Loading...
HomeMy WebLinkAboutVanloon 04-03-15 , I In the Matter of a Labour Arbitration pursuant to the Ontario Labour Relations Act Between: HARC INC. (the Employer) -and- ONTARIO PUBLIC SERVICE EMPLOYEES' UNION (the Union) Grievance of John Van Loon Arbitrator: Randi H. Abramsky Appearances For the Union: Mitch Bevan Grievance Officer For the Employer: George C. Magwood Counsel Hearing: February 24, 2004 in Walkerton, Ontario AWARD On October 23, 2003, the grievor, Mr. John Van Loon, was discharged "as a result of a $200.00 cheque dated October 1, 2003 on one of our vulnerable clients accounts, made out to and cashed by yourself of which you stated to me on two separate occasions that you had no knowledge." In the Employer's view, this was a "criminal offense". At issue is whether the grievor was discharged for just cause. Facts A. Background HARC, Inc., the Employer, operates a number of group homes for developmentally handicapped, low-functioning adults. The grievor worked at one of the homes as a Residential Counselor. At the time of his discharge, the grievor had worked there for approximately seven years. The job description for the Residential Counselor states that the employees support the adult clients with their physical and personal care needs. They ensure that medications and related documentation are completed and that they maintain appointments with doctors. They plan recreation and social activities, provide support and counseling, and ensure that the program maintains a "homelike, warm and caring atmosphere." Residential Counselors are also "responsible for helping clients with their money management skills." 2 Each Residential Counselor is assigned to a number of clients. The grievor was assigned as Case Manager to "J", a low-functioning client with physical disabilities. The grievor, like other Residential Counselors with their assigned clients, had been given authorization to write cheques and withdraw funds on J's bank account to make purchases of J' s behalf. The Employer maintained policies regarding client finances. At a March 5, 2003 staff meeting, attended by the grievor, those bookkeeping policies, including sample recording sheets of a client's "bank balance" and "cash on hand", were reviewed. The minutes of the meeting include the requirement that "staff taking clients out are responsible to record and update financial ledger before the leave off a shift" and that "[s]taff ARE NOT to borrow or make change from other client's purses." They state that Residential Manager Shelley Osborne "will be checking books on a bi-weekly basis." After the events that led to the grievor's discharge, management wrote up a document entitled "Residential Clients Finances" policy. This was the first time that the policies were written up in this format. Although Residential Manager Osborne testified that there might have been earlier memos and staff meeting minutes which set out these procedures, none were produced at the hearing. Ms. Osborne testified that the policies written out in the document had been in effect for a number of years. This was confIrmed by Local Union President Lema Chappel, on cross-examination, who testified that the policies regarding client finances explained by Ms. Osborne at the hearing were the policies in place at HARC. 3 The evidence showed that each client has an individual ledger book with "bank" and "cash on hand" colwnns. Each transaction - each cheque, purchase, withdrawal and deposit - is to be recorded, and receipts provided. A count of the "cash on hand" is to be made each day, and the money is to be maintained in the client's "pouch." All these records are then kept in the client's individual plastic box with hanging file folders. For a cheque, two signatures are needed. One thing that may not have been clear, prior to the grievor's discharge, is the Employer's policy regarding whether staff could write client cheques to themselves to obtain cash for the client. The post-discharge written policy clearly states that "when money is taken out for client's cash on hand, the cheque is to be written out for cash, or in the client's name." Local Union President Chappel testified that she asked Ms. Osborne, after the discharge, to clarify the policy, which Ms. Osborne did. The only exception, according to Ms. Osborne, was for reimbursement for an actual expenditure made by the Residential Counselor on behalf of the client. Ms. Chappel testified, however, that in the past, she had written client cheques in her name to obtain money to place in the client's pouches, although she did not feel comfortable doing so. Similarly, Residential Counselor Dia Underwood testified that, prior to 1999, she would write client cheques made out to herself for reimbursement as well as cash for client pouches. She acknowledged on cross-examination that she was not aware of the practice since 1999. 4 The Residential Counselors' compliance with the policies regarding client funds are reviewed weekly by Residential Manager Osborne, and at the end of the month, she reconciles the clienf s ledger book to their bank: book and cash on hand, deposits and withdrawals. On September 24, 2003, Ms. Osborne wrote a memo to Executive Director Charlie Caudle concerning a "money situation" involving the grievor. Ms. Osborne testified that on August 24,2003, $80.00 was taken from J's account, which the grievor had initialed, but there were no receipts for the money. The money was returned to J's account on September 10th, and Ms. Osborne questioned him about it. He told her that he had withdrawn the money, went on holidays and was hoping to buy a coat for J. Ms. Osborne advised him that it did not look very good - that it looked like he needed $80.00 and then returned the money later. The grievor agreed, and she told him that she did not want that to happen again. No money should be taken out of a client's account for any period of time. The grievor did not dispute that this situation occurred or that Ms. Osborne discussed this with him. B. The Incident at Issue On October 1, 2003, the grievor wrote cheque #548 on J's account, made out to himself, for $200.00. He cashed the cheque at the bank: the following day. The evidence showed that $200.00 was an unusual amount unless it was for a specific purchase. The grievor testified that he cashed the cheque in order to take J shopping for winter clothes. The shopping trip was cancelled because there were insufficient staff to leave, "so the 5 outing got put off." The grievor was not certain where he put the money then. At first he said he put in the "envelope", then the "maiL..", then the "folder" but not J's cash pouch where it should have gone. The grievor did not record the cheque or record the money in the "cash on hand" ledger. Nor was it included in the "count" for the day. He acknowledged that this was improper. He should have marked it down and put the cash in J's pouch; The grievor testified that he did not set another date to go shopping with J and forgot about the money. On October 15, 2003, a scheduled day off for him, he received a telephone call at home for Residential Manager Osborne. She asked him about the $200.00 cheque and if he knew about it or made a purchase for J. He testified that he told her he did not remember it, but he would check on it during his next scheduled shift. Ms. Osborne testified that when she asked the grievor if he knew about the cheque or made a $200.00 purchase for J, he responded "no", but he would check it out. The grievor's next shift was Friday, October 17, 2003. The grievor testified that he took the clients swimming that morning which was followed by a barbecue luncheon off- site. At that luncheon, Ms. Osborne asked him again about the cheque, and he told her that he had not had time to check it out yet. Ms. Osborne testified that at the luncheon she asked him whether he had any "more thoughts about the money" and he told her 'no", but he would check it out over the weekend. 6 After the barbecue, the grievor return to the home and he "looked through things and found the envelope." He stated that as soon as he looked at it he "realized what the money was for." He then took J shopping at Wal-Mart where he purchased clothes and other items for J, totaling $117.47. He did not, however, advise Ms. Osborne that he found the missing money. He explained that he thought that the issue was that the money was missing. Since he found !be money and realized what it was for, he thought the issue was resolved. In "hindsight", he realizes that he should have notified Ms. Osborne. After the shopping trip, the grievor and J returned to the home where J tried on his new clothes. Dinner followed, and afterward he "did the books." He testified that he went "through it all, did the counting, the receipts," but by then, it was the end of the shift, so he put J's money and the receipt in an envelope to reconcile the next day. He then put the envelope in his own mail slot. He acknowledged that this, too, was Improper. The ledger for J for October 2003 was introduced into the record, and it shows that the grievor did a "count" for J on October 17, 2003 but he failed to include the money left over from the shopping trip. Instead, the same amount was "counted" as the prior date. The grievor worked on October 18, 2003, but he was not feeling well and did not reconcile J's ledger during that shift. It "got put off again." Yet, again, the count of J's money did not include the funds left over from Wal-Mart. He was still ill for his next 7 shift, and when he reported to work on October 23,2003, he was immediately called into a meeting with Executive Director Caudle and Ms. Osborne. At the time of this meeting, management was still not aware that the grievor had found the $200.00 on October 17,2003 and made purchases for J. Ms. Osborne testified that on October 15, 2003, she reviewed J's bank ledger and bank book and found two cheques in his bank book that had not been recorded his ledger. One cheque, #548, was for $200.00 and the other, #549, was for $35.00. She was able to trace the $35.00 cheque to an expense for J, but not the $200.00 one. She asked staff at the home if they knew if anyone had made purchases for J for $200.00. No one did. She and an employee named Ron went "through the receipts", found "none and the duplicate cheque was missing." She then telephoned the grievor, who was J's case manager, about it. She then asked him again about it on October 17. Both times the grievor denied any knowledge about the cheque or making purchases for J. Ms. Osborne contacted the bank to obtain a copy of cheque #548 and received it around October 21,2003. She was very upset to see that the cheque was made out to the grievor, and cashed by him the next day, since he had twice denied any knowledge of it. In her view, the earlier situation from August had repeated itself, although this time the money was still missing. She did not feel that it was necessary to question the grievor about the cheque again since she had already asked him about it twice. 8 She also discovered that the second signature on the cheque was her own. She testified that during the summer she signed a number of blank cheques because she was going to be away for five weeks, and it would make it easier for staff since two signatures are required. She acknowledged that this was not part of the policy regarding client fmances, and that what occurred could not have occurred if she had not done so. She was very upset at the hearing about this, although she reiterated that it was done to help staff out and that she trusted the staff not to abuse the situation. Afterward, she went through the files and found a couple of more blank signed cheques and she tore them up. C. The October 23, 2003 Termination Meeting. Upon receipt of cheque #548, a decision was made by management to discharge the grievor. If he resigned, the police would not be called. If not, he would be tenninated and the police notified. As Executive Director Caudle testified, "I had made up my mind. " On October 23, 2003, the grievor was called into a meeting with Ms. Osborne, Executive Director Caudle, and Local Union President Chappel, at which time he was given the two options. During the meeting, the grievor repeatedly said that the money was at the home, but the two options remained. In Mr. Caudle's view, the "big issue" was that $200 was missing for more than two weeks which the grievor claimed he knew nothing about, yet the cheque was made out to him and he cashed it. He felt that the grievor had lied - twice - to Ms. Osborne, and that he could no longer be trusted. Mr. Caudle stated that his response to the grievor's claim that the money was at the house was 9 "now that he was tenninated, he knew where the money was." He did not know if the money was actually there. His decision was based on the fact that the money had been missing for two weeks and the grievor had denied any knowledge about it. The grievor chose not to resign. He was then tenninated and the police were called. The evidence showed that he returned to the house, picked up his belongings and immediately left. There is no evidence that he placed the missing money in the home at that time, or that he had the opportunity to do so. The police subsequently dropped their investigation. After the meeting, Ms. Osborne went to the home and checked all of J's folders. She did not find an envelope containing the missing money. D. Some of the Money is Found Local Union President Lema Chappel testified that during the week after the grievor's discharge, she asked Ms. Osborne if the missing money had been found and was informed that it had not been located. She then went to talk to the grievor, since he had insisted, at the tennination meeting, that the money was at the home. Ms. Chappel asked him about it, and he told her that the money was there at the home in J's file, and she told him that it had not been found. She asked him if it was possible that he put it in his mail slot. She stated that, on occasion, she placed papers in her mail slot to file later, but not client money. She got his permission to check his mail slot. She then went to the home, and in the presence of two witnesses, she checked his mail slot and found a plain 10 " envelope with a Wal-Mart receipt dated October 17 for $119.47, and $60.78 cash. It should be noted that $19.75 of the $200.00 was missing and is not accounted for. Ms. Chappel called Ms. Osborne about what she had found, and delivered it to her the next day. E. The Grievance Meetings At the third stage grievance meeting, the Union advised Mr. Caudle that the grievor suffered from possible ADD or ADHD and therefore had a tendency to forget things and be scattered at times. Mr. Caudle testified that his reaction was that if this had been a problem for the grievor at work, he would have heard about it. He was also concerned that lapses in memory could adversely affect his job, since the clientele was quite vulnerable. The evidence presented to the Employer, at the time, and at the arbitration hearing was a "Psychological Assessment Report", completed on July 15, 2001 by a psychologist. The report was done at the request of the grievor because of concerns that he might have ADD. The report indicates that the assessment consisted of an interview and a number of tests, including Working Memory Index tests. The assessment showed that the grievor had "some difficulties with the Working Memory Index Subtest, scoring at the 25th percentile. He had some problems with auditory processing tests, and his "self- ratings suggest problems with depression and ADHD symptomology..." It was noted that he had problems with focus and attention. 11 The grievor stated that the only impact his illness had in relation to his job involved failing to complete paperwork. He denied, however, that it impacted paperwork involving medications because that was very "regular." It also did not impact his work with the clients. He acknowledged that he had never told the Employer about his condition, nor had he requested any accommodation. Positions of the Parties The Employer The Employer asserts that it established just cause for termination. It argues that trust is an essential element of the employment relationship and is absolutely critical where the employee is responsible for vulnerable clients. In the Employer's view, the grievor clearly lied to management when he was questioned about cheque #548 since it was written out to and cashed by the grievor. The Employer submits that the grievor was fully aware of the Employer's policies in regard to client finances, and knew that that he was supposed to record the cheque and expenditures, and place the cash in J's pouch, yet he did none of those things. Further, when questioned about the missing cheque by Ms. Osborne, he stated that he had no knowledge of it. The Employer asserts that it is implausible that he did not remember a cheque for, $200, an unusual amount, even when specifically asked about it. He then further denied it when asked again on October 17, yet later the same day he spent the money at Wal-Mart and failed to advise Ms. Osborne even though he knew the matter was important to her. He then did the "books" and had the opportunity to correct the 12 books, but did not. In the Employer's view, it is very relevant that October 17 was a payday, providing the grievor with the resources to replace the missing money. It submits that a reasonable inference is that the grievor did not simply forget about the money, as he claimed, but took the money for his own use until he was questioned about it by management and then replaced the money. The Employer contends that the fact that some of the money was subsequently found at the Home is immaterial. The money had been missing for a month, and he denied knowing about it and failed to follow proper procedures. In the Employee s views, the grievor's actions provided just cause for discharge. It submits that the grievor held a position of trust, that he held a fiduciary relationship in relation to the clients, and by his actions he abused his position and lost the Employer's trust. In the Employer's view, the Union's contention that the grievor suffered from possible ADD and cannot remember things is an "after the fact" excuse without weight. It notes that the Employer had never been advised by the grievor about this possible diagnosis and, in the grievor's own view, it had no impact on his job except for doing paper work. The report, in its submission, is very general and provides no evidence that his condition medically impacted on this situation. In support of its contentions, the Employer cites to the following cases: Rea v. Armadale Co.[1998] S.J. No. 789; Beyea v. Irving Oil Ltd. [1985] N.B.J. No. 40; Lac Minerals Ltd v. International Corona Resources Ltd [1989] 2 S.C.R. 574 (S.C.C.); 13 Ennis v. Canadian Imperial Bank of Commerce [1986] B.C.J. No. 1742 (B.C.S.C.); Di Vito v. MacDonald Dettwiler & Associates [1996] B.C.J. No. 1436 (B.C.S.c.); Regina v. Arthurs [1967] 2 O.R. 49 (Ont. C. A.) The Union The Union submits that the Employer failed to establish, on the balance of probabilities, that the grievor lied and was dishonest about the cheque. It argues that if the grievor's intent was dishonest, he would never have written the cheque out to himself, leaving a clear paper trail back to him. Nor was there any evidence, in its view, that writing the cheque in his own name was improper. The Union was very critical of the Employer's actions in this case. It argues that the Employer failed to properly investigate the matter and jumped to the conclusion that the grievor lied about his knowledge of the cheque. It asserts that the Employer "rushed to judgement" without confronting the grievor or giving him the opportunity to explain. In its view, as soon as management saw that the cheque was issued in the grievor's name, it assumed he lied and stole the money. It asserts that management ignored the grievor's repeated claim, at the termination meeting, that the money was at the home. Yet now, after the money and receipt have been found, management changes its story from alleging that the grievor stole the money to asserting that he improperly borrowed the money till payday. 14 The Union submits, however, that there is no evidence that the grievor improperly borrowed the money. There is no evidence that he planted the money after his termination, and there is no evidence that management searched all of 1's files on October 15. The evidence, in the Union's submission, was only that Ms. Osborne and Ron searched for receipts. Further, it asserts that if the grievor's intent were to cover his tracks, one would think he would have recorded everything properly. He did not, nor did he even remember that he put the money in his own mail slot. In the Union's view, it is unconscionable that while the grievor is held to the highest standard in relation to client finances, management, who improperly signed blank cheques, was not. It asserts that some blame for what occurred rests with the Employer. In terms of the grievor's having ADD, the Union asserts that it supports the grievor's testimony that he forgot about the cheque. It asserts that the grievor was rued because he lied to management - not because he did not properly complete the records or wrote the cheque in his own name - but because management felt he lied. In the Union's view, the evidence failed to support that claim. The Union submits that under the facts it is quite credible that the grievor forgot about the cheque, as he claimed, and did not lie to management. Decision A. Did the Employer have just cause to discharge the grievor? 15 The evidence establishes that the grievor was tenninated for two reasons - because $200.00 of J's money went missing and because the grievor lied about his knowledge of the missing money when questioned by management. There is no question that trust is an essential requirement in the employment relationship, particularly in this type of job. A Residential Counselor is responsible for the care and well being of very vulnerable people. They often work alone, one-on-one, with clients. The Employer must be able to trust in the integrity and honesty of its staff. In this case, there is no question that $200 of J's money, a substantial sum for him, went missing for over two weeks, and that the responsibility for that lies with the grievor. He failed to properly record the cheque. He failed to place the money where it was supposed to go, in J's pouch. He failed to follow proper procedures. Accordingly, one of the bases of the grievor's discharge was clearly established in the evidence. What is hotly contested, however, is whether the grievor lied to management about his knowledge of the money. The onus is on the Employer to establish, on the balance of probabilities, that the grievor knew about the missing cheque and lied about it when questioned by management. This issue is critical because it was primarily management's belief that the grievor lied to them that led the Employer to conclude that the grievor could no longer be trusted. 16 There is evidence to support both the Union's and the Employer's positions in this case. The evidence showed that the cheque was for $200.00, an unusual amount. The cash floats for clients are normally in the range of $20 to $30, unless something specific was being purchased. It seems reasonable that a cheque for $200.00 would stand out and be remembered. Further, the grievor did more than simply write the cheque. He went to the bank and cashed it, then returned with the money. There is also no evidence that the grievor suffered from a memory problem that affected his work before October 2003. On the other hand, two weeks had gone by. It certainly is possible that after two weeks, the grievor did not remember it when Ms. Osborne first questioned him at home about it on October 15. What is more difficult to credit is that he still did not recall it on October 17, when questioned about it again. The grievor's evidence was that he did not remember until he found the envelope on October 17 with the money in it. After considering all of the evidence, I conclude that the Employer did not establish, on the balance of probabilities, that the grievor lied about his knowledge of the missing money. I reach this conclusion predominantly on the basis that the grievor's actions were far more consistent with someone who truly forgot, rather than someone who was trying to steal or cover-up "borrowing" the money. First, had the grievor truly had a larcenous intent in regard to the money, it seems unlikely that he would have written out the cheque to himself. That would be the last thing that someone who was intent on stealing - or improperly borrowing - the money 17 would do since it could so easily be traced back to him. It seems far more likely that the cheque was written and cashed to go shopping for J, as the grievor testified. The evidence showed that the grievor was not at work on October 15 when first questioned by Ms. Osborne. Nor had he had time to check on the missing money until after lunch when he was questioned again by Ms. Osborne on October 17. He then went back to the home and checked "through things" and found the money and "realized what it was for" - purchasing clothes for J. He then went shopping with J at Wal-Mart, and purchased clothes and other items for him. It is quite surprising that he did not immediately call Ms. Osborne to tell her that he had found the money. He explained that he believed that the issue was that the money was missing. He then found it, resolving the issue. It seems likely, however, that had he been trying to cover-up a theft, or covering up improperly "borrowing" the money, he would have reported the find immediately to Ms. Osborne. His failure to do so supports the view that he truly thought the issue was that the money was missing and had now been found. His response to finding the money, in my view, lends credence to the Union's claim that he did not actually remember it until he saw it again, rather than lie about it when questioned. Similarly, the grievor's failure to follow correct procedures after his shopping excursion undermines the view that he was trying to cover things up. It is hard to believe that he would have been so careless about the return of the money had he improperly 18 taken it in the first place. Further, although October 17 was payday, there is no evidence that the grievor cashed his paycheque that day in order to replace the missing $200.00. Finally, the fact that even when tenninated the grievor still did not remember where he put the missing money and receipt supports his testimony that he did not remember about the cheque when questioned by management on October 15 and October 17. Although the grievor told management on October 23 that the money was at the home, he thought it was in J's folders. It was not until Ms. Chappel suggested that he may have put it in his mail slot that he recalled that it was possible, and even then he still thought it was in J's folder. The grievor's inability to remember this - even in the face of termination and a police investigation - lends credence to his claim that he did not remember about the cheque when questioned by Ms. Osborne. The July 2001 medical report supports, in a general way, that the grievor had some memory problems. It does not, in fact, conclude that he had ADD or ADHD. But it does fmd that he scored low, in the 25th percentile, on the Working Memory Index, based on a number of tests. It indicates that he had problems with attention, focus and completing tasks, which is clearly evident from his actions in this case. There is also no evidence that the grievor planted the money, after the fact, on October 17 or thereafter. It seems reasonable that after being questioned a second time by Ms. Osborne, he checked into the situation when he got back from the barbecue on October 17 and found the money. It is significant that the Employer did not refute the 19 grievor's testimony that he placed the money in J's folder on October 2 where it remained till he found it on October 17. Ms. Osborne testified that on October 15, she and Ron went "through the receipts." She did not state that they went through all of J's folders. She may have, but her evidence does not say that she did. In contrast, she testified that she did go through all of J's folders after the teI11Ünation meeting on October 23 and found none of the missing money. Consequently, I cannot conclude, on the balance of probabilities, that the Employer established that the grievor lied to management about the missing cheque when questioned by Ms. Osborne on October 15 and October 17,2003. He did a great number of things wrong, but when all of the facts are considered, I cannot conclude that he lied to management. As a result, the primary basis upon which the discharge was based - his alleged breach of trust - was not established. There was ample cause for discipline based on his actions in relation to cheque #548, but the primary basis of the discharge was not sustained. B. What is the appropriate remedy? Under Section 48 of the Labour Relations Act, where an arbitrator detennines that there is cause for discipline, the arbitrator "may substitute such lesser penalty as he, she or it considers just and reasonable in all of the circumstances." In this case, the grievor's actions demonstrate a truly shocking disregard for the Employer's procedures in regard to client finances. He failed to properly record cheque 20 #548 when he wrote it on October 1, nor did he properly put the cash in J's pouch on October 2. As a result, $200 of J's limited money essentially went "missing" for a number of weeks. Then, after he found the money again and went shopping with J, he again failed to follow proper procedure. Although he stated he "did the books", he did not do J's. He did not record the purchases made. He did not place the receipts in the proper folder. He did not include the leftover money in the "count" or put the money in J's pouch. Instead, he put it all in an envelope in his own mail folder, a place where it was not supposed to be and no one would think to look for it. Further, and very troubling, is the fact that $19.75 is still unaccounted for. The grievor provided no explanation for this Inlssmg money. There is no question that the grievor knew the Employer's policies in regard to client finances. Nor were those policies onerous to follow. Yet they were consistently and repeatedly ignored by the grievor. Accordingly, there was ample cause for substantial discipline in this case, particularly in light of the grievor's prior incident regarding money as set out in the September 24,2003 memo, and the grievor's prior discipline. It is my view that the grievor should be reinstated, but without back pay. Instead, a disciplinary suspension for the period from the date of termination to the date of this Award is to be substituted. Upon reinstatement, the Employer may decide to limit the grievor's responsibilities in relation to client finances, if it so chooses. C. Conclusion 21 For all of the reasons set forth above, I conclude as follows: 1. The evidence did not establish, on the balance of probabilities, that the grievor lied to management about his knowledge of the missing cheque. Since this was the primary basis of the decision to discharge, the Employer did not establish that it had just cause to discharge the grievor. 2. Nevertheless, the Employer did establish that there was substantial cause for discipline. 3. I determine that the grievor should be reinstated but without back pay. The time between the date of discharge and this Award is to be converted to a disciplinary suspension. The Employer may decide to limit the grievor's responsibilities in relation to client finances. 4. I shall remain seized. Issued thislSth day of March 2004. 22