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HomeMy WebLinkAbout1987-1482.Babos.88-04-22IN TBE HATTER OF AN ARBITRATION THE CROWN EPlPLOYEES COLLEdTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before : OPSEO (Babes) ,and Grievor THE CKOWN IN RIGHT OF.ONTARIO (Ministry of Community 6 Social Services) Employer R. L. Verity, Q.C. Vice chairman S. Nicholson Member I. Cowan nember Par the Grievor: ___---------- A. Ryder, Q.C. Counsel Gorling 6 Henderson BarriSterS h SolicitDrs POT the Em@oyer: ----- - D. costen L.. Fuossard COU~StdS Legal Services Branch Ministry of Community h Social Services Hearings: --- January 14, 26, 28, 1988 February 29, 1988 -2 - DECISI0t.j 'Josephine Babos was at all material times a probationary employee classified as a Laundry Work,er 2 at the Oxford Regional Centre (O.R.C.). On April 1, 1987, O.R.C. Administrator J. F. Hewitt suspended Mrs. Babos with pay under Section 22(l) of the Public Service Act pending an investigation of alleged theft from the O.R.C. laundry. Following an Ontario Provincial Police investigation, a report from the Ministry's Investigation Branch and a pre-disciplinary hearing, Mrs. Babos was dismissed from her employment on June 9, 1987. Mr. Hewitt's written reasons were as follows: "I have concluded that you were wrongfully in possession of clothing belonging to residents of the Facility. It has further come to my attention that on several occasions thereto you were also wrongly in possession of other residents' property and facility supplies, including linen. This is in contravention of the Ministry's Policies and Standards of Conduct and the Disciplinary Guidelines, in particular, paragraphs 6 and 8. You have abused your position and trust in Your dealings with the property of the Ministry and its clients...." Mrs. Babos filed a grievance alleging unjust dismissal. The settlement requested was reinstatement with full remedial redress plus interest. -3 - The dismissal was founded on alleged breach of trust couched in terms of wrongful possession as opposed to theft. Indeed, the dismissal letter contains no allegation of theft. The grievor was co-operative in the acknowledgement of wrongful possession of a resident's sweater on April 1, 1987. She maintained that she had borrowed the sweater, kept it for several weeks and intended to return it. However, the grievor denied wrongful possession of other items of residents' property and facility property. Mrs. Babos was charged with theft of the sweater under s. 313(b) of the Criminal Code of Canada. On January 7, 1988, she was convicted of the charge in Oxford Provincial Court (Criminal Division). However, Union Counsel Ryder advised the ,Board that the conviction is currently under appeal. Despite the conviction, the issue is whether or not dismissal of the grievor was just and reasonable in all the circumstances. By way of background information, the facts are unusual. In August, 1983, Mrs. Babos was appointed to the unclassified service as a Laundry Worker at O.R.C. By all accounts she was a good employee and attracted no disciplinary record. However, on two separate occasions she applied, without success, for permanent status. In May, 1986, she grieved a job competition. Subsequently in October, 1986, Mrs. Babos was one of thre~e female Laundry Workers who filed sexual -4 - harassment grievances against the Laundry Manager, Max Lewes. In particular,.the Babos grievance contained a statement that Peter Anstead, O.R.C. Assistant Administrator, had condoned such behaviour. On November 14, the Laundry Manag.er resigned. Two of the grievances were promptly withdrawn; however, Mrs. Babos chose to pursue her grievance. She did, however, withdraw the competition grievance under the terms of Minutes of Settlement dated November 19, 1986. The essence of the settlement was that Mrs. Babos would 'be appointed to the classified service as a Laundry Worker 2 effective November 24, 1986. Therefore, at the time of her dismissal in June 1987, Mrs. Babos was a probationary employee. The material facts are straightforward. With the resignation of Mr., Lewes in November, 1986, Mrs. Peggy Hawkeye was appointed acting Laundry Manager. Mrs. Vicki Birtch became acting Assistant Supervisor. Mrs. Birtch testified that on March 11, 1987, she received an anonymous telephone call that "the grievor was robbing the place blind". Mrs. Hawkeye and Mr. &stead were promptly advised of the phone call. Mrs. Birtch questioned laundry workers, Nancy Bowie, Jill Reid and Ruth Lonsberry. On March 12, 1987, O.R.C. Administrator Hewitt contacted the Woodstock Detachment of the O.P.P. upon being advised of the situation by Mr. Anstead. - . -- 5 -,, Mrs. Birtch testified that on the morning of March 27 while she was doing up her shoe laces in the locker area', she observed a white object under a pile of folded clothes at the bottom of the grievor's open locker. .At the end of that shift, Mrs. Hawkeye and Mrs. Birtch searched the grievor's locker and discovered a white brassiere under the folded clothes stamped with the name of a resident in black ink. The incident was not brought to the attention of Mrs. Babos. Earlier that afternoon, Mrs. Birtch suspected that the grievor had removed a quart of milk from the lunchroom refrigerator, and that she had taken it in her own personal laundry basket to her car. No attempt was made to examine the contents of the grievor's motor vehicle. Again, the incident was not brought to the attention of Mrs. Babos. At approximately 7:00 a.m. on April 1, 1987, Mrs. Birtch observed the grievor take off a black, grey and white sweater. The sweater was neatly folded and placed on a hanger together with the grievor's clothing in the locker area. Mrs. Birtch also noticed an orange tag on the inside of the sweater with the name and ward number of a resident stamped in black print. Mrs. Birtch promptly notified Mrs. Hawkeye of her findings. In the absence of Mr~. Anstead, Mrs. Hawkeye then contacted the O.P.P. . . -‘fj - Police Constable Larry Harvey investigated the incident at 10:00 a.m. According to Constable Harvey's testimony, the grievor calmly acknowledged that the sweater was not hers, 'but that she had ,worn it to work that day. The grievor maintained that she had "borrowed" the sweater from the laundry sorting table and had it in her possession for "a couple of weeks". The grievor willingly complied with the Constable's request to open her unlocked locker. However, the grievor was unable to offer any explanation as to why a resident's bra was in her locker or how it got there in the first place. She did volunteer that the bra had probably been there for a couple of days, or even a week. She admitted to having noticed some white item amongst her belongings about one week earlier. According to her testimony, when she discovered it was a bra, she assumed that it was her own property and made no further investigation. The grievor was subsequently charged with theft cf the sweater, but not the bra. Administrator Hewitt contacted the Ministry's Investigation Branch. Subsequently, Ms. Maureen NauSS, a Ministry investigator, conducted a number of staff interviews, obtained several unsworn statements and submitted a.report on May 8. Apparently, the Nauss report, which was not made an Exhibit, contained a number of recommendations to improve the management of the laundry. 1 . -7 - On June 1, 1987, Mrs. Carol Orthphanacos, an Assistant Administrator, conducted a pre-disciplinary hearing. The gr~ievor tendered an explanation similar to that given to Constable Harvey. She reiterated the contention that she had not stolen the sweater, but rather had borrowed it. In addition, she alleged that she had intended to return the sweater on April 1, the day of her apprehension. The grievor admitted that she was aware of the Ministry's Standards of Conduct because it was posted in the laundry area, and acknowledged that her conduct was "inappropriate". According to Mrs. Orthphanacos, the grievor justified her possession of the sweater on the basis that "everyone did it". Quite properly, we think, Mrs. Orthphanacos was not satisf 'ied with that explanation. At the hearing, Mrs. Nancy Bowie testified that some three and a half years ago, she was satisfied that the grievor had taken a sweater from the laundry f~or her own use. Mrs. Bowie testified that during the late winter of 1986 or early spring of 1987, she had a conversation with the grievor in which the grievor indicated that she had taken new linen from the laundry for her own personal use. The grievor denied both allegations. The testimony of Mrs. Bowie was to the effect that the grievor described a procedure to remove new sheets from the laundry, and that she (Mrs. Bowie) seemed to be the only laundry employee unfamiliar with that procedure. The standard of proof is, of course, proof on the balance of probabilities. That standard is not an inflexible standard, but . . -a - increases with the gravity of the alleged misconduct. Hence, the burden upon the Employer in cases of s.erious personal misconduct is proof on the balance of probabilities by clear and cogent evidence'. The Board is satisfied that the standard of proof has been met with regard to the sweater incident of April 1. However, on the evidence adduced, as hereinafter described, we find as a fact that management did condone staff use of residents' clothing.. At no time was the grievor entitled to continued possession of the resident's sweater. Her continued possession of the sweater for a period of between two weeks and one month, according to her own evidence, was indeed improper. There is no dispute that the grievor's actions exceeded the somewhat loose procedures in the laundry. The grievor maintained throughout that she did not believe that she had done anything wrong. Clearly, the unauthorized use of residents' clothing is wrong, and contravenes the Ministry's Standards of Conduct which in turn, justifies some form of discipl.inary response. In our opinion, the sufficiency of the evidence adduced with regard to the bra, the milk incident, the linen and the second sweater falls far short, of the required standard of clear and cogent evidence. Simply stated, there was no sufficient evidence. Arbitral jurisprudence makes it clear that the appropriate measure of discipline can never be determined in a vacuum.~ See, for example: Re Indusmin Ltd. and United Cement, Lime and Gypsum Workers . I -9- International Union, Local 488 (1978), 20 L.A.C. (2d) 87 (Picher). The first consideration involves the circumstances of the incident. Unauthorized use and theft of residents' clothing and property and facility property was apparently widespread in the laundry at O.R.C. The Ministry's Standards of Conduct and Disciplinary Guidelines relied upon by the Employer read as follows: In cross-examination, Mrs. Nancy Bowie, an Employer witness, admitted removing from the laundry for her own use, stuffed animals and je.wellery from the "cast" box. Mrs. Bowie testified that Management knew the practice was common, and yet no discipline was imposed, no demand for the return of any article, and no demand for restitution. - 10 - Mrs. Jill Reid testified and named a fellow employee who had taken a government coat home and subsequently lost it on a canoe trip. Again, there was no discipline imposed and no demand for restitution.' Mrs. Reid personally admitted to removing linen .sheets. in good condition from the cast box and converting'them for her own personal use. Prior to the grievor's dismissal, the operation of the laundry and its working environment can best be described as casual. There were a number of significant changes made upon receipt of the Nauss report. The practices of staff washing personal clothing in the laundry, of staff taking home items from the cast box, and the use of residents' clothing were discontinued. The Employer cannot be faulted for ending unacceptable practices in the laundry. Those practices should never have been tolerated in the first place. The difficulty is, that for whatever the reason, the grievor appears to have been singled out for special disciplinary treatment. Admittedly, the standard of just cause required in the dismissal of a probat'ionary employee is not as onerous as that required for a seniority-rated employee. See, for example: OPSEU (Kevin Keane) and Ministry of Consumer and Commercial Relations, 596/81 (Roberts); OPSEU (M. Balderson) and Ministry of Colleges and Universities, 1589/84 (Delisle) - (overturned on Judicial Review for . - 11 - another reasons); and Joyce and Ministry of the Attorney General, 416/9651410 (Beatty). Nevertheless, the Employer must establish that its termination of a probationary employee was reasonable in all the circumstances. In our opinion, the discharge of the grievor in these particulars circumstances was an excessive response on the Employer's part. The grievor has been deemed suitable for continued employment since August of 1983. 'The Board is satisfied that she is a reasonably intelligent woman who would in all likelihood abide by clearly communicated standards of appropriate conduct. Those standards are now in place in the O.R.C. laundry. Economic hardship is also a' factor to be considered. The grievor is divorced and has the responsibility for two teenaged children. Having regard to all of the circumstances, the penalty of discharge~went well beyond the range of a reasonable Employer response. When Management first ascertained that there was a problem in the laundry, a written directive could and should have been issued to stop unacceptable practices. In fact, it was only after the grievor's ~dismissal that 'such a directive was issued. Had the Employer shared its expectations with the grievor in early March, 1987, in all likelihood the problem would have been resolved. This is the appropriate case, we think, to exercise our discretion under s. 19(3) of the Crown Employees Collective Bargaining .L - 12 - , Act to substitute a lesser penalty. : - Accordingly,' the grievor shall be forthwith reinstated to her employmen! as a Laundry Worker 2 at O.R.C. but to the status of a probationary employee. The disciplinary penalty shall be reduced to a five day suspension. In addition, the grievor shall be compensated for all lost wages and benefits, but without interest, subject to the usual mitigation rules. d ifficulty encountered in the implementation of ,this Decision. This Board shall retain jurisdiction in the event of any DATED at Brantford, Ontario, this 22nd day of April 1988. 7 ,,i-- 4 eLL I R;' L:-VERITY, Q.C. 7 - VICE-CHAIRMAN S. NICHOLSON - MEMBER I I. COWAN 1! MEMBER RilDENDUM ---_-__--_-_--_ It is with some degree of reluctance that I concur with the findings of 'my colleagues in this grievance, and only then because I feel the grievor was lulled into a false sense of security by what appears to be the Employer's excessively tolerant practices in the .operation of the laundry. Nevertheless, I would consider a one month removals from employment which equals the maximum penalty short of dismissal, open to a Deputy Minister under Section 22(2) of the Public Service Act, to be a more appropriate penalty in this very serious breach of conduct: DATED this 14th day of April, 1988. 'I. Cowan,, . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. COWAN I