Worker justly suspended, unjustly dismissed after allegations of spying levelled in B.C.

Plant operator denied taking inappropriate pictures of female co-workers
|Canadian Labour Reporter|Last Updated: 10/22/2019
Two hands holding cell phone.
Georgijevic (iStock)

A British Columbia worker whose phone was wiped by his wife after allegations he spied on co-workers, deserved an unpaid suspension for not co-operating with the investigation but not termination, according to an arbitrator.

The worker was a water and wastewater plant operator and equipment operator for the District of Houston in northern B.C. He initially used his personal cellphone for work purposes and the district reimbursed him for it. The district eventually provided the man with a work iPhone, where he used his personal Apple account to include his saved information. The district had a mobile devices policy that all records on employer-provided cellphones were the property of the district.

In August 2017, the district’s chief administrator officer (CAO) was told that four female employees had reported that the worker had showed up in their work areas — three of them worked in parks — which “creeped” them out. They also suspected the worker might have taken pictures of them with his cellphone.

The CAO requested the worker’s cellphone. The worker provided the phone and access PIN but requested to be present when it was examined because it had personal information on it. The CAO replied that the phone belonged to the district and denied the request.

The CAO looked at some of the pictures on the phone and didn’t see anything inappropriate. However, he had to leave before seeing all the pictures, and when he returned, he could no longer access the device.  The worker said his wife had wiped the phone remotely and she had the Apple ID and password to access the information.

He claimed he hadn’t asked his wife to deactivate the phone and also denied watching or taking pictures of his co-workers — his work sometimes took him to the places where they worked and he was frequently on his phone then.

The CAO gave the worker a deadline to provide his Apple ID and password to access the information from the phone, but the worker failed to do so. The district suspended him without pay pending an investigation and the worker was warned that his wife’s access to a work cellphone and setting it up with a personal account were unauthorized use of district property.

On Sept. 7, the district terminated the worker’s employment for destroying evidence relevant to the investigation, citing insubordination, lack of remorse for his misconduct, and dishonesty during the investigation.

The arbitrator noted that the worker was initially co-operative, but the district had reason to be suspicious when the cellphone was wiped. Though it was the worker’s wife who erased the phone, the worker didn’t make much of an effort to provide the access ID and password to help address the district’s “legitimate concerns.”

The arbitrator found that the district had a responsibility to ensure a safe workplace, so it was reasonable to seize and search the cellphone. Though normally suspensions pending investigations were with pay, the district had cause to suspend the worker without pay due to the “cloud of suspicion” that the worker encouraged with the cellphone deactivation, said the arbitrator.

However, the district didn’t establish that the worker had actually spied on the female co-workers. There were legitimate work reasons for the worker to be in those locations and there was no proof of the allegations. There was no concrete evidence the worker was guilty of spying on the women or that he was dishonest about it, said the arbitrator.

While the worker’s insubordination and failure to co-operate with the investigation deserved discipline, the district already disciplined him with an unpaid suspension. As a result, the district didn’t have just cause for termination, concluded the arbitrator.

Reference: Houston (District) and CUPE, Local 2086 (Standbridge). Paul Devine – arbitrator. April 5, 2019. Carolyn MacEachern for employer. Mitch Guitard, Natasha Morley for employee. 2019 CarswellBC 2634

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