The Ontario government has been ordered to rehire six employees it fired three years ago for swapping pornographic e-mails at work.
In what is called a “bottom-line” decision issued last month, arbitrator Ken Petryshen concluded that although the six exchanged sexually explicit material that in some instances was “very offensive,” the government did not have just cause to dismiss them.
The decision was released to no fanfare on June 18, a day when pornography was much in the news, with Michael Briere pleading guilty in a Toronto courtroom to first-degree murder in the slaying of 10-year-old Holly Jones and saying he had been so sexually charged by watching child porn on his home computer that he was moved to act out a lifelong fantasy.
Mr. Petryshen, vice-chairman of the province's grievance-settlement board, will give written reasons for his decision at a later date.
The six men were deemed the worst offenders of a group of 90 employees at the Ministry of Natural Resources, most employed at various offices in Northern Ontario, who were found to have “a large volume” of inappropriate material on their work e-mail accounts or who had distributed it.
Sixty-six employees were disciplined, with penalties from letters of reprimand to suspensions of as much as 20 days without pay.
An additional 99 employees were found to have a smaller number of images or to have merely received, not distributed, them.
According to an earlier decision in the case, also by Mr. Petryshen, the most damning material included “items of bestiality, oral sex, pictures of nude obese and elderly women and pictures of sexual activity that are degrading and violent to women.”
Particularly offensive, he said, was something called “the Dirty Sanchez video,” which featured singer Britney Spears's face superimposed on a woman cartoon figure “who is being spanked and beaten during intercourse,” according to a government report.
After seeing this part of the video, the viewer could select one of three options: do it again, kick her out the window or snuff movie. Selecting the latter allowed the viewer to pick where to shoot Ms. Spears with a gun.
The Dirty Sanchez video was found in the e-mail accounts of three of the employees who were fired — Terry Walmsely, a fisheries technician; Jim Hastie, an operations co-ordinator; and Phil Curtis, a technician.
Jean-Jaques Vallee, a senior fish and wildlife specialist, had 30 items on his account, including six with what the government called “degrading, dehumanizing and racial content.”
Larry Wickett, a project biologist, had 47 items on his account, many with nudity, sexual content, exposed genitalia and violent content. He had forwarded some items outside the Ontario Public Service.
Richard Nadeau, a conservation officer, not only had 46 items on his account — including sexually explicit and degrading material — but subscribed to and downloaded material from “inappropriate websites.”
The government's investigation began in early 2001, when the ministry's co-ordinator for the workplace discrimination and harassment prevention office learned that a couple of conservation officers were found to have images of nude women on their computers.
As the government was in the process of examining the two men's computers, senior officials in the ministry received a separate complaint from Chrysler Canada, where two employees had been sent inappropriate e-mails from ministry staff on two occasions.
Because of the large volume of images and allegations, the government hired an external consultant to lead the investigation.
The probe then mushroomed.
As Mr. Petryshen wrote in a January, 2003, report, in which he ruled that the breaches properly could be considered firing offences, “A review of one employee's account would lead to the identification of other employees” involved, with the result that the evidence-gathering part of the investigation was “a very long process.”
The arbitrator, who heard evidence and arguments for 43 days spread over four years, found that the government had “conducted a careful and extensive investigation and that the disciplinary process was handled in a fair and professional manner.”
Though lawyers for the Ontario Public Service Employees Union, which grieved the firing of the six, argued that the government had “rushed to judgment” and moved harshly because of its zero-tolerance policy, Mr. Petryshen said his extensive review of the material “suggests otherwise.”
He described that review, given the nature and volume of material he had to look at, as “not a pleasant exercise.”
He found that the six men had violated the workplace-harassment and information-technology policies and that the government had provided ample warnings — including one which appears on the computers every time users sign on — about what constitutes inappropriate use.
Mr. Petryshen also concluded that “the problem of e-mail abuse was quite widespread, given the number of individuals who were investigated relative to the total number of MNR employees,” and he noted that inappropriate material was found in the accounts of human-resources staff and even of a workplace-harassment adviser, as well as “a fairly significant number of managers.”
Although the majority of offenders were men, he said there were a number of women on the “A list” of the worst offenders.
Government lawyers defended the firings by saying that the six men had created a work environment that was “toxic in the extreme” and a “ticking time bomb,” and that the government was obliged to take strong measures.
To do otherwise, they said, “would send the message that a culture created by the distribution of pornography is ‘not so bad.' ”
But lawyers for the union, although conceding that the conduct warranted punishment of some sort, argued that the concept of “progressive discipline” had been ignored and that these employees, with previously unblemished records, should not have been fired.
Union lawyers said that since the number of people investigated “represents a significant proportion of MNR staff,” among them managers and human-resources staff, it was clear that the workplace culture condoned such activity.
It is expected that when Mr. Petryshen releases his written decision, the six who were rehired will face some sort of discipline.
No costs award is anticipated, since the union and government, which share the cost of running the grievance-settlement board, routinely pay their own legal expenses.
cblatchford@globeandmail.ca
