On January 22, 2024, Arbitrator Shapiro upheld the discharge of a long service IT employee with an unblemished record for installing crypto-currency mining software on a college network.
Labour arbitrators have the power to substitute a penalty for an “unjust” discharge. The analysis is multi-factorial, though length of service and disciplinary record weighs heavily. In this case, these mitigating factors were overcome by the gravity of the misconduct and its impact on the employer’s trust in an IT administrator. Arbitrator Shapiro quoted a case I did for Sheridan College many years ago, and said:
In Sheridan College Institute of Technology & Advanced Learning v OPSEU, (2010) 201 LAC (4th) 243 (Ont Arb), the grievor was an infrastructure analyst in a college IT department. His employment was terminated for unauthorized use of the employer’s computer network. The grievor used a college computer for private purposes using the college’s network. He downloaded and stored thousands of copyrighted works including TV shows, music, games, and pornographic videos. The union argued that the termination was excessive as the employer was aware of the conduct and other employees accessed the computer. The arbitration board disagreed and upheld the termination, noting that the grievor had “significant responsibilities for the College’s network, including its security” and “his activities (by his own admission) increased the risk to the security of the network”. Like in Sheridan College, the Grievor here held significant responsibilities for the College’s network, including its security, and put that system at risk through his breach of College policies, pointing to a finding of serious misconduct in this matter.
This is a good finding. Employers truly are at the mercy of their IT administrators. A violation of that trust is a very serious breach.
I’ll also call out one other point here. Here is a comment the arbitrator made about how the employer handled the investigation and discharge:
By no means can it be said that the College rushed to judgment regarding its decision to terminate D.L.’s employment. To the contrary, despite the already overwhelming evidence against him, in order to permit a full investigation and avoid prejudgment, the College generously placed him on paid administrative leave, which continued from February 14, 2022, the date of his suspension, to July 14, 2022, the date of termination. The investigation was largely paused while D.L. was on administrative leave and sick leave, until he informed the College at the end of June that he was ready for a graduated return to work. At that time, Taylor, Studney and Lavoie were actively considering reinstatement, albeit at a time before they became aware, through both Safruik and Heisler, of the extent of the network issues D.L. had caused, which elevated the risk to the College to high. The College did not in any way act precipitously and instead gave D.L. every reasonable consideration and opportunity to explain himself before moving to terminate. In addition to the other steps it took, the Employer arranged an external IT expert assessment. Finally, before terminating the Grievor’s employment, the College sought external legal advice. Overall, this was a careful, informed decision, following a fair and thorough investigation.
It’s so hard for employers who have caught employees “dead to rights” to employ due process, but it’s very important to do so given the employee interests at stake. It’s sometimes said there is no duty to investigate, but I have little doubt that had this employer acted “precipitously,” the grievance would have been allowed.