse.

However, the Arbitrator said, “While he used words to indicate that he was sorry, I was left with the impression that he felt sorry for himself, as ‘those images’ cost him his job. He never expressed sincere remorse or even said that he was sorry that others, such as [his supervisor], had to view these images and deal with them. [R.C.] never clearly and without qualification took responsibility for having engaged in totally unacceptable conduct, which was exacerbated by the particular workplace in which he was employed.”

The Arbitrator was sympathetic to the concerns of R.C.’s supervisor who suggested that ministry clients, many of them women in vulnerable circumstances, would lose confidence in the ability of ministry staff to treat them with dignity and respect if they were aware of the kind of conduct that R.C. was engaging in.

“The context within which he was employed makes [R.C.’s] behaviour even more egregious and insensitive. I question how someone whose views of women, as reflected in the pornographic images he had on his computer and frequently shared with others, should or could ever be permitted to work in an environment such as [the ministry] in the future. There was no condoning of this conduct by management in any form.”

The grievances were dismissed.

Reference: Ontario Public Service Employees Union and The Crown in Right of Ontario. Janice Johnston — Sole Arbitrator. Benjamin Parry for the Employer. Robin Gordon for the Union. Nov. 25, 2011. 63 pp.

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