Government wins porn probe case

This is the strange story of Dominic Alford, a former Yukon government worker who was fired during the computer misuse scandal.

This is the strange story of Dominic Alford, a former Yukon government worker who was fired during the computer misuse scandal.

The odd saga saw Alford fired, re-hired and then dismissed.

Recently, the Yukon Supreme Court found that Alford did not have union protection, or the right to appeal his initial firing.

But testimony in that case raises troubling questions about why Alford’s government contract wasn’t renewed.

The seeds of the case were sown three years ago, during the territorial government’s investigation of 96 employees, all accused of having pornography on their work computers.

On June 3, 2003, Alford was fired for misconduct for looking at porn, or “files containing sexually explicit material or nudity,” on the job, states the 30-page ruling.

A government letter said his behaviour “represents serious misconduct and demonstrates an extreme lack of judgment, trustworthiness and professionalism.”

Using his computer to look at porn “has established a fundamental and irreparable breach of trust in the employment relationship,” the letter continued.

So, Alford was fired.

In the wake of the government investigation, 150 grievances were filed with the Yukon Employees’ Union.

But before a single grievance was heard, the union and the government settled through a binding-arbitration process.

The adjudicator, Vancouver-based Vincent Ready, ruled Alford couldn’t appeal the firing because he had no union protection, as he was still on probation.

So Alford appealed.

He asked the Yukon Supreme Court to review Ready’s ruling.

But, even though his first firing represented “a fundamental and irreparable breach of trust,” the government rehired Alford.

In May 2005, he was recruited as a project manager for the department of Highways and Public Works.

But, because he’d been fired during the porn probe, an exception had to be made.

“In the end, there was an agreement in place about how they would let my government bring me back,” said Alford in an earlier interview.

Provided that everyone was satisfied with Alford’s work, there was an understanding the position would become permanent.

This never happened.

When his contract came up for renewal in November 2005, the government did not extend it.

Why?

It had nothing to do with the first porn investigation — the government had already fired him for that.

His performance at his new post was graded “excellent,” according to department evaluations.

So, what happened?

Alford had a pretty good idea.

“I have been informed, by government, that my employment will not be continued because of my attempts to assert my legal rights,” said Alford at the time.

“They’re basically telling me, ‘Forfeit your legal rights or we’re not going to continue your employment.”’

And this theory now has more weight given court documents from Highways and Public Works human resources director Carolyn MacDonald, who hired Alford.

“I subsequently learned about Mr. Alford’s legal action when a story in the newspaper appeared some time after the May 26 meeting,” according to her affidavit, a sworn statement of facts in Alford’s Supreme Court file.

“I was shocked. I expressed my dismay to (department of Highways and Public Works manager Pat Hogan). I told him that Mr. Alford could not expect to sue his employer and then be considered for future job offers.”

 This despite assertions from Premier Dennis Fentie that “access to justice and due process is fundamental” and “no government in any shape or form can preclude that access.”

Alford said he was not suing the government, but requesting a judicial review.

However, MacDonald believed that “the nature of the petition was not compatible with his ongoing employment with the government.”

So, as Alford’s six-month contract drew to a close on November 30, 2005, no new offer was made.

 “The government had no obligation to provide any further employment to Mr. Alford after that date,” said MacDonald’s affidavit.

During the probe, which cost about $130,000, 168 pornographic images were found on Alford’s computer, the government said.

He was one of three employees fired as a result.

The recent ruling, handed down by Supreme Court Justice Leigh Gower, sided with the government.

“The language of the (Yukon Public Service Act) gives clear authority to the deputy head to reject any probationary employee ‘at any time during the probationary period’ and that the effect of the rejection is that the employee ‘cease to be an employee,’” wrote Ready, noting that Alford fell into this category.

Gower agreed with Ready’s ruling.

Alford’s lawyer, Timothy Preston, highlighted a number of cases in which federal government employees, who were still on probation, brought their grievances to court.

These cases do no apply, said Gower.

“The fundamental flaw in the petitioner’s arguments relating to (this) line of cases is that the Yukon legislation is significantly different from the federal legislation,” he wrote.

The News reached Alford by phone, but he said he was not ready to speak publicly as he needed time to review the decision and talk with his lawyer. (With files from Graeme McElheran)