While the ever-increasing ubiquity of pornography may invite its acceptability in broader society, two recently-published decisions involving the Vancouver School Board suggest that labour arbitrators continue to view the receipt, sending and viewing of pornography in the workplace as a serious offence.
One case was about the discharge of a carpenter with 12.5 years of service. The other was about the discharge of a maintenance coordinator with six years of service. Both employees had no prior discipline. Both admitted to receiving, viewing, saving and sharing pornographic material on a daily basis over a significant period of time. Both were reserved in demonstrating contrition at their investigation meetings and deflected responsibility onto others at their arbitration hearings by arguing that pornography in their work area was so prevalent as to be condoned. (The Board’s investigation led it to sanction 15 employees in total.)
Arbitrator Ready heard and dismissed the carpenter’s grievance and Arbitrator Sanderson heard and dismissed the maintenance coordinator’s grievance. The principles embodied in both their awards are the same, starting with the idea that pornography in the workplace is “egregious” misconduct. Arbitrator Sanderson says:
…I find the grievor’s actions and conduct to be egregious. If the nature of his misconduct had become known publicly, it could have done significant harm to the school board’s reputation as the protector and educator of children. Not only did the grievor violate the employer’s trust but he does not seem to comprehend that much of the pornographic material in evidence in this arbitration is, to adopt arbitrator Ready’s words previously quoted, “…sadomasochistic images which are offensive, demeaning and disrespectful toward women”.
According to the arbitrators the use of pornography in the workplace is so outside acceptable workplace norms, that “common sense” will tend to defeat a condonation argument provided an employer acts diligently upon receiving a formal complaint. Arbitrator Ready explains:
The grievor’s actions demonstrate an ongoing patent lack of the application of common sense when he used the Employer’s computer to receive, send and store pornographic emails. It should have been obvious to him that such material would not be acceptable to the business of a school district…
The principles outlined in the jurisprudence clearly place responsibility on employees to exercise common sense and use good judgment. They serve to defeat the Union’s condonation defense which fails to recognize any positive duty on the part of an employee.
Finally, the arbitrators suggest that the use of pornography in the workplace is a breach of trust that can irreparably harm even a long-term employment relationship if an offending employee does not fully accept responsibility for his actions when first confronted. Arbitrator Stewart says:
What can be fairly judged is whether there has been full acceptance of responsibility by the individual employee and an unqualified undertaking has been given that the misconduct will not happen again. Put simply, the issue to be addressed is whether the employee has irrevocably breached his duty to maintain trust with his employer by not accepting responsibility for his actions…
While the grievor, at the hearing, appeared to be more apologetic and remorseful, I agree with Arbitrator McPhillips that the critical time for judging the so-called apology is at the investigative meeting.
In 2009 when a Université de Montréal researcher went looking for males in their 20s who had never consumed pornography to be part of a control group in a sociology study, he couldn’t find any. Are all these pornography users keeping their activity outside of the workplace? If not, they still can and should be taken to task.
Board of Education of School District No 39 v UA Local 170, 2011 CanLII 47160 (BC LA).
*Note that Arbitrator McPhillips upheld the discharge off a third employee with 22.5 years of service in an award I have not yet obtained.
All About Information 