IN THE MATTER OF AN ARBITRATION

B E T W E E N:

NATURAL RESOURCE GROUP (“NRG”)

- and -

THE FEDERATION OF OFFICE & TECHNICAL EMPLOYEES OF CANADA, LOCAL 100. (“FOTEC”)

AND IN THE MATTER OF A GRIEVANCE OF KEN ROGERS (“ROGERS”) WRITTEN SUBMISSIONS ON BEHALF OF THE UNION

Ronnel Santos – Student #1 James Welton– Student #2 October 5, 2012 Guelph, Ontario

Facts

1. Ken Rogers was terminated by NRG for misuse of internet ''time theft".

2. Prior to termination, Ken was suspended without pay September 2011.

3. NRG called forth Elaine Ness, Kens supervisor, who is testifying Ken's misuse of NRG's internet policy.

4. Due to Ken's troubled home life, it triggered his gambling issues. This had negative influence on his work life as well as his behaviour within the company.

5. Prior to the investigation there had been a "challenging relationship" between Elaine Ness and Ken Rogers dating back to the late 1990's.

6. "Ms. Ness acknowledged that she was initially unreceptive to Ken’s request for a personal leave of absence, but discussed the situation with Human Resources manager, Bruce Bigheart, who counselled Ness to be more understanding.

7. Ms. Ness testified On Saturday Sept 30th that she had searched through Mr. Rogers's computer history and email without human resources authorization.

8. Ken was suspended without pay, pending outcome of investigation.

9. Although there was evidence of personal use, there was no indication of downloading or viewing pornographic websites or downloading inappropriate material. Kens computer had been allowing ''cookies'' from the gambling sites he had been accessing during work hours.

10. Ness speculated that Ken had been gambling from viewing his browser history; however neither Ms. Ness nor Mr. Bigheart had ever seen him physically gambling online.

11. Ken was the union steward when the internet and e-mail usage policy was put into effect. He is fully aware of the policy.

12. Mr. Rogers states he did not gamble during work hours, only when he was on personal breaks he would partake in such actions.

13. Ken's employment was terminated on October 4th, 2011.

Issues

A) 1. i) Ken Rogers was terminated due to misuse of the internet in accordance to NRG's internet and e-mail policy.

ii) The griever's actions are counted as a work offence against NRG's internet and e-mail policy. Given the fact that he was aware of the policies, the penalties are mandatory as a result of the committed offence.

iii) Immediate dismissal of Ken Roger's was not appropriate due to the lack of circumstantial evidence present at the time. Without being able to prove he had 100% gambled on company time or had never physically viewed his "online gambling" to justify Elaine's accusations. Prior to Mr. Rogers' termination with the company, Elaine and Ken had many issues regarding work related problems.

B) i) The penalty of discharge was not suitable to the misconduct given the uncertainty of his actions. Mr. Rogers's termination was too severe a consequence, given that other methods of resolution could have been taken into account. For example; suspensions of pay, rehabilitation, leave of absence, or counseling.

Submissions

1. a) Though he griever had committed time theft, the termination of Ken Rogers was not an appropriate discipline for the circumstances.

b) Despite the fact that Mr. Rogers had been gambling during his hours of break, there is no concrete evidence that any employee of NRG had witnessed Ken gambling during work hours.

c) The leading case on misuse of the internet regarding the griever is relevant to Calgary Regional Health Authority, [1999] A.G.A.A. No. 66 (Morneau) , which states "Misuse of internet acess for non-business purposes and