HomeMy WebLinkAbout1989-1795.Black.90-11-14 ONTARIO EMPL OY~'S DE LA COUROIV~E ~
CROWN EMPLOYEES DE L'ON TA RIO
GRIfiVANCE C~OMMISSlON DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUND'AS STREET WEST, TORONTO, ONTARIO. MSG 1Z8- SUITE 2100 '~, TELEPHONE/T~I.~'PHONE
180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) M5G 1Z8 - BUREAU 2100 (416) 598-0.~8
1795/89
In the Matter of an Arbit~atlon
The Crown Employees'Bargaining Act
BefoTe
The Grievance Settlement Boar~
Between=
OPSEU (Black)
'' Grievor
Sand-
The Crown in Right of'Ontario
(Ministry of Revenue)
Employer
Before: S. Stewart Vice-ChairPerson
J.C. Laniel Member
G. J. Milley Member
For the Grievor= P. Lukasiewicz Counsel
Gowling, Strathy and Henderson
Barristers and SoliCitors
For the Employer= D. Costen Counsel
Human Resources Secretariat
The Management Board of cabinet
Hearings: May 22, 1990
August 21, 1990
August 23, 1990
September 28, 1990
DECISION
The grievor, Mr. C. Black, is employed by the
Ministry of Revenue as a senior auditor and is classified
as a Financial Officer 4. He has been.employed by the
Ministry since October 18, 1965. In a grievance dated
October 11, 1989 Mr. Black grieves three separate
suspensions. He alleges that he was suspended by managers
who were without authority to impose discipline and further
that he has been "harassed by management through improper
and unjust suspensions".
In the course of the hearing Mr. Lukasiewicz advised
the Board that the Union was not pursuing the issue of
whether the persons imposing discipline on the grievor had
authority to do so. Accordingly, we will not address the
evidence which deals with this issue.
The most recent suspension referred to in the October
11, 1989 grievance is a three day suspension which was
imposed on the grievor on August 22, 1989. The two earlier
suspensions were a two day suspension imposed on June 18,
1987 and a suspension for three-quarters of a day which was
imposed on July 8, 1988. It was the position of the
Employer that the grievance as it relates to the two
earlier suspensions should be dismissed by the Board.
While it was acknowledged by the Employer that the time
2
limits in the Collective Agreement with respect to th~
filing of a grievance dealing With th~se suspensions'~o no~
apply, given the decfsion in Keeling 45/78 (Prichard), it
was the Employer's position that the grievances should be
dismissed on th~basis 0f the application of the doctrine.
of laches due tO the' delay in the filing of the'grievance.
It was the position of the Union that this aspect of th~
grievance should not be dismissed on this b~sis.- Mr.
Lukasiewicz submitte~ that even if we ~re to find that the
grievances relating to the ~wo eariier suspensions should
be dismissed because of undue delay it was still nec'eSsary
for the Board to hear the evidence relating to these
grievances as, it was argued, the evidence would establish
the grievor's allegation of a pattern of harassment~ against
him. Given' the Union's position with respect to the
necessity of adducing this evidence in order to establish
its case, the Board ruled that it would hear the evidence
and reserveTits decision with respect %o Mr. Costen's
submission.
As previously noted, the discipline that Mr. Black now
wishes to challenge was imposed on June 18, 1987 and July
8, 1988. On June 22, 1987 Mr. Black wrote a memorandum to
Mr. A. Williams, Director of the Retail Sales Branch, who
was his supervisor's superior, requesting that
he "regiew the validity of the two day Suspension". Mr.
Williams replied to this memorandum on July 22, 1987 and
3
advised Mr. Black that the circumstances surrounding the
suspension had been reviewed and that he concurred with the
decision to suspend him. The evidence did not disclose any
further action taken by Mr. Black with respect to these
disciplinary matters until the grievance of October 11,
1989 was filed. Accordingly, there was a lapse of some
twenty-six months from the time of JuneI 18, 1987 suspension
and fifteen months from the time the July 8, 1988
suspension until a grievance was filed in connection with
these matters. Mr. Black provided no eXPlanation for the
delay in challenging the discipline that was imposed on
him.
After a careful consideration of the circumstances it
is our view that Mr. Costen is correct in his submission
that there has been undue delay in the filing of the
grievance as it relates to whether there was just cause for
the imposition of the suspensions of June 18, 1987 and July
8, 1988. While, as noted in Keeling, supra, the time
limits contained in the Collective Agreement do not apply
to matters such as discipline, which'the grievor has a
statutory right to challenge, this does not mean that such
matters must not be challenged within a reasonable period
of time. To allow such matters to be challenged so long
after the facts giving rise to the grievance have taken
place is contrary to a fundamental premise of the system of
4
gri~vanc~ arbitration which is' designed to provide ~he
prompt definition of dispUt~es as well as ~eir prompt
resolution2 While, as Mr. Lukasi~icz poihted out, 't~e
Employer did not establish any sighifieant prejudice such
as the unavailability of a witness, the absence of this
kind of prejUdic~ does not meah that a g'rievor is entitled
to leave a disciplinary'matter un0hallengea for an ~x~'nd~
period of'time and, Providing no explaaat'ion'for-th~ delay,
be allowed to proceed to challenge the discipline. As Mr.
Costen pointed out, if the Employer is to apply the
principle of progressive discipline it ~st be'in a
position to know what the griegor's disciplin~ re~o~d
consists of. Moreover, in this'case, particularly wi~h
respect to the 1987 suspension, there were ~ertain de~ails~
that Ms. Baran was unable to recollect. In OPSEU
(Clements) & The Liquor ContrOl Board 1'12/80 this Board
dismissed a grievance where there had been a delay of
~fourteen months in the filing of the grievance. At p. 7 of
this decision the Board states:
The absence of notice of the grievance for
fourteen months is so completely at odds with
the type of procedures developed throughout
labour relations for the timely identification
of grievances that we do not believe it would
be possible to hold a fair hearing in this case
at this stage. No amount of evidence which we
might hear at this stage could eliminate or
outweigh the inherent prejudice done to the
employer's position by virtue of the delay.
In considering such a matter.the individual circumstances
of each case must be considered carefully. In this case,
5
where the discipline complained of consists of relatively
brief suspensions, where there has been a period of
fourteen months in one instance and twenty-six months in
the other between the time of the discipline and the filing
of the grievance and where the grievor has provided no
explanation for the delay in filing a grievance with
respect to these matters, it is our view that it would be
unfair and inappropriate to consider the merits of these
suspensions.
There remains, however, the issue~ of whether the
circumstances surrounding the June 18, 1987 and July 8,
1988 suspensions support the grievor'siallegation of
harassment. We agree with Mr. Costen's submission that the
Collective Agreement does not address the issue of
harassment (except for sexual harassment) and that the
question of whether there was harassment of the grievor is
properly subsumed in the issue of whether there was just
cause for the discipline of August 22, 1989. The
suspensions that were imposed on the grievor in 1987 and
1988 were imposed by Ms. M. Baran, who was Mr. Black's
supervisor at the time. The August 22,1 1989 suspension was
imposed by Mr. M. Ratansi, who became Mr. Black's
supervisor in September, 1988. The suspensions that were
imposed on Mr. Black relate to three different matters. In
our view, there is simply no support inI the evidence for
the allegation.that' the circumstances surrounding the two
previous disciplinary matters in any way coloured Mr.
Ratansi's approach to the suspension that he was involved
in (other.-than reviewing the matters as part of Mr. Black's
disciplinary ~ec0rd) or more specifically,~ that the August
22, 1989 susp~Dsion can be viewed, as part of a pattern, of
harassment against Mr. Black.
We turn now. to the specifics of the .August 22~- 19.89 ._
suspension. As previously +noted, Mr. Bla'ck is employed, as
a senior auditor with the Ministry of Revenue. In that
position he is responsible for~'conducting audits to ensure
compliance with the. Retail Sales Tax Act. The reasons for
the suspension are set out in a memorandum dated August 22,
1989 signed by .Mr..M. Ratansi, the griever's' supervis0r,
which states as' follows:
On July 18, you handed me the audit file'of
[firm name deleted]. In our discussions earlier
regarding this assignment, you informed me that all
areas had been audited and. that you were awaiting
further information in the area of catalogues and
promotional giveaways so you could' raj'se an
assessment. I asked you if you had enough infor-
mation to estimate an assessment in these areas
and complete the audit since the vendor had been
very unco-operative and this audit had been out-
standing since'February 1989. You told me that
you had the information to do that. I reviewed
the file and discussed with you a couple of areas,
namely the basis of estimations and an abnormally
low month (tax remittance), I returned the file and
asked you to go back out to the taxpayer to adaress
the above issues.
You visited the taxpayer on August 2, 1989. I had
asked the Group Leader to visit you and had.briefed
7
him on what I wanted you to do there. When the Group
Leader asked for the file (at the taxpayers), you told
him that you had forgotten the file. He then noticed
you were listing fixed assets, and asked why you were
doing that because he thought the file was completed
and that you were there just to address the two areas
that I had instructed you to do.
You replied by saying that the file was not complete
as you did not have the necessary information to
examine fixed assets and that you had handed it to
me because I asked for it. I asked, you to come back to
the office with the file. You gave me the file and it
was exactly the same as it was when you handed it to
me earlier. I asked you to explain the contradiction
between what you had documented on your schedule for
fixed assets and what you were doing in that area
at the taxpayers place of business that day. Your
documentation, in summary, states that you examined
invoices for all asset additions over $9-000.00 and that
no errors were found.
You explained that you did not have the information
necessary to. examine the fixed assets until that day
and the file was handed to me because I had asked for
it, but was not a completed file. As well, you
indicated that your actions were a pressure tactic
to get the vendor to produce information.
The file was submitted to me like any other completed
file you submit, i.e. with all the necessary forms,
all schedules numbered and the index completed.
Furthermore, you drafted a letter to the taxpayer
indicating that the audit was complete and that there
were deficiencies only in the area of catalogues and
promotional giveaways for which theY had been unable
to provide all the necessary information, and as such,
you were concluding the audit based on available
information. If the audit was not complete, why would
you .draft such a letter?
There was no indication anywhere for me to know that
this letter was not meant to be sent to the taxpayer.
The'schedule in question for fixed assets was numbered
by you in accordance with the guidel'ines for indexing
the audit report. And this tells me that you must
have known that the schedule existed and what was
documented on it.
t have reviewed the facts and consider this to be a
very serious matter. I have concluded that you did
not conduct required audit tests yet documented that
8
the work was ~one. Aside~fr°m the' fact that this ~aY
have resulted in revenue loss, it is.conduct uDbecoming
of an employee occupying the position of a tax.auditbr, ' '
a positio9 of trust.
Considering thD iD~ident.,~ your e.xpla~ation and yoqr
disciplinary record including your suspension in
August 1988, for failure to perform required audit
procedures, i am imposing a three day suspension
without pay commencing August 23, 1989.
Any future incidents of this. nature will result in
further disciplinary action up to and includihg
dismissal.
A number of the relevant facts were not in dispute. It.
was common ground that while Mr. Black.was under no
deadline in completing the audit in question the completion
of the audit was prolonged,, The unchallenged explanation
provided by Mr. Black for the delay is that he had
difficulty in obtaining all of the relevant information
from the taxpayer. In particular, the taxpayer had changed
its accountants and, as a result, Mr. Black did not have
access to all of the information required to complete a
standard audit. Both Mr Ratansi and Mr. Black ~estified
that a review of fixed assets is a neceesary feature of a
standard audit.
Mr. Ratansi estimated that he spoke with Mr. Black
about the delay in the completion of the audit on three
occasions and that at those times Mr. Black advised him
that he had been unable to obtain information with respect
to catalogue printing and promotions. In these
9
conversations Mr. Black made no reference to the fact that
he had been unable to examine the records relating to fixed
assets. Mr. Ratansi stated that he spoke to Mr. Black on
the telephone on one occasion when Mr. '~Black was at the
taxpayer's premises and that Mr. Black advised him that he
was carrying out the fixed asset audit 'at that time, Mr.
Black acknowledged that he raised only .'the two matters of
catalogue printing and promotions with Mr. Ratansi and that
he did not refer to the fact that he did not have the
information regarding fixed assets that he required in
· order to complete the audit.
Mr. Ratansi stated that on July 18,' 1989 he spoke with
Mr. Black and that he asked Mr. Black if he had received
the information in the two areas they had previously
discussed. Mr. Black replied that he had not. Mr. Rat&nsi
stated that he then asked Mr. Black whether he had
sufficient information upon which to base an estimated
audit and that Mr, Black replied that he did. Mr. Ratansi
testified that he instructed Mr. Black to establish an
estimated audit in the two areas that were outstanding and
to complete the audit. Again, Mr. Black made no reference
to the fact that the audit of fixed assets had not been
carried out. Mr. Black's recollection Of the conversation
was somewhat different. Mr. Black stated that Mr. Ratansi
"came up behind him" and instructed him: to "complete the
10
file as it is". According to Mr. Black's version of the
events Mr. Ratansi made no inquiry .as to whether it. would
be possible to complete the audit on the information that
he had available to him.~
Mr. Black had not completed the audit of fixed assets
at this point. However, the audit file' that he forwarded
to Mr. Ratansi on Jul~y 18, 1989 contains a rep6rt on fixed
assets Which indicates that the relevant records of the
taxpayer had been examined, that no errors Were found, and
that no further tests were required.' Th~ i~dex to the
file, which was Prepared by Mr. Black, indicates that the''
file contains workihg papers dealing with fixed assets. As
· well, a form entitled "Investigation Transaction" contained
in the file and'compietedby Mr. Black, indicates that the
final investigation completion date was July 18, 1989. As.
well, Mr.'Black drafted a' letter-tO the taxpayer for Mr.
Ratansi's signature, the text of which states as follows:
We have completed the audit of your company'§'-
compliance with the Retail Sales Tax Act covering
the period April 1, 1986 to December 31, 1988.
There are two areas with tax deficiencies, catalogues
and promotional goods.
We delayed completing the audit in order to allow
you sufficient time to locate all the records
pertaining to these areas.
As you were unable to provide us with the records
necessary to complete a satisfactory audit we must
now conclude the audit and prepare an assessment
based on the available records and information.
If you locate the records at some future date please
advise us so that we can make any necess'ary adjustment
to the assessment.
Should you require any further information please
contact this office.
Mr. Black testified that the reasOn that the documents
indicating that the matter of fixed assets had been
addressed were included in the audit file was that they had
been included in error. He explained that since the format
of the documents used in the various audits that he
performs are the same he has a practice of copying the
relevant documents from one file in his computer and
inserting them in another file. Mr. Black stated that he
changed the identifying information contained in the
earlier fixed assets report but that as he had not yet
carried out the tests for fixed assets on the new audit the
substantive information contained in the fixed asset report
was the information relevant to the old file. Mr. Black
explained that he was in a hurry to prepare the file to
give to Mr. Ratansi and that the inclusion of the
information in the file relating to fixed assets was simply
an oversight on his part.
Mr. Ratansi testified that he reviewed the file and
that he had two concerns that he felt required further
investigation. These concerns were the basis upon which
12
the tax due for catalogue printing was' Calculated and the
fact that in one month tax remittances'were low in'relation'
tO retail sal~s.- Mr.-Ratansi stated that if he had 'not had"
these conc'erns the letter drafted by Mr. Black would have' "-
been forwarded to the taxpayer', the tax' paYabl~ Would have
been assessed on the basis set out by Mr~ .Black and {he
file would have been closed.
Mr. Ratansi met with Mr. Black and advised him of these
two areas of concern. Mr. Ratansi instructed Mr..Black to
attend at the taxpayer's premises to review the taxpayer's
records in order"t0 address, these matters. Mr.-.Black made-'
no reference to the fact that the audit relating-to fixed
a~sets had not been completed in his discussion wi~h Mr~-
Ratansi. .Mr. Ratansi instructed Mr. Schoeps, a group'--
leader, to attend with Mr. Black. As set out in Mr.
Ratansi's memorandum imposing the suspensi6n,'it was~not
disputed that on August 2, 1989 Mr. Black engaged in
listing fixed assets while at the taxpayer's premises and
that he so advised Mr. Schoeps when Mr. Schoeps asked what
he was doing. Mr. Black explained to Mr. Schoeps that the
information he needed relating to fixed assets had not
previously been made available to him. Mr. Schopes
telephoned Mr. Ratansi and advised him of what had
transpired. Mr. Ratansi then telephoned Mr. Black and
asked him to return to the office. When Mr. Ratansi asked
13
Mr. Black why he had indicated that the fixed asset audit
had been carried out Mr. Black advised him that the file
was not complete and that he gave the.file to Mr. Ratansi
because Mr. Ratansi had asked for it.. Mr. Black did not
advise Mr. Ratansi that the information relating to fixed
assets which was contained in the file that was forwarded
to Mr. Ratansi was copied from anothe~ file and was
inadvertently included.
There was a conflict in the evidence as to whether Mr.
Ratansi returned the file to Mr. Black prior to August 2,
1989 or whether the file was retained by Mr. Ratansi. The
resolution of this conflict is not of any real assistance
in dealing with the issue before us. Where the conflict in
the evidence is significant, particularly with respect to
the instructions given by Mr. Ratansi to Mr. Black with
respect to the completion of the file, we prefer the
evidence of Mr. Ratansi. Mr. Ratansi gave his evidence in
a forthright and credible manner while we found Mr. Black
to be evasive in his responses~ Moreover, with respect to
the issue of what instructions were given to Mr. Black
regarding the completion of the file, it is our view that
it defies common sense for Mr. Black to have believed that
Mr. Ratansi wished him to prepare an estimated assessment
even though the file was not complete in a significant
area. The letter drafted by Mr. Black which was provided
to Mr. Ratansi on July 18, 1989 and is reproduced above
states: "We have completed the audit..." which supports the
view that Mr. Black understood that Mr. Ratansi had asked.
for and was expecting a completed file.
There was some suggestion that on the basis of other
information contained in the audit file Mr. Ratansi should
have recognized that the fixed asset audit could not have
been completed on the information that was available to Mr.
Black. We cannot agree with this suggestion given the
clear representation that the audit of fixed assets had
been carried out which is contained in the document
purporting to deal specifically with fixed assets.
Mr. Black asks this Board to accept that his
representation that the audit of fixed assets had been
carried out was. included in the file in error. We do not
find this explanation to be credible. Th~ representation
that the fixed asset audit was complete is consistent with
the representation that Mr. Black had been makiqg
implicitly for some time to Mr. Ratansi. That is, that the
only two areas where he was lacking information were
promotions and catalogues. The fact that the explanation
with respect to the transfer of information from another
file was not provided at the time Mr. Ratansi confronted
Mr. Black about this matter also causes us to question the
15
reliability of Mr. Black's explanation.
Mr. Lukasiewicz argues that no motive has been
established for Mr. Black to represent that the work
carried out on fixed assets was completed while in fact it
had not been. Mr. Lukasiewicz also referred to the fact
that Mr. Black was openly engaged in eXamining fixed assets
and immediately ackowledged what he was doing when
questioned by Mr. Schoeps about his actions in support of
the position that Mr. Black had no intention of
misrepresenting the work that had been.Carried out on the
file. Notwithstanding Mr. Lukasiewicz's able argument,
after a careful consideration of all of! the evidence, it is
our conclusion that Mr. Black knowingly misrepresented the
work that had been completed on this particular file.
While, as M?. Lukasiewicz emphasized, there was no specific
deadline with respect to the completion of the audit, the
grievor had beeh representing to Mr. Ratansi that there
were problems in only two areas of the ~udit for some time.
Only Mr. Black could explain why he did'not advise Mr.
Ratansi that the part of the audit relating to fixed assets
remained outstanding as well. He did not provide a
credible explanation with respect to this matter.
The fact that Mr. Black was openly engaged in examining
the documents relating to fixed assets and acknowledged
16
this to Mr. Schoeps is not inconsistent' with .the fac~ that
he had misrepresented the work that he had performed in
connection with the audit. The' documents r~lating to fixed
assets would never have been examined and the file would
have been closed had it not been for M~. Ratansi's' decision
that it was necessary to deal with other matters. .This was
an opportunity for Mr. Black to complet'e the work that he
had previously represented to be complete. Mr. Schoeps is
a member of the bargaining unit and Mr. Black may not have
contemplated that Mr. Schoeps would speak with Mr. Ratansi
about what had transpired.
In summary, it is our conclusion that there is just
cause for the imposition of discipline on Mr. Black.
Turning to the matter of penalty, we have considered Mr.
Lukasiewicz's alternative submission with respect to the
suitability of a fine rather than an unpaid Suspension. We
did not hear extensive argument on this issue but we do not
find the Union's submission on this point to be compelling.
We agree with Mr. Ratansi's assessment that Mr. Black
engaged in conduct unbecoming a person in a position of
trust. Considering the nature of Mr. Black's actions as
well as his disciplinary record it is our conclusion that
the three day suspension which was imposed is a just and
reasonable penalty in all the circumstances.
17
For these reasons, the grievance is dismissed.
Dated at Toronto thi~4thday of November 1990~
~'_~l-3~Vice_Chairperson
J. Laniel - Member
G. Milley - Member