Subscribe with Bloglines The Privacy Lawyer: Cyberporn case in Canada: InformationWeek Weblog

Thursday, July 15, 2004

Cyberporn case in Canada: InformationWeek Weblog

InformationWeek | InformationWeek WeblogI referenced this blog previously, but a comment was posted that helps understand the results of the arbitration ordering the reinstatement of the terminated employees.

"These workers are members of a union, which has a collective agreement - and with a unionized environment, there is arbitrarial case law. The issue wasn't whether these people should have been disciplined - that fact was conceded - but whether dismissal for a first offence (and no prior warnings or disciplinary action) was appropriate.

Unionized environments are different than at-will employees. There is a collective agreement to follow, mandatory union representation, and a grievance procedure. This judgement comes from an arbitrator empowered by the Labour Relations Act and the Collective Agreement, and was most likely chosen either from a list agreed to by the two parties. There was no lawsuit.

Dismissal is viewed as a last resort, and can only rarely be used for a first offence - offences that completely break down the trust between an employee and the employer, such as fraud, serious physical assault, theft, etc. Otherwise, you must engage in progressive discipline - beginning with a disciplinary letter and eventually reaching dismissal if the actions continue.

Since viewing or storing porn doesn't completely break down the trust, and it was a first offence, dismissal was not warranted. There is extensive labour case law (mainly arbitrator decisions) that back this up (not necessarily relating to porn, but other offences"


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