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HomeMy WebLinkAbout1989-1178.McCarton.90-03-21 · '' ~ ~' · ONTARIO EMPLOYES DE LA COURONNE '. ' ' .; ;' · CROWNEMPLOYEES DEL'ONTARIO ...... GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST. TORONTO, ONTARIO. MSG IZ8- SUITE2100 TELEPHONE/Tf2L~:PHONE 180, RUE DUNDAS Or, JEST, TORONTO, (ONTARIO) MSG tZ8 . ~)URF..AU 2100 (476) 598-0~88 1178/89 IN THE MATTER OF ANAEBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOJ~RD BETWEEN: OPSEU (McCarton) Grievor - and - The Crown in Right of Ontario (Ministry of Government Services) Employer BEFORE: S.L. Stewar~ Vice-Chairperson M. Vorster Member D. Walkinshaw Member FOR THE J. Paul GRiEVOR: Grievance Officer Ontario Public Service EmplOyees Union FOR THE M. MacKillop EHPLOYER: , Counsel Borden & Elliot Barristers & Solicitors A. Lambert Human Resources Consultant Ministry of Government Services BEARING: February 6, 1990 DECISION The grievance of Mr. E. McCarton arises from a five'day suspension imposed by~le~:er dated July 28, 1989. The relevant portion of the letter.provides as follows~ As you have already acknowledged, you have abused your position as an employee with the Ontario Provincial Government. On Saturday, :he 6th o£ May, 1989 you purchased gasoline for your personal vehicle using your assigned government credit card. Theft of this nature is an extremely serious contravention of government ~o!icy. Accordingly, you are hereby suspended without pay, from employment for a period of five working days. The suspension will be served from August 1, 1989 to August 8, 1989. Please be advised that any further action of similar nature will lead to more serious disciplinary ac:ion up to and including dismissal. The par%les filed the following agreed statement of facts with :he Board: 1. The grievor - Ed McCar%o~ - OPSEU local 257 The employer - The Ministry of Government Services 2. The grievor is a Maintenance Handyperson and is classified as a Maintenance Mechanic 2. 3. The grievor is responsible for a variety of general maintenance tasks throughout the district and without limiting the'generality of the foregoing, is responsible for inspecting Ministry.of Government Services Vehicles to ensure tires, bel~s, coolant, fuel leve~ etc. are in proper condition or are a~ appropriate levels. The grievor has been assigne~ a gas credit card to be used for fuelling MGS vehicles. 4. On or about May 5, 1989 the grievor used %he government credit card to purchase gas for his own vehicle in the amoun~ of $10.00. 5. The grievor did not mention use of the governmen~ credit card for his personal use until he was approached by his supervisor Don Floto more than month and a half later, following the discovery by an MGS accountant that a credit card receipt indicated the grievor's personal licence plate number. 6. The grievor repaid the $10.00 following the meeting with Don Floto. 7. The grievor has seniority da~ing from 1979 and has no disciplinary record. 8. On or about July 28, 1989 the grievor received a 5 day suspension without pay, effective August 1, 1989 - August 8, 1989. 9. The grievor filed a grievance on July 31, 1989. 10. The documents attached are being entered as exhibits~ A - Job Specifications B - Receipt C - Discipline Letter D - Grievance In addition to the agreed upon fac=s, the Board heard evidence from the grievor. As well as =he Huties referred =o above, the evidence established that Mr. McCarton has responsibility for approving contractors' bills and that in addition to the gas credit card, he has access %0 credit for the purchase of supplies and rental of vehicles for government business. Mr. MCC&rton works without constant supervision. Prior to this incident, in the four and one- half to five years in Which he has had access to credit for the purposes of carrying out his duties, Mr. McCarton stated %ha= he has never use4 government credit in the manner that he did on this occasion. He also testified that he has never been given any written guidelines dealing with the use of government credit. ~ Mr. McCarton lives and works in Gu. elph. His wife is an insulin dependent diabetic. Mr. McCarton testified that on June 5, 1989, a Monday, his wife realized that she had left her insulin at her mother's home in Hamilton, where they had been visiting on the weekend. It was of critical importance for his wife to have the insulin, and thus for Mr. McCarton to go to Hamilton to obtain it. Mr. McCarton stated that the gas tank in his car did not contain enough. gasoline .for a return trip to Hamilton. He was due to be paid on Thursday and had absolutely no money to purchase gasoline. His evidence in this regard was unchallenged. As well, Mr. McCarton stated =hat he has no personal credit cards. Mr. McCarton was not scheduled to work the day in question. He stated that he went to his office to see if an ex~pense cheque was ready for him and was advised that it was not. He then went to a gas station which he uses for ' his personal vehicle as well as his government vehicle and asked if he could be given $10.00 worth of gas on credit until Thursday, his pay day. There was a new manager at the station and Mr. McCarton was refused credit. He'stated that because of ~he urgency Of the situation he felt ~hat 4 he had no choice but to use the government credit card. He purchased the gas, which he stated was enough to las~ him un~il pay day, drove =o Hamilton, picked up ~he insulin and returned h~ne. The credit card slip recording =he transaction contains Mr. McCarton's signature and ~he'licence number of his personal vehicle. Purchases of gasoline and other purchases for government business are recorded in a log sheet which is submitted monthly and compared by the Ministry's accounts department wi~h the credit card slips which, as previously indicated, contain the signature of =he purchaser as well as the vehicle licence number. Mr. McCarton did not record Che transaction in his log sheet as a government expense. He explained that he anticipated that the transaction would be brought to his attention as a personal expense as he did nothing ~o hide the fact that i% was a personal expense. Mr. McCarton stated that when he was approached about the matter by his supervisor, Mr. Fioto, he was surprised ~o learn =hat such use o£ a credit card could lead to a ~us~ension or dismissal. He repai~ the $10.00 im~edia~ely and apologized for his actions. Mr. McCarton stated that he would never use the credit card in such a manner again, even in an emergency. He has established personal credit 5 at the gas station in the event %hat he is faced with a similar situation again. Mr. McCar=on also stated that 'the loss of five days pay was a substantial financial penalty for him. He explained %hat his wife was not employed outside of the home at that time and he was the sole provider for her and their two children on a wage of approximately $13.00 per hour, In cross-examination, Mr. McCarton stated that he did not reques~ an advance while he was at his office because -he did not want to disclose his lack of money ~nd his wife's medical condition. Mr. McCarton described Mr. Floto, his supervisor,, as a friend, whose door was always open. He s:ated that he did not approach Mr. Fio~o to ask him for' a loan because he would not have felt comfortable borrowing money from him. A co-worker, who he would have felt comfortable approaching for a loan, was out on the road at the time he visited the office. Mr. McCarton stated in his examina=ion~in-chief that he had never been given written guidelines with respect to the use of credit but acknowledged in cross-examination that the credit card itself indicates on its face tha~' i~ is to be used only for the purpos'es of government business. Mr. McCar~on freely acknowledged %ha= he knew that he was "making a mistake" when he used the card'card, and that it 6 was improper for him to use government credit for his own use. He emphasized that he used the credit card in this case because he felt that it was an emergency. I~ was suggested to Mr. McCarton that he indicated to Mr. Floto a= =he time he was approached =hat the amount was significant for him but not for the government. Mr. McCarton stated that if he did make this statement it was put to him out of context, as the point that he made was that it was a significant matter for him in the con=ex= of the emergency =hat he faced, while a matter of minimal significance from his employer's point of view as he intended to repay the money. In cross-examination, Mr. McCarton referred to his intention to repay the loan "immediately" but acknowledged that he did Just let the matter "go through the system" relying on his employer to note that i~ was not a government expense and bring the matter to his attention. Mr. McCarton stated that any mistakes in the accoun=s he had subs/=ted in the past had been brought to his attention shortly after his log was submitted and that, as this was clearly not a government expense, he assumed that :he same thing would happen on this Occasion. The representatives of the parties agreed that Mr. McCarton is in a position of trust in his position. They also agreed that Mr. McCarton's action properly attracted a disciplinary response on the part of the employer. The ? issue in dispute is what disciplinary penalty is appr opt iate. Mr. McKillop submitted .that in view of the serious nature of the offence, a'five day suspension is both fair an4 reasonable. Mr. McKillop referred to decisions of the Grievance Settlement Board and of arbitration boards where the view is expressed that theft or actions akin to theft are matters which appr0pr~ate~y attract severe disciplinary sanctions. The extent of Mr. McCarton's efforts to make arrangements to borrow the money was questioned, as was the fact that he did not immediately make arrangements to repay the money, but only did so when he was approached about the matter. Mr. McKiiXop stated that it was acknowledged by the employer that Mr. McCarton was a good employee with a clear disciplinary record, but that these mitigating factors were reflected in the discipline imposed. He characterized the grievor's actions as an extremely serious offence. Mr. PauX argued ~hat in view of the fact that this was a firs% offen=e and in consideration of all Of the surrounding circumstances the'penalty imposed on Mr. McCarton was excessive. It was emphasized that Mr~ McCarton did nothing to hide his ac=ions and that he · reasonably considered the situation he faced to be an emergency. As well, it was emphasized that this was a single isolated offence in the career of a long-term employee wi~h a clear aisciplinary record involving a nominal amount of money and recognition of the wrong-doing. It was noted that the loss of five days ~ay was par~icularly onerous for Mr. McCarton in view of~his financial circumstances. In Mr. Paul's s'~bmission, the recognized purposes for which discipline is imposed and the principle of progressive discipline would properly be reflected in the penal~y of a let=er of warning and, accordingly, he argued ~hat =his penalty should be substituted for the suspension. After a careful consideration of all of the evidence and =he submissions of the parties it is our conclusion that in all of the circumstances the penalty imposed was excessive. We agree with Mr. McKillop's submission that a breach of =rust is an extremely serious ~atter and that it must be clear =o all employees =ha~ any such ac=ions, whatever the degree, will not be tolerated. As well, we agree that in most instances, actions involving breach of =rust properly give rise ~0 severe disciplinary penal=les. However, the facts of each individual case must be considered in determining the appropriate penalty. The facts of ~his case distinguish it from the cases referred ~o us by Mr. McK£~£op An which severe disciplinary sanctions were imposed' and lead us to the conclusion tha~ the discipline imposed on Mr. McCartoa was excessive. While it is certainly possible for us, away from th'e pressure that Mr. McCarton faced at the time~ to speculate on alternatives to the use of the government credit card that he might have availed himself, his decision to use the card is understandable, although it was clearly not the correct decision. Mr. McCarton did refer to the fact that he had not received any writtea information regarding government policy with respect to personal use of government credit, however we do n6t agree wi~h Mr. McKillop that this was reflective of an indication that the grie¥or did not fully appreciate the significance of 'what he had done. Rather, our impression from Mr. McCarton's evidence was that he meant =hat he did not appreciate '=he fact that what he had done would be treated so seriously 'by the employer, resulting in disciplinary action up to and including discharge as explained to him by Mr. Ploto. Mr. McCarton clearly recognized that what he was doing was wrong at the time and this was frankly acknowledged by him in his evidence. The more significant aspect of Mr. McCarton's conduct is the fact that he did not imme~iately advise his employer about the matter. His failure to do so gives rise to the question of his in~ention with respect to repaying the money. Having listened to Mr. McCarton give evidence and after a careful assessment of that evidence, we are satisfied that he did not have any intention of defrauding his employer. He did not in any way .attempt %0 disguise the transaction as a government expense. He was uncontradicted in his evidence that discrepancies between his billings and his logs were brought to his attention in the past and we accept his evidence that he honestly believed tha~ this would be done in this case, as it ultimately was. Accordingly, we do not agree wi~h the conclusion expressed in the letter imposing the suspension that Mx. McCar=on was involved in theft. While we are satisfied that Mr. McCarton had no in~ention to defraud his employer of this money, he 4id not act in a manner consistent wi=h reasonable expectations for a person in a position of trust. His failure ~o provide an explanation and reimbursement immedia:ely is a significant matter. Notwithstanding the grievor's lengthy service and clear record, we do not accep~ Mr'. Paul's submission that a written warning is the appropriate penalty. While we subscribe to =he principle of progressive discip~ine, in our view, a written warning is not sufficient to reflect the seriousness of the offence. We agree with the employer %hat the imposition of a suspension is appropriate. 11 In considering this matter, we are mindful of Mr. McKillop's submission, with which we-agree, that the role of an arbitration board is not to "fine tune" disciplinary penalties. Considering that this is the grievor's first. offence in a long and unblemished career, considering the nature of the offence, and, in particular, our conclus'lon =hat there was no intent on the part of the grievor to defraud the employer, that he acknowledged his actions, he apologized and repaid ~he money and our confidence that Mr. McCarton will never engage in such act'ions again, we feel that a five day suspension is excessive. In our .view, a t~ ~ay suspension is, in accordance with the provisions of sec=ion 19(3) of the Crown Employees Collective Bargaining Act, a penalty that is "Just and reasonable in all the circumstances" · Accordingly, for chess reasons, the grievance is allowed in part. A two day suspension is substituted for the five day suspension. The grievor is to be compensated accordingly. The letter Of' ~ul¥ 28, ~98g £s to be amended to reflect the conclusions reachea in this decision. We retain jurisdiction in order to resolve any difficulties that might arise in the calculation of compensation o~ o~herW£se in ~he implemen%a%ion of %his award. Dated at TorOntO, th£s 2l day of March , 1990 Susan L, Stewart - Vice-Chairperson