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HomeMy WebLinkAbout1990-1794.Thomson.91-03-14 CROWN EMPI.~ YEE$ DE L 'ON TARIO GRIEVANCE CpMMISSlON DE SE~LEMENT REGLEMENT BOARD DES GRIEFS 190 DUNDAS STRE~ WEST, SUITE 21~, TORONTO, ONTAR~, M5G 1Z8 ~ELEPHONE/TELEPHONE: (4 ~5) 326- ~388 ~80, RUE GUNDAS OUEST. 8UREAU 2IO0. TORITO (ONTARIO), M5O IZ8 FACSiM~LE/TEL~COPlE : (4~5) 32S-r396 1794/90 ~ THE ~TTER OF ~ ~T~T~ON Unde= THE CRO~ E~P~YEES COLLECT~ B~G~ZNING Before THE gR[EV~CE SETTLE~ BO~ BETWEEN OPSEU (Thomson) Grievor - and- The Crown in Right of Ontario -(Ministry of Correctional Services) Employer BEFORE: Wi Kaplan Vice-Chairperson J. C. Laniel Member M. O'Toole Member FOR TEN M. Bevan GRIEVOR Grievance officer Ontario Public Service Employees Union FOR THE M. McKeown EMPLOYER Counsel Fraser & Beatty Barristers & Solicitors HEARING~ February 20, 1991 2 Introduction This is the dismissal grievance of Angela Thomson, an unclassified correctional officer, who grieves that she was unjustly dismissed from her position at the Maplehurst Correctional Centre. Ms. Thomson seeks by way of remedy "reinstatement of my position with full retroactivity of pay and benefits at an institution where I'd have an opportunity for a full time position. Also interest on the lost pay." The matter proceeded to a hearing in Toronto. The Evidence The grievor began work on contract at the Maplehurst Correction Centre ("the Centre") on November 27, 1989 as an unclassified Correctional Officer 1. Her contract was renewed effective April 1, 1990 until September 30, 1990. .On July 25, 1990 the grievor was dismissed. At the time of her. dis. charge the grievor was 24 years old. The immediate cause 6f chis dismissal is dispute. In an ultimately unsuccessful effort to obtain credit with a local merchant the grievor had, on Centre stationery, the following letter prepared: 3 July 23, 1990 To Whom It May Concern Angela Thomson is an employee of the Ministry of Corrections at Maplehurst. Correctional Centre, Milton Ontario. Angela's position as a Correctional officer bscame effective November, 1987 and her annual income is $36,000.00 T. Chambers Personnel Department For some reason the merchant in question sought confirmation from the Centre of the contents of this letter. He was advised that the substance of the letter was false: that Angela Thomson's seniority did not date to November 1987 and that her annual income was not $36,000. Moreover, no one at the Centre had written or authorized this letter. There was no "T. Chambers" employed in the Personnel Department. T. Chambers was a friend of the Thomson family. The Superintendent of the Centre called the grievor in for an interview, following which she prepared a report. After reviewing this report the grievor was discharged for cause and this discharge was confirmed by letter on July 26, 1990. Ms. Thomson testified on her own behalf. She did not deny responsibility for the false letter. She did, however, have an explanation as to why she had this letter prepared. At the time of the writing 6f the letter the grievor was responsible for the support of her sick mother (Who has since 4 received a disability pension), her 19-year-old sister and her infant daughter. It is clear that the grievor worked long hours in order to provide this support. ~ In December 1989 the grievor worked 196 kours; in January 176 hours; in February 126 hours; in March 182 hours; in April 116 hours; in May 150 hours; in June 130 hours; and, as of July 25, 1990 the grievor had worked 118 hours. Very simply, she worked whenever she w~s asked to do so, and the grievor testified that she received a number of appraisals over the course of this period that were very positive in nature. The stress of being the sole support for her entire family was exacerbated by the fact that the grievor's mother was extremely ill. The Board heard some evidence, about Mrs. Thomson's m~ history. Suffice it to say that she was in and out of hospital for major surgery between January and July 1990. From January to June, Mrs. Thomson had five operations (including a hysterectomy): the final operation was to repair a fistula that ran from her vagina to her rectal bone. In order'to conduct this repair it was necessary to break her rectal bone. When Mrs. Thomson was finally released from the hospital in early July she had difficulty in sitting down. The Thomsons had a sofa ai~ the time, but it was old and in poor repair. It was clear to everyone that a new sofa was required in order to provide Mrs. Thomson with some badly needed comfort. . After this determination was made the grievor attempted to secure 5 credit at a number of furniture stores in order to purchase this sofa. The answer at the three stores she approached was the same. For credit to be extended, Ms. Thomson need to provide them with a document indicating her annual salary, and verifying that she had two years of employment. The grievor did not have two years of employment history, and she went to the Office Manager at the Centre, Mr. John Robertson, and asked him to give her a letter stating that she worked approximately 40 .to 60 hours a week, as. well as her hourly rate. Mr. Robertson advised the grievor, that he could not do this because the grievor was a part-time casual employee and there was no guarantee how many hours, if any, she would work in any given week. One of the employees in the office telephoned The Brick and provided the store with some information about the grievor's employment, but this information was not sufficient to obtain the desired credit. In the meantime, the grievor was becoming increasingly distressed by her mother's condition and became convinced that she had to have a new'sofa for her mother. It seems clear from the evidence of both the grievor, and~ her mother that mu~h of the pressure to purchase the new sofa came from the mother. In any case, having made this decision to purchase the sofa, the grievor took a piece of Ministry stationery and brought it home. A letter was written and submitted to a merchant. This letter is reproduced above. Both the. grievor and her mother were cross-examined with respect to alternatives to purchasing a new sofa that might have been 6 available to them. It appears from the evidence that none of these alternatives was considered, much less explored. The decision was made to buy a new sofa and the grievor became focused on that decision. When confirmation about the contents of the letter was sought, it was brought to the attention of the Superintendent of the Centre, Mr. Gary Commeford. Mr. Commeford has fifteen years' seniority in Correctional Services and has worked in a variety of institutions. Mr. Commeford testified that on July 25, the office Manager, Mr. Robertson brought the false letter to his attention. The letterhead used is not that normally used by Correctional officers in preparing reports, and the contents of the letter, including the purported name of the author, were all false. After reading the letter Mr. Commeford called the grievor to office. She was advised on at least two occasions of her right to union representation. She declined the opportunity. She also immediately admitted responsibility for writing the letter. Mr. Commeford asked her to prepare a report. The report was introduced into evidence and is as follows: I feel that I should tell abou% what lead up to this. At the present time I am the only person working in my family. They consist of my mother, sister and daughter. I have been paying all the bills for the household. There has been a lot of pressure and stress in our house for the last seven months. My mother has been extremely ill and we had to take care. of everything. I know that there is no excuse for what I did, but if you knew me outside of work you would know that 'this isn't me. I've had my mothers' pressure and my sisters' pressure to get 7 the furniture. I didn't know what else to do. We all went to the furniture store and wanted t~ purchase the items on credit. (We could not afford them in cash.) Two days later the company called and told me they needed a letter from my employer stating my 'salary, length of employment (min. 2 yrs) and verification that I worked there. My mom told me to get the letter from work and · I told her that I couldn't get a letter stating those items mentioned above, because they werent true. She said make your own letter up. My mother did the letter and I took it to Midtowne. I know what I did was wrong, extremely wrong. These words are thruth not lies. I need this job to support my family. I have been trying exceptionally hard and I hope that you can place your trust in me. I wish there was some way I could erase all this. Mr. Commeford I am truly sorry and I wish that I had not touched that letter. Please give me another' chance and I will prove myself...I hope that you can find it in your mind and heart to give me another chance. You will not be sorry. I promise. Also introduced into evidence was a copy of the Standing Orders of the Centre which reads in part: "Staff members shall not use for their, own purpose any stores gr supplies (including government property considered scrap) purchased for, or supplied to the institution without the approval of the Superintendent." Another exhibit introduced into evidence was a copy of an examination takes by the grievor in which she received a perfect score. This examination, given as part.of the grievor's training program, asked the following question: "List five (5) prohibitions governing M.C.S. staff according to the Manual of Standards and Procedures." The grievor wrote: "(~)Do no use for any purpose stores or supplies." Mr. Commeford testified that the Centre regularly makes credit letters of the kind requested by the grievor available to full-time 8 Correctional officers. The Centre cannot, however, give casual employees a document stating number of hours worked or annual salary as both of these factors are contingent on how often casual employees are actually required. After reading the grievor's report and considering the various options open to him Mr. Commeford made the decision to terminate her employment for cause. In cross-examination, Mr. Commeford testified that had the grievor used the letter to obtain food or some other necessity of life his decision would have been different.'i He told the Board that in making his decision he was aware of the fact that the grievor was a single mother, had a sick mother and unemployed sister. He also testified that the grievor was not ~'an exceptional employee, but this fact, which is at variance with the grievor's evidence as to the high quality of the appraisals she received, was not taken into account in the decision to discharge hei~. None of the grievor's appraisals were filed in evidence. Arqume~t Employer counsel urged the Board to make a number of findings of fact. First, that the falsification of the letter was a premeditated decision on the part of the grievor, not some act committed on the spur of the moment. Having failed to obtain credit lawfully, employer counsel argued, the grievor determined to carry out an act of deception and dishonesty. With respect to being under pressure, counsel submitted that Correctional Officers must be in a position to resist pressure, and that the sofa was hardly a necessi'ty of life. Counsel argued that dismissal is just in these'circumstances, and that it is certainly well within the range of reasonable responses to this type of employee misconduct. Counsel submitted that the Board should use its discretion to substitute disciplinary penalties only where it finds such discipline.to be excessive. In counsel's view the discipline in this case could not be described as excessive. Employer counsel referred the panel to a decision of this Board (Denomme) 664/83 (Verity), where the Board said:. in recent cases, Boards of Arbitration have identified certain mitigating factors which, in appropriate factual situations, tend to justify the substitution of lesser penalties. Arbitrator Arthurs considered that issue in Re Canadian Broadcasting Corp. and Canadian Union of Public Employees 1979, 23 L.A.C. (2d) 227 at pp 230 and .231: "The older cases generally (but not inevitably) treated theft or dishonesty as an offence which 10 warranted automatic discharge; more recent cases, especially those decided by arbitrators subscribing to the theory of 'corrective discipline', do not treat dishonesty as per se grounds for discharge; and various mitigating factors have been identified ~s justifying the substitution of a lesser penalty for discharge in such cases. Such factors include: 1. Bona fide confusion or mistake by the grievor as to whether he was entitled to do the act complained of; 2. The grievor's inability, due to drunkenness or emotional problems, to appreciate the wrongfulness of his act; 3. The impulsive or non-preneditated nature of the act; 4. The relatively trivial nature of the harm done; 5. The frank acknowledgement of his misconduct by the grievor; 6. The existence of a sympathetic, personal motive for dishonesty, such as family need, rather than hardened criminality; 7. The past record of the grievor; 8. The grievor's future Prospects for likely good behaviour; 9. The economic impact of discharge in view of the grievor's age, personal circumstances, etc. But these factors, while helpful, are not components of a mathematical equation whose composition will yield an easy solution. Rather they are but sDecial circumstances of general considerations which bear upon the employee's future prospects for acceptable behaviour, which is the essence of the whole corrective approach to discipline. How well or badly the grievor has behaved in the past is some indication of his likely future behaviour. How aggravated or trivial was the offence is some clue to the risks the employer is being asked to run if the grievor is reinstated in employment. And how seriously the damage will affect the grievor is at least one (but not the only) measure of whether a reasonable balance is struck between the other two considerations." Counsel also argued that there was no medical evidence that the grievor was under stress. In one case the Board said: The second problem that we have is that the Grievor never appears to have taken advantage of any c0uns~lling about his attendance problems and reasons for it .... It is clear that he was under a considerable amount of stress at the {ime. In part stress is one of the major features of a job as a correctional officer. We cannot consider reinstatement without evidence that he has taken steps to deal with the problems he had at the time of his dismissal. What little evidence we have does not suggest that any action has been taken (Koufis) 372/82 (Barton). Counsel pointed that there was no evidence of any counselling in the instant case. Counsel emphasized the need for trust in this employment relationship and referred the Board to a case where a grievor's conduct led to a serious breach o~ trust, so serious that the discharge was upheld by the Board notwithstanding the fact that the employee in question was the provider for a number of his own children and various relatives (Themeliopoulos 363/84 (Samuels)). It must b~ pointed out, however, that the panel of the Board 'in this case noted that "at our hearing, it became obvious that often the grievor will not tell the truth" (at 4). The grievor in the instant case was a truthful witness. 12 For the union, Mr. Bevan argued that the penalty was too severe, and that given the unique facts of this case the Board should exercise its jurisdiction to reduce the discharge to a suspension. While it was true enough that buying a new sofa is different from buying food, Mr. Bevan pointed out that this is not a case of a grievor buying a new sofa to go with newly painted walls, or for some other frivolous'purpose. This was a case of a grievor, quite possibly one overly subject to her mother's influence, ~uying a sofa so that her mother could sit down in relative comfort following months of illness and painful surgery. The evidence indicated, Mr. Bevan argued, that after months of seeing her mother in pain, the grievor made a decision to do something about it. When her act was discovered she immediately confessed, apologiz~ and Dromised never to do it again. Mr. Bevan also referred to the factors enumerated by Arbitrator Arthurs, and argued that instead of going to upholding the grievor's' discharge, they went toward reducing the penalty. Mr. Bevan argued that the sheer number of hours worked each month by the grievor indicated that she was a good employee, one performing a valuable service to the Ministry and one with the future potential of continuing to perfo~ such service. While in no way denying that the grievor's offence was a serious one, Mr. Bevan pointed out that panels of this Board have reinstated Correctional officers convicted of criminal offenses, and that surely in these circumstances it wOuld not be unreasonable to 13 reinstate the grievor. Very simply, the mitigating factors in this case were, in Mr. Bevan's view, so persuasive and compelling that the Board should exercise its discretion to reduce the discharge to a period of suspension. Mr. Bevan asked the Board to reinstate the grievor following a suspension and to direct the employer to give her another six-month contract so that the grievor can be afforded a real. opportunity to prove that she has learned her lesson, as well as to prove herself in' the eyes of the employer. Mr. Bevan submitted that to reduce the discharge to a suspension and then to reinstate the grievor for the period remaining on her contract would be unfair because it would effectively allow the employer to terminate this grievor.without cause at the end.of her - contract. In reply, counsel for the employer questioned whether the Board had the jurisdiction to order the employer to give the grieyor the remedy requested by the Union and suggested that it did not. Decision In our view~ this grievance must be upheld. Section 19(3) of the Crown Employees Collective Bargaining Act states: "Where the · Grievance Settlement Board determines that a disciplinary penalty or dismissal of an employee is excessive, it may' substitute such other penalty for the discipline or dismissal it considers just and reasonable in all the circumstances." Having heard all of the evidence, and having carefully considered the arguments of both 14 parties, we conclude that in the particular circumstances of this case discharge is an excossive penalty, and we have decided to substitute a one-month suspension in lieu of that penalty. The grievor was, at the time of the incident, subject to a great deal of pressure. Her testimony indicated as much. She made a decision, one she later, forthrightly and frankly acknowledged to be a wrong one. She has learned from her mistake, and there is no doubt in our minds that this mistake, or one like it, will never be repeated. The grievor is an. intetli?ent decent person who got caught up in a family tragedy and allowed herself to be persuaded by the circumstances she found herself in to do something she knew was wrong. In short, we are of the view that the grievor's emotional state, her immediate acknowledgement of her responsibility, the existence of a sympathetic personal motive for the act, the good future prospects of this individual rendering valuable service to the Ministry and the economic consequences of a discharge on the grievor and her family justify the substitution of a lesser penalty in this particular case. A severe disciplinary sanction is appropriate and such a sanction is a one-month suspension. As we are making no order with respect to back Day or interast the sanction is even more significant. We would like to make it clear that we'do not condone the grievor's behaviour in this case. The g~ievor made a serious mistake in judgement. However, on close examination it is clear that the 15 grievor acted in a human way to a very human problem. She is a young person and this too must be taken into account. The evidence before us is clear that the grievor was working hard to support herself and her family, and the particular circumstances she found herself in led her to do something she knew to be wrong. We are convinced that the grievor is a person worth taking a second chance on, and while we are only directing~ her reinstatement for the remainder of her contract we see no reason why this mistake should foreclose subsequent renewals of her contract if she continues to provide a service to the Ministry and if the Centre continues to require the use of casual employees. We make no comment with respect to counsel for the employer's contention.that we do not have the jurisdiction to order the employer to give the grievor another contract as that is not the remedy we consider appropriate in this case. Accordingly, we direct the employer to remove'from the griev0r"s file any reference to her discharge and to replace any such reference with a letter stating that the grievor Was suspended for one month effective July 25, 1990 ~o August 25, 1990. By our calculation this would have returned the grievor to work on or about August 26, 1990 until September 30, 1990, a period of some 35 days. 16 There is no way, of course, to determine with certai'nty how many of those 35 days the grievor would have worked. While her monthly average prior to suspension might serve as some guide, we do not wish to mandate to the employer how many shifts it must now provide to the grievor. The grievor must, however, be treated fairly and we order that the employer reinstate t~e grievor to her position as an unclassified Correctional Officer 1 for a period of 35 days and that the employer offer work to the grievor in the same way that it offers work to all other unclassified Correctional Officer l's. We direct that the grievor be reinstated within 20 days of the date of issue of this award or as mutually agreed by the parties. We remain seized with respect to the remedy. n~d at Ottawa this 14thday of March 1991. Kaplan V i~ha i rper son J. Member Member