Canada Employment and Immigration Union - http://ceiu-seic.ca/en/collective-agreement-interpretation/email-and-picture-led-to-discipline/
February 22, 2008

Email and picture led to discipline

Caution advised around comments at work

Sending emails and attaching a few photographs is a common practice, and most of time it is a harmless activity. But a federal government employee who emailed an inappropriate picture of her manager was hit with a suspension despite a claim that she was whistle-blowing.

On January 4, 2005, an employee of the Public Service Commission, Lynn Nessrallah, observed her manager asleep at his desk and took a picture of him. She attached the picture to a government email and sent it to four of her colleagues along with a message:

Warning: This is what happens if your work too hard! Well, at least he made up for the time he slept by playing cards at 4:30! Pas de farce! [Translation: No joke!]

Unfortunately for Nessrallah, one of her four colleagues forwarded a copy of the email and picture to her manager. Management investigated and imposed a three-day suspension, stating that:

I find that your distribution of this material was a wilful act on your part to bring your manager into disrepute with his employees. This type of behaviour is totally unacceptable particularly because it erodes the necessary employer employee relationship and cannot be tolerated.

At the final level of the grievance procedure, the employer reduced the three-day suspension to one day, but Nessrallah contued to adjudication with her case. The adjudication decision provides insight into the perils of circulating words and images about others in the workplace.

Facts:

The grievor, Lynn Nessrallah, met with her manager’s supervisor, Dal Hines on January 26, 2005 to discuss the conduct of her manager at work. The grievor and a number of her colleagues were concerned with their manager’s work habits, including sleeping at meetings, playing solitaire on his computer, arriving late and leaving early and delays in completing work assignments. Hines did not learn of the grievor’s email and picture until June 6, 2005 and up to that time, he considered that the grievor had raised her concerns in an entirely appropriate way.

As a result of their January 26 meeting, Hines engaged a consultant to work with the manager, the grievor and her colleagues on what he saw as a “performance management issue.” When Hines learned of the grievor’s email and picture on June 6, 2005 the consultant’s contract was suspended. In Hines view, the grievor had not been entirely honest with him when they had their initial meeting on January 26 and the situation required a review.

On June 21, Hines initiated an investigation into the grievor’s email and picture. When asked why she took the picture and sent it to her colleagues, the grievor claimed that it could be used as evidence that the manager had been sleeping on the job if the employer challenged their assertion. In Hines’ view, the case would “…not be at adjudication” had the grievor kept the picture to herself. Instead, as he saw it, she had used the picture to mock her manager which he concluded to be highly inappropriate.

The grievor testified that she did not consider her email comment to be sarcastic (“Warning: This is what happens if your work too hard! Well, at least he made up for the time he slept by playing cards at 4:30! Pas de farce!” [Translation: No joke!]). Rather it was, in her view, merely a tongue-in-cheek remark and not an effort to embarrass or humiliate her manager. She also stated that if the employer had a rule that employees could not send emails critical of their superiors or a policy on pictures in the workplace, she would not have done what she had.

Decision:

The adjudicator first found that the grievor had intended to humiliate or embarrass her manager by sending the email and attached picture to her colleagues.

In reviewing the grievor’s testimony, the adjudicator noted that none of her colleagues had asked to be sent a copy of the photo and that the picture, by her own admission, was to be used only in the event that the employer denied the manager had been sleeping at his desk. Why then, the adjudicator asked, would the grievor put the picture into circulation?

The adjudicator also turned aside the grievor’s claim that her actions were those of a legitimate whistle-blower, noting that she never filed a formal complaint and that when she spoke with Mr. Hines about her concerns, he acted on them.

Lastly, the adjudicator addressed the point raised by the grievor about an absence of rules or policies regarding emails and pictures similar to hers. The adjudicator’s view was not charitable:

The grievor’s testimony, that if the PSC had a rule that employees could not send emails criticizing managers or take pictures in the workplace she would not have done so, is so preposterous that I prefer not to comment.

The adjudicator dismissed the grievor’s case and the one-day suspension remained in place.

Conclusion:

Sending emails and attachments is easy and quick, but care should be taken before doing so at work, especially if the message is a comment on others in the workplace. And once sent, an email can be forwarded to unexpected recipients—as the grievor in this case discovered to her chagrin.

There are ways to deal with the inappropriate behaviour of others at work, and your union may be able to help. But ill-advised emails and pictures can bring unwanted attention to you instead of those whose behaviour was the focus of your concern.

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