The City of West Kelowna was right to discipline an employee accused of watching pornography at work, the BC Labor Council recently ruled. According to an arbitration ruling last month, the 57-year-old parks and maintenance operator was accused by two 19-year-old co-workers of watching porn on his lunch break on Aug. 17, 2021. Accused worker AG — a four-year employee who is married with children and has no prior disciplinary record — flatly denied the allegations and filed a grievance through his union after receiving a written warning from the city’s HR representative about the incident. The complaint, filed a week after the alleged incident, alleged that the 19-year-old junior employee noticed the AG looking at pictures of naked women on his phone while eating lunch at a picnic table. “A few minutes later I heard moaning sounds and slapping sounds coming from his phone. This made me feel uncomfortable,” the complaint said. The complaint was later confirmed, with some inconsistencies, by an interview with another 19-year-old employee who was on the same crew. When confronted about the allegation by the city’s HR department, the AG claimed junior staff “hated” him and that the allegations were a “witch hunt.” The Local Government Employees Union argued in arbitration that the city’s investigation never proved that the AG actually viewed porn on the job. The city, meanwhile, said there was no reasonable explanation for junior officials to fabricate the claim. The AG submitted his phone for examination along with a medical examiner who testified that there was no evidence that the phone was used to access porn on the date in question. The expert, however, noted that if AG used the incognito/private browser setting, there would be no trace of inappropriate content on the device. The arbitrator ruled that the forensic report did not prove, in any way, whether pornographic material was accessed at work or not. The arbitrator, however, found that two corroborating witnesses accusing the AG of watching porn tipped the balance in favor of the city. “I find that the mourner had lunch at the picnic table and viewed pornographic images on his phone in the presence” of the two junior staffers, arbitrator Alison Matacheski ruled. While criminal courts use a standard beyond a reasonable doubt, civil and labor procedures in BC resolve disputes on a balance of probabilities – meaning that an event is more likely to have occurred than not. Castanet chose not to name any of the parties in this decision because of this lower level. “Displaying pornography in the workplace in the presence of other employees is unacceptable and unwelcome behavior and therefore violates the Workplace Respect Policy,” Matacheskie continued in her decision. “I appreciate it is during his lunch break, on his personal phone and the wailing was not intended for other employees to see or hear. However, it is still in the workplace in the presence of other workers. A key factor is that it was refused and the employer mentions it in the written warning. The purpose of a disciplinary action is to ensure that misconduct does not continue. As the grievor denied it, I find that discipline was warranted and a letter of warning, as the most lenient form of discipline, was appropriate.’
