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HomeMy WebLinkAbout1986-0172.Fernandes.87-04-300172/86, 0505186 IN THE NATTER OF AN ARBITRATION - Under - THE CROWN EMPLQYEES COLLECTIVE BARGAINING ACT BETWEEN: BEFORE: FOR THE GRIEVOR: FOR THE ENF'LOYER: HEARING DATE: Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (Edward Fernandes) - and - The Crown in Right of (Ministry of Government P. Knopf I. Thomson A. Stapleton Ontario Services) P. Cavalluzzo, Esq. Cavalluzzo, Hayes and Lennon Barristers and Solicitors M. Fleishman, Esq. Barrister and Solicitor Crown Law Office, Civil Ministry of the Attorney General April 22, 1987 Grievor Employer Vice-Chairman Member Member I DECISION This is a discharge case. To the parties' credit they were able to present this Board with the following agreed statement of facts. 1. The Grievor, Ed Fernandk?s, was employed with the Ministry of Government Services ("MGS") as a Technical Services Supervisor for the West Metro District. 2. The Grievor's continuous service date with the Ontario Government was July 1, 1973. 3. The Grievor had no priordisciplinary record. 4. The Grievor's responsibilities included preparation and approval of tender documents. 5. Tenders were requested for work and materials to be supplied at a Provincial government building located at 1001 Queen St. West, Toronto, Ontario. 6. The tenders referred to in paragraph 5 were requested pursuant to a Ministry of Government Services Request for Tender dated August 15, 1985 for Project No. W-G5397 for the Metro West District. 7. Item No. 4.17 of the specs on the Request for Tender reads as follows: "Supply of 4 Wind Driven Turbine (Astrol 12" galvanized-colour brown, available from Beaver Lumber. Hand over to Ministry's designee.n 8. The 4 Wind Driven Turbines ("vents") were subsequently delivered to the work site at 1001 Queen St. West. 9. Of the four vents delivered, three were taken by the Grievor and installed at his home. 10. The Grievor knew that these vents were intended for government use and had been paid for by the government as these items were included in the Tender. The Grievor was told by Mr. Christison that the vents were not going to -2- be used on this job but this would not authorize the Grievor to take them. 11. By letter dated February 7, 1986 from Mr. J. Jackson, Executive Director, MGS both the Grievor and Mr. A. Christison (Construction Superintendent, MGS) wera suspended with pay from their positions with MGS. 12. Following an investigation by the MGS (Audit Branch) and the Ontario Provincial Police (Anti-Rackets Branch) a meeting was held with the Grievor and his representative on April 8, 1986 to enable the Grievor to respond to the allegations raised. 13. By letter dated April 15, 1986 from the Deputy Minister of Government Services the Grievor was dismissed from his employment. The reason for the dismissal was the mis- appropriation of MGS property. 14. The grievor is.45 years old. He is married, with 3 children, ages 12, 11 and 18 months. His mother, 82 years of age, also resides in his home. The issue in the case for the Board to decide is the appropriate penalty for the admitted misconduct. Counsel for the Ministry advised that .the Employer .viewed the grievor's conduct "so gravely" because the grievor's position entailed trust and considerable responsibility. By the grievor's act and breach of the trust placed in him)he has jeopardised the basis of a viable employer/employee relationship. However, counsel also acknowledged that there were several factors that should also be considered that were in the grievor's favour. He listed the fact that the grievor had been employed for 12 years and had had no prior disciplinary record or work-related problems. In fact he had achieved promotions over the years leading up to the position of Supervisor because of his performance. Given these factors, the Empoyer was willing to recommend that the penalty of discharge be reduced to a period of suspension for six months, dating from April 15, 1986 to October 15, 1986. Further, while the Employer was not willing to reinstate the grievor to his former position, the Employer was prepared to reinstate the grievor to a comparable position within 40 kilometers from his former location. There would be no effect on his date of continuous service. The grievor would then be paid compensation and benefits from October 16, 1986 to the date of his reinstatement, less the appropriate deductions and income earned during that period. Counsel for the grievor responded to the Employer's submissions. The Board was advised that the grievor is very contrite over his "momentary lapse in judgment" that gave rise to the facts of this case. The Board was also reminded of the devastating effect that discharge can have on an individual and his family. The Board was advised that the grievor considers that the Employer's recommendations were reasonable under all the circumstances of the case. However, we were also advised that the Union had not issued instructions on the outcome of the case. Thus, the Board was required to issue an Award to the parties. Having regard to the evidence and the submissions of counsel, the Board gave the following ruling tb the parties at the hearing that is hereby confirmed in this decision. 1. The grievor is to be reinstated as soon as is practicable to a position comparable to a Technical Services Supervisor. *- -4- 2. The grievor's record of employment is to be amended to reflect a six-month.suspension, without pay, from April 15, 1986 to October 15, 1986. 3. The grievor is to receive compensation and benefits minus appropriate deductions and income earned from October 16, 1986 to the date of his reinstatement. 4. The grievor's date of con:tinuous service is not affected by the period of ~suspension. 5. The grievor's placement into the "comparable" position will place him within 40 kilometers of the location of his previous place of work. 6. The Board remains seized with any issues of implementation that may arise from this decision. In closing, the Board wishes to commend the grie.vor.,~ ~. the Employer and their counsel for their conduct in this hearing. By reaching an agreed statement of fact, they avoided the necessity of what could have been a very lengthy hearing. Also, the Employer's willingness to take a very -5- reasonable position with regard to penalty is certainly applauded by the Board. DATED at Toronto 30th :day of April 1987.