Rights Arbitration Assignment Winter 2024

Due: Last class Instructor: Dr. Ted Mock

1. Natural Resource Group ("NRG") is in the business of the transmission and delivery of natural gas to end-consumers throughout various parts of Ontario. NRG is a provincially-regulated company as all of its facilities operate solely within Ontario. In addition to its pipelines and gas transmission facilities, it also operates offices in Kitchener and Kingston, Ontario where all of the administrative functions associated with its operations are handled.
2. Most of the employees in these offices are customer service representatives ("CSRs").The CSRs take telephone calls from residential customers, primarily with respect to customers' billing enquiries or complaints. CSRs spend more than 80% of their working day either on the telephone or accessing information on their desktop computers. In addition to accessing NRG's customer billing system, CSRs have access to the internet, e-mail and certain other work-related applications.NRG employs approximately 900 CSRs throughout its operations in Ontario.
3. When calls come in to the billing centres, they are placed in a queue. CSRs take calls in priority sequence, but have the option of placing their telephones on "busy" mode for short periods when they need to use the washroom and when they are on coffee or lunch breaks. Otherwise, CSRs are expected to respond to between twelve (12) and fifteen (15) calls per hour or ninety (90) to one hundred and ten (110) calls during each shift, based on an average of four (4) to five (5) minutes per call. Although the expected call volumes are described as "targets", these averages are used to assess CSR performance on annual evaluations. To date, no CSR has been discharged by NRG due to failure to meet call volume targets. However, poor performance, as reflected in annual evaluations, has been the basis for the refusal of promotions on occasion.
4. The CSRs are within a bargaining unit of employees represented by the Federation of Office and Technical Employees of Canada ("FOTEC"), Local 100. NRG has had a bargaining relationship with FOTEC since the union was certified in 2002.
5. NRG accepts that some personal e-mail and internet usage will occur at the workplace, but seeks to minimize this type of use, out of a concern that employees will abuse the privilege of using the company's computers or engage in time-wasting activities. In September 2014, the company learned that a number of CSRs in the Kitchener office had been exchanging inappropriate e-mails with adult content. Most of the material was "dirty jokes", but certain extremely offensive pornographic material was also located on NRG's server.Eventually this material was traced to one CSR, who had also disseminated it to other employees and people outside the company. The employee was terminated. FOTEC grieved, and was successful in having the company reinstate the employee. As part of the trade-off for that reinstatement, FOTEC agreed to the implementation of a new "Internet & E-mail Usage Policy" (the "Policy").
6. In relevant part, the Policy provides:

The E-mail and Internet systems are provided for activity related to the Company's business. Accordingly, uses must be consistent with the business purposes of the Internet as it relates to the Company and its divisions. Assuming that staff continue their professional approach to Internet/E-mail use, occasional personal use of the Internet/E-mail is permitted provided that it does not hinder the user's or others' work. Employees should be aware that the Company may monitor any E-mail and Internet usage to ensure compliance with this policy and applicable laws. Accordingly, communications via Internet and E-mail should not be regarded as confidential.

NRG will have "zero tolerance" for any employees found to be using the Company's E-mail and Internet systems for improper purposes. Such violations will be subject to discipline up to and including discharge.

...

Unacceptable Uses of the Internet

...

Uses that:

• interfere with job performance of the user or other employees;
• cause congestion of the network; ...
  • The visiting of any Internet site which is incompatible with the Company's values and community standards. Any questions by staff on this should be directed to Human Resources.
    1. Ken Rogers is a CSR in the Kitchener office. He has worked for NRG (or its predecessors) since 2000. Ken was involved in the organizing activity which eventually resulted in FOTEC being certified. He was on the negotiating committee for the first collective agreement, and was an active union steward until early in 2022. It was Ken who represented the employee terminated for misuse of the computer system, and Ken agreed to the Policy (with the support of FOTEC's local president) in exchange for the employee's reinstatement.
    2. Ken is supervised by Elaine Ness. Ness has had a sometimes challenging relationship with Ken while he has been under her supervision, dating back to 2014. Ness views Ken as being overly technical in his application of the collective agreement. In Ness' experience, Ken frequently pursued grievances that had little merit, and insisted that the agreement be followed to the letter, even if it created inefficiencies. Ness was not involved in the decision to terminate the other employee in September 2014, but she disagreed with the employer's decision to reinstate the individual. It was her perception that Ken had helped the employee "get away with it".
    3. Starting in early 2022, Ness had been attempting to manage Ken in relation to a variety of workplace issues. Ken had stepped down as union steward in February 2022, and around the same time he started to exhibit attendance problems. Ken was a no-call/no-show on one occasion, and was late on three occasions between February and April 2022. During this time frame he also seemed to be having difficulty concentrating at work.At least one co-worker of Ken's advised Ness that he had fallen asleep at his desk. In May 2022, Ness had a meeting with Ken in which she advised him that his attendance and conduct were of concern to the company. Ness placed a note on his file, recording the discussion.During the conversation, Ken had indicated that he had been spending a lot of time at the casino in Brantford, but Ness did not understand this to mean that he was having difficulties with gambling.
    4. Ken, however, was becoming a problem gambler. Shortly after his conversation with Ness, Ken's gambling debts caught up with him; the bank foreclosed on his home, and the finance company repossessed his wife's car. His wife left him, taking their son, Chip, and their three cockatiels with her. Ken approached Ness in the first week of August, 2022, and requested an unpaid personal leave of absence under the collective agreement. Ness was initially unreceptive to the request, but discussed the situation with Human Resources manager, Bruce Bigheart, who counselled Ness to be more understanding. Ken was granted a three month leave of absence to sort out his personal affairs. He returned to work in the first week of November 2022, and continued to work in his CSR position until the Fall of 2023.During this time his attendance improved, but he was verbally warned in July 2023 about behaving in an insubordinate manner toward Ness. Apparently, Ness advised him that his average time per call was too long; Ken became incensed and said to Ness, "I'd like to see you do better." Two other CSRs were standing nearby, and confirmed hearing the comment. FOTEC did not grieve the discipline.
    5. On Saturday, September 22, 2023, Ness was in the office, cleaning up some paperwork.She had difficulties booting up her desktop computer, as it had become infected with a virus some time during the preceding week. Ness had done nothing to have the situation corrected, but expected to have IT look at the computer in the following week. Given that she could not access her own computer, Ness looked for another PC to log onto. She noticed that Ken's computer had been left logged on, so she set herself up at his workstation. When she opened the web browser application on Ken's computer, it went directly to the home page for an online gambling site. Ness was concerned that Ken had been using the employer's computer to engage in gambling during his working hours. She noticed that the gambling site home page also had links to what appeared to be pornographic sites through banner advertising on the page. Ness "poked around" on Ken's computer, and noted that the "history" for the web browser showed a lot of visits to other online gambling sites, such as PokerAddict.com, TheGambler.com and JackpotPoker.net over the previous day or so. It appeared that Ken had been on at least one of these sites everyday during the preceding two days. However, it was not possible for Ness to look any further back, as the history had been erased or cleared, commencing two days earlier. Ness also looked briefly at Ken's e-mail application, and noticed that there was a message from his wife regarding his failure to pay monthly child support in August 2023. Ness then logged off of Ken's computer and left voicemail messages for Bigheart and the IT department.
    6. When Bigheart came in on Monday, he and Ness agreed that further investigation was warranted. They also agreed that Ken should be suspended with pay, pending the outcome of that investigation. Bigheart spoke with IT, and asked that they do a thorough review of Ken's computer and his internet usage for the past few months. IT was able to retrieve deleted "history" files on Ken's machine, indicating a much longer pattern of online gambling (or at least a prolonged history of visiting gambling sites) over the preceding four (4) weeks. Back-up files on NRG's servers confirmed that Ken's machine was logged onto gambling sites for an average of 3 hours each work day over the preceding month, although he would sometimes not visit gambling sites at all for days at a time. There was no indication that Ken had been visiting pornographic websites or downloading any inappropriate material, but his computer had been allowing "cookies" from the gambling sites.
    7. Ness and Bigheart also reviewed Ken's call volumes for the previous period of six (6) months. Ken had responded to approximately 85 telephone inquiries per day over that period.However, upon closer inspection, it was apparent that Ken had only taken an average of 60 calls per day for the preceding four (4) weeks, with the lowest call volumes being handled on days when his internet gambling activity was greatest (e.g., on September 7, 2023 Ken had been on internet gambling sites for 4 hours and only logged 45 telephone inquiries from NRG customers).
    8. With the information they obtained from IT and their review of Ken's call volumes, Bigheart and Ness determined that discipline was in order. It was felt that Ken had been wasting a considerable amount of time in frivolous online activities, and that his online gambling might also expose vulnerabilities in NRG's computer system. Also, because Ken had been involved in the process that led to the introduction of the "appropriate use policy" in 2014, NRG was of the view that Ken could not be let off lightly. As Ness said, "zero tolerance is zero tolerance".
    9. A meeting was scheduled with Ken on Wednesday, October 4, 2023. Bigheart informed Ken and his union steward that the employer's investigation was complete and that Ken was being discharged for misuse of the internet and "time theft". He was asked if he had anything he wanted to say. Initially, Ken offered nothing, but his steward, Rick Wright, asked for a moment to speak with Ken in private. After a few minutes, Ken and Wright rejoined the meeting, at which time, Wright asked how it was that NRG learned of Ken's activities. Bigheart said, "the employer has a right to monitor usage under the policy", but did not volunteer the actual circumstances under which Ness made the discovery. When Wright pressed on the issue, Bigheart acknowledged that Ness had "stumbled upon" the information, and IT followed up with further investigation. Ness, who was also in the meeting, explained the circumstances (set out above). Wright also mentioned to Bigheart that Ken "had a problem" and that he had sought "help" for his gambling in 2022. Wright did not indicate that Ken was addicted to gambling, however, nor did he offer any proof that he had sought medical treatment for addiction. Wright objected to the employer's inspection of Ken's computer and argued that dismissal was too harsh, relying on Ken's personal difficulties. However, Bigheart and Ness refused to change the decision, and Ken was given a few minutes to remove his personal belongings before having to leave the premises.
    10. Wright filed a grievance on behalf of Ken that afternoon, alleging that his termination was without just cause. In the course of grievance meetings to discuss the situation, the parties were unable to settle the grievance. Accordingly, FOTEC has referred the matter to arbitration under the terms of the parties' collective agreement.

The parties have agreed that two issues will be argued before the Arbitrator:

1. Whether there was just cause for discipline in all of the circumstances; and

2. If there was cause for discipline, whether the discharge penalty was appropriate in the circumstances.

The parties have agreed that there is no evidence that Ken was addicted to gambling at the relevant time, although at the termination meeting the employer was advised that the grievor had experienced a "gambling problem". The only active discipline on Ken's record is the verbal warning in July 2023.

PROJECT TWO GRIEVANCE (RIGHTS) ARBITRATION

This project contains the case of an employee who has been terminated by his company. His union has grieved the termination but the grievance has not been settled between the union and management. Therefore, the grievance has been referred to arbitration. This type of arbitration is called "grievance arbitration" or "rights arbitration". In this project, you will develop arguments both for the Company (supporting the termination) and for the union (arguing that termination was not appropriate in the circumstances). Your arguments must be supported by points of Law. You will draw your points of Law from LAC's that I will provide. LAC's are "Labour Arbitration Cases". They are the decisions and points of Law that have been rendered by arbitrators in previous grievances. Decisions by previous arbitrators on previous grievances make up the common law or jurisprudence and are all documented in the LAC's. Your deliverable for this project will be FOUR ARGUMENTS that management might make in supporting their decision to terminate the employee AND FOUR ARGUMENTS that the union might make. Each of the arguments must address a specific fact in the case, cite a specific point of law and make a clear point that supports your position.