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HomeMy WebLinkAbout1991-0751.Menzies.91-10-18 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L 'ONTARIO GRIEVANCE C,OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTAR[O, MSG 1Z8 TELEPHONE/TELEPHONE: (416)326-7588 RUE DUNOAS OUEST, BUREAU 2100, TORONTO (O~TARIOL MSG 1Z8 FACStMtLE/TEL~COPtE : (4~6~ 326-1396 751/91 IN THE MATTER OF AN ARBITRATION Under THE CROWN EHPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEHENT BOARD BETWEEN OPSEU (Menzies) Grlevor The Crown in Right of Ontario (Ministry of Transportation) Employer BEFORE: H. Waisglass Vice-Chairperson I. Thomson Member F. Collict Member FOR.THE L. Steinberg GRIEVOR Counsel Koskie & Minsky Barristers & Solicitors FOR THE M. Failes EMPLOYER Counsel Winkler, Filion & Wakely Barristers & Solicitors HEARING October 2, 1991 This is m dismlssoi grievance. The grtevor ~as dismissed for theft. At the outset of the berating, the able and experienced counse~ representing the part~es agreed on the fmcts pertaining to the theft and they submitted ]ointty the documentary evidence regarding the theft. The gr~evor had admitted the theft before ~t had actuat[y been d~scovered~ but sho~tty after an audit had con~enced. Union Course! agreed that discipline ~as ~ustified but that discharge is excessive in consideration of the mitigating circumstances. The issue to be decided by this Board ~s ~hether discharge is ~ustified in consideration of att of the circumstances of this case, and, ~f it decides that discharge is excessive, to determine ~hat dtsciptine is appropriate. THE FACTS: Ms Menzies, the grievor, has been emptoyed in the Ministry for 17 years, starting as o secretary in 1974 when she wes about 19 years of age. In 198S she was promoted as the result of o job competition to the posit~on of on inside examiner in the Stratford Driver Examination Centre, where she had been employed unti! her dismissat for theft effective March 22, 1991. Because the Ministry's audits in another district hod discovered discrepancies and thefts which revealed o system weakness, supervisors in the various districts were instructed to undertake specified audits related to the procedures for issuing l~cence replacements when undertaken simultaneously with the renewal of a licence. The replacement fee is $10 and the renewal fee ks $30. It had been discovered tn other centres that ~f the $10 fee is not entered in the computer os required, at the time of the transoction~ the examiner coutd retain the amount without discovery, unless a special audit is undertaken. Even then it might go undetected, in the absence of certain records of each transaction. On Tuesday March 19, 1991, Kothie Costetlo, the supervisor, conducted an mud~t mt the K~tchener centre. She found four discrepancies for the month of Oecember, 1990. ~hen tusked whet she was doing, Ms Costello expl.q~ned and asked the griever to check further. She d~d end she c~lled her supervisoF the next day to let her kno~,v that she hod d~scovered 32 instances of comptlter discrepancies, the earliest being in March, t9c~, and tl~e most recent was on March 15, 1991, It should be pointed out that such discrepancies are not necessarily indications of theft and the grievor hod not been accused of theft in the course of the investigations in which she had participated. Not oll license replacements require the po)anent of o fee. Some are exempt in certain circumstances. Zt remained to be determined which if any of the discrepancies involved replacements for ~hich fees had been paid and had not been reported on the computer. The grievor made the rest of the investigation unnecessary. She hod kept o paper trail in a manner which invited discovery. She put all the documents for the 32 instances together [Exhibit 3] and brought them to her supervisor, Ms Costello, with her complete confession as well as the $32~ cash ~hich she had taken and returned. Thus, the grievor confessed the theft and brought the evidence of the theft to her supervisor before she was accused of theft. The grievor's behoviour was surprising to her supervisors as wel! as to herself. She hod always been regarded as o very good end trustworthy employee. She has an exemplary d~sc~pline-free record. The documents fiIed on her most recent appraisals, October, 1986-7; June, 1988-9 ; and June, 1990-91 ore ~ll very positive. The latest oppraisa! indicates that she works ~ with minimum supervision~ and that she produces the required number of permits ~in o timely and efficient manner; accurately accounting for fees, forms and other auditabIe documents". These very positive opproisa!s were confirmed by the very supportive evidence of Tom Sytvain, who has been her supervisor, in the bargaining unit, at the Kitchener Centre since March, 1988. Prior to that he hod been tn o monoger~ot supervisory posttton from about 1986. In Z987 he t~nd s~ent about Four and o half months in on octlng copoctt>' os Dzstr~ct E.~omtner. Altogether he has been employed about Z8 yenrs ~n the M~n~stry. t~e h~i ?rovideci the g~'~evc, r ~.~th o very good letter oF refer'at,ce [Exhibit 9]. He test~f~eCJ that he t~ad 4 prepared it at the request of his ov. Jn immediate sLlpervtsor, I(othie Costello. In th~s tetter he states that he has known the grievor for ohnost twelve years os o friend and os on employee and that she hod worked for him directly and ~ndirectly over the past five years. He describes her os on ~excellent employee ...os oll her previous appraisals show", os olwmys punctual and efficient, '~with the public's needs always in mind". He describes the thefts ~s ~tototly out of character and does not reflect any traits of the person I h~ve come to know." His testimony etoboroted on and confirmed the o~tnions expressed in this reference letter. He verified that he hod olmoys worked with the grievor in o relationship of trust ~ithout ever any problems ~ith her, He believed the thefts were completely unexpected of her ~nd out of character. He would not expect it to hQppen again. It does not change his feelings mbout trusting her. He regards her as completely trustworthy, even more so os the result of her recent confessions and struggles. This view held under cross examination when he testified thor even during the period when he so~ her personal sufferings from the deQths and other problems in her family he sa~ no changes in her diligent ~ork habits. He believes she is still on honest person and he has no problems trusting her, even with his own valuable possessions. The grievor testified that she herself hod been surprised by her own dtscoveries. She was shocked to see herseIf os o thief, tt felt os though it was not her, os though it was hoppening to somebody else. It was not easy for her to explain her behoviour except that she believes it to be retoted to the extreme ~nd unusuot stress that she hod been experiencing in her family situation. She hod suffered enormous grief, ongutsh and guilt in the post two or three yeers during which both o brother and o sister were dieing of cancer of the colon. She discovered from her physician that she herself possessed o h~gh r-~sk of death ~rom the some d~seose. The gr~evor testified she hod observed both her brother o~hd s~ster suffer the ravages of the disease, wasting mw~y, for some t~me be~ore eoct~ hod died. Her brother died in July 1988 mhd about ~ year later his daughter, her ~iece, vet] [ c I e . .Some ?ors before-her death, her s~ster [eft what tl~e. _q.r~evor described as on abusive and alcoi~e.~c l~Llsbmnd. The s~ster had attenlpted suicide and had moved temporarily with her two children into the grlevor's home. The grlevor and her husband are childless. Before and after her sister's death in April, 1990, she felt enormous guilt about her conflicts concerning the custody of the sister's two teen-age children. !rnmediatety before her sister's death she learned that she was being given custody of the children in her sister's wiIl, in spite of her uncertain leerings about accepting such responsibilities for two teenagers ~n her childless family, and her apparent wishes to the contrary. She had confrontations with her sister's lawyer on that matter, which left her with som~' very miserable feelings. After the sister's dea.th, she h~d disturbing legal confItcts ~Nith her sister's former husband on the question of custody. The grievor's testimony indicates she suffered severe emotional stresses for some time before the thefts hod begun and continuing since she had confessed. She terries ~ heavy burden of grief end guilt concermng her sister's death and the custody of the surviving children. She struggles now with the oddit~ono! guilt for the thefts, feeIing greatly ashamed for having breached her empIoyer's trust, a trust which has always been importont to her and which she cultivated over seventeen years of d~ligent employment~ The conditions of ~evere emotional stress were present throughout the period during which the 32 thefts of $10 each hod occurred, from March, 1990 to March, 1991. Her sister died April 30, 1990. Immediately after her confession and her suspension from employment pending o disciplinary dec~sion from her deputy minister, the grievor felt great stress. She cried o lot and felt much pain. She promptly called her doctor, ~'told him everything" and ~osked for counselling'~. He told her there was ~o two-month waiting list to see o specialist" for her problems, but he could see her in the meantime. Feeling the urgent need for he~p~ the gr~evor went to see on intern clergyman who had been helpful to her s~ster and who continues to see bet' nephew, now living w~th her. Tl~e clergyman referred her to Interfa~tt~ Foum~sell tho Serv}ces tn littchener, ,.,,hem'e she h~'~s %i~lc~.. }h~Qlh rece~Vlllg counsel ltng from 3udy Bishop. 6 Judy Bishop is nn intern therop~st et the Interfolth Postorol Counselling Centre in Kitchener. She is in the third yemr of o program lemding to the degree of Master of Theoiogicol Studies in Postorol Counselling et Sir ~ilfred Lourier University. She provides professionol counselling services under the direct professionol supervision of Ms 6lorio Taylor, o full member of the American Association for Morrioge and Fomily Therapy, o recognized professionol ossoclotion for cIinicat theropists in Canodo, the United Stetes and abrood. Ms Bishop's progrom includes courses at the graduote level. Ms Bishop confirmed thot the griever hod been referred to the counselling, services by o postoral intern. She first met the griever on May 3, 1991, and hos since met her in one-hour counselling sessions every ~eek except during vocotions. There hove been 18 such sessions. Ms Bishop described the griever os very oshamed, contrite and bewildered ~hen she first came to her. She come ~ith the presenting problem thor she could not understond ~hy she took the money. In the course of the counselling she helps the client estoblish counselling goels and ~orkinQ in o systems perspective the client is helped by diologue to understond oil the systems around her, porticulorly in her fomily but also in her ~ork. In the process the client comes to achieve her goo.Is of understonding her own behoviour. Ms Bishop observed thor the griever hod leorned from her mother os she wes growing up as o child her particular woys of hondling pein end stress. She hod leorned to occept stress and pein without showing it, to occept wherever comes olong as part of Iife. No matter how bed things ore she hod to function os if nothing hms happened. She modelled her mother end her severol sisters were much the some. The witness could not soy how for odvanced the griever is in the therepy process. She observed that there is still a lot of unresolved grief. The griever hos become enobled to tolk ~bout her pein, but os this orbitrotion hearing mppromched it took her focus owoy from her unresolved grief end stress. She described the griever's counselling prospects os very likely to be successful. The griever con list the stresses she hos suffered mlthough she hms yet to become Fully owmre oF how p~rtlcut~rl~ b~'de~'~s~e they hove been, 7 I When she was asked to give o prognosis she hesitated to do so and Counse! for the Employer quite properly raised on objection and questioned her quali- fications to provide what is essentially a medical opinion. The witness acknowledged that she has no training in clinical psychology or tn behawourol disorders. She confirmed that she does not work on a medico! model. Her training and directions ore Focused upon helping people cope with the stress tn their lives. Ms Bishop explained that taking the money was the grievor's way of trying to relieve'her stress. It might have provided momentary relief, but the grievor has learned that her solution did not work: it caused even greater stress. She believes the grievor is not o thief fundamentally and is very unlikely to steal again. The witness testified that the grievor is continuing to learn more about the issues around stress and how she responds to them. She has already learned a great deal that has helped her and she is very likely to benefit greatly from continuing counselling. ARGUMENT: Counsel for the Employer argued that nothing less than discharge was justified in this case because 'the thefts were not momentary aberrations and because they constituted o serious breach of trust. The discipline must carry o strong and clear message to other employees who ore in similar positions of trust. He argued that the thefts were spread over o period of o year. It was not a single wexford incident, it was not a spur of the moment thing. It was repeated often over the year, taking advantage of a flowed Ministry system. He believed that the thefts were clearly well planned. Although she confessed and volunteered full restitution, the confession was prompted by the commencement of the special audit. He believed that the forthright confessiom~ did not come until it was apparent she was about to be caught. Counsel for tile ~mptoyer argued that the connection between the causes of the grievor's stress and the thefts were very tenuous. Zt appeared to h~m that the causes oF the stress predated the thefts and he expressed doubts ~'egordtng tile stress being present os the couse of tile thefts. In any event? he argued, the thefts were 8 premeditated and not spontaneous. The thefts took some thought tn that the grtevor picked the right spots, the safe spots, where she knew the entry routines to cover her troll. In support of his argument that the mitigating factors usually considered by arbitrators tn discharge cases are not applicable tn this case, the Employer's Counsel reties on the following G.S.B. decisions: Brian McWilliams (860/$7) [B.Fisher]; G. Bornordi (10Z/793 [3.R.S. Prtchard]; G.Elliott (10/84) [I.C.Sprtngote]; end Gary Andrews [227/79) [E.B.Jolltffe]. He referred else to on unpublished decision of Arbitrator Sh±me on o discharge for theft [Canada Post & CUPW/Grievonce # 6Z68532605] where the circumstances of the thefts are similar but where the Arbitrator found the griever wes not trustworthy. The other cases also invotve discharges for theft or breaches of trust end in each the decision turns essentially on the circumstances of the griever, particularly his credibility end trustworthiness. Union Counsel acknowledged that the theft was a very serious offence but he argued that the penalty of discharge is too severe in the circumstances. He urged that there con be no other conceivable explanation of what the griever did other then to connect it with the great tragedies she wes experiencing in her family and her life. Otherwise, why would she do whet she hod done after seventeen years of trustworthy dedication to her ]ob? There is no other reasonoble or rational explanation, he claimed. It could not be for the amount of money she took thot she would risk everything. The thefts were aberrations, completely out of character, completely irrational acts that defy any rational explanation, ~iven whot her employer and other employees kne~ of her over the many years of experience with her. The thefts were carried out in o manner os if it wes her wish to be caught. She wes quick to confess end to cooperate in the Employer's investigations. The Union's Counsel referred to the evidence given by her supervisor end to her appraisals. Everything Mr Sytva~n knew ~bout he~' indicates that the thefts were not her; they ~ere completely out of character fo~' the griever. He obsolutely Linequivoccl! in his view of her os on honest person, completely 9 trustworthy even-nov~ after her :onfessed thefts. These views, Counsel claimed, are supported by c]t~ o; her opp:-otsal, s which were produced in evidence. Counsel for the Union argued that the case tow supports mttigotton~ a lesser penalty than discharge tn circumstances such as in thts case. He reties on two G.S.B. dectstons: Haight [23/75) ID.M. Beatty] and Cranley and Stounton (48 & 49/76) [D.M.Beotty]. DECISION: In our view and tn the view of arbitrators generally, on the issue of reinstatement after discharge for theft or breach of trust, the critical. questions ore' Is the theft or breach of trust on e~loerrotion? ExcePt for the aberration, except for the unusual and ex,ce?t__tonol behoviour in on otherwise unblemished record, ts the grtevor credible an8 trustworthy? Does she ockn,owtedge and accept full responsibility for her wrong-doing and for the repair of the damage done by her aberrant behav~our7 Con she be reformed or rehabilitated by any discipline less than discharge7 What is the appropriate level of the discipline that is required in order to send a sufficiently strong message to 01l employees on the importance of trust and honesty in the employment relationship? Con the grievor be expected, ~ith a high degree of probability, to respond to corrective discipline ~nd rehabilitate end repair the damage that was done (by the aberration) to the trust that ts required in the employment relationship? We agree with the general principles under[y~ng ~ndustrial d~scipllne os stated in Re: ~otco Food Products Ltd. C~974) .7 L.A. C C2d,) (Beotty) and which ore cited by Be~tty in the two cases relied upon by the Union's Counsel. We ore impressed with Arbitrator Beotty's principles ~s expressed in Cr~nley and Stounton : ~:Zn-assessing ~*~hot penalty ~s, in the port~cutor circumstances of this case, most jUSt end reasonable, we ore guided by the principle of correction and ~ndiv~duol~sot~on descmbed mbove. Put somewhat differently we believe t~at the system of Industrial discipline has os ~ts primary functions the reformation of the offender ~nd the deterrence of Stfll~l~' m~scor~uct ~ the ft~tLl~'e.~' We have considered the cases retied upon by the Employer. Zn the McWilliams case Arbitrator Fisher found that the grievor locked credibility. In the Elliott case Arbitrator Springate found that "the grievor's conduct cannot possibly be charocterised os impulsive or a momentary aberration", and he did not believe the grtevor's claims of mitigating circumstances. Zn the Bernardi case Arbitrator Prichard found that the grievor had violated o position of trust: "by deliberately falsifying documents in a consistent pattern...which in no way can be characterised as o momentary aberration" and, significantly, "we simply cannot accept this explanation as credible." Finat.~y, in the Andrews case Arbitrator 3olliffe finds that the evidence does not support the claims for mitigation, He rejects the claim that the ~grievor's judgment had been seriously impaired by excessive medication and the emotional stress of a broken marriage~ and does not "believe that the grievor was incapable of understanding or remembering the three warning notices..." After hearing and observing the grievor examined and cross-examined, we are impressed by her credibility. Prior to the thefts the grievor's £ecord was unblemished. She was regarded, without any doubt, as a competent, retiable and trustworthy employee. Her previous record is important because it helps to predict her future behoviour with some degree of reliability. Before reinstatement, we must determine whether the grievor is capable of being rehabilitated, whether alternatives to dismissal can be sufficiently remedial, so that her trustworthiness will be restored. And we must determine also what level of discipline is required in order to give adequate consideration to the Employer's Iegitimate interest in deterrent measures and, at the same time, would hove the necessary and sufficient remedial effects on this grievor. tf anything, the thefts were the grtevor's desperate cries for attention and help, which she ~as unable to seek consciot~sly, tf ~*¢e are to believe her COL~nsellor, t*~hich ~*~e do. [ agree ~-,~tth LIt~ion Counsel that tt~e thefts ~'~ere sma]l, repetitive, each exoc't[y the san}e, mhd carried alit tn a manner suggests she wonted to be caught, leaving a paper troll which was not difficult to discover, tn fact she was quick to reveal oll the facts and to volunteer restitution almost t~nedlately after her supervisor hod commenced the computer audit. The 36 thefts cover o twelve-month period. They were repetitive in that each was exactly the same os the others. Each amounted to $10 and each was carried out in exoctIy the same way, involving exactly the same procedures and '' computer transactions. And for each incident the gr~evor hod kept exactly.the same notations on a paper record of the transaction, which facilitated the discovery and verification of the 36 thefts. ~hen her supervisor found four computer discrepancies the grievor quickly found the rest of them ~nd brought them to the supervisor's attention, with the records she hod kept, with a complete explanation and o complete confession of the thefts. The thefts were aberrations, abnormal acts, lapses from the grievor's normal behoviour. She did not take the money for its intrinsic value. In the special circumstonces of this case the multiple and repetitive acts of theft ore of one piece. They must be seen together os o whole, as o unity, and regarded os a continuing behovioural aberration, on abnormality, ossociatedwith on unusually severe state of emotional stress which hod continued at least throughout the period covered by the thefts, and likely for some time before and after. Compared to the other o, rbitrot~on decisions involving theft, which we hove examined and considered, particularly those drown to our attention by counsel, this case involves m set of circumstances of on unique type, not tikely to occt~r ogoin. Ordinarily, we would hold with other orbltroto~s that on aberration usually ~nvolves o s~ngle short-lived event. In this case, however, we hove convincing evidence to persuade L~S that this aber~-nt~on, involving 36 re~et~t~ve theft over o per~od of ~ year, ts associated ~,~th indications of an mccumu}mt]on of emotional d~st~rbm,~ces ~/hlch colncl~de is, lib mod overlap tills ~er]o(i. We ore persuaded that the thefts are cn~ aberration, on abnormality, o StCl~Ce Of UIltlStlO[ behovlour wlhlch '~,~qs produced by the grtevor's unusual occumlotion of e~ot~onally stressfu! e×periences. Th~s aberrant behowour ~s related obviously to the unusual occumulotlon of emotionally stressful experiences endured by the gr~evor within her closety- kn~t famlly: the witnessing of the devastating effects of the rovmg~ng d~sease of bowel cancer upon her stbltngs; o doctor's worntng that her own life may be threotened by the same dlsease; the trog~c acc~denta1 death of o niece occurring between the death of her brother and s~ster; and o~1 this was followed by the undesired custody of her sister's children being thrust upon her. Thls unusuot accumulation of stressful experiences cutmtnoted with her grief over her sister's death, aggravated by her guilt for resisting responstb~ttty for the custody of the children. Her brother dted tn 3uly, 1988 and her stster on April 30, 1990. The thefts commenced in March, 1990. No doubt this unique set of circumstances accounts for o most unusual type of aberration. The mitigottng factors are strongty in the grievor's favour. She has on unblemished employment record and seventeen years of service. The thefts ore o breach of trust and must be token very seriously. ~e must determine whether or not the breach of trust can be repQ1red. ~e ore convinced that the grievor has demonstrated by her conduct subsequent to the offences that she is not likely to allow herself to become tnvolved ogaln ~n such acttvtties, particularly because she confessed promptly, cooperated fully with the Ministry in the invest~gatlons, votuntority mode retrtbution~ and promptly set out looking for the help of her physician and o clergyman. All th~s reflects o constructtve and opprectattve attitude that is conslstent ~ith the grlevor's abttity to respond posttiveIy to correcttve discipline and to rehabilitate her credentials of trust as on employee. The Employer's Counsel, tn cross examination, qu~te properly broLight attention to the fact that the grtev©r's counsellor did not possess the qu~liftcotions to i)rovtde o SCle~t~f~c F..ro~nos~$ ~'.~.lsed m~ther ~n c:~tn~c~l psychology or ~n o medical spec~olts,, p~rttcuto,-!y ~,~here eni(~tton~l or behovtoural d~sorders ~ad~cated. Ms Btshop quzte clearly does not claim such qualifications. emphatically denying that she works within the medical model. Although the question was not raised by counsel, we note also that Ms Bishop is not trained to provide a science-based diagnosis and treatment for emotional or behavioural disorders. The grtevor testified she had been told by her physician that there was at least a two-month wait to see a specialist. From this we infer by logic that her physician had determined he did not have the necessary speciQtised training required to treat her iItness; and that he had determined her sickness required the attention of a specialist who did have the training necessary for the treatment of her particular sickness. ~e are concerned thdt the grievor may not have received such specialised d~agnosis and treatment. Although we are confident that the thefts were an aberratlon and wiI! not occur again, we ore somewhat uncertain whether the grievor might sttI! need the services of such a specialist. The evidence suggests that the grievor ts now able to return to work even white she continues with her therapy, but we received no direct medical evidence on whether she needs treatment bya licensed specialist at this time. ~hite the EmpIoyer, at the hearing, did not question her medical fitness to return to work (end we do not doubt her ability to return to work), nevertheless we are left with some doubt whether the grievor has fully recovered From the emotional effects of her stressful experiences. It would not be unreasonable, in the very special circumstances of this case, if the Employer would require an assurance that the grlevor will obtain whatever medical attention and treatment she may need at this time, if any. Zt ts unjust to punish her for her illness. If the Employer bears any reasonable doubts whether she is now sufficiently recovered from her stressful experiences, equity requires a fair and reasonable opportunit)' for the grlevor to establish either that she i~s recovered, or that she is pursuing the treatment necessary in order to reasonably assure her recovery as soon as possible, ~s ]~sttf~ed; thor d~schorge ~s mn e,.cess~ve and too severe ~ pen~[t)' ~n ~'h~s cose; o~d that the d~schmrge sholl be reploced ~.'-~th o disctplln~r'y sus~-~e,:s~cl~ ~,~ithout pay for o period of eight months. It ts decided ft:rther thor ~mme~iotety ~fter her reinstetement, ot the Employe~'s option, Ms Menz~es shmtt be required, os o condition for her cont~nL~ed emptoyment, to be exomined ~nd d~ognosed by e licensed spectol~st ~n emotionol and beh~vtourol disorders, os soon os possible; ond further, to continue such treotment os mey be prescribed by such spectolist until such time os a qualified licensed spectmitst hos verified thet the prescribed course of treotment hos been completed. If the Employer chooses to exercise this option tt must do so'by notice in writing to the grievor within thirty doys of the dote of this decision. The Boord remains seized unttt its decisions ore implemented. DATED AT HAMILTON, ONTARIO, THIS 18~:h DAY OF OCTOBER, 1991 H.3. ~LGisgloss, Vice-Choir . ~1~. Thomson, Member "I F. Colltct, Member DISSENT RE MENZIE$ (G.$.B. #751/91~ This Member dissents from the majority award In this case, for the tailoring reasons: A, THE FACTS 1. To perpetrate the fraud, the grlevor had to engage In a specific, discreet act at time of a request for RENEWAL & REPLACEMENT of a ilcence. This Is the only time the fraud would go undetected unless a specific audit was engaged in to investigate the matter. It is the responslbllity of the grlevor to determine when a tee for a REPLACEMENT transaction is required, and must be coifected or not. The Job, clearly is one whlch Involves a position of trust - not only with reference to the Employer. but In financial cleallngs wffh the public. 3. The fraud required a specific action ofj:~t recording a $10 payment (REPLACEMENT) into the computer, and of pocketing the $10. 4. The grlevor knew that, on a daily basis, a dally balance was prepared for the office. The grlevor stated in evidence, that this dally balance would exclude and not Identify the REPLACEMENT fees that had not been reported or Input to the computer; and that tt was she who prepared and controlled the daliy balance for her small office of two people. 5. The grtevor engaged In these fraudulent actions on 32 occasions during an approximate 12 month period (March 1990 to March 1991). 6. The Employer reited upon the ,32 specific acts for its action of dismissal, for no evidence was presented concerning what might have transpired pflor to March 1990. 2 7. .The grtevor testified that she personatl~ had determined this apparent "loophole" In the system, (le. one could pocket the REPLACEMENT fee tf a combined RENEWAL/REPLACEMENT license was appl~ed-for; bu~t0 not If SOlely " a REPLACEMENT license was applied for). 8. The grlevor admlffed to the 32 actions of fraud only after It was obvious that K. Costello had identified 4 of these actions for the month of December, 1990, and which the grlevor realized - from her testimony - would result In a finding after a further audit of papers and computer topes In Kingston, that the fraud had been perpetrated by the grlevor. 9. a) It was K. Costello who showed the grlevor how tO do the check which resulted in the 32 actions which were found, On March 19, 1991, the grlevor had asked K. Costello what she was auditing. K, CosteJio told her and also showed her how to perform the audit. b) in cross examination, the grlevor stated that when K. Costello found the 4 fraudulent transactions fOr December of 1990, she (the grlevor) knew the significance of that which K, Costello had found and, In evidence, the gfievor stated - "1 was too afTald to tell I~er fight thenl". c) Later, and without the knowledge of K, Costello, the grlevor continued the audff and found 28 additional Instances when she had performed the fraudulent ac~tons. 10, In Exhibit 5, a record of the Investigation Interview, the grlevor made reference to personal "pressures*, and the fact that "we bought another boot: we have two boats and a house to pay for."' 3 Clea~ly, the grlevor was making reference to financial pressures. In e'4de~ce, the grlevor stateci that she and her husDand purchased a 30 foot sail boat In Aug*.~t of 1990 for on approximate price of $28,000. The grlevor and her husband already hod o 22 foot sail boat. She stated further that he~ h~sband's business "had been slow". 1 t, Notwithstanding the allegecl impact of stress upon the grlevor owing to her unfortunate fatuity and potential personat medical problems which are desc~bed on page 12 of the majority award, her job performance remalned very satisfactory throughout the period when the 32 fraudulent actlor'~.took place (March of 1990 to March of 1991). (See Exhibits 7 and 8 re I~r good to excellent Job performance) t2. Her supervisor, Tom Syfvaln, testified that he did not note any change In the g~evor's behaviour throughout the one year period of the 32 fraudulent transactions, the period during which ~ grievor claims that the'stress factor from her personal circumstances must have caused the aberrant fraudulent aCll'~or~ 13. The g~levor' had not SOught assistance for aileged stress throughout the period when the 32 fraudulent transactions took place and apparently did so upon the suggestion of a Ministry H.R. representative at the time of the Exhibit 5 investigation Interview. 14. Thee was absolutely no medical/expert testimony presented to the Board to substantiate that the grlevor's alleged aberrant behovlour was the result of stress, or any other medical/psychological condition. t5. The grievor had a child custody probfem that ran through to May, June and July of 1990. However, In testimony, there were no additional family problems that impacted the grlevar subsequent to this period. In fact, as 'stated above;'the grlevor purchased a boat tn late August of 1990 and the fraudulent transactions continued through tO March of 1991. 4 16. in testimony, the grtevor aQreed, tn response to a question from the Chair, that there was nothl ~ng obvious aDoul' that which she was doing, relcrttve to the fraudulent actions. In fact, It was concealecl. In this respect, the gr~evor stated the following: "1 discovered on my own that It could not be traced. I had the daily balance.' 17. In cross examination, the grlevor aonceded that she was still engaging In the fraudulent actions as at March ~ 9, 1991, when K. Costelio came In to do the audit. She stated further that the only factor w~tch stopped the fraudulent acts was the audit by K. Costello. GENERA[ It Is common ground that the grlevor, 1. Is a long service employee (t7 years); '-~ 2. has been a good employee and her jol~ appraL~ts reflect this fact; 3. made full restitution of $320.00 relative to the 32 frouclulent actions; 4. after termination, sought therapy associated with the Issue at hand and her personal problems, and has attended diligently to the vadou~ therapy sessions up to the present time. C. JURISPRUDI~NCE 1. The definition of "momentary aberration" as defined by Weatherttl and set out In part at p. 16 in G.S.B. #860/87, would lead one to conclude that Ms Menzies' acts over a period of one year on 32 occasions did not constitute a "momentary aberration". Very clearly, Mr. Weatherfll has Tuled that a · momentary aberration" must be associated with a single offence only. The subject case, Involving at least 32 fraudulent actions, far exceeds the concept of a "slngJe offence". 2. -The Canada Fast, Shtme case, would probably more nearly parallel our MenTJeS' case. In fact, at page 4, the following is stated: 5 "Further, It is my view, that the grlevor was In a position of trust, He Intentionally ancl deliberately deceived many members of the publlc over a long period ot' time. The public ls entitled to have confidence In employees of Canada Post with whom it deals, In these circumstances, considerable weight would be given to the deterrent aspect of the penalty Imposed. Others hotdlng the same Position should understand the dire consequences of engaging In similar conduct and in these particular circumstances I am not satisfied that mitigating the penalty will ha,ve that result, The grlevor with full and complete knowledge of the risk that he ran chose to engage in the concluct described - It was not momentan/. Having courted the consequences he must now live with those consequences." (underscoring added) It should be noted further that In the a~._~ve-referenced case, the Union submitted that a lengthy suspension would serve as a deterrent to others (see page 3 of award). The arbitrator coulc~ not concur with this position. Moreover, In this case there was evidence to the effect that the Canada Post grievor had received psychiatric treatment, However, Mr, Shlme was not convinced (see page 4 of award) that there was a *causal relatlonshlo between the grlevor's illness and the deliberate acts of theft*, In the Menzles' case, there was no medical evlOence advanced to substantiate a 'causal relationship" for the grlevor's behav~our. The only tesllmony heard was from Miss J. Bishop, a student-in pastoral counselling: and her testimony basically Indicated that the grlevor had stress In her life (Including the discharge] and that she would be better able to handle stress in the future because of the time spent with her (Ms Bishop) in therapeutic dialogue, Inasmuch as she (Ms Menzles) would have a heifer understanding of her own behovJour, Certainly there was no evidence of a causal relationship between the stress experienced and the actions engaged In. 6 3. G.S,B. #10/84 also Is significant and has a bearing on this case, as follows: "In other worcls, the gnlevor was not only seeking ' to obtain stickers without paying for them, but he knew that the plan was to use the stickers to bypass his employer's regulations regarding liquor Sold pursuant to a special occasion permit. The evidence establishes that the clrtevor's actions were premeditated. The prior ptannlng ancl the grlevor's affempf to obtain the stickers was so long and drawn out that his conCluct cannot posslJ:)~y be characterized as impulsive or a momentary aberration.' (page 15, underscoring ad,led) 4, Similarly in G.S,B. #102/79, Prltcharcl states at page 21, "while not absolutely uniform In its results, this Jurlsprudenc~ (arbitral) does affirrflB4he prlnctpl~ of Integrity, pa~cularly for employees In posftlons of greater trust." Additionally, G.S.B. ~227/79 is on point with reterence to the Board disregarding allegations of stress and anxiety during Periods when, "There is no evidence whatsoever that from mar~agement's viewpoint his work wa~ other than satisfactory." (page 12) 5. In G.$.B. cc~ses #23/75, #48 and #49/76 which were relied upon by the majority award (page 9), the dismissed gflevors were reinstated with a nominal suspension for their acts. However, the case~ are cleaffy distinguishable. In the former case, the theft lnvolvecl misappropriation of scrap copper wire; and in the Jatter case It involved firewood, 7 In both of these cases, the Issue Involved a single act only (as opposed to 32 separate discreet, transactions made by Ms Menzles). Moreover, the Job of the grlevors were not positions of great trust where, as stated In evidence, Ms Menzles handles large amounts of cash In any one day, In addition, she was dealing with the public each day and it was their money that she was converting to her use. D. THE .SUBJECT MAJORITY AWARD 1. At page 1 of the awcrrd, the following is ~tated with reference to the audit conducted by K. Costello on March 19, 1991: "When asked what she was doing, Ms Costello explained and asked the grlevor to check further, She dld and she called her supervisor the next c~a~/to let her know that she had discovered 32 instances of computer discrepancies,.,". ~ The hearing notes of this Member reflect the following: a) It ,was the grtevor who asked K. Costello what she was doing on March 19, 1991. K. Costello Informed her of the nature of the audit and showed the grlevor how tO do It, K. Costello did not request the grlevor to perform a more detailed or furrner audit. b) The grlevor did perform a furthe~ audit on her own Initiative and' dicl caJf her supervisor, K. CosteJlo on March 20, 199j, asking to meet with her. At that time on March 20, 1991, Ms Menzies did not Inform her that she (Ms MenzJes) had discovered additional discrepancies. c) After hearing that K, Costello had found the 4 discrepancies In December of 1990, Ms Menzles, as stated above, knew what K. Costello had found and, as admitted In evidence, stated '1 was too frI.Qhteged to tell her right thenl". (on March 19, 1991). 8 d) It was not until March 21. 1991, (2. days after the initial audio when K. Costeilo met MS MenzJes at her home, that Ms Menzles Informed K, Costello that she had engclged in the 32 fTaudulenf actlor~ over an approximate one year period, it was at this time that she offered the monies In restitution of the actions taken, e) In effect, Ms Menztes came forward AFTER she knew that 'the.iici was upi", 2. At the second full paragraph of page 11 of the award, the majority finds some excuse for the acts of Ms Menzfes on the following basis: 'The 36 thefts cover a twelve-month period. They were repetitive In that each was the same as the others, Each amounted to $10,00 and each was carded out In the same way, involving exactly the same procedures and~g~)mputer transactions, And for each incident the grlevor had kept exactly the same notations on a paper recora of the transactions which facilitated the discovery and verification of the 36 thefts.' BUT, this was the loophole which, as the grlevor had stated In testimony, she had discovered. Obviously, therefore, she would do It the same way each time, and fallow the normal paper work procedures. This she did up to the point when her actions were discovered, 3. At page 11 of the award, It Is further stated that, "Ordinarily, we would hold w~th other arblffotors that an aberration usually Involves a single short- lived event, in this case, hOWeVer, we have convlncln~ evidence to persuac~_e us that this aberra~on Involving 36 repetitive thefts over a period of a year, Is associated with indications of an accumulation of emotional disturbances which dolnctde wffh and overldp this period.' (underscoring added) a) Thls Member did not hear any "convincing evidence" whatsoever as related to the statement In the maJodh/award. Ms Menzles' was a contrite, very upset and presumably under some degree of stress at the date of the hearing, However, no convincing evlclence was presented of the sort required to substantiate a causal relationship between any alleged condition of the grlevor and the fraudulent acts themselves, on 32 occasions over a period of one year. In this respect, one must contemplate that, to conduct these acts, a mental process had to be followed each time by Ms Menzles, such aS, i) Is this the "loop hole"? Will It work this time? 11) Do i charge the client this time or do 1 now Iil) Do t pocket the money ~me or do I record It In the computer? i¥] W111 the transaction show up or wtll It not show up on the dally balance? v) etc. The above is a rational mental process. There ls knowteage of the 'loop hole" In the system as found by the gdevor (her testimony), a rational mental process when faced with the transaction, and then the act However, there Is no evlctence of psychogenic amnesia or excessNe stress from an expert wltness who might have provided the Board with some convincing testimony which could have triggered the thefts on each occasion. 4. At page t 3, the following Is stated, · The grlevor testified that she has been tolcl by her ph~/sictan that there was at'least a two- month walt to see a specialist. From this we Infer by logic that her physician hod determined _ he did not have the necessary specialized training required to treat her illness; and that h_~e had determined her sickness required the attention of a specialist who dld have the training necessary for the treatment of her particular sickness.' (underscoring added) With the greatest respect, this Member would conclude from the evidence that Ms Menzles' doctor made no determination of an Iltness. The evidence was that, a) After being suspended, Ms Menzles was upset and very stressed. b) She oa~Jed her c~octor and asked for counselling. c) She was informed by her doctor that there was a two month waiting list for counselling; but he said that she could talk to him. d) She then phoned her nephew's minister who was In training. She told him everything and he, In turn, referred her to Interfaith counselling In Kltchener. tn the view of this Member, there was nothing [n the evidence to Infer anything relative to a medical diagnosis of illness. 5. a) At line 6 of the second full paragraph of the award at page t3, It Is stated that the Board '.,.received no dlrect medical evidence on whether she (the arlevor,) needs treatment by a licensed specialist at this time...", and yet, this Board has concluded'that Ms Menzles, I) was III at the time she engaged [n 32 fraudulent acts over a period of 12 months; these acts had a direct causal relationship to stress In the absence of any expert medical/psychological evidence to support such a finding; tll) Ms Menzles may stilt be 111 when in fact the Board has heard no · 6vldence that she Is ll~ In' the first place; and Iv) before Ms Menzles Is put back to work, that equity should demand that she has recovere¢l or that she Is pursuing treaflment. At line 14 of the second full paragraph of page 13, It is stated 'It Is unjust to punish her for her Illness.' To repeat that which has been stated earlier, the Board was presented with no evidence to the effect that the grlevor was I11. E. REMEDY 1. C.E.C.B.A., in s. 19(3), confers upon the Board the authority to substitute a lesser penalty "as It considers Just and reasonable under the circumstances". However, thts authority and Jurisdiction Is not unfettered. The authority to substitute a penalty must be based on a finding, Judicially antved at, that a particular response is excessive. As stated In G.$.B. #813/88 at page 16, "In Re The Queen In RlClht of Ontario and the Grievance Settlement Board (1980), 27 O.R. (2d) 735, the Ontario Divisional COurt made If clear that the Board's remedtal authority to substitute a lesser penalty may be exercised on a finding of Just cause for dismissal where, in the oplnlon at the Board, dismissal is an excessive response.* 2. Was the Employer's response excessive in the Menzles' case? Arbitrator Kennedy's rationale in the Metro Toronto case at page 10, Is a follows: "fn exercising a Jurisdiction of mitigation, we must be satisfied that before we interfere w~th the penalty, the restoration of a viable employment relationship is not only feasible but likely." Counsel for the Union has urged the Boar, d to find that the ~ue In this case. and the decision to be made by the Board. Is whether Ms Menztes Is so untrustworthy because of the 32 acts in which engaged over a period of a 12 year, that she cannot De trusted again. With respect, this Member would state the issue differently. The issue to be determined by this Board Is whether or not a viable employment relationship can be reestablished between the Employer and Ms Menzles. For alt of the reasons cited earlier, counsel for the Employer has stated that the employer/employee relationship has been so Irreparably damaged that a vlable trust relationship Cannot be established with the ' grlevor. Mr, Sylvaln, bargalning unit supervisor for Ms Menzles, testified that he would trust her again in her prior position, However, Mr. Syivaln does not speak on behalf of the Employer. F. CONCLUSION In view of the circumstances of the subject case and the substantial Jurisprudence related to the Issues identified In this case (trust, "momentary" aberration, discreet and planned action, etc., etc.), this Member would conclude that the employment relationship with the grlevor cannot be satisfactorily reestablished and the Employer's response to the grlevor's actions in this case was not excessive, This Member would have dismissed the grievance. F,T. Colllct Date