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HomeMy WebLinkAboutBingham 01-09-19 ~ . IN THE MATTER OF AN ARBITRATION BETWEEN: ONTARIO PUBLIC SERVICE EMPLOYEES.,UNION'",: LOCAL 702 - and - - ". KENORA ASSOCIATiON FOR COMMUNiTY LIViNG .\ GRIEVANCE OF TREENA BINGHAM "i:¿;" JANE H. DEVLIN SOLE ARBITRATOR ~ APPEARANCES FOR THE UNION: JIM GILBERT JOE BARRON TREENA BINGHAM APPEARANCES FOR THE EMPLOYER: FRED BICKFORD '- COLLEEN NEIL . 1 This matter concerns a two-month suspension imposed on the Grievor, Treena Bingham, for falsifying her time sheet and claiming pay for time not worked on one occasion in April and another in May, 2000. In addition to the suspension, the Employer deducted thirteen hours' pay from the Grievor's wages following her return to work, representing hours for which the Employer maintained that she was paid but did not work. The Grievor commenced employment with the Agency in 1993 and in the spring of 2000, was working on a full-time basis as a Community Support Worker. Her disciplinary record was unblemished and an earlier appraisal of her work performance which was introduced in evidence indicated that she met or exceeded requirements in all categories. In the spring of 2000, the Grievor was also a Union Steward and Co- Chair of the labour Management Committee. She had previously served as Unit Steward. The Grievor's husband, Keith Bingham, who was employed as a Community Support Worker on a casual basis, was also a Union Steward. At the time of the events in question, the Grievor was assigned to 24 Granite Court, a group home in which there were four clients. Given the medical needs of some of these clients, there was "double staffing" in effect or, in other words, two staff members were assigned to the day shift, which extended from 7:00 a.m. to 3:00 p.m. and to the afternoon shift, which extended from 3:00 p.m. to 11 :00 p.m. One staff member was assigned to the night shift, which extended from 11 :00 p.m. to 7:00 a.m. . 2 The evidence indicates that in view of the condition of the residents and the workload involved, the Grievor had strongly advocated double staffing. The evidence also indicates that when double staffing was in effect, it was not uncommon for only one of the two staff members assigned to a particular shift to provide report to staff members assigned to the following shift. Moreover, often only one of the two staff members made entries in the log book during the course of the shift. At the relevant time, it would also appear that some employees filled out their time sheets prior to working their assigned shifts. As to the events which gave rise to the grievance, the evidence indicates that on the weekend of April 15 and 16,2000, the Grievor was scheduled to work with Patti-Lyn Gauld, a casual Community Support Worker, who had been employed by the Agency for approximately 13 years. The Grievor and Ms. Gauld were also scheduled to work together on Sunday, May 14, 2000, which was Mother's Day. In the spring of 2000, the Grievor and Ms. Gauld had known each other for some five to seven years and had worked together on a number of occasions. Like the Grievor, Ms. Gauld also received a two-month suspension for falsifying her time sheet and claiming pay for time not worked on the weekend of April 15th and 16th and on Sunday, May 14th. There was, however, considerable divergence between the evidence of Ms. Gauld and that of the Grievor regarding the events of those dates. , 3 On Saturday, April 15th, Ms. Gauld and the Grievor were scheduled to work on the afternoon shift and on Sunday, April 16th, they were scheduled to work on the day shift. However, it was the evidence of Ms. Gauld that some time prior to Saturday, April 15th, the Grievor telephoned her and proposed that Ms. Gauld work alone on the afternoon shift on Saturday and that the Grievor work alone on the day shift on Sunday. It was understood that both employees would complete their time sheets as if they had worked on both Saturday and Sunday, as scheduled. Although Ms. Gauld testified initially that the Grievor telephoned her on Friday, April 14th regarding this arrangement, she subsequently testified that the call might have been made on the morning of April 15th. Ms. Gauld also acknowledged that the Grievor had made no similar suggestion in the past. Moreover, although Ms. Gauld testified that she was not surprised by the suggestion as she had been advised . by another Community Support Worker that the Grievor had participated in a similar arrangement previously, Ms. Gauld's conversation with the other employee evidently took place subsequent to the weekend in question. In a statement provided to the Employer at a later date, the employee identified by Ms. Gauld denied having ever been involved in such an arrangement. In any event, Ms. Gauld testified that based on the arrangement proposed by the Grievor, she worked alone at Granite Court on the afternoon shift on Saturday, April 15th and the Grievor did not report for work that day. Similarly, Ms. Gauld 4 testified that she did not report for work on the day shift on Sunday, April 16th and the Griever worked alone that day. Ms. Gauld also completed her time sheet as if she had worked on Saturday and Sunday and acknowledged that she received her regular pay for both of those days. Moreover, Ms. Gauld testified that on Sunday, May 14, 2000, which was Mother's Day, she and the Grievor were scheduled to work on the day shift. According to Ms. Gauld, however, some time prior to May 14th, the Grievor telephoned her and proposed that they "split the shift" and that she work from 7:00 a.m. to 11 :00 a.m. and that the Grievor work from 11 :00 a.m. to 3:00 p.m. Ms. Gauld could not recall the precise date or time of the Grievor's call. Nevertheless, Ms. Gauld testified that based on her arrangement with the Grievor, she reported for work shortly before 7:00 a.m. on Sunday, May 14th and the Grievor did not attend at work at that time. Ms. Gauld also testified that she received a call from the Grievor at approximately 10:00 a.m. on Sunday morning, indicating that she would be reporting for work at 11 :00 a.m. Ms. Gauld did not remember receiving a call from the Grievor shortly after 7:00 a.m. indicating that she was ill. Ms. Gauld testified, however, that the Grievor did not report for work at 11 :00 a.m. and that, instead, Nadine dePape, a casual Community Support Worker who was scheduled to work on the afternoon shift, reported for work at 12:00 noon. In this regard, Ms. dePape testified that she received a telephone call from the Grievor at approximately 10:30 a.m. indicating that she was 5 unable to report for work and asking if Ms. dePape could "cover" her shift. According to Ms. dePape, the Grievor did not explain why she could not attend work and Ms. dePape assumed that she was ill. Ms. dePape also testified that as she has a call display feature on her telephone, she knew that the Grievor had placed the call from home. As well, Ms. dePape testified that she later received a call from Ms. Gauld to confirm that she would be reporting for work and that she arrived at Granite Court at 12:00 noon. Ms. Gauld testified that in light of her arrangement with the Grievor, she left work at approximately 1 :00 p.m. Ms. Gauld also acknowledged that she completed her time sheet as if she had worked the entire shift and received her regular pay for the day. As indicated previously, there was considerable divergence between the evidence of Ms. Gauld and that of the Grievor regarding the events of April 15th and 16th and May 14th. In respect of the weekend of April 15th and 16th, the Grievor testified that she made no arrangement with Ms. Gauld whereby Ms. Gauld would work alone on Saturday and she would work alone on Sunday and they would claim pay for both days. The Grievor also testified that on the evening of Friday, April 14th, she attended a party with two clients at the home of another Community Support Worker and that she did not telephone Ms. Gauld at that time. Moreover, the Grievor testified that she worked on both Saturday, April 15th and Sunday, April 16th. 6 As to the day shift on Sunday, May 14th, the Grievor testified that on Saturday, May 13th, she telephoned Ms. Gauld and asked if Ms. Gauld would mind if she left work early the following day as she had a Mother's Day function to attend. According to the Grievor, Ms. Gauld indicated that she had no ,objection, provided all the work was done. The Grievor also testified that on Saturday, following her conversation with Ms. Gauld, she amended her time sheet to indicate her working hours on Sunday as 7:00 a.m. to 12:00 noon. As well, the Grievor amended her time sheet to claim three hours' sick pay on Sunday although she acknowledged that at the time she made the change on Saturday, she planned to attend a Mother's Day function the following afternoon. I The Grievor also testified that on Sunday, May 14th, she was initially awakened by her alarm clock at approximately 6:15 a.m. and fell back to sleep. She was awakened again by her husband at approximately 6:30 a.m. and, according to Mr. Bingham, the Grievor indicated that she was ill and would not be going to work that day. In fact, the Grievor testified that she went into the washroom and vomited. The Grievor also testified that she then took the telephone into the living room where she telephoned the staff member assigned to the night shift at Granite Court and indicated that she was ill and would either be late for work or would call Ms. Gauld after 7:00 a.m. The Grievor testified that she then went back to bed and got up at approximately 7: 15 a.m. at which time, she telephoned Ms. Gauld and indicated that she was ill. According to the Grievor, she asked Ms. Gauld if she could work alone for the time being and 7 when Ms. Gauld indicated that she was prepared to do so, the Grievor advised that she would attempt to find another employee to cover her shift. The Grievor testified that she then placed calls to four or five casual staff members for whom she left messages. By the time of the hearing, the Grievor could not recall the names of the staff members whom she had called. The Grievor also testified that after placing these calls, she went back to bed and got up between 9:30 a.m. and 10:00 a.m. Although the Grievor could not recall whether she called Ms. Gauld at that time, she testified that she telephoned Ms. Gauld after she spoke with Ms. dePape to advise her that Ms. dePape would be reporting for work. The Grievor, however, denied having called Ms. Gauld at , approximately 10:00 a.m. to indicate that she would be reporting for work at 11:00 a.m. The Grievor also denied having made any arrangement with Ms. Gauld whereby each of them would work half of their scheduled shift on Sunday, May 14th. Sometime later on Sunday, May 14th, Colleen Neil, a Supervisor with responsibility for three group homes, testified that she received a complaint from the mother of one of the clients at 24 Granite Court. The complaint related to the fact that the client had not been driven to her mother's home that day and instead, she had to pick her daughter up. The client also did not have a Mother's Day card. As a result of this complaint, Ms. Neil went to Granite Court on Monday morning at which time, she spoke to the Grievor. According to Ms. Neil, the Grievor indicated that although she 8 had reported for work on Sunday, she had left early as she was ill and had inadvertently taken the client's Mother's Day card home in her car. As the Grievor recalled, however, her discussion with Ms. Neil concerned only the Mother's Day card and she did not recall any discussion regarding her working hours the previous day. On the afternoon of Monday, May 15th, Ms.Neil again attended at Granite Court and at that time, she spoke with Ms. Gauld. Ms. Neil testified that when she asked Ms. Gauld why she had not driven the client to her mother's home on Sunday, Ms. Gauld indicated that she had left Granite Court during her meal break. Ms. Neil testified, however, that staff members are not permitted to leave a group home during a meal break. Nevertheless, as other staff members and clients were present \ when Ms. Neil was speaking to Ms. Gauld, Ms. Neil did not pursue the matter at that time. However, on a number of occasions thereafter, Ms. Neil attempted to reach Ms. Gauld by telephone without success. Ms. Neil explained that she wanted to speak to Ms. Gauld about her having left Granite Court during her meal break on Sunday, May 14th and about an incident in which a client had apparently choked on May 20th. As Ms. Neil was unable to reach Ms. Gauld, she asked Bryan Booth, the employee responsible for preparing work schedules, to remove Ms. Gauld's name from the schedule until she had an opportunity to speak with her. Ms. Gauld soon realized that her name had been removed from the schedule and testified that she had been avoiding Ms. Neil's calls as she was "nervous" 9 about what she and the Grievor had done. However, on the evening of Thursday, June 1 st, Ms. Gauld telephoned Ms. Neil at home and although she initially recalled advising Ms. Neil only of the arrangement between herself and the Grievor with respect to Sunday, May 14th, she later testified that she also advised Ms. Neil of their arrangement in April. Ms. Neil testified, however, that Ms. Gauld could not recall the dates involved in April but indicated that she could ascertain the dates by speaking to Pat Blurton, a permanent part-time employee who also worked at Granite Court. Ms. Neil testified that Ms. Gauld subsequently called her back and indicated that the dates in April were the 15th and 16th. At Ms. Neil's request, Ms. Gauld agreed to provide the Employer with a written statement and Ms. Neil suggested that they meet the following day. . On the morning of June 2nd, Ms. Gauld met with Ms. Neil and although both Ms. Neil and Ms. Gauld testified that Joan Schelske, another Supervisor, was also present, Ms. Schelske did not recall attending the meeting. In any event, a statement was prepared in which Ms. Gauld outlined the arrangement between herself and the Grievor, including the fact that she had worked alone on April 15th and the Grievor had worked alone on April 16th. Ms. Gauld also indicated that although she was to work the first four hours of the day shift on Sunday, May 14th and the Grievor was to wqrk the remaining four hours, Nadine dePape reported for work at 12:00 noon and Ms. Gauld left work at 1 :00 p.m. Subsequent to her meeting with Ms. Gauld, Ms. Neil met with Ms. dePape who signed a statement confirming that she had received a call from 10 the Grievor at approximately 10:30 a.m. on the morning of May 14th asking Ms. dePape to cover her shift. Ms. dePape also confirmed that the Grievor placed the call from home. As well, Ms. dePape indicated that she arrived at Granite Court at 12:00 noon on May 14th and that Ms. Gauld advised her that the Grievor had not reported for work that day. On the morning of June 2nd, Ms. Neil also met with Pat Blurton, who worked with Ms. dePape on the day shift on Saturday, April 15th and worked with another employee on the afternoon shift on Sunday, April 16th. A statement signed by Ms. Blurton indicated that although on Saturday, Ms. Blurton and Ms. dePape were to be relieved by the Grievor and Ms. Gauld (who were scheduled to work the afternoon shift), only Ms. Gauld was present and that on Sunday, when Ms. Blurton and another employee ought to have been relieving the Grievor and Ms. Gauld (who were scheduled to work on the day shift), only the Grievor was present. Ms. Neil testified, however, that she did not place a great deal of weight on Ms. Blurton's statement as it is not uncommon for only one of two employees to be present when relieved by staff members on the following shift. Although Ms. Blurton's statement also indicated that Ms. Gauld had expressed concerns about the consequences of reporting her conduct in April to the Employer, Ms. Gauld testified that she advised Ms. Blurton only that she had left work early on Sunday, May 14th but did not tell her of the arrangement between herself and the Grievor on the weekend of April 15th and 16th. 11 Sometime later on the morning of June 2nd, Ms. Neil and Ms. Schelske met with the Grievor. According to both Ms. Neil and Ms. Schelske, when the Grievor was questioned about Sunday, May 14th, she indicated that she had left work early as she was ill and had telephoned Ms. dePape from home to see if she could cover the balance of her shift. The Grievor testified that, in fact, after checking her date book during the meeting, she indicated that she had worked from 7:00 a.m. to 12:00 noon on May 14th. However, she coÙld not recall whether she also indicated that she had left work early as she was ill. Although Ms. Neil also questioned the Grievor about two dates in April, the Grievor could not recall Ms. Neil having mentioned particular dates. However, Ms. Schelske, who took notes during the meeting, testified that Ms. Neil referred specifically to April 15th and 16th. Ms. Schelske also testified that the Grievor indicated that her time sheets accurately reflected the days on which she had worked and that although Ms. Neil stated that Ms. Gauld had advised the Agency otherwise, the Grievor maintained that her time sheets were accurate. Following the meeting with Ms. Neil and Ms. Schelske, the Grievor returned home. In the afternoon, she was called to attend a meeting at the Agency for which she was advised to bring a Union Steward and Mr. Bingham served in this capacity. As communications between an employee and his or her Steward with respect to the matters in dispute are generally regarded as privileged, I declined to admit evidence of discussions between the Grievor and Mr. Bingham relating to the events of April 15th and 16th and May 14th. Moreover, although some evidence was 12 introduced regarding the extent to which the Grievor and Mr. Bingham discussed those events, in my view, it would be inappropriate to consider such evidence. An employee should be free to seek advice and counsel from his or her Steward on the basis their discussions will be confidential and will not be considered at a subsequent arbitration hearing. In attendance at the meeting on June 2nd on behalf of management were Jim Retson, the Executive Director of the Agency, Sharon White, the Director of Community Support Services, Michelle Marcus, the Assistant Director of Community Support Services, and Ms. Neil. As noted above, the Grievor was accompanied by Mr. Bingham, who served as her Steward. Ms. Neil testified that at the outset of the meeting, Mr. Retson indicated that it had come to the Agency's attention that staff members at Granite Court had claimed pay for time not worked and he handed the Grievor a letter suspending her without pay pending investigation for theft and falsification of her time sheets. According to Ms. Neil, the Grievor subsequently apologized to her for having been untruthful regarding her attendance at work on Sunday, May 14th and indicated that she had been "scared" during the earlier meeting. Ms. Neil testified, however, ,the Grievor did not admit that there was any arrangement between herself and Ms. Gauld whereby each would work one half of their scheduled shift that day. 13 In contrast to the evidence of Ms. Neil, the Grievor and Mr. Bingham testified that the Grievor apologized to Ms. Neil at the outset of the meeting before she was handed the letter of suspension by Mr. Retson. According to the Grievor, in apologizing to Ms. Neil, she indicated that she had been nervous and "put on the spot" during their earlier meeting that day. In any event, at one point during the afternoon meeting, Mr. Retson suggested that there were other things the Grievor ought to "come clean about", to which Mr. Bingham responded that she had already done so and asked what more Mr. Retson wanted. Mr. Retson then made some reference to April and the Grievor and Mr. Bingham testified that although Ms. Neil offered to make the time sheets available, Mr. Retson stated that no documentation would be provided. Ms. Neil, however, could not recall such an exchange. Moreover, although Ms. Neil , \ testified that the Grievor stated that she had worked on all the dates specified on her time sheets and that the Agency could not prove otherwise, both the Grievor and Mr. Bingham disputed the Grievor having made such a statement. The Griever suggested, however, that Mr. Bingham might have made a statement to that effect. During the meeting, Mr. Bingham also suggested that there was a practice of members of management leaving work early. As well, he indicated that if others had engaged in similar conduct, he hoped they would be disciplined and testified that this comment was also made with reference to members of management. Moreover, Mr. Bingham asked if the Grievor's suspension was related in any way to upcoming negotiations and suggested that if that were the case, then the Agency's 14 actions were discriminatory. Moreover, Mr. Bingham testified thattoward the end of the meeting, Mr. Retson indicated that the Grievor would be contacted following the Agency's investigation and made some reference to the possibility of criminal charges. According to the Grievor, Mr. Retson also indicated that her employment could be terminated. Ms. Neil testified that by the time of the second meeting with the Grievor on June 2nd, she had concluded that the Grievor and Ms. Gauld had claimed pay for time not worked in the manner described by Ms. Gauld. In this regard, she explained that the events of May 14th appeared to be consistent with Ms. Gauld's account and although the Grievor indicated that she had reported for work on May 14th and left , early as she was ill, Ms. Neil was aware from Ms. dePape that the Grievor had called her from home. Moreover, Ms. Neil considered it unlikely that Ms. Gauld would have fabricated the arrangement with the Grievor and then exposed herself to discipline by reporting it to management. Ms. Neil also testified that following the meetings on June 2nd, Ms. Marcus and Ms. Schelske interviewed other employees assigned to Granite Court. As a result of these interviews, the Employer concluded that the incidents involving Ms. Gauld and the Grievor were isolated in nature and that there was not a practice among employees of claiming pay for time not worked. 15 Ms. Neil was involved in the decision to suspend the Grievor for a two- month period and testified that she discussed the penalty with her Supervisor, Ms. White. Ms. Neil understood that Ms. White also consulted with Mr. Retson. Ms. Neil testified that a two-month suspension was imposed on both the Grievor and Ms. Gauld I as the Employer regarded the misconduct in which they had engaged to be extremely serious involving, as it did, theft and falsification of time sheets. Ms. Neil also testified that although termination was considered, both the Grievor and Ms. Gauld were long service employees and, accordingly, a decision was made to impose lengthy suspensions. Moreover, although Ms. Gauld had been forthcoming and was remorseful regarding her misconduct whereas the Grievor had admitted only that she had not reported for work on Mother's Day, as both employees had engaged in the same misconduct, a decision was reached to impose the same penalty in each case. In doing so, Ms. Neil testified that although she did not review the Grievor's personnel file, she understood that the Grievor had no prior disciplinary record. On June 22, 2000, the Grievor was called to a meeting with management at which she was advised that she would be suspended for a period of two months. Mr. Bingham, who accompanied the Grievor to this meeting, took the position that in view ofthe Grievor's record, the penalty was unduly harsh. At the hearing, Mr. Bingham testified that the Grievor had been instrumental in saving the lives of two clients; that she had taken clients to their home for holidays; and that she had run errands for clients on her own time and had not claimed reimbursement for mileage. He also 16 pointed out that she had no prior disciplinary record. Mr. Bingham testified that he made reference to a number of these factors during the meeting on June 22nd. The letter of suspension provided to the Grievor is as follows: June 22, 2000 Treena Bingham . . . Further to your previous notice of suspensions (sic) this is to inform you that you' are suspended without pay for a two month period commencing June 2,2000 due to falsification of your time sheet and collecting pay for hours not worked. Thirteen hours of pay will be deducted from your first pay cheque, upon returning to work, to reimburse The Kenora Association for Community Living for hours you had claimed to have worked and for which you were paid. The thirteen hours is comprised of 5 hours on May 14th and for 8 hours on April 15, , 2000. Please report to Bryan Booth just prior to August 2, 2000 to acquire your schedule.... Yours truly, Colleen Neil Supervisor . . . The first issue to be considered relates to the Grievor's suspension pending investigation. In this regard, it was the submission of the Union that there was no necessity for the Employer to remove the Grievor from the workplace while it carried out its investigation. In this case, however, the Grievor was alleged to have made an arrangement with another employee whereby only one of two employees would work 17 alone in circumstances where the Employer had determined that double staffing was required in view of the fragile condition of a number of clients at Granite Court. On this basis, therefore, I find that it was not unreasonable for the Employer to have suspended the Grievor while it conducted an investigation into these allegations. Moreover, in my view, this case is distinguishable from Re Hydro-Electric Commission of City of Hamilton and International Brotherhood of Electrical Workers. Local 138 (1984),13 L.A.C.(3d) 205 (Devlin), which involved an indefinite suspension pending the outcome of criminal charges arising from certain conduct in which the Grievor was alleged to have engaged outside the workplace. Furthermore, in this case, the suspension pending investigation was subsumed by the two-month suspension which was subsequently imposed. Accordingly, the real issue is whether there was just cause I \ for that suspension and for the deduction of thirteen hours' pay. With respect to this issue, there is no dispute that the burden of proof rests on the Employer. Moreover, it is generally accepted that even where serious misconduct is alleged, the Employer is required to prove its case on a balance of , probabilities, rather than on the more stringent standard of proof beyond a reasonable doubt. However, given the nature of the misconduct in which the Grievor is alleged to have engaged in this case, which involved falsifying time sheets and claiming pay for time not worked, clear and cogent evidence is required to satisfy the burden of proof: see Re Indusmin Ltd. and United Cement. Lime and Gypsum Workers International Union. Local 488 (1978), 20 L.A.C.(2d) 87 (M.G. Picher) and Imperial Parking Canada , , 18 Corp. v. Construction & Specialized Workers' Union. Local 1611 [2001] B.C.C.A.A.A. No. 127 (McDonald) As is evident, there is a significant divergence between the evidence of Ms. Gauld and that of the Grievor concerning the events of April 15th and 16th and May 14th. Accordingly, it is necessary to make an assessment of the credibility of these witnesses. In this regard, it has been held that assessments of credibility should not be based solely on the demeanour of a witness when giving evidence and that, among other factors, consideration must be given to the consistency of the witness' evidence and the inherent probability of his or heraccount: see Faryna v. Chorney (1952),2 D.LR. 354 (B.C.C.A.); Re Sheraton Ltd. and Hotel and Club Employees' , Union. Local 299 (1980), 26 LA.C.(2d) 122 (Brunner) and Re Canada Safeway Limited and United Food and Commercial Workers. Local 832 [1996] M.G.A.D. No. 86 (Hamilton). As to the evidence of Ms. Gauld, I note that in early June, Ms. Gauld came forward and advised Ms. Neil that although she and the Grievor were scheduled to work together on April 15th and 16th, she had worked only one of the two days and the Grievor had worked the other day. Ms. Gauld also advised Ms. Neil that she and the Grievor had arranged to split their shift on Sunday, May 14th although, in fact, the Grievor did not attend at work that day and, instead, Ms. dePape reported for work at 12:00 noon. , , 19 At the time that Ms. Gauld contacted Ms. Neil in June, she was admittedly aware that her name had been removed from the schedule and she had been questioned as to why she had not driven a client to her mother's home on Sunday, May 14th. There was, however, nothing to suggest that the Employer had any concerns with regard to the weekend of April 15th and 16th. Nevertheless, the evidence of both Ms. Gauld and Ms. Neil indicates that Ms. Gauld advised Ms. Neil of the arrangement between herself and the Grievor that weekend to claim pay for time not worked. In this regard, although Ms. Gauld could not initially recall whether she discussed the arrangement in April with Ms. Neil on the telephone, she later testified that she believed she had done so and Ms. Neil confirmed Ms. Gauld's evidence in this respect. Moreover, it seems improbable that Ms. Gauld would have fabricated the events , '. described when it was apparent that by reporting the matter to the Employer, she was exposing herself to serious consequences. As Ms. Gauld suggested, she knew that she was going to "get into trouble". It is also noteworthy, in my view, that although Ms. Gauld and the Grievor had known each other for some five to seven years and had worked together in the past, there was no suggestion that Ms. Gauld harboured any animosity toward the Grievor which might explain why she would fabricate the events described. Moreover, although the Union contended that it is unlikely that Ms. Gauld and the Grievor would have agreed to such an arrangement based only on a brief telephone conversation, the evidence indicates that Ms. Neil did not generally visit Granite Court on weekends and 20 the arrangement was not one which required a great deal of planning. In the result, the suggestion that Ms. Gauld and the Grievor agreed to such an arrangement during one telephone call does riot lead me to conclude that Ms. Gauld's evidence regarding the arrangement was fabricated. Furthermore, although Ms. Gauld had some difficulty recalling the dates and times of her telephone conversations with the Grievor, it does not appear that any record was made of those calls at the time. Accordingly, it is understandable that she would have had difficulty recalling the precise dates and times of those calls when giving evidence approximately one year later. Nevertheless, as noted by the Union, there is some basis for questioning Ms. Gauld's evidence with respect to her discussions with Ms. Blurton. In this regard, I \ Ms. Gauld testified that although she advised Ms. Blurton that she had left work early on Mother's Day, she did not advise her of the arrangement between herself and the Grievor in April. However, a statement prepared by Ms. Blurton on June 2, 2000 suggests that Ms. Gauld did discuss the arrangement in April with Ms. Blurton. Moreover, Ms. Neil testified that during her telephone conversation with Ms. Gauld on June 1st, Ms. Gauld indicated that she could not recall the particular dates in April but that she could ascertain the dates from Ms. Blurton. Although Ms. Neil's evidence does not necessarily indicate that Ms. Blurton was aware of the arrangement between the Grievor and Ms. Gauld, taking all of the evidence into account, I find that there is some basis for questioning the evidence of Ms. Gauld regarding her conversations with Ms. Blurton. Nevertheless, conversations which took place between Ms. Gauld and Ms. , , . 21 Blurton after the fact are peripheral to the main issue in dispute which concerns the arrangement, if any, between Ms. Gauld and the Grievor to claim pay for time not worked. Having carefully considered the matter, I cannot conclude that Ms. Gauld's evidence on this peripheral matter is sufficient to detract from the overall probability of her account. As to the Grievor's evidence, as indicated previously, the Grievor disputed having entered into any arrangement with Ms. Gauld to claim pay for time not worked. However, in my view, there are aspects of the Grievor's evidence, which are implausible. In this regard, the Grievor testified that on Saturday, May 13th, she telephoned Ms. Gauld to ask if she would have any objection to the Grievor leaving work early the following day to attend a Mother's Day function. The Grievor also, . testified that on Saturday, after speaking with Ms. Gauld, she amended her time sheet to reflect her working hours on Sunday as 7:00 a.m. to 12:00 noon. According to the Grievor, she also amended her time sheet to claim sick pay for the balance of her shift on Sunday. The Grievor testified that at the time she made these changes, she planned to attend a Mother's Day function the following afternoon. She also testified that when she woke up on Sunday, she was ill and arranged for Ms. dePape to cover her shift. The evidence indicates that Ms. dePape arrived at Granite Court at 12:00 noon, which was precisely the time at which the Grievor's time sheet indicated that she , , 22 finished work on May 14th. In these circumstances, I find the Grievor's evidence that she amended her time sheet on Saturday to be improbable. Instead, I find that the Grievor amended her time sheet some time after Sunday, May 14th, so that it would coincide with the time at which Ms. dePape reported for work and with her claim for sick pay for balance of the shift. In this regard, I also note that although the Grievor could not recall having discussed the matter on May 15th, Ms. Neil testified that when she questioned the Grievor on May 15th regarding the events of the previous day, the Grievor indicated that she had reported for work but left early as she was ill. Moreover, even on the Grievor's evidence, at the initial meeting on June 2nd, she informed Ms. Neil that she had attended work on Sunday although in the meeting held that afternoon, she admitted that she had been untruthful in this regard. I r With respect to the weekend of April 15th and 16th, as the Grievor recalled, no reference was made to these particular dates during the meeting with Ms. Neil and Ms. Schelske on the morning of June 2nd. Ms. Schelske testified, however, that Ms. Neil did refer to the dates involved and reference is made to those dates in notes taken by Ms. Schelske at the time of the meeting. Moreover, there was no suggestion of any expression of shock or dismay on the part of the Grievor as might be expected had she been confronted by a completely unfounded allegation that she and another employee had entered into an arrangement to work only one of the two days on which they were scheduled and to claim pay for both days. Instead, the Grievor simply maintained that her time sheets were accurate. 23 In the result, although I am not prepared to draw a negative inference from the fact that the Grievor did not confront Ms. Gauld regarding the allegations she had made, for the reasons set out, it is my view that the evidence of Ms. Gauld must be preferred to that of the Grievor. Accordingly, I find that based on an arrangement between the Grievor and Ms. Gauld, the Grievor falsified her time sheets and claimed pay for time not worked on the weekend of April 15th and 16th and on May 14th. Moreover, I cannot accept the submission of the Union that I ought to draw a negative inference from the Employer's failure to call either Mr. Retson or Ms. White to testify in these proceedings. Ms. Neil attended the meeting of June 2nd at which those members of management were present and she was also involved in the decision to impose two-month suspensions on the Grievor and Ms. Gauld. Accordingly, Ms. Neil , . was in a position to give evidence with respect to these matters and I cannot conclude that it was somehow incumbent upon the Employer to call Mr. Retson and Ms. White as witnesses. As to the matter of penalty, at the time of the events in question, the Grievor had approximately seven years' service with the Employer and a performance appraisal which was introduced in evidence indicated that she met or exceeded requirements in all categories. As well, in 1996, she was commended for her effective handling of a serious incident involving a client. Moreover, her disciplinary record was unblemished. Nevertheless, falsifying time sheets and claiming pay for time not worked must be regarded as serious misconduct. The seriousness of that misconduct is also . 24 accentuated by the fact that as a result of the arrangement between the Grievor and Ms. Gauld on the dates in question, only one staff member was present in circumstances where the Employer had determined that double staffing was necessary in the view of the condition of a number of the clients at Granite Court. Although the Employer also maintained that the Grievor's role as a Union Steward ought to be regarded as an aggravating factor, I cannot accept that submission. The concept of imposing a harsher penalty on Union officers than on rank and file employees generally arises in the context of illegal strikes where such officers have taken an active role. In those circumstances, it has been found that by virtue of their position of leadership within the bargaining unit, they are liable to more severe ( disciplinary sanctions. In this case, however, the misconduct in which the Grievor engaged was unrelated to her Union office and, in my view, it would be inappropriate to hike her position as a Steward into account in assessing the propriety of the penalty. Nevertheless, given the serious nature of the misconduct as well as the Grievor's lack of candour in these proceedings, I find that this is not an appropriate case in which to modify the penalty imposed. For all of these reasons, therefore, the grievance must be dismissed. DATED AT TORONTO, this 19th day of September, 2001. ~ H ~L.. Sole Arbitrator