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HomeMy WebLinkAboutFrankland 93-03-15 HEmNO~ LO ~ 3 c~ O TAR:O ume O OROm } COLLEGE OF APPLIED ARTS AND TECHNOLOGY GRIEVANCES OF LAWRENCE~:FRANKI,AND O.P.S.E.U. FILE NOS. 92~119 & 92~120 Board of Arbitration composed of: Michael Bendel Peter Klym George H. Metcalfe The Grievor, a long service employee employed as a caretaker, was suspended for five (5) days without pay for lateness and was subsequently discharged for abuse of sick leave, unauthorized possession of a College key and unauthorized possession of a Supervisor's note. The Board rejected a submission by the Union and determined that it would first hear the evidence with respect to the suspension and subsequently the evidence with respect to the discharge. The Board also rejected a motion by the Union that the Employer should be precluded from relying on previous arbitration awards as proof of the Grievor's disciplinary record. Mr. Klym, on behalf of the Union, dissented with respect to this matter. Although the Board found that there was not sufficient evidence to conclude that the Grievor had unauthorized possession of a key, it did conclude that he had committed major disciplinary offenses by abusing sick leave and being in possession of the unauthorized Supervisor's note. The Board rejected the Grievor's account as incredible in certain aspects. The Board also upheld a five (5) day suspension for repeated lateness. Having regard to the disciplinary record and the major disciplinary offenses proven, the Board did not substitute a penalty, despite the Grievors lengthy service and unfortunate personal circumstances. IN THE MATTER OF AN ARBITRATION BETWEEN Georgian College of Applied Arts and Technology, College, - and - Ontario Public Service Employees Union, Union BEFORE: Michael Bendel, Chair Peter Klym, Union Nominee George H. Metcalfe, College Nominee APPEARANCES: For the Union: Craig Flood, Counsel Garry Scanlan Lawrence Frankland For the College: Paul Jarvis, Counsel Norman Hannon, Manager, Compensation Hearing held in Barrie, Ontario, on April 13, June 17, July 8, August 20, October 5, December 9 and December 16, 1992. ARBITRAL AWARD INTRODUCTION On December 5, 1991, Mr. Lawrence Frankland, a caretaker at the Orillia campus, received a five-day suspension, without pay, for lateness in reporting to work. On December 18, 1991, he was discharged for three offences which were related to each other, namely attending to union or personal business on an afternoon when he was on sick leave, having unauthorized possession of a key belonging to the College, and having unauthorized possession of a note written by his supervisor. He has presented a grievance against each of the measures. The grievor had a lengthy disciplinary record, on which the employer relied in deciding to impose a five-day suspension and, later, to discharge him. Before setting out the details of the case, it would be helpful to provide a brief overview of the parties' positions. The College's case is essentially as follows. In late November, the grievor's supervisor, Mr. Lionel Coles, received a telephone call in which he was advised that the grievor had shown to a cleaner, Ms. Irene Holt, a key to the "F" Building at the Barrie campus, a key the grievor had no right to have in his possession. Mr. Coles made a written note of this telephone - 2 - conversation, intending to investigate. However, he put the note away in a drawer and forgot about it. On December 4, Mr. Coles found the note and put it on his desk, agsin intending to follow up on the question. On December 5, Mr. Coles met with the grievor in his office to hand him a letter of suspension concerning his repeated lateness. After the meeting, Mr. Coles could not find the note concerning the unauthorized possession of the key. In the course of the morning of December 5, the grievor told Mr. Coles he was not feeling well and asked to be allowed to go home in the afternoon. Mr. Coles agreed. On the afternoon of that day, the grievor was seen at the Barrie campus. Among other things, while st the Barrie campus, he showed Ms. Holt the note that was missing from Mr. Coles' desk. In subsequent interviews, the grievor denied he had an unauthorized key to the "F" Building, denied having possession of the' note and claimed that while on sick leave he was entitled to attend to personal business. The major thrust of the College's case is that, in view of the grievor's misconduct, his supervisors have lost all confidence in his trustworthiness and honesty. , follows. He denies having The grievor s position is as had in his possession a key to the "F" Building for several years preceding his discharge. He denies having taken or seen Mr. Coles' note. He did show a note to Ms. Holt on December 4 (not on December 5, as the College alleged), which resembled Mr. Coles' note, but - 3 - it was one he had made himself on the same question of the key to the "F" Building. As for his activities on the afternoon of December 5, when he was on sick leave, he says that he was too sick to perform his regular duties, which are physical in nature; however, he was well enough to attend to various matters relating to the union (of which he was president) and to file a grievance concerning his five-day suspension, which he wanted to do immedi- ately. At the outset of the hearing, Mr. Flood, counsel for the union, requested the board to examine, in the first place, the alleged misdeeds giving rise to the discharge, and to' issue a decision on the discharge before going on to examine the five-day suspension. Counsel said he was Concerned that the board might hear evidence in relation to the suspension that would not be relevant to the discharge. He suggested that this approach would balance fairness to the grievor and expedition. Mr. Jarvis, counsel for the College, objected to the procedure proposed by the union. It would not make sense, in terms of fairness or expedition, to bifurcate the hearing in the manner suggested. The evidence on the suspension would be very short, much shorter than the evidence on the misdeeds leading to the discharge. - 4 - The board rejected Mr. Flood's request and ruled that the hearing should follow the normal course of having the College present all its evidence, relating to all four alleged misdeeds, and then having the union present all its evidence. One decision would be given at the conclusion dealing with all matters. We hereby confirm that ruling. The grievances had been consolidated for hearing by the parties before this board of arbitration was constituted. The union was asking us to sever the grievances. The onus was on the union to satisfy us that there were good reasons for doing so. It was our view that the procedure suggested by Mr. Flood would not lead to a shorter or quicker hearing, and would likely lead to an even longer one. We were also not persuaded that there would be any unfairness to the grievor in proceeding to hear the two grievances together. THE GRIEVOR'S PRIOR DISCIPLINARY RECORD The grievor had been employed by the College since September 1974 as a groundskeeper and a caretaker. His disciplinary record was entered into evidence through Mr. Norman Hannon, a manager in the Human Resources Department. In the course of Mr. Hannon's evidence, a question arose about the manner in which a grievor's disciplinary record should be entered in evidence. The College intended to do this through the - 5 - presentation of prior memoranda of discipline addressed to the grievor and arbitral awards relating to his earlier discipline. Mr. Flood objected to this method of entering the disciplinary record into evidence. He argued that the "record" should be limited to a brief statement of the nature of the past misconduct and the disciplinary action taken, without any details of the misconduct and without the comments of earlier arbitration boards. It prejudiced a grievor, he suggested, to place before a board of arbitration all of the facts surrounding prior discipline. He referred the board to the award in Re Sunnybrook Hospital and Sunnybrook Hospital Employees Union, Local 777 (1987), 32 L.A.C. (3d) 381 (Brown). Mr. Jarvis responded that the award in Sunnybrook Hospital was the only one standing for the proposition advanced by the union. That award should not be followed. It had always been understood that the "record" consisted of the documents that recorded the action taken against the grievor, not of some document produced just for the purposes of the arbitration. This meant that prior memoranda and prior arbitral awards were admissible. If there was little case-law directly in support of this practice, it was because it was so well understood and accepted. This practice had been followed in the following decisions: Re Mount Sinai Hospital and Nurses' Assoc. Mount Sinai Hospital (1976), 13 L.A.C. (2d) 103 - 6 - (Brandt); Re Lincoln Place Nursing Home and Service Employees Union, Local 204 (1976), 13 L.A.C. (2d) 379 (Beck); and Re Hospital for Sick Children and Canadian Union of Public Employees (unre- ported award of Professor Palmer, dated July 4, 1986). It was not practical for the parties to have to prepare an agreed statement containing a brief description of past disciplinary offences. What would happen, he asked, if they were unable to agree on the proper characterization of prior offences. The documents proffered by Mr. Hannon were particularly relevant since (a) the College specifical- ly stated, in its letters of discipline, that it was relying on the record, (b) they would enable the College to rebut the anticipated argument by the union that there were extenuating circumstances that. would justify a mitigation of the penalty, (c) they supported the College's submission that the grievor knew the College's expectations of him as regards punctuality and (d) a previous arbitration board has stated that it was giving the grievor "one last chance". After hearing these submissions, the board (with Mr. Klym reserving his position) decided to receive the documents tendered by the College and stated that it would give its reasons in the award. On a later hearing date, Mr. Flood drew our attention to the award in Re Canada Post Corp. and Canadian Union of Postal - 7 - Workers (1992), 24 L.A.C.~ (4th) 436 (Shime), which had just been reported and was to the same effect as the Sunnybrook Hospital award. He asked us to reconsider our earlier oral ruling. In Re Canada Post'Corp., supra, the arbitrator gave the following account of what he considered to constitute "the record" (at page 437): In my view, the record consists of the nature of the offence and the penalty imposed by the employer and some indication that the penalty was sustained in whole or in part through arbitration, but the evidence relied upon by the employer and the reasons of the board of arbitra- tion in arriving at its conclusion should not be part of the record. The only authority cited for that statement of what constitutes the record is the Sunnybrook Hospital award. The arbitrator distinguished a number of other awards cited by the employer which, it had been argued, supported a broader view of what was to be included in the record. In order to resolve the issue of what constitutes the record, we feel it is appropriate to recall the role of a board of arbitration. In industrial discipline, the employer determines, in the first instance, what is the proper disciplinary measure. An arbitration board then sits in review of the employer's decision. As Professor Arthurs stated in Re Levi Strauss Canada and AmalRam- - 8 - ated Clothing and Textile Workers Union (1980),'26 L.A.C. (2d) 91, at page 93: The fact of the matter is that when an arbitrator selects a penalty different from that selected by an employer, he is really saying that the employer has ignored some relevant consideration, proceeded on some misunderstand- ing, acted from some illicit motive, or otherwise affronted the arbitrator's sense of what is "just". The opposite is true when the arbitrator reaches the same conclusion as the employer. In other words, the arbitra- tor is not only judging the grievor; he is judging the employer as well. An employer inevitably takes into account a whole range of factors in reaching its determination. The task of the board of arbitration is to sit in review of the employer's decision, to try to under- stand it and to decide whether it should stand. From the perspective of relevance, we see no reason for artificially restricting the evidence an employer might wish to adduce to support its determination about the appropriate disci- plinary sanction. In our view, it is always relevant for a board of arbitration in such a case to know what factors were relied upon by the employer. The factors revealed in the evidence might show that the employer's decision was unfair or irrational. In some cases, the employer might have relied on factors proscribed by the collective agreement: see, e.8., Re Maritime BeveraRes Ltd. and Teamsters Union, Local 927 (1990), 12 L.A.C. (4th) 38 (Darby)). In other cases, the admission of a comprehensive record will - 9 - support the employer's case: if, for example, in an earlier award, an arbitration board had reinstated the grievor f-ollowing a similar offence and had commented that the grievor should get "one last chance" because he had not fully appreciated the nature of his employment responsibilities, the employer might have relied On those comments in deciding to discharge the grievor the second time around. The role of an arbitration board in such a case is to ~ndeavour to understand the motivation and reasoning of an employer in deciding what penalty to impose and to determine whether the employer acted justly, rationally and in conformity with the collective agreement. It follows, in our view, that both parties must be permitted to prove the factors which the employer took into account. In Sunnybrook Hospital, the board saw similarities between an employee's disciplinary record and an accused's criminal record. This is what the board said (at page 385): In a criminal trial where a prior record of convictions is produced for the purposes of sentencing in a subse- quent case, that record provides the title of the offence charged and the conviction with the penalty imposed by the court. Similarly, a record for the purposes of assessing a penalty in a discharge of employment issue under a collective agreement, consists of the statement of the general nature of the offence and the penalty imposed for that incident where there is no challenge as to the content of the employee's record of past disci- pline. - 10 - This passage was quoted with approval in Re Canada Post Corp., supra. Despite this authority for comparing an employee's disciplinary record to an accused's record of criminal convictions, we respectfully doubt that there are any relevant similarities. The provisions of the Criminal Code, R.S.C. 1985, c. C- 46, as amended, that deal with the proving of an accused's criminal record are designed to facilitate the proving of prior convictions. In the absence of these provisions, the Crown might have a practi- cal problem in proving that the accused was in fact convicted of a particular offence on a previous occasion; it would be cumbersome and unworkable to have to call a clerk from the court where the conviction was entered or some other person with first-hand knowledge of what took place in that court when the accused was convicted. Sections 570 (4) and 667 therefore create a procedure for putting an accused's record before the court by means of a certificate of conviction (the form of which is prescribed by the Code), which can be received into evidence without proof. The statutory certificate is not, however, the only way that the record can be made known to the court: see, e.g. section 23 (1) of the Canada Evidence Act, R.S.C. 1985, c. C-5. (On the question of proving a criminal record, see generally Ruby, Sentencing (3d edition, 1987), at pages 101 to 104.) - 11- The practice of proving a criminal record by means of standardized certif.icates is therefore not designed to prevent an accused from being "prejudiced" by details of prior offences being revealed. It is simply designed to make it easier for the Crown to prove prior convictions. The certificates are a convenience for the Crown, not a protection for the accused. We see no valid reason why the practice in the criminal courts of presenting standardized certificates of conviction is one that should be emulated in grievance arbitration proceedings. (As the dissenting opinion in Re Sunnybrook Hospital makes clear, there would also be serious practical difficulties in importing this practice into grievance arbitrations.) The established practice before a board of arbitration, as we understand it, is for a personnel officer to identify and present documents from the grievor's personnel file of which he has personal knowledge. We are not persuaded that there is anything unfair or prejudicial in this practice. For these reasons, we confirm our oral ruling at the hearing that the College is entitled to adduce in evidence those parts of the grievor's record upon which it claims to have relied in determining what sanctions to impose. - 12- The grievor's prior disciplinary record can be summarized as follows: a) in November 1974, he was given a written warning about late arrival in the mornings; b) in October 1976, he was dismissed for his "unsatisfactory method of working primarily due to excessive lateness in the mornings". At arbitration, the grievor was reinstated, but without any compensation. He was off work in all for four months and a few days. In the course of the award, the chair of the board of arbitration (Mr. H.D. Brown) described the grievor's record of lateness as "one of the worst which could be .contemplated and certainly...the worst that this Chairman has seen" (at. page 10). The primary reason for reducing the discharge was that the College had not followed progressive discipline. The board concluded that the grievor should be given "one last chance to correct his attitude to his employment and his attendance to his duties and responsibilities" (at page 14); c) in July 1984, he was suspended for one day with pay, again for late arrivals; d) in August 1984, he was suspended for one day without pay, again for late arrival at work; - 13- e) in September 1984, he was suspended for one and a half days without pay, again for late arrival at work; f) in November 1984, he was suspended for one week without pay, again for late arrival at work; in the course of the grievance procedure, this was converted into a suspension for one week with pay; a board of arbitration upheld this measure; g) in July 1985, he was suspended without pay for five days for insubordination and submitting an inaccurate claim for overtime; an arbitration board dismissed his grievance; h) in September 1988, he received a letter of reprimand for unacceptable performance of his duties; and i) in April 1991, he was suspended without pay for two and a half days for serious deficiencies in his workplace performance and refusal to obey directives; the memorandum he received mentions several other written warnings for poor performance. - 14- SUSPENSION (i) Facts Until September 1991, the grievor had been working at the Barrie campus and the Bell Farm Road campus. Effective Septem- ber 30, 1991, he was reassigned to the Orillia campus. He lived in Orillia. His supervisor at Orillia was Mr. Lionel Coles, Manager of Physical Resources. When the grievor began at Orillia, he started his working day at 7:00 a.m. Some two weeks later, at his request, he was given a 6:00 a.m. starting time. According to Mr. Coles, the earlier start was requested by the grievor so that he could finish his working day early enough to perform another job in the afternoon. The grievor testified that the earlier starting time was mutually beneficial, since it enabled him to clear snow before other employees arrived at work, as well as to drive a school bus in the afternoons. Mr. Coles testified that he spoke to the grievor several times about his late arrivals at work after the grievor was reassigned to Orillia. In particular, in mid-November, Mr. Coles received a telephone call from the company which collects recycla- ble waste, alleging that the grievor had not put out the waste in time for the pick-up that morning. Mr. Coles spoke to the grievor the same day about the importance of arriving at work on time. The - 15- grievor testified, however, that before November 20 Mr. Coles had not spoken to him about lateness. The discussion about putting out the recyclables, according to the grievor, was more a reminder that ~his was one of his duties than a discussion about late arrivals at work. The grievor's first duty on arriving at work each day was to deactivate the alarm system. After unlocking the front door, the grievor had 90 seconds within which to enter a code in a key-pad, failing which the burglar alarm would go off. The alarm was monitored by Huronia Alarm and Fire Security Inc., which kept a record of deactivation times at its monitoring station. Mr. Coles testified that, on November 20, he was called at home by an official of Huronia Alarm and Fire Security Inc., who said that the alarm had sounded at the Orillia campus at 7:04 that morning. Mr. Coles investigated. He learned that some employees had entered the building at that time, believing that the alarm had already been deactivated. The alarm had not, in fact, yet been deactivated. Later in the day, according to Mr. Coles, he spoke to the grievor, who told him he did not come into work until 7:20 a.m. The reason given by the grievor was that he had taken some cold medication the previous night and had overslept. The College then requested the alarm company to provide it with the alarm deactiva- tion times over the previous month. The information from the alarm - 16- company indicated that, between October 28 and November 22, the alarm had been deactivated late on 17 days, on two of which'the lateness exceeded 40 minutes. On December 4, Mr. Coles signed a letter of suspension, in which he imposed a five-day suspension on the grievor for lateness. At the hearing, more complete data were presented about deactivation times. The data cover the grievor's work days in the period from October 15 to December 18. They show that on every day but two the alarm was deactivated after 6:00 a.m. (On one of the two days, it was deactivated at 5:58 a.m.; on the other day, technical difficulties prevented the exact time of deactivation from being determined.) The extent of the lateness ranged from three minutes to 65 minutes. On 27 days, the lateness exceeded ten minutes. In his testimony, the grievor did not deny the College's allegation about his late arrival on November 20, although he did claim to have arrived earlier than 7:20 a.m. He stated that, on that day, he overslept as a result of taking cold medication the previous night. He woke up at about 7:00 a.m. and drove directly to the campus. It. took him no more than seven minutes to arrive there. He assumed that someone else had deactivated the alarm - 17- system, so he went about his usual duties of unlocking internal doors. It was not until about 7:20 a.m. that he realized the alarm had not been deactivated. As for the other days he was alleged to have arrived late, the grievor 'explained that he relied on a clock in the Physical Resources office to check his arrival times, and he only discovered after November 20 that the clock was slow by about five minutes. Therefore, although he did not deny having arrived late for work, he claimed that he had not realized the extent or the frequency of his late arrivals. (ii) Submissions The submissions we received were primarily on the question of the appropriate disciplinary penalty, since it is not disputed that the grievor was guilty of some misconduct. Mr. Jarvis contended that the grievor was guilty of a major failure to meet his obligation of punctuality on an ongoing basis, despite being spoken to on the question by Mr. Coles. It was impossible to believe that the grievor did not realize he was being consistently late. If the board concludes he did not realize the extent of his lateness, he was, at the least, culpably reckless in - 18- this regard. In view of his prior disciplinary record, the sanction imposed on him should be upheld. Mr. Flood, on the other hand, argued that the grievor had not realized the extent of his lateness until the record of the deactivation times was presented to him. Therefore, he should not be held accountable on the basis of deliberately disregarding his employment obligations or of being reckless in relation to his obligations. Although the grievor had, in the past, been disci- plined for lateness, there had been no problems with lateness since 1984. A lesser penalty should therefore be substituted. (iii) Decision We are inclined not to accept at face value the grievor's claim that he did not realize he was arriving late for work. In any event, this provides little by way of defence for the grievor. Moreover, his starting time had been specifically moved forward, in part at least, for his own convenience, so as to enable him to perform a part-time job. This, in our view, made it all the more important for the grievor to arrive on time. We have set out above the grievor's prior disciplinary record. Late arrivals play a very prominent part in that record. The earlier discipline should have left with him the indelible - 19 - knowledge that his punctual arrival at work each morning was a matter of great concern to the College. Although it is true, as Mr. Flood points out, that there had been no discipline for late arrivals since 1984, this scarcely minimizes the impact of the prior record. We are unable to find fault with the College's decision to suspend him without pay for five days. DISCHARGE The three misdeeds relied on in support of the discharge are these: (a) possession of a key without authorization; (b) possession of Mr. Coles' note without authorizmtion; and (c) abuse of sick leave. The grievor, it should be noted, served his five-day suspension from December 9 to December 13, 1991. December 16 was his first day back at work, but Mr. Coles was off sick that day. On December 17, Mr. Coles returned to work. That day, he spoke to the grievor about the alleged misconduct, but the grievor denied any wrongdoing. Mr. Coles asked the grievor to go away and think about this denial of wrongdoing. Later in the day, Mr. Coles again met the grievor, who stuck to his denial. On December 18, Mr. Coles met,. yet again, with the grievor, with the same result. - 20 - Later on December 18, the grievor was summoned to Mr. Hannon's office where he was given a letter of discharge. Mr. Hannon was the manager who took the effective decision to discharge the grievor. He testified that management would have disciplined the grievor even if he had made a complete acknowledgement of his wrongdoing in his meetings with Mr. Coles. However, he added, if the grievor had admitted his misdeeds, the penalty would likely not have been discharge. The letter of discharge reads, in part, as follows: On Tuesday morning, December 17, 1991, your supervisor, Lionel Coles asked you about your absence on the after- noon of December 5, 1991. He asked if you had indeed gone home after telling him at 12 noon you were'ill and could not continue to work. Your reply was that when you were off sick you conduct union business if you so desire. Mr. Coles asked you if you had gone to the Barrie campus on the afternoon of December 5, 1991. You admitted going to the union office of Local 349 at the Barrie campus. You also talked to Susan Murphy in the office area of Physical Resources at approximately 2:20 p.m. Mr. Coles asked, as' on December 5, 1991, if you had now or in the past six (6) months possessed a key to the F building on the Barrie campus. You responded that you never had a key to the F building on the Barrie campus and had only told the cleaner that to tease her. Your supervisor asked, as on December 5, 1991, if you had seen or taken a note from his desk on the morning of December 5th. You again answered by saying you had not seen or taken any such note. Mr. Coles asked you to explain why a note similar to the one he was missing had been shown by you to a member of the Barrie campus cleaning staff on the afternoon of December 5th. You denied having or showing such a note. - 21 - You were told by your supervisor to go away and think about your above answers. Again at noon on December 17th, he asked you if there was anything you had previously told him that you now wished to change. You were unrepen- tant and did not want to change anything you had previ- ously told your supervisor. Your conduct is unacceptable. If you are sick, you are absent from work and cannot return to the College to conduct union business and look after personal matters. You have no reason to possess a key to the F building of the Barrie campus nor possess a note from your super- visor's desk. Each of the above are grounds for dismissal. The College has made several attempts in the past to accommodate you but you have continually failed to meet your employment obligations. Your most recent unaccepta- ble behaviour will not be tolerated by the College and justifies your discharge. Effective immediately, December 18, 1991, your employment with Georgian College is terminated. You have a long record of misconduct and discipline since being employed by the College. That record, in addition to your current misconduct, justifies your dismissal. (A) Possession. of key (i) Facts The principal evidence against the grievor on this matter is the testimony of Ms. Irene Holt. Ms. Holt is a cleaner, employed by a contractor, who has worked at the Barrie campus of the College since September 1991. - 22 - Ms. Holt testified that she met the grievor shortly after starting work at the College. He would sometimes bring her a coffee when she was on a coffee break and the two of them would drink their coffees together. Ms. Holt testified that, one afternoon in the first or second week of November, she and the grievor were in the cafeteria in the "F" Building of Barrie campus together. The grievor asked her if she wanted a coffee. She replied that she did. She offered him her keys so that he could go the Physical Resources office to fetch a coffee. The grievor replied that he did not need her keys. He then pulled out a key, waved it quickly in front of her and said: "You haven't seen this." There appeared to be nothing special about the key. The grievor left, and returned some 15 minutes later with two disposable cups containing coffee. This, according to Ms. Holt, was about the time it would normally take him to bring coffee. She could remember nothing about the coffee or the cups that might indicate where he had gone for the coffee. The two of them then drank their coffees, chatted and departed. Ms. Holt knew that the grievor worked at the Orillia campus, not the Barrie campus. She testified that she was having doubts about his integrity. A few days after the incident with the key, she therefore asked Ms. Sharon Jenkins, the Manager of Health and Safety at the Barrie campus, whether it was proper for the - 23 - grievor to have a key for the Barrie campus. She told Ms. Jenkins that it was not her intention to get the grievor into trouble. At about 2:00 on the afternoon of December 5, according to Ms. Holt, she saw the grievor again at the Barrie campus. Again, they had coffee together. Ms. Holt asked the grievor to give her the key he had shown her previously so that she could hand it in for him. The grievor pulled out a bunch of keys and said to her: "See, I don't have it". She asked him where it was. He replied: "It's gone bye-bye." Ms. Jenkins testified that, after Ms. Holt told her that the grievor might have an unauthorized key to the Barrie campus, she consulted the gr±evor's "key card". Key cards record, for each employee, the keys issued, the date of issue, and the date of return. It appeared from the cards that all keys to the Barrie campus which had been issued to the grievor had been returned. She told Mr. Coles of the report given to her by Ms. Holt. Later, on December 6, Ms. Jenkins asked the grievor, at Mr. Hannon's sugges- tion, whether he had a key to the "F" Building. He replied that he did not, that he had turned in his keys. He added that, when necessary, he asked security personnel to open locked doors at the "F" Building for him. - 24 - Ms. Susan Murphy was Supervisor of Building and Ground Services in 1991. As such, she testified, she had responsibility for issuing keys at the Barrie campus. She produced in evidence the grievor's key card. The card contains several hand-written entries and erasUres, which appeared to have been made by different people. The card, according to Ms. Murphy, showed that the grievor had been issued a "Great Grand Master Key" (GGM key) in February 1985 and that she had verified with the grievor, in September 1990, that the key had been returned; he told her it had been returned in August 1989. The GGM key opened all doors on the Barrie campus except in certain designated areas. In cross-examination, Ms. Murphy was informed that the grievor had been assigned to work at the Bell Farm Road. campus in February 1985, and she was asked why he would have been issued the GGM key in that month. Upon reviewing the key card, Ms. Murphy suggested that, maybe, February 1985 was the date the GGM key was returned. The card also showed that the grievor had been issued a "BB5-IN" key. This was a key for the door of the union office at the Barrie campus. The grievor was entitled to have this key. The grievor testified that, before February 1985, the date of his assignment to the Bell Farm Road campus, he was working at the Barrie campus. He had been issued a GGM key while at the Barrie campus, and returned it in February 1985. He had not had a key to the "F" Building since then. The only key he had to the - 25 - Barrie campus after February 1985 was a key to the union office, which he was issued upon becoming union president in 1990. The grievor denied telling Ms. Holt that he had a key to the "F" Building or showing her a key. He recalled one occasion when she asked him if he needed her key to fetch the coffee. He testified that he might have replied that he had his own, although the reality was that the door was unlocked. On another occasion when she offered her key, he said he did not need it; he could use his key to the union office to make some coffee there. He may have shown Ms. Holt his key to the union office. He did not know whether he said to Ms. Holt, upon showing her the key: "You haven't seen this". He denied saying to her, in early December: "It's gone bye- bye." He confirmed that, in interviews immediately preceding his discharge, he informed management that he told Ms. Holt that he had an unauthorized key "just to tease her". Evidence was also presented - by the grievor, security personnel and colleagues - that the grievor frequently had to ask others to let him into the "F" Building at Barrie, when he was going to union meetings there or needed to borrow a battery booster for his car. In addition, some evidence was adduced that the key alleged to have been in the possession of the grievor was marked "Do not copy", and that the grievor could not therefore have had an unauthorized key of this type. Finally, it should be noted that - 26 - some evidence was presented suggesting that the GGM key currently in use is not the same as the one in use in 1985, since the locks were "re-mastered" in or about 1987 following a security concern. (ii) Decision Given the evidence we received, we cannot conclude that the grievor was guilty of the unauthorized possession of a key to the "F" Building at Barrie campus. The only evidence against the grievor is the testimony of Ms. Holt, which relates strictly to what the grievor told her. We have no reason to doubt the credibility of Ms. Holt. However, we cannot discount the distinct possibility that the grievor told Ms. Holt he had such a key for the purpose of "teasing her" (as he put it), or that Ms. Holt simply misunderstood the grievor when he said he did not need to borrow her keys. If the College's concern is that the grievor may have given a colleague the impression that he had an unauthorized key and that it is wholly inappropriate for an employee with some security responsibilities to make light of such matters, we can understand that concern. Security matters, particularly for employees with security responsibilities, like the grievor, should not be the subject of teasing or joking. - 27 - However, that is not the charge against the grievor. He is accused of having unauthorized possession of an "F" Building key. We cannot find, on the evidence presented, that it was more likely than not that he had such a key. (B) Possession of note (i) Facts As already mentioned, Ms. Jenkins telephoned Mr. Coles sometime in the second half of November to report that, according to Ms. Holt, the grievor might be in unauthorized possession of a key to the "F" Building. Mr. Coles testified that, upon.speaking to Ms. Jenkins, he made a note for himself on a piece of paper. He could not remember for sure the words he wrote, but they were probably the following: "Irene, cleaner, Lawrence, key, F Build- ing''. He could not remember exactly the type of paper he had used either. It was "just a little piece of paper", he testified, "a page from a note-pad". Mr. Coles intended to pursue the matter with the grievor. However, he put the note in a drawer in his office desk and forgot about it. On December 4, Mr. Coles came across the note in his office desk. He put it on his desk, intending to raise the matter with the grievor. He met with the grievor on the morning of - 28 - December 5, between 9:00 and 10:00, for the purpose of informing .him of his five-day suspension for lateness. Following that meeting, he looked for the note. He could not find it. Ms. Holt testified that, at about 11:15 or 11:30 on the morning of December 5, she received a telephone call from the grievor. She had just arrived at work. She was called to the telephone by Mr. Garry Scanlan, an electrician at the College and a colleague of the grievor on the union executive. According to Ms. Holt, the grievor told her that he had found a piece of paper on which were written the words: "Lawrence, key, Building F, Irene, cleaner". He told her to keep this matter between themselves. He mentioned he was coming down to the Barrie campus that afternoon. He asked her if she knew anything about the note; she replied she did not. After she finished speaking with the grievor, Ms. Holt telephoned Ms. Jenkins and recounted in detail the conversation with the grievor. Ms. Jenkins confirmed, in her testimony, that she received a telephone call from Ms. Holt at about 11:45 a.m. on December 5. She corroborated Ms. Holt's testimony on the content of their telephone conversation. Ms. Jenkins immediately telephoned Mr. Coles, who said he had intended to speak to the grievor that afternoon about the key. - 29 - Mr. Coles testified that, upon receiving the telephone call from Ms. Jenkins, he called the grievor back into his office and asked him whether he had a key to the "F" Building. The grievor denied having such a key. Shortly after this conversation, at about noon, according to Mr. Coles, the grievor returned to say that he was not feeling well and was booking off sick. Ms. Holt testified that, early in the afternoon of December 5, the grievor came to see her at the Barrie campus. She was in an entranceway of "A" Building at the time. He showed her a crumpled up piece of paper and told her this was the note he had mentioned on the telephone that morning. It was lined paper, said Ms. Holt, and it bore the words the grievor had read to her that morning. This was a short conversation, according to Ms. Holt. (It was at a later encounter, at about 2:00 p.m., according to Ms. Holt, that she asked him to give her the key so that she could hand it in for him.) In interviews preceding the discharge, the grievor denied having taken or seen the note. Mr. Coles testified that he was convinced the grievor was lying about this. At one point, the grievor stated that he may have picked up a piece of paper lying on the floor of Mr. Coles' office. - 30 - Mr. Coles testified that his office was open to several people, including the grievor, or. her caretakers and contract cleaners. These people also had access to his desk. When he was looking for the note on December 5, he asked various people if they had seen it. One of Mr. Coles' employees, Dave Armishaw, told him he had seen it in the desk on a previous day while looking for something else. The grievor, in his testimony, denied having taken or seen Mr. Coles' note. He testified that, on December 4, he answered the telephone in the Physical Resources office in Orillia, some- thing he often does. The woman telephoning called him by his name. Her voice was familiar to him; he believed it was Carol Wheeler, a secretary in Physical Resources in Barrie. The caller asked the grievor to leave a note for Mr. Coles to contact Mr. Fairbrother, the Director of Physical Resources. She added that Irene, a cleaner at Barrie, had suggested to someone that the grievor had a key to the "F" Building, and she asked the grievor if this was true. The grievor denied it was true. He testified that, after this telephone call, he made a note to remind himself of this call. He could not remember exactly what he wrote on the note, but he believed he wrote the words: "key for "F" Building, Irene, cleaner". He also wrote his own name at the'top of the note so that he would know it was a note for himself and not for someone else. He wrote the word "cleaner" since he knew more than one person named Irene. - 31 - The grievor testified that he then telephoned Mr. Scanlan and asked him to get hold of Ms. Holt. It occurred to the grievor that Ms. Holt might be spreading rumours about him and he wanted to talk to her. Mr. Scanlan passed the telephone to Ms. Holt, who happened to be working close by. This was at about 10:00 or 10:30 a.m. on December 4. (When it was pointed out to the grievor in cross-examination that Ms. Holt only started work at 11:00 a.m., he said that maybe the telephone call was at 11:00.) The grievor asked Ms. Holt if she had lost a key; he thought that maybe Ms. Holt had lost a key and was in a quandary as to what to do. She replied that she believed he had an unauthorized key and that he should turn it in. The grievor denied having a key. The whole conversation lasted a couple of minutes. The grievor testified that, later that day (December 4), he had to go to the Barrie campus for a union meeting. He was close to where Ms. Holt was working. He confronted her. They went to speak in a room reserved for the janitors. He asked her why she was telling tales about an unauthorized key. She denied doing this. She told him she was a friend who just wanted to make sure he did not get into any trouble. He told her that someone had telephoned Mr. Coles' office with a message that she had reported him for having an unauthorized key to the "F" Building. As he told her this, he held in his hand, and showed to her, the note that he had made earlier that day. - 32 - Later, when he was questioned by Mr. Coles about the missing note from his desk, he did not volunteer that he had made a similarly worded note for himself on December 4. He testified that he was reluctant to volunteer any information to management since he knew they would try to use it against him. Prior to testifying, he had not mentioned to anyone in management that he had made a note for himself on December 4. Ms. Carol Wheeler-, secretary to the Director of Physical Resources at Barrie, testified at the request of the College. She denied that she called the Orillia office in early December or spoke to the grievor about his alleged possession of an "F" Building key. She testified that she had no reason to make any such call. She and Ms. Cathy Torella, a clerk/typist, were the only full-time office staff in the Physical Resources office in Barrie at the time. She could not remember whether any part-time staff worked there in December 1991. She stated that she always identi- fies herself by name when she places a telephone call. The grievor telephoned her at home in the fall of 1992 (after this hearing had started, but a few days before the grievor gave his evidence) and asked her if she had made the call to him in December 1991. She told him she had not done so. However, she had ended that conversa- tion with the grievor by telling him that if she remembered anything, she would let him know. - 33 - In addition to the evidence summarized above, the board of arbitration heard a substantial amount df evidence going to the question whether the grievor's visit to the Barrie campus to speak to Ms. Holt was on December 4 (as the grievor alleged) or on December 5 (as the witnesses called by the College testified). The relevance of this conflict in the evidence is two-fold. Firstly, if he saw Ms. Holt and showed her a note on December 4, it was likely not Mr. Coles' missing note, since Mr. Coles testified that he found the note in the drawer of his desk on December 4 and realized it was missing only after his meeting with the grievor on the morning of December 5. Secondly, (as will become apparent later in this decision) the grievor's exact whereabouts on the afternoon of December 5 are relevant to the final alleged misdeed relating to sick leave. Among the witnesses who testified on this question were (a) Ms. Torella, who testified that the grievor visited the Barrie Physical Resources office between 1:30 and 1:45 p.m., and again at about 2:15 p.m. on December 5; (b) Ms. Murphy, who testified that she saw the grievor by her office at about 2:15 p.m. on December 5; among other things, she was able to pinpoint the date since she had bought a snowblower for the College at lunch- time on December 5, and remembered the grievor waiting for her upon her return from making that purchase; (c) Mr. Scanlan, who testi- fied that the call from the grievor for Ms. Holt must have been on December 4; he knew this by reference to the work he had been doing on December 4 and 5 and to various other matters; and (d) Mr. - 34 - Michael Murphy, husband of Ms. Susan Murphy, who testified that the purchase of the snowblower must have been on December 5; on the day the snowblower was delivered, he remembered giving an employee a ride in a car he ~ad borrowed that day while his own car was being repaired, and he had an invoice for the car repair showing December ~5 as the date it had been left for repair. In the view we take of the case, it is not necessary for us to examine this evidence in detail or make any findings am to whether December 4 or December 5 was the day the grievor visited Ms. Holt and showed her a note. (ii) Decision Most of the submissions we heard on this aspect of the case related to the credibility of the witnesses. Much was said about the credibility of Ms. Holt. In particular, Ms. Holt was interviewed by Mr. Hannon in early December 1991 and again in April 1992, and he made notes of her account of the events. Ms. Holt reviewed those notes before testifying. She stated that she had little independent recollection of the events of December 1991 and was relying to a large extent on Mr. Hannon's notes. The notes in fact were edited by Mr. Hannon and went through various drafts. Ail of this led Mr. Flood to question the value of Ms. Holt's testimo- ny. Mr. Flood argued that the case against the grievor was circum- stantial and that the evidence did not prove wrongdoing by the grievor to the requisite degree of probability. - 35 - It is not necessary for us to review all the conflicts in the evidence and make detailed findings of fact in order to dispose of this aspect of the case. The grievor has admitted showing a note to Ms. Holt, which probably contained the words "key for "F" Building, Irene, cleaner", as well as his own name. His testimony concerning this note is so bizarre as to be quite incredible. For several reasons, we cannot accept.as plausible the account he gave. Firstly, the grievor testified that he took a telephone call for Mr. Coles on December 4, and the caller informed him that Ms. Holt was alleging that he had an unauthorized key to "F" Building. It seems obvious to us that it would have taken an unusually disloyal, incompetent or negligent clerk or secretary to have informed the grievor that he was suspected of this wrongdoing and to have named for him the person who was at the source of this allegation. It is not, of course, impossible for a call have been made by such a person, but this, in itself, stretches the imagina- tion. Secondly, the grievor testified that he made a note of that conversation which, by coincidence, was worded identically, or almost identically, to Mr. Coles' note. One is forced to wonder why the grievor would have felt it necessary to write a note on - 36 - this matter, or to write his own name on the note. His explanation is a bit hard to swallow. But it is almost impossible to believe that, if he did write a note, it would have been so similar to Mr. Coles'. Thirdly, if the grievor did write a note as a result of his telephone conversation, why would he have felt it to be important or relevant to show the note to Ms. Holt? The only reasonable inference we can draw from the admitted fact that the grievor displayed the note to Ms. Holt is that the note in itself was viewed by the grievor as being of some significance. This would scarcely have been the case if it were simply a note he had made himself of a telephone conversation. Finally, if it was indeed his own note that he showed to Ms. Holt, why did he not inform management of this before he was discharged? He was given the opportunity in several interviews with Mr. Coles to explain his position on the misdeeds of which he stood accused. The only explanation he gave management, when asked if he had taken or seen Mr. Coles' note, was that he may have picked up a piece of paper from the floor. If indeed the grievor showed Ms. Holt a note he had written himself, surely he would have told that to management, whatever his suspicions or mistrust of management may have been? - 37 - (One matter arising from the grievor's account of the note leaves us somewhat puzzled. Unless the grievor believed his own account of how the note came into existence, why would he have attempted to discover, in the fall of 1992, who had made the telephone call to the Orillia office of Physical Resources on December 4? As noted above, the grievor telephoned Ms. Wheeler, just before he was due to give evidence at the arbitration, to ask her if she remembered making that call. Two possible explanations could be given for this. Firstly, the grievor may have believed or led himself to believe his own account. Secondly, the grievor may have cunningly tried in this way to give substance and credibility' to what he knew was a false story.) For the above reasons, we cannot accept the grievor's evidence concerning the note he showed to Ms. Holt. We are left with no possible explanation other than that the note he showed Ms. Holt was Mr. Coles' note. We noted earlier that Ms. Holt's credibility and particu- larly her recall of the events, although not her motivation or honesty, were attacked by counsel for the union. In the final analysis, little turns on the precision of the evidence she gave, since it is admitted by the grievor that he showed her a note on the afternoon in question and that the note was identical or almost identical to Mr. Coles'. Having rejected the grievor's implausible - 38 - account of how the note came into existence, we are forced to conclude that the note he displayed to her was Mr. Coles', whatever view is taken of the accuracy of Ms. Holt's testimony. We therefore find that there were grounds for discipline on the question of the grievor's unauthorized possession of Mr. Coles' note. We do not know how he came into possession of it. However, he is not accused, in the letter of discharge, of having stolen it. The accusation is that he had possession of the note and lied to Mr. Coles about it. It is admitted by the union that this allegation, if proved, would warrant the imposition of discipline. This offence, in our view, is one of dishonesty. Major discipline would be called for even if this were a first offence. (C) Sick leave abuse (i) Facts Mr. Coles testified that, at about 12:00 noon on December 5, the grievor told him he was booking off sick for the rest of the day since he was not feeling well. The grievor did not say what was wrong with him, and Mr. Coles did not ask. That afternoon, the grievor should have been shovelling snow from the sidewalks at the Orillia campus and spreading sand. There were various other tasks the grievor could have usefully performed that afternoon which - 39 - would not have required much physical effort, including verifying the accuracy of clocks and dusting shelves in the storage room. Most of the grievor's tasks, according to Mr. Coles, were physical ones, although the grievor never put a lot of physical effort into his work. As mentioned earlier, it is the College's position that, after booking off sick, the grievor went to the Barrie campus, visited Ms. Holt, went to the Physical Resources office there, and attended to union business. The grievor's precise whereabouts on the afternoon of December 5 were the subject of testimony from no less than eight witnesses in all. As will become apparent later in this decision, we do not consider it necessary to make findings of fact concerning his activities that afternoon. The grievor testified that December 5 was a cold and snowy day. (A climatological station report, prepared by Environ- ment Canada, was filed with us by the union; it indicates that 17.2 centimetres of snow fell that day, that the maximum temperature was -6 degrees and that the minimum temperature was -14 degrees.) He had "a touch of the flu". He felt "achy". He shovelled some snow and attended to some other duties. More snow appeared likely to fall. He did not feel up to doing any more snow shovelling or any type of physical work. At the time he received the letter of suspension, he asked Mr. Coles for the afternoon off. This, - 40 - according to the grievor, was at about 10:00 a.m. He continued working until 11:00 a.m., when he took his lunch break. Shortly before noon, after he had had his lunch, he saw Mr. Coles in his office and told him he was now going off for the day. The grievor testified that he left the campus at about noon. He drove home, left his car and took his wife's car. He drove to the union's office in Orillia, where he wrote out a grievance relating to the five-day suspension. He then drove to Barrie. He wanted to give the grievance personally to the president of the College in the hope that it could be resolved before Christmas. He was still not feeling well. He felt sore and had a headache. But he was able to drive. He arrived at the president's office in the "H" Building at Barrie at about 2:00 p.m., but the office was closed. He then went to the "A" Building to check on the union office there, since a move of the office to the Orillia campus was imminent. He returned shortly thereafter to the president's office and gave an envelope containing his grievance to a secretary. He sent a copy of the grievance, through the internal mail system, to Mr. Fairbrother. He then left to return to Orillia. On his way out of the Barrie campus, he saw Ms. Holt. They had just a very brief conversation. He testified that he had no time for Ms. Holt any more since she was spreading lies about him. Upon his return to Orillia, he stopped at the union's office there to make an appoint- ment to see the union's staff representative. At some time after - 41 - 5:00 p.m., he was at a store in 0rillia to buy some cold medica- tion, and decided to visit the Orillia campus. He had two reasons for doing this, he testified. Firstly, he wanted to see his pay- cheque in order to find out whether his five-day suspension had yet been reflected in his pay. And, secondly, he wanted to leave for Mr. Coles his copy of the grievance. (He conceded that, since he was not feeling well, he may not have been thinking too clearly in deciding to go to the Orillia campus that evening.) Me then went home. He felt "like death warmed over" by the time he reached home. The grievor was cross-examined at some length about what he was thinking and what he told Mr. Coles when he asked for the afternoon off. He stated that, at 10:00 a.m., when he asked for the afternoon off, he felt he could handle some light tasks for a while and he did not want to inconvenience Mr. Coles. So he decided to continue working until 11:00. He had some lunch with him, so he decided to stay and eat it at the campus, rather than go home for lunch. He did not disagree with Mr. Coles' evidence to the effect that there were some lighter tasks he could have performed in the afternoon as well. He simply told Mr. Coles that he needed to go home since he was not feeling well. Mr. Coles did not ask him if he could handle light work, and the grievor did not volunteer this information. When pressed, in cross-examination, as to why he did not go home at 11:00, the grievor stated that he wanted to sit down, have a coffee, eat his lunch and tell his steward of what had - 42 - happened as regards his suspension. (There is no evidence that he did, in fact, speak to a steward that day.) Prior to his discharge, the grievor told Mr. Coles that he had been to the Barrie campus on the afternoon of December 5, and added that it was no business of the College's what he did with his time when he was off sick. Finally, it should be noted that the College's practice has been to grant sick leave for periods of a day or less without requiring any medical certification. (ii) Submissions In addition to putting forward different versions of what the grievor actually did on the afternoon of December 5, 1991, counsel offered'different characterizations of his conduct and gave different analyses of the applicable case-law. According to Mr. Jarvis, an employee who is granted sick leave has an obligation to convalesce while off work. It was also an abuse of trust to make a false application for sick leave. Counsel referred to Re Sudbury General Hospital of Immaculate Heart of Mary and Canadian Union of Public Employees, Local 1023 (1991), 18 L.A.C. (4th) 346 (Musgrave); Re Canada Post Corp. and Associa- - 43 - tion of Postal Officials of Canada (Gilbert) (1990), 12 L.A.C. (4th) 210~ (Brown); and Re Kenroc Tools Corp. and United Steel- workers (1990), 17 L.A.C. (4th) 416 (M.G. Picher). Mr. Flood argued that the grievor's activities on the afternoon of December 5 were consistent with the information he gave to Mr. Coles that morning on his state of health. He believed he was too ill to perform his work. There was nothing fraudulent in his conduct. The cases relied on by the College all involved a deliberate attempt to mislead the employer and thereby obtain permission to be absent from the workplace for a significant period of time. The grievor's views on the use he was entitled to make of a period of paid sick leave may have resulted from a misunderstand- ing by him of the sick leave plan, but there was no fraud on his part. He simply did not understand that, while off work sick, he had an obligation to go home or visit the doctor. This is not a case of abuse of sick leave; Mr. Coles did not question whether the grievor was in fact unwell or ask for a medical certificate or any other type of confirmation of the grievor's state of health. Counsel referred to Re City of Dartmouth and Nova Scotia Union of Public Employees (1980), 27 L.A.C. (2d) 97 (Cotter); and Re Metropolitan General Hospital and Canadian Union of Public Employ- ees, Local 1124 (1990), 16 L.A.C. (4th) 193 (Hunter). - 44 - (iii) Decision In our view, the grievor's conduct, on any view of the facts, warranted major discipline. If, as the College has suggested, the grievor was not in fact sick on December 5, he is guilty of making a false application for sick leave. This has uniformly been regarded in the case-law as the basis for discharge or, if special circumstances exist, for a lengthy suspension without pay. We make no finding as to whether he was in fact unwell on December 5, although we have serious suspicions. It seems just too convenient that, on an afternoon when the grievor had so much personal business to attend to, he should happen to have been too ill to work, but not too ill to attend to personal matters. If, however, as the grievor contends, he was unwell that day, his offence is a different one, but still serious. This is so even if one accepts in its entirety the grievor's version of the events of the day. The gravamen of his offence, in this scenario, would lie in his failure to be frank with Mr. Coles when he asked him for the afternoon off. If the grievor engaged that afternoon in all of the activities to which he admitted, it is obvious that he was well enough to perform some of his duties, although not perhaps his full range of duties. The various personal matters he - 45 - says he attended to were not particularly urgent and could certain- ly have waited for the next day, if, as he maintains, he was too sick to work. Although not physical in nature, the activities he admitted to engaging in that afternoon involved a lot of driving and a lot of walking. It is not disputed that there was some Work he could have usefully performed which would have involved no greater physical exertion. Yet he led Mr. Coles to believe that he was not able to handle any work that afternoon. The grievor testified that, at the time he asked for leave, he did not volun- teer that he could handle light work and that Mr. Coles did not ask him about this. It is obvious to us that the onus was on the grievor to inform Mr. Coles that he could do some work. His lack of frankness in this regard warranted a major disciplinary penalty. PENALTY We have already stated our conclusion that the College was justified in suspending the grievor for five days for lateness. We must now consider whether discharge was a reasonable measure for the College to impose. The College, it will be recalled, took this action in response to three alleged misdeeds, but we have not been persuaded that there was any wrongdoing by the grievor in relation to the alleged unauthorized possession of a College key. - 46 - We have also already stated our conclusion that major discipline was warranted for his unauthorized possession of Mr. Coles' note, as well as for the matter of the sick leave. In addition to the facts set out above, certain other matters revealed in the evidence are of some possible relevance to the question of penalty. Firstly, the grievor has the equivalent of a Grade 12 education. He has no trade qualifications. His wife has been unable to work for the past 25 years owing to health problems. He is the father of an adult daughter, who has been immobilized, owing to health problems, for the past two years. He has been the sole breadwinner for himself, his wife and his daughter. Since his discharge in December 1991, the grievor has found no other work, except driving a school bus part-time and delivering pizzas part- time. He has been in receipt of Unemployment Insurance benefits and welfare benefits. He has had to sell some of his household furni- ture to make ends meet. Secondly, Mr. Coles testified that the grievor's work at the College was largely unsupervised, particularly before 8:30 each morning. - 47 - Thirdly, the grievor was asked, during cross-examination, whether he felt the College could ever trust him if he were to be reinstated. He replied that it was not necessary for the College to have trust in a caretaker. The College could keep him under close surveillance if he were reinstated. The absence of trust in an employment relationship, he stated, was "a problem for the person lacking trust, not a problem for the person in whom trust has been lost". Finally, Mr. Coles concluded the letter of suspension given to the grievor on December 5 by writing the following: My intention is to impress upon you, Lawrence, that your work obligations to the College must be honoured. If you should engage in any further misconduct I will be forced to conclude that you cannot or will not honour those obligations and discharge will be the likely penalty. (i) Submissions Mr. Jarvis argued that, in light of the grievor's record, there is no possible alternative to discharge. The offences he committed involved dishonesty and a breach of trust. The College has lost all confidence in the grievor. Each of the grievor's offences, taken separately, would support the discharge. He has categorically denied all wrongdoing. Although the grievor had long service with the College, it was not good service. As recently as - 48 - December 5, 1991, he was warned that discharge would be the likely consequence of any further misconduct. The College had imposed discipline progressively on the grievor. It was recognized in the case-law that if an employee is found to have lied in his testimo- ny, there was no basis for reducing the penalty of discharge. In the course of his submissions, Mr. ~arvis referred to the following awards: Re Livingston Industries Ltd. and International Woodworkers of America (1982), 6 L.A.C. (3d) 4 (Adams); Re Famshawe ColleRe and Ontario Public Service Employees Union (unreported award of arbitrator Brunner, dated August 10, 1983); Re National Grocers Co. Ltd. and Retail, Wholesale & Department Store Union, Local 414 (1975), 10 L.A.C. (2d) 124 (O'Shea); Re Dominion Stores Ltd. and Retail, Wholesale and Department Store Union, Local 414 (1982), 6 L.A.C. (3d) 193 (Kates); and Re Canadian Airlines International Ltd. and International Association of Machinists & Aerospace Workers, District Lodge 721 (1992) 24 L.A.C. (4th) 389 (Keras). Mr. Flood argued that the board of arbitration should exercise its authority to reduce the penalty of discharge. He referred to Re United Steelworkers of America, Local 3257, and The Steel Equipment Co. Ltd. (1964), 14 L.A.C. 356 (Reville), for a list of factors to be considered in determining whether a discharge should be reduced. Counsel argued, in particular, that we should have regard to the absence of any previous offences of dishonesty by the grievor, his 17 years of service with the College, the - 49 - special economic hardship for the grievor in light of his family situation, the absence of premeditation, and the relatively unimportant nature of the offences for the College. Counsel also argued that the grievor had been responsive to the questions put to him by management during its investigations. In light of these factors, the grievor should be reinstated, possibly with a suspen- sion and upon terms. The College's trust in the grievor had not been irremediably destroyed. (ii) Decision The grievor's prior disciplinary record was set out earlier in this award. 'It speaks for ~tself. It is a testament to the patience of the College that the grievor's service with the College was so lengthy. Although arbitrator Brown stated, in 1976, that he was giving the grievor "one last chance", the College has since given him countless other chances. Nothing'has corrected the poor attitude to his employment that appears to underlie the disciplinary measures taken against him over the years. We have also noted that, in our view, major discipline was warranted for the grievor's possession of Mr. Coles' note and for abuse of sick leave. Both of these offences justified serious doubts by management about his honesty and trustworthiness. Our conclusion that he was not in unauthorized possession of a College - 50 - key does not, in our view, undermine the College's decision to discharge him. We disagcee with Mr. Flood's suggestion in argument that the question of the key was the most serious charge against the grievor. If that had been the case, Mr. Coles would scarcely have delayed acting upon the report he received from Ms. Jenkins and would scarcely have forgotten about the matter until happening to find his note in his desk. In addition to the serious nature of his offences and the prior record, there are various aggravating factors, in our view. Foremost among them is that his final misdeed, relating to the sick leave, occurred within hours of his receiving a letter of suspen- sion warning him that discharge would be the likely consequence of any further misconduct. It is difficult to imagine more eloquent testimony to the dismal prospects for the grievor's rehabilitation if he were to be reinstated. It is impossible not to sympathize with the grievor over the dire ecomomic straits in which he finds himself. He has been the sole breadwinner for his family, two of whose members are disabled and unable to work. His prospects for finding other employment appear bleak. However, we cannot conclude that this factor, in itself, is a proper basis for a commutation of the penalty of discharge. The College has, in our view, demonstrated considerable restraint and patience in persevering with the grievor - 51 - in the face of his poor disciplinary record and his mediocre work performance. This may have been, in part at least, because of its sympathy for his family situation. It is not appropriate for this board of arbitration to order the College to show even further forbearance. We have therefore concluded that these grievances must be dismissed. DATED at Thornhill, Ontario thisl~ ~ , day of March 1993. ~±chael Bendei, Chair II ?eter Klym~ Union Nominee I concur/~-R~esem~ ' · ~ George H. Metc College Nominee Re: Georgian College of Applied Arts and Technology and OPSEU - Lawrence Frankland Grievances PARTIAL DISSENT OF UNION NOMINEE I find that, while I do not find fault with most of the conclusions reached by the majority in the analysis of the evidence, I must dissent from their decision not to modify the penalty of discharge. In my opinion, the alleged offences may have warranted a lengthy suspension, but they fell short of warranting dismissal. My opinion is.buttressed by the testimony before us by Mr. Hannah, the person who was the decision-maker in this case. Mr. Hannan stated that "if the grievor had admitted his misdeeds, the penalty would likely not have been discharge". I interpret Mr. Hannan's testimony to mean that in his eyes, the alleged offenses themselves did not warrant discharge but his failure to admit to them elevated the discipline to be imposed to discharge. In the majority decision,we have found that the grievor was not guilty of possessing an unauthorized key. It would be difficult for him to admit to an offence of which he was not guilty. Regarding the charge of going to Barrie and doing Union business while he was sick, the grievor admitted to these actions. Perhaps, he. could have been a bit more contrite when advised by management that he was expected to go home and not do personal or Union business when he books off sick. However, the evidence before us was that the grievor was feeling sick, and management does not dispute the fact that he was not well that day. The grievor's actions during this sick time may have been unwise and contrary to the employer's policies. However, although some discipline may be warranted for the this action, I do not agree with the conclusion of the majority that it warrants' major discipline. The unauthorized possession of Mr. Cole's note is the only culpable'act not admitted by the grievor. Mr. Hannan's testimony implies that the act of possessing the note in itself would not have resulted in discharge if the grievor had admitted it. That is, the misdemeanour itself does not warrant discharge. Based on the evidence of the decision-maker, Mr. Hannan, that the misdeeds on their own face coupled with the previous record would not have warranted discharge and, considering the compassionate situation of the grievor regarding his family condition and employment prospects, I would have opted to modify the penalty to a significant suspension. Before leaving this case, I would comment on my being troubled with the manner in which the previous record was used in this case. The grievor was reinstated by arbitrator Brown in 1976. This was followed by eight years of a discipline free record to July 1984. Surely, the passage of 15 years since an arbitration award followed by 8 years of a clean record, should be enough to negate any weight to be given to this event, even in the absence of a formal sunset clause in the Collective Agreement. The manner in which the evidence of the whole past record was presented is troubling also. An entire arbitration award setting out the charges in detail ahd the arbitrator's interpretation of the evidence, including obiter comments, is prejudicial to a grievor. It tends to give a bad colouring to the grievor without his having any chance to modify this impression by being given an opportunity to give any explanation or rebuttal. I realize that arbitration jurisprudence in this area may not be settled. However, I greatly prefer the positions stated by arbitrator Brown in the Sunnybrook Hospital Case and b¥'~arbitrator Shime in the Canada Post Corporation case, rather than the position taken in the other cases cited. I believe the pos'itions of arbitrators Brown and Shime provide much better guarantees that injustices will not result from a subsequent arbitration bOard getting improper impressions from the reporting of evidence or statements in the body of an award which are not open to any rebuttal now. pfr '~K'lym~~"ee