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HomeMy WebLinkAbout1989-1868.Egri.90-08-07 ONTAR[O EMPLOYES DE LA COURONNE CROWN EMPL 0 YEE$ DE L 'ON ~'A RiO GRIEVANCE C,OMM!SSION DE . SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DIJNDA~ STREET WEST, SL/]TE 2100, TORONTO, ONTAR~. M5G ?Z8 TELEPHONE/T~L~PHONE.. (416) .326- t388 .180, RUE DUNDAS OUEST, BUREAU 2'100, TORONTO (ONTARJO). MSG 1Z8 FACSiMILE/T,~-L~COP/E : (416) 326- r396 1868/89 IN THE ~IATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT' BOARD BETWEEN OPSEU (Egri) Grievor - and - The Crown in Right of Ontario (Ministry of Transportation) Employer - and - BEFORe: S. Stewart Vice-Chairperson P. Klym Member G. Mille¥ Member FOR THE J. Ford GRIEVOR: Grievance Officer Ontario. Public Service Employees Union FOR THE J. Gallagher EMPLOYER Staff Relation Advisor Human Resources Branch Ministry of Transportation June 13, 199.0 DE. CISIO~ The grievor, Mr. G. Egri, is employed by the Ministry of Transportation as the supervisor of the dynamometer laboratory in the experimental testing section of the vehicle technology office. He has been an employee of the Ministry for ten years. Mr. Egri grieves that a three day suspension was imposed on him without just cause. At the outset of the hearing Mr. Egri stated that he wished to have the hearing adjourned in order to obtain additional evidence. Mr. Ford, on behalf of the Union, stated that the Union was prepared to proceed with the hearing. Accordingly, the hearing proceeded. The suspension was imposed by letter dated January 23, 1990, signed by Mr. M. D. Harmelink, Director of the branch. The relevant portion of the letter states as follows: I have been advised by your supervisor, Mr. J.W. Wagner, that on January 16, 1990 you used a test vehicle, entrusted to our Branch for testing by Petro Canada, for private purposes. You have confirmed this by your own admission to Mr. Wagner and it has been witnessed by others. In the past, you have been disciplined for unauthorized use of test vehicles and unexplained absences from the work site (as per a letter to you from Mr. A. G. Stermac, dated Oct 5/83). Most recently, you were warned against unauthorized use of test vehicles in a letter from your Supervisor, Mr. J.W. Wagner dated Oct 19/88. Your con- 2 tinued disregard for your· Supervisor's in- structions leaves me' no alternative but to impose further discipline. As a result, you will be suspended from employment with this Ministry, without pay, for a period of three full working days.... On January 16, .1990 a motor vehicle owned by a client of the Ministry was in the dynamometer laboratory for -~{esting. The purpose of the testing is to determine emission'levels and fuel economy. Mr. M. Singh, a research technician who has been employed in the dynamometer laboratory for.nine years, testified that on the morning on January 16, 1990 he asked Mr.' Egri to get coffee for him as Mr. Egri was planning on getting coffee for himself. Mr. Egri is Mr. Singh's supervisor. Mr. Singh stated that Mr. Egri went to the dynamometer, removed the client's car and left. Mr. Singh stated that he was surprised when Mr. Eg.ri took that car since he had his own car at work. Mr...Singh also stated· that there was no practice of test driving client's cars. ShOrtly after Mr. Egri left Mr. Singh received a telephone call from Mr. D. Hsu, a research engineer with the Ministry. Mr. Hsu advised him that he wanted certain information with respect to the client's car. 'A short time later Mr. Hsu came to the dynamometer laboratory to see the vehicle. Noting that the vehicle was not there, Mr. Hsu asked Mr. Singh where, it was. Mr. Singh advised him that Mr. Egri had taken it. According to the evidence of both Mr. Singh and Mr. Hsu, when Mr. Egri returned a short while later Mr. Hsu asked Mr. Singh to leave the room in order that he could 'speak with Mr. Egri alone. Mr. Hsu stated that he saw the car parked inside the dynamometer laboratory and he asked Mr. Egri why he had taken the car. Mr. Hsu stated that Mr. Egri replied either that he had made a silly mistake or a stupid mistake. Mr. Hsu was the project leader for the testing of fuel emissions however he has no supervisory authority over Mr. Egri. Mr. Wagner, who is Mr. Egri's supervisor, testified that shortly after 9:00 a.m. on January 16 he was advised by Mr. Hsu that the test vehicle, along with Mr. Egri, was missing. Mr. Wagner drove around the site but did not see either Mr. Egri or the vehicle. He went to the dynamometer laboratory where he saw Mr. Singh leaving. .In response to Mr. Wagner's question, Mr. Singh advised him that Mr. Egri had brought him the coffee that he was carrying in his hand. Mr. Wagner asked if Mr. Egri had taken the client's car to obtain the coffee and Mr. Singh advised him that he had · Mr. Wagner ~estified that he returned to his office where he telephoned Mr. Egri. He stated that Mr. Egri said 4 "I suppose you already know that I made a stupid mistake" and that he apologized for his actions. Mr. Egri also stated that he hoPed that the matter would go no further. Mr. Wagner stated that he reviewed the matter along with Mr. Egri's disciplinary record and that it was his recommedation that discipline should be imposed on Mr. Egri. One of the factors he considered was that Mr. Egri had been disciplined for this same kind of activity on two previous occasions. It was Mr. Egri's testimony 'that it was necessary to remove the test vehicle from the dynamometer on January 16, 1990 in order that Mr. Singh could carry out the calibration of the testing equipment. He testified that at approximately 9:00 a.m. on that date Mr. Singh told him that he wished to carry out the calibration and that he w. ent and removed the test vehicle fro~ the dynamometer in order that Mr. Singh could carry out this work. He stated that he decided to take the vehicle out for a test drive. Mr. Egri explained that he sometimes carried out a test drive of a vehicle as the manner in which the car drove could explain certain test results. He suggested that it was not unusual for him to test drive vehicles however he did not suggest that he did so in all cases. He also stated that he Wished to "warm up" the vehicle in preparation for the testing. Mr. Egri testified that his 5 understanding was that he Was permitted to drive client's vehicles on the Ministry's premises but was not authorized to take vehicles off of the property. He stated that he drove the vehicle only on the Ministry's premises and that he parked the car in a parking lot on those' premises, walking across the street to a store where he purchased a newspaper and coffee for Mr. Singh. He then returned to the laboratory where he parked the car outside. As previously indicated, Mr. Singh testified that there was no practice nor any reason for test driving of vehicles to take place prior to testing in the dynamometer. Mr. Singh also stated that there was no practice or need for a vehicle to be "warmed up" prior to testing as the preconditioning process prepared the vehicle for testing. Mr. Singh further stated that he carried out the calibration of all of the equipment in the dynamometer laboratory on January 15, 1990 and, as a result, there was no need for the vehicle to be removed on January 16, 1990. Mr. Egri acknowledged that Mr. Hsu was present when he returned and that Mr. Hsu asked Mr. Singh to leave the room. Mr. Egri stated that Mr. Hsu advised him that he should not have taken the vehicle out of' the dynamometer. Mr. Egri stated that he advised Mr. Hsu that driving client's vehicles on the Ministry's premises was part of his duties but that if he did not wish him to do so, he would, not do so'without permission and that he would take the matter.up with Mr. Wagner. Mr. Egri's evidence was that he telephoned Mr.. Wagner and while he acknowledged that he apologized in this conversation he stated that he was not apologizing to Mr. Wagner but rather to Mr. Hsu because he "did not know that Mr. Hsu did not wish him to drive on Ministry premises". He also stated that he wished to obtain written instructions confirming that he was not to drive test vehicles on Ministry premises. As the foregoing summary of the evidence indicates, there is a clear discrepancy in the events as described by Mr. Egri as contrasted to the description of the events by other persons. After a careful review of the evidence it is our conclusion that the version of the events as described by the other witnesses is to be preferred.to Mr.. Egri's description of the relevant events. Mr. Egri suggested that the decision %o discipline him was motivated by his complaints about health and safety matters. Even if a member of management was biased as Mr. Egri suggests, there is no apparent basis upon which this alleged bias would have any effect on Mr. Hsu or Mr. Singh. Both Mr. Singh and Mr. Hsu gave their evidence in a straightforward manner and we have no hestitation in concluding that they have provided us with truthful evidence. Accordingly, 7 considering Mr. Singh's evidence, we are compelled to conclude that there was no need for Mr. Egri to remove the test vehicle from the dynamometer laboratory for warming up or test driving and, further, that there was no need for Mr. Egri to even remove the vehicle from the dynamometer as the calibration which necessitated the removal of the vehicle had been carried out the previous day. We also accept Mr. Hsu's and Mr. Wagner's evidence that Mr. Egri acknowledged wrongdoing. Mr. Egri's evidence with respect to what he said to Mr. Wagner and what he meant strikes us as inherently improbable. Why would Mr. Egri apologize to Mr. Hsu through Mr. Wagner rather than directly to Mr. Hsu? As well, if Mr. Egri had been simply carrying out his duties in an accepted manner as he suggests, why would he simply not have explained this to Mr. Wagner and perhaps ask him to explain these duties to Mr. Hsu? If Mr. Egri were providing an accurate version of the events there would not appear to be any reason for him to apologize for his actions. Even accepting Mr. Egri's evidence that he did not remove the vehicle from the Ministry's property, we are satisfied that he removed the vehicle from the dynamometer and drove the vehicle for reasons unrelated to his duties. We accept that such an action may properly give rise to disciplinary sanctions. As the let%er of suspension 8 indicates, a factor in the decision 'to impose a three day suspension was Mr. Egri's prior disciplinary record. On October 5, 1983 Mr. Egri was given a one day suspension for using a Ministry vehicle for private purposes without permission. On October 19, 1988 Mr. Egri was given a written warning for driving a vehicle that had been .provided to the Ministry for testing in the dynamometer laboratory. On that occasion Mr. Egri had taken the vehicle to a store. In the letter of warning Mr. Egri was advised that he "should not use .our Client's vehicle for your private business and that any such activity in the future would result 'in disciplinary action". The incident of January 15, 1990 took place a little more than a year after this warning and involves essentially the same kind of activity. Mr. Ford submitted that if the Board were to find that Mr. Egri engaged in conduct that should attract discipline his apology should be considered as a mitigating factor. While the existence of an apology may be a factor in assessing the appropriateness of a disciplinary penalty we cannot agree that %he principle applies in these circumstances as we are not convinced, given Mr. Egri's evidence before us, that he has provided a full and frank acknowledgement of his wrongdoing. Considering all of the relevant factors, including the nature of the offence, Mr. Egri's previous disciplinary record and our conclusion that he has failed to frankly acknowledge his actions, it is our conclusion that the three day suspension that was imposed on Mr. Egri is a just and reasonable penalty. For these reasons, the grievance is dismissed. Dated .at Toronto this7tkday OfAugust . 1990. S'~ L. Stewart · , Chairperson P. Klym - MemBer G. Milley - Member