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'Civil servant keeps job despite porn'

In unionized workplaces, misconduct is often present, but seldom does it lead to dismissal.

Flipping through the newspaper the other day, I came across a headline that grabbed my attention – “Civil servant keeps job despite porn.”


The case concerned a federal government employee who spent up to five hours at work each day surfing the Internet for pornography and trading pictures, all from his government email account. Amazingly, he kept his job.


The general public asks why this employee keeps his job when employers are allowed to fire other, less blameworthy employees for reasons such as “layoffs” and “restructuring,” with legal impunity. The answer is clear: the union. No surprise, then, that unionized employees champion cases like this, while employers are left scratching their heads.


In unionized workplaces, misconduct is often present, but seldom does it lead to dismissal. This is because unionized employers are bound by collective agreements permitting dismissal only with “just cause.” However, unlike employers in non-union workplaces who need only to prove real misconduct to rid themselves of problem employees, unionized employers must make a much more compelling case for dismissal, all without disturbing their labour relations with the union. As a result, many unionized employers are forced to forgive misconduct for fear of losing the case – or worse, offending their union.


Further, unionized employees think mostly in terms of reinstatement, while non-union employees usually seek severance. Arbitrators, granted with the exclusive jurisdiction to resolve union labour disputes, have the authority to reinstate fired employees to their jobs, with full back pay, while non-union employees, who do not enjoy the right to reinstatement, are often “paid off” with a few months’ severance in exchange for dropping their case. When viewing the issue through this lens, it is no wonder that the civil servant kept his job despite spending so much of his time searching for porn.


My article should not be read as if I am advocating for unions because I am not. My law firm receives more calls from unionized employees complaining about their own unions than it does from non-union employees who have been fired. Considering that only 30 per cent of the Canadian workforce is unionized, this indicates that unionized employees are no better off than non-unionized ones.



Daniel A. Lublin is an employment lawyer with Whitten & Lublin LLP. Reach him at dan@toronto-employmentlawyer.com.

 
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