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HomeMy WebLinkAboutSchilling 88-10-25 CONESTOGA COLLEGE (The Employer) - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION (The Union) AND IN THE MATTER OF THE GRIEVANCE OF ANITA SCHILLING O.P.S.E.U. #88A754 ~ BOARD OF ARBITRATION: Kenneth P. Swan, Chairman Allen S. Merritt, Employer Nominee Ron Cochrane, Union Nominee APPEARANCES: For the Employer: Richard Drmaj, Counsel Betty Martin, Associate Registrar Barbara Hartleib, Executive Asst. to the President John Podmore, Director, Human Resources Delores Smith, Human Resources Officer For the Union: Bram Herlich, Counsel C. Whitehead, Chief Steward, Local 238 A. Schilling, Grievor AWARD Hearings in this matter were held in Kitchener, Ontario on June 17 and August 4, 1988, at which time the parties were agreed that the board of arbitration had been properly appointed, and that we had jurisdiction to hear and determine the matters at issue between the parties. Those matters relate to the grievance of Ms. Anita Schilling alleging that she was unjUstly discharged from her employment on April 8, 1988, and the Employer's conten- tion that she had irrevocably resigned on the same date. At the close of the hearing, at the request of the parties, we issued a brief oral decision in this matter to the effect that the grievor should be reinstated in employment with full compensation. Further at the request of the parties, these are our reasons for that decision and our formal award to conclude this arbitration. At the hearing, certain preliminary objections were raised by the Union in relation to the alternative position taken by the Employer that, even if the grievor had not irrevocably resigned, there existed just cause for her dismissal. Because of the conclusion which we have reached in this case, based on the merits of the two issues involved, it is not necessary to deal with whether the Employer was properly in a position to make an alternative argument of just cause. In all the circumstances, we are of the view that it is better for the parties that both issues be heard on their merits. The grievor was employed in the Registrar's Office at the College at the time of her dismissal. She had come, while a - 2 - student, to that office on a two-week work experience in July of 1987. On August 17, 1987 she started on a part-time appointment and was made full-time in September 1987. Her full-time position was as a Transcript Clerk, in which function she had respon- sibility for the safekeeping of some small amounts of money paid as fees for transcript services. There is no dispute that, apart from the issues raised here, she was a well regarded and effec- tive employee. Around July 1987, reports began to reach management that lunches or parts of lunches brought to work by employees were missing from the lunchroom which opens off the Registrar's Office. The lunchroom is a tiny room, but it does contain a refrigerator in which employees often place bag lunches upon arrival at work. There is apparently virtually no room in the lunchroom actually to eat, but scores of employees had free access to the area. The grievor is one of two employees who have desks near the back of the office, close to the door to the lunchroom. Because of the limited space available inside, it was the practice for a substantial number of employees in the Registrar's Office to congregate during the half-hour lunch break in the general area of the grievor's desk to eat their lunches and socialize briefly. Chairs would be gathered around, a credenza would be pressed into service as a lunch table, as would nearby desks, and the remnants of lunches would often be dropped in nearby wastepaper baskets, including the grievor's. Although - 3 - there had been complaints about this garbage disposal practice, we are satisfied that it continued through all relevant periods of time to a greater or lesser extent. As is not unusual in circumstances like this, employees became upset and frustrated by the continuing petty thefts from their lunches. At first the cleaning staff were suspected of stealing lunches at night, but it soon became evident that it was taking place during the day, and employees naturally began looking at each other with a certain degree of suspicion. None of these thefts amounted to very much. Sometimes an entire lunch would be abstracted; more often a part, often a particularly tempting part, of a lunch would be taken. Occasion- ally the stolen food would resurface somewhere; more often it simply disappeared. In addition to the inevitable mutual suspicion, the Employer arranged for the installation of a security mirror outside the lunchroom so that anyone inside could be seen from the hallway, and employees were asked to keep an eye on people going in and out of the lunchroom. In addition, a log of items stolen was maintained for a while, until management concluded that the maintenance of the log might in itself be acting as a kind of scoreboard for a thief whose motives were more mischievous than larcenous. It may be noted that between July 30, 1987 and March 8, 1988, when the list was discontinued, the grievor appears as having complained on three occasions of thefts from her own lunch. - 4 - On March 25, 1988, Ms. Betty Martin, the Associate Registrar, was visited by an employee, Marilew Smart. Ms. Smart made certain allegations which she felt implicated the grievor in a specific theft. She also expressed concern about the fact that the grievor handled some amounts of money collected as fees for a transcript. We shall turn below to the precise, details of the allegations, but it is significant to observe that Ms. Martin felt that there was insufficient evidence in all the circumstan- ces to proceed further at that time. On March 28, the following Monday, Ms. Martin and Ms. Barbara Hartlieb, the Assistant to the President, consulted about the matter, and observed that the thefts corresponded to the grievor's period of employment. They decided to revise the procedure for accounting for incidental transcript fees, and a new procedure was designed. On that day, Ms. Smart pointed out some cash in the cabinet beside the grievor's desk, which Ms. Smart at least found suspicious in certain respects. On March 30, the new cash control procedures were reviewed with the grievor and the receptionist, who would share responsibility for the cash under the new procedures which would take effect on April 5, the first working day of the new fiscal year. On April 5, Ms. Smart, having heard of a missing sandwich, attempted to get further evidence of the grievor's complicity. She enlisted another employee, Ms. Krista Martin, and they made certain observations which they reported to Ms. - 5 - Betty Martin on April 6. On April 7, Ms. Betty Martin and the Director of Human Resources, Mr. J.G. Podmore, met to discuss the issue. All persons consulted supported an immediate discharge, without any further attempt to gather evidence, and it was decided that Ms. Betty Martin would proceed to meet the grievor and discharge her. To that end, Ms. Betty Martin arranged a meeting on Friday, April 8 at about 3:20 p.m., approximately 40 minutes before the regular quitting time. The two of them met alone in the Registrar's Office. Ms. Martin informed the grievor that she had a serious matter to discuss with her relating to the series of thefts at the College. She told her that she had evidence that the grievor was involved in two of those thefts, if not all of them. The grievor strongly denied any involvement, but Ms. Martin insisted that there was sufficient evidence "to be produced in a court of law if necessary". Ms. Martin then offered the grievor the opportunity to resign, stating that if she did so the theft would not appear on her record, and strongly implying, in our view of the facts, that if she did not do so criminal proceedings would be commenced. Ms. Martin agrees that she made it very clear to the grievor that, whether she resigned or not, her employment would not continue and that one way or another she would be removed from the College that very day. Ms. Martin then produced a letter of resignation already prepared and typed for the grievor's signature. The grievor indicated that she felt that she really didn't have much choice, and signed the letter. She was given time to gather her belongings and leave, and she then went outside the College to await her brother who was scheduled to give her a ride home that day. The grievor was, by that time, extremely upset and con- fused, and was soon in tears. She told her brother the rough outlines of what had occurred, and he took some steps to assist her in obtaining advice as to what options she might have. During that evening she consulted her fiance, wrote down every- thing that had happened as best she could recall it, and spoke with a fellow employee who gave her the name of the Union Chief Steward. On Monday morning she phoned that person, Mr. Chuck Whitehead, and related what had occurred. They met on the Tuesday morning, and a grievance was filed immediately after- wards. The following day, the grievance was returned with a covering letter to the effect that the College's position was that the grievor had resigned, and that she therefore had no grievance rights under the collective agreement. From that point, the matter proceeded to arbitration before us as detailed above. The first issue to be dealt with is the effectiveness of the grievor's resignation. We were referred to a number of cases in relation to this issue, including Re Head and Commis- sioner of the Ontario Provincial Police (1980) 109 D.L.R. (3d) 507 (Div. Ct.); reversed (1981) 127 D.L.R. (3d) 366 (C.A.) - 7 - affirmed (1985) 16 D.L.R. (4th) 768n (S.C.C.); Re Coca Cola Ltd. and United Brewery Workers (1980), 26 L.A.C. (2d) 354 (Beck); R_~e O.P.S.E.U. (Mansell) and Crown in Right of Ontario, Crown Employees Grievance Settlement Board Case 598/83, September 26, 1984 (Verity); Re Mack Canada Inc. and International Association of Machinists and Aerospace Workers, Lodge 2281 (1982), 3 L.A.C. (3d) 320 (Kennedy); Re Miracle Food Mart and United Food and Commercial Workers, Locals 175 and 1633 (1983), 11 L.A.C. (3d) 320 (Swan); Re Canada Packers Inc. and United Food and Commercial Workers Union, Local l14-P (1984), 17 L.A.C. (3d) 1 (Rayner); R_~e Beacon Hill Lodge, Ottawa and Ontario Nurses' Association (1985), 17 L.A.C. (3d) 65 (Brent); Re Miracle Food Mart Steinberg Inc. (Ontario) and United Food and Commercial Workers Union, Local 175 (1985), 19 L.A.C. (3d) 65 (Brunner); and Re Federal Pioneer Limited and Communications, Electronic, Electrical, Technical and Salaried Workers of Canada, Local 521, unreported, April 7, 1986 (Weatherill). The arbitral jurisprudence, confirmed by the decision of the Court of Appeal in Re Head, is to the effect that a resignation will only be valid if it is made in circumstances of a conjunction of sufficient objective conduct by an employee to constitute a resignation, and a real subjective intention to resign employment finally and absolutely. Here the signature on the resignation form constitutes sufficient objective conduct; the question is whether there is also a concurrent subjective intention actually to resign. While this is a close case, we have concluded that there is not a sufficiently clear demonstration of such an intent. The evidence makes it clear that the grievor was stunned by the allegations against her, which, as she said in her testimony, "came out of the blue". She was told that there was sufficient evidence against her to proceed "in a court of law", an assertion which, however innocently, was simply false as will be seen below. Whether or not it was entirely intended, the grievor was left with the distinct impression that a refusal to resign would result in criminal prosecution. Finally, she felt she was left no choice, and it is clear from the evidence of Ms. Betty Martin that she would indeed be given no choice whatsoever. If she did not resign she would be discharged, and she was left with the distinct impression that discharge would mean disgrace, prosecution and the real pos- sibility of criminal penalties. It is also relevant to observe that the grievor was neither represented by a Union official, nor was it suggested to her that such representation might be appropriate. It is true that she did not ask for any such representation, but this appears to have been a result of the suddenness of the accusation and the demand for a resignation, and a certain lack of sophis- tication in the rights of employees in a unionized environment. It is also of relevance that, the choice between resignation and discharge having been offered, the grievor was permitted no time to think through her options. It was, on all of the evidence, a - 9 - decision which she was forced to make immediately, with sig- nificant consequences likely if she chose not to resign. Finally, the grievor's conduct following her resigna- tion is inconsistent with anything but a fleeting abandonment of her rights in the despair of the moment. She had immediately denied the theft, and continued to deny them to anyone who asked. By that evening, she had written out her own version of events, and had secured the name of the Union representative to contact. On the morning of the next working day, she had made contact with that person and had indicated that she wished to be represented by the Union and to challenge the allegations made against her. As soon as a meeting could be arranged with the Chief Steward, a grievance was filed. None of this is consistent with a sober, reflective look at the options available, an assessment of the consequences attached to each option, and a firm decision to resign. In the result, therefore, we are of the view that the grievor's resignation cannot be allowed to stand, and must be considered to have been induced by pressures which rendered it not a free expression of her own will. Every case of this nature must turn on its own facts, but we are of the view that this conclusion is entirely consistent with the approach taken by arbitrators and the courts in the cases cited above. It therefore remains to assess whether or not the Employer had independent grounds to discharge the grievor. We think that it is important to observe that Ms. Betty Martin - 10 - honestly and reasonably believed that such grounds did exist on the basis of her understanding of what had been seen by Ms. Smart and Ms. Krista Martin, and that she acted reasonably on the basis of her assumptions about what evidence would be available. Moreover, although the effect of her interview with the grievor was to place inadmissable pressures on the grievor, it is clear that she did so because she thought that the grievor had been caught essentially red-handed, and made the offer of resignation as a humane alternative to discharge and disgrace. However honestly motivated, however, the Employer's actions must stand or fall upon the actual evidence available, and~ that depends upon what Ms. Smart and Ms. Krista Martin actually saw, and not on what Ms. Betty Martin understood them to have seen. Ms. Smart testified that on March 25, 1988 she saw the grievor in the lunchroom beside the microwave holding a bag. She described the total package as "bags within bags", upon which she did not elaborate. She then said something to Ms. Smart to the effect that "there is enough lunch in here for three days". The grievor then left the lunchroom, and shortly after a Ms. Nancy Rozelle entered, looked in the refrigerator and said that her lunch was missing. Ms. Smart asked what was in it, and was told that it contained a meat sandwich, some vegetables and three pumpkin muffins. Shortly after, Ms. Smart had lunch with the grievor in the general area of the grievor's desk. She observed a look of - 11 - delighted surprise on the grievor's face when she opened her lunch .again, and saw the grievor eating a "very dark" muffin by removing one piece at a time from the bag. Something about this conduct made Ms. Smart suspicious, and she decided to look in the lunch bag when the grievor was washing off her dishes after lunch. At that time, Ms. Smart looked inside a bag on the floor beside the grievor's desk, where she saw a jellied meat sandwich. She asked Ms. Rozelle subsequently what kind of sandwich was missing, and was informed that it was a jellied meat sandwich. At this point, Ms. Smart decided to enlist Ms. Krista Martin, who agreed to engage the grievor in conversation when she went to the washroom later in the day. During this absence of the grievor, Ms. Smart lifted the sandwich, and saw mushrooms and what she thought were cherry tomatoes. She then talked to Ms. Rozelle again, and was told that the missing vegetables were mushrooms and radishes. Based upon this, she concluded that she should talk to Ms. Hartlieb, and that ultimately led her to her interview with Ms. Martin. A number of things should be observed about this incident. First, the person who might have been able to identify the missing parts of the lunch, although it will be obvious that individual mushrooms and radishes are extremely difficult to identify, and jellied meat sandwiches might all look the same, was Ms. Rozelle. Ms. Rozelle never saw the missing pieces in the bag, but simply reported to Ms. Smart who acted as intermediary between the evidence and the only person who might have been able - 12 - to identify the evidence. Second, there is no clear connection between the bag held by the grievor in the kitchen, the bag from which the grievor was eating a muffin, and the bag on the floor. Ms. Smart did not see the bag put on the floor by the grievor, did not have the bag under constant observation and never saw the grievor and the bag in any kind of contact again. The only connecting feature is that the bag in each case was a bag provided by a supermarket chain operating in the local area, which would be available to virtually anyone and of which there could easily be, in all likelihood, more than one in the area at any given time. There were certain other observations made by Ms. Smart which were either inconclusive or not a part of the Employer's case, or both. The most important observation, and the one on which Ms. Barbara Martin relied in deciding to discharge the grievor, occurred on April 5. On that day, it became known around the lunch break that chicken salad sandwiches belonging to a Mr. Joe Young were missing from the refrigerator. When Ms. Smart learned of this, she decided to investigate. During the day, she had seen a plastic bag provided by a Canadian winery on the floor beside the grievor's desk. After the grievor left work for the day, she returned to her desk and found the same bag and found one and one-half chicken sandwiches inside it. She showed the bag to Ms. Krista Martin, and they ultimately delivered the bag to Ms. Hartlieb, who showed it the following day to Mr. Young. Mr. Young was able to identify the sandwiches as those - 13 - missing from his own lunch. It will be observed that on this occasion there is nothing whatsoever to connect the bag with the grievor except for the fact that it was sitting beside her desk on the floor. No one saw her place it there, no one saw her acknowledge its presence or even notice it. The connection with the grievor is solely its placement on the floor near her desk. In general, Krista Martin's evidence corroborates, to the extent that she was involved, that of Ms. Smart. There is one aspect in particular, however, that contradicts Ms. Smart's recollection, and the contradiction is particularly material. Ms. Martin remembers the bag on April 5, 1988 being found not on the floor beside the grievor's desk, but rather in her waste- basket. If Ms. Martin is correct, that would distance the bag even more from the grievor's possession or even possible posses- sion, since the evidence is clear that it was not uncommon for people to discard remnants of lunches in the wastepaper baskets in this area. Obviously, there were reasonable grounds for Ms. Smart, Ms. Krista Martin and for management to be suspicious of the grievor. Unfortunately, what they had seen might have been sufficient grounds to commence an investigation, but was far from sufficient grounds to pronounce the investigation closed and the grievor guilty. We agree with the submission of counsel for the Employer that circumstantial evidence can sometimes be sufficient - 14 - to establish just cause for discharge, and we acknowledge that to be the substance of the arbitral decisions cited to us. On the other hand, with no rational connection between the grievor and the identified stolen goods on April 5, and only a marginally closer connection between the grievor and the bag in which was found food never properly identified as stolen goods on March 25, what is available to us here simply does not rise to a standard sufficient to be called circumstantial, or any kind of evidence, of anything. In fairness to Ms. Betty Martin, we observe that she understood the connections to have been much clearer than the evidence of the two employees could actually bear out, and she acted upon her understanding that the grievor had been directly connected to both bags. However honestly she believed that, that was simply not the case. In the result, the Employer did not have just cause to dismiss the grievor, and the grievance must therefore be allowed. This is, all in all, a very unsatisfactory resolution of this matter. The thief has not been apprehended, and the grievor has had a considerable shadow of suspicion cast over her. We can only hope that whoever was responsible for this childish and irrational behaviour will recognize that it is a high stakes game, in which the penalties for losing can include the loss of a job, an indelible branding as a thief, and a strong possibility of criminal sanctions. While on this occasion well meaning amateur detectives failed to provide sufficient evidence on which - 15 - a board of arbitration could act, on a future occasion a thief may find that his or her co-workers have clearly caught him or her out. In the result, the grievor is entitled to be reinstated in employment with full compensation for all time lost as a result of the discharge. At the request of the parties, we remain seized of this matter in case there should be any dif- ficulty, in the implementation of our award. DATED AT TORONTO, Ontario this 25th day of October, 1988. K~eth P. Swan, Chairman I concur "Allen S. Merritt" Allen S. Merritt, Employer Nominee I concur "Ron Cochrane" Ron Cochrane, Union Nominee