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HomeMy WebLinkAbout1988-0814.McMaster.90-08-07 ONTARIO EMPLOYES DE t..A COURONNE CROWN EMPLOYEES DE L 'ONTARIO GRIEVANCE C,OMMISSlON DE SET[LEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, TORONTO. QNTAR~,O, MSG i~Z8 - SUITE 2"~DD TELEPHONE/T~:L~'PHONE 180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) MSG 1Z8- BUREAU 2100 (416) 598-0688 814/88 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (McMaster) Grievo~ - and - The Crown in Right of Ontario (Ministry of Helath) Employer Before: M.W. Wright - Vice-Chairperson F.D. Collom - Member C.E. Linton - Member APPgARING FOR M. Bevan THE GRIEVOR: Grievance Officer ontario Public Service Employees Union APPEARING FOR K. Raymond THE EMPLOYER: Legal Counsel Ministry of Health HEARING: January 11,.1989 April 3, 1989 April 4, 1989 The Grievor grieves against a three day suspension without pay. imposed upon her by the Ministry of Health. The Grievor has been employed as a secretary for approximately two years in the Financial and Administration Branch, Recovery and Collections, of O.H.I.P. in Kingston. Part of the Grievor's responsibilities was to prepare and maintain the attendance records for the seven persons employed in the office. The Grievor filled out a form on a day-to-day basis which covered two.week periods which reflected the attendance or otherwise of the employees. The Grievor used a code the most relevant of which, for our purposes, are X for "present" and V for "absence on vacation". The form is completed in triplicate. The prescribed procedure ~was for the first two copies to be sent to the Central Accounting Office in Toronto; the Grievor retained the third copy, keeping it~in a looseleaf binder. When the second copy, addressed by the Central Accounting Office to the Grievor, was received back in Kingston bearing the stamp of the Central Accounting Office, the second copy was inserted into the looseleaf binder and the third copy was discarded. The Grievor's problem arose when one of the employees questioned the accuracy of her pay cheque which showed deductions from her pay for several days' leave of absence. The employee in question complained to Mira Fawcett who was then Acting Manager for Mr. Fred Johnson. The employee asked to see her attendance records to see how her leave of absence was recorded. Since the Gri.evor was on vacation at that time Mira Fawcett asked Pat Bishop, a temporary secretary, to 'check the attendance records. It was in the course of looking for that information that serious discrepan- cies were discovered. Pat Bishop, quite accidentally, came across the~second anti'third copies of the attendance records for the two week period ending June 26, 1988. For some reason, the third copy had not been discarded. The third copy showed a V for June 24th opposite the Grievor'~s name, meaning that she had been on vacation that day, but the second copy showed an X for June 24th meaning that the Grievor had been present that day. Payments of salary are made on ~the basis of the first and second copies. The foregoing discovery led to further searches and attention was also focussed on the attendance.record' for~' the period ending May l, 1988. The Branch (second) copy appeared to have been altered for April 18th, April 20th and April 27th and comparison with the first copy in Central Accounting records indicated that the Branch copy had been changed after it had been processed by Central Accounting. It was discovered that the second copy showed Vs on these dates opposite the Grievor's name but ~the first copy showed Xs under each'of those three days. The employer says that since the records were under the sole control of the Grievor she obviously falsified the records for her own advantage in that she was paid for June'24th and for April lSth., 20th and 27th when in fact she had been on vacation on those days. The employer contended that ~y following this practice the £ - 3 Grievor received payment of salary for four days which she had not worked and, at the same time, she accumulated vacation days improperly. We shall not attempt to summarize the evidence in any detail. It became very obvious that there was bad blood between the Grievor and Mira Fawcett. Mira Fawcett accuses the Grievor of falsifi- cation. The Grievor, on the other hand, while not accusing Mira Fawcett of having falsified the attendance records, says that she had a motive as welt as the opportunity for doing so. Mira Fawcett and the Grievor accused each other'of spiteful personal behaviour towards each other which we consider unnecessary lto describe here. We were surprised, however, to find that the personnel in the office seemed to be almost equally divided in their support for the two protagonists, namely the Grievor and Mira Fawcett.' The evidence against the Grievor is not direct; it is circumstantial only. We~must decide this case on the basis of the balance of probabilities. Obviously, credibility' becomes an important factor. The onus of proof is on the Ministry.. The Ministry's case is uncomplicated. The attendance records were prepared and maintained by the Grievor~ , The Grievor, it was argued, benefitted personally by falsification since she was paid for time when she was on vacation without disclosing that her bank of vacation days should be depleted. The c. ir.cumstances surrounding June 24th are exceptionally damaging to the Grievor. At first the Grievor denied that she wa~ on .vacation on June 24th. Mira Fawcett, however, who had been Acting Manager at that time produced .a diary which she kept itemizing various matters pertaining to the day-to-day running of the office and it contains the followin§ entry under June 24th -- "Laurie - Vacation", meaning that the .Grievor was on vacation that day. The Grievor then recalled that she had 'taken lieu time off for overtime worked by her and given to her by Fred Johnson, the Manager. But Fbed Johnson denied-that he had given lieu time off to the Grievor on June 24th. In fact, he produced a summary of all lieu time requested by the Grievor and the dates on which the lieu time was taken. This'sun~ary was compiled after the difficulties arose and was prepared, by the Grievor herself and si§n~d by her. June 24th is not shown as a day for which lieu time was requested or on which i.t was taken. What makes the Grievor's position even less believable is the fact that June 24th was the day on which the Grievor's family moved. The Grievor says that she forgot about that fact and was only reminded about it later by her 'husband. We find this version of the facts difficult to accept. The trauma and p~ysical difficulties involved 'in moving are not normally that quickly forgotten. After seeing the various witnesses, including the Grievor, we have come to the conclusion that we prefer the evidence presented by the Ministry to that of the Grievor. We find that on June 24th the Grievor was absent on vacation, that the vacation is reflected by the V entered on the third copy oppos.ite her name but the first and second copies were so chan§ed~by the Grievor so as to show that the Grievor was present on June 24th. tt is easy to see how a V can be changed to an X. If the V is wrii~ten in high ehough in a square (which was the case 'here) then the sides of the V can be extended so as to become an X. We have not, however, arrived at the same conclusion as regards April 18th, 20th and 27th. .We are not convi.nced either that the Gr~evor was absent or present on those days. In other words, the Ministry has 'not discharged its burden of proof where those three days are concerned. For the above reasons we have come to the conclusion that the Grievance fails as regards the June 24th situation described above. We are not constrained, however, to reduce the penalty of a three day suspension without pay. The Grie~or held a position of' trust which was violated by her as regards June 24th. That is not a matter to be taken lightly and we see no reason for reducing the disciplinary action of a three day suspension whichlwas imposed.by the employer. In view of the fact, however, that the employer has not discharged the onus of proof concerning April 18th, 20th and 27th, we direct that the vacation days which the employer had taken away from the Grievor be returned to her and made available to her for'vacation purposes. We shall remain seized of this matter in the event any difficulties arise in the implementation of this Award. DATED AT OTTAWA this 7th day of August 1990. MAURICE W. WRIGHT, 'Vice-Chairperson F.9. C611om, [lember C.g. Liuton, Hember