HomeMy WebLinkAbout1991-1171.Paulley&Bechard.92-03-20 ONTARIO EMPLOY~'S DE LA COURONNE
CROWN EMPLOYEES DE L'ONTARtO
GRIEVANCE CQMMISSlON DE
SETTLEMENT REGLEMENT
BOARD DESGRIEFS
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1~71/91, 1172/91
IN THE MATTER OF AN ARBiTRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
0PSEU (Paulle¥/Bechard)
Grievor
- a~d -
The' Crown in Right of Ontario (Mifistry of Transportation)
Employer
BEFORE: Au Barrett vice-chairperson
J. c. Laniel MembeT
Au Stapleton Member
FOR THE G. Richards.-.-- ,
GRIEVOR Senior Grievance Officer
Ontario Public Service Employees Union
FOR THE M. Failes
EMPLOYER Counsel
Winkler, Filion & Wakely
Barristers & Solicitors
HEARING November 15, 20, 1991
February 20, 1992
1
The qrievors were dismissed from their jobs as Inside
Examiners at the Sarnia Driver Examination Centre in July, 1991 for
"breach of their duty to properly perform driver and vehicle renewal and
replacement transactions". They grieve their dismissals as being
unjustr while at the ~a~e time admitting the substance of the off,nee.
In January/ 1991 it came to the attention Df the Ministry
auditors that an Inside Examiner in the London office was failing to
record receipt of $10.00 fees when members of the public applied for a
renewal and replacement of their driver's licence. Because of the
procedure in place at that time (although no longer) it was found to be
very easy for an Inside Examiner to fail to register the replacement
part of the dual transaction in the computer and thus fail to account
for a $10.00 portion of the $40.00 fee. Immediately an audit wax
conducted in the twenty examination centres in the south-western region,
which includes Sarnia~ followed up by a more. extensive audit in the
region and finally in the whole province. In the twenty soutb-w~st
regional offices six employees were found to have incorrectly recorded
the full $40.00 transaction fee for a deficit of $10.00 in each cas~
that was uncovered by the audit.
These two grievors were the only two Inside Examiners at
Sarnia and they shared an office with a Driver Examiner and a Driver
Examiner supervisor. The Driver Examiner supervisor, Mr. Inch, is a
bargaining unit member~: no management personnel are on site. The
District Examiner, Mr. Qu~rk, who is the direct supervisor of everyon~
in the Sarnia office, works out of the Windsor office. In addition, six
H~ghway Carrier Inspectors also use the Sarnia office occasionally. Ali.
of the employees using the office had access to the single cash drawer,
2
although it was Ms Pa~lley and Ms Bechard who handled most of the cash
transactions on any given day.
The audit in the Sarnia office revealed that in the 200 or so
renewal/replacement transactions over a three month period, there were
$10.00 discrepancies between what was paid and what Was recorded in
fifteen cases: five from Ms 'Bechard and ten from Ms Paulley~ The
auditor, Mr. Hodgsonr testified that because of the manner in which th~
recording system was designed, it was impossible to detect discrepancies
without contacting members of the public and asking them what they had
paid. That 'is understandably, a difficult and delicate process. The
Ministry brought no. evidence, however, that any member of the public had
been overcharged, although.overcharging the public was stated to be one
of the reasons for dismissal set out in the grievors' dismissal lettersl
Overcharging was not relied upon by the Ministry at the hearing, nor was
it said to accurately reflect the Ministry's thinking at the time.
When the initial audit was completed, the grievors were called
into separate meetings on April 11, 1991 and asked for an explanation
of the discrepancies. Each readily admitted that she had failed to
properly record the transactions. Both had the same explanation for
what they had done. They said that with so many people using a single
cash drawer and with dozens of transactions t~king plsee every day~ it
was not unusual for there to be a cash shortage at the end of the day.
The grievors, who were responsible for balancing the cash at the end of
the day and doing the banking, would make every effort to determine on
which transaction the shortage had occurred but sometimes were unable
to do so, e~en after hours spent going through the transaction records
and telephoning members of the public to find out who forgot to pay.
3
The auditor, Mr. Hodgson, conceded that such shortages would
not be unusual. The Group supervisor, Mr. Inch, has the authority to
write off these shortages on his daily reports to head office in
Kingston7 however, he does not like to do so. He feels it reflect~ on
him and the office badly if they cannot find and correct these
shortages.
Basically, the grievors said that Mr. Inch refused to consider
writing off these shortages and simply told them to "find it" Mr. Inch
did not involve himself in the banking and did not involve himself ~.n
helping to look for the shortages. While the Grievors knew there was
a system in place for the supervisor to write off shortages, they felt
they could not get him to do so. When a new system for recording
transactions was introduced about two years~ ago, each discovered
independently the simple loop-hole in recording renewal/replacement
transactions that would allow them to remove $10o00 at a time from th~
system and use it to make up shortages when they arose.
Both grievors said in their interviews and testified at the
hearing that the making up of shortages was the sole reason for the
irregularities and that neither had ever pocketed the funds. Both
testified that they were aware other Inside Examiners in the south west
region were doing the same thing, and that it was simply their way of
keeping the office running smoothly without hassles from Mr. Inch or
management~.
Mr. Inch testified that he knew nothing of the practice and
would not have condoned it if he had. However, he also testified that
he left the banking and balancing up to the two grievors ..... he did not
want to get involved. Mr. Inch also testified that the only time he
4
ever wrote off shortages was when he was assured by the grievors that
the error lay in two documents having been stuck together and that an
equivalent overage would be recorded the next day. It appears that
this occurred twice in the three month period covered by the intensive
audit. This evidence essentially corroborates the evidence of the
grievors that they could not expect Mr. Inch's help in writing off
unexplained shortages, and were thus left to their own devices.
Both grievors testified that they were aware other Inside
Examiners were performing similar irregularities and that they had
learned about it basically through "wink and a nod" hints from others.
They also attended a clerical conference in the fall o~ 1990 where.
several clerks privately admitted they were doing the same thing.. Both
grievors 'were very reluctant to name names when asked who they had
learned these techniques'from, but eventually three people were named.
Essen~ially this case resolves itself as a credibility
issue. If we believe the grievors were doing just what they said they
were doing, that is; failing to record certain $10.00 transactions in
order to make up innocent shortages in the daily balance, and that they
felt pressured to do this as a result of their supervisor's failure to
acknowledge or take charge of the problem; then in our view there are
grounds for discipline but not .grounds for dismissal.
Employer c6unsel urges us to draw an inference that the two
grievors were working together in a form of conspiracy and that they
were pocketing the money. Counsel says that it doesn't make ~ense
otherwise. Why would they involve themselves in such an elaborate
scheme over a long period of time, which they knew to be wrong~ just to
5
make the office run smoothly? With respect, we are not persuaded by
that line of reasoning.
We believe the grievors' account of how the practice arose
and why it continued. The system they were working within was poorly
designed and poorly managed. The single cash drawer for several users
is bound to lead to errors and confusion. It has been changed since
this grievance arose. The system for recording renewal/replacement
transactions has also been revised. Mr. Inch has had his signing
authority for shortages taken away from him and the District Manager is
now responsible. The funds converted were only a fraction of the total
funds taken in on renewal/replacement transactions. We believe these
two grievors found themselves in a position where they had t~ cover for
innocent shortages without assistance or direction from management. A
simple means presented itself in an obvious design flaw in the system.
Although the grievors knew that what they were doing was wrong, they
· also felt that no one would suffer from the deception. They were not
gaining anything personally, the public was not being overcharged and
the treasury was receiving the same amount of money it would have
received anyway. Of course the grievors now understand that the sort
of deception they engaged in is wrong and it should have been dealt with
by a full confrontation with their supervisor or management. We are not
surprised that they did not want to rock the boat, but they should have.
They now understand the potential for abuse and are aware that short
cuts will inevitably undermine trust and confidence.
The preceding portion of "this decision was written and
concurred in unanimously in December, 1991. At that time, we were
agreed that the essential trust between.employer and employee that is
6
necessary to an ongoing employment relationship had not been broken in
this case. We believed that we could reinstate the grievors into a
satisfactory trust relationship with management and their co-workers,
subject to a one-month suspension without pay.
Before our decision was issued and released to the parties,
we received a letter from counsel for the employer asking us to re-open
the hearinG and receive additional new evidence with respect to the
grievor, Ms. Bechard. This evidence was uncovered subsequent to our
final day of hearing 'on November 20, 1991 and was said to concern
significant dishonest actions by the grievor with respect to her
employer, the Crown in Right of Ontario, which could have a.materiat
impact on our deliberations about the possibility of reinstating Ms.
Bechard.
Ne reconvened on February 20, 1992 and received this new
evidence. In deciding to re-open the hearing, we were quided by a
s~mary of the case law and comments of authors Gorsky, Uspr~ch and
Brandt in Evidence and Procedure in Canadian Labour Arbitration
(Carswell, 1991) at pp. 12-8 to 12-11:
" An arbitration board's discretion to determine its
procedure and to admit evidence is sufficiently broad for a
board to allow a party to call new evidence at any time up to
the finality of the award. The issue is not whether a board
has this power, but whether and %mder what circumstances it
should be exercised. The discretion to allow new evidence
should clearly not be exercised lightly. An orderly hearing
in which each party presents.its evidence in turn is both more
efficient and more' likely to preserve an appearance of
fairness. The parties are well aware of the accepted procedure
and plan and present their cases accordingly.
Nevertheless, while it is inappropriate to permit a party
to prove its case on the instalment plan, a rigid adherence
to procedure is not a valid goal in itself nor in keeping with
the desirable informality and flexibility of arbitrations.
Procedural rules are intended to serve the interests of~ the
parties and achieve a fair hearing for all concernedr not to
7
encase the process in a straitjacket. '[T]he primary objective
of~ arbitration is to give each party a full and fair hearing
and...rules of procedure should be adopted in so far as they
satisfy that objective.' In appropriate circumstances,
arbitrators will allow a D&rty to reoDe~ its case.
Some awards have adopted as guidelines the conditions set
out in cases in the ordinary courts. For example~ one reported
award that deals with the question adopts the tests set out
by the English Court of Criminal Appeals. To be admittad a~ter
the close of a trial, fresh evidence (a) must not have been
available at the time of the trial; (b) must be relevant; (c)
must be credible; and (d) must be.of sufficient importance to
affect the outcome of the trial. A very similar set of
criteria is used in another award: (a) the evidence could not
have been obtained with reasonable diligence at the trial; (b)
the evidence would probably have an important influence on the
result of the case; and (c) the evidence must be credible."
The authors go on to comment that these guidelines are overly
stringent and argue for a more flexible model. We determined that
new evidence in this case meets the guidelines set out for appellate
courts above, and therefore did not delve into the issue of whether or
not broader grounds are appropriate.
This is what happened. On November 15, 1991, our first day of
hearing, employer representatives heard a rumour that Ms. Bechard was
employed by the Ministry of the Attorney General as a court clerk
Chatham. They were surprised that a Ministry would hire someone who was
dismissed from another Ministr~ for dishonesty. Employer coun~l made
enquiries of the Ministry of the Attorney General and was informed
the first week of December, 1991, that Ms. Bechard was in fact employed
on contract as a casual worker in the Chatham courts. On her application
form for this job she had p~lt as the reason for leaving her job with
the Ministry of Transportation: "laid off". When asked for her
supervisor's name, she mentioned neither Mr. Inch nor Mr. Quirk, who
were her two immediate supervisors within the Ministry of
8
Transportation, but named a Mr. Ellison, who is the Area Enforcement
Supervisor for the Ministryr and for whom Ms. Bechard has done some, but
not much, work. She gave two other work-related references pertaining
to her employment on contract in the Chatham office as an inside
examiner between January, 1986 ~nd May, 1988, before she got the
permanent job. in Sarnia. One of those referees is now retired frnm
public service and the other is an inside examiner who was also
dismissed for the same reason. Ms. Bechard was dismissed.
We heard testimony from~Ms. Linda Groen, who is the manager
of counter services with the Ministry of the Attorney General in
Chatham. She was on the selection panel that hired Ms. Bechard. When
Ms. Groen saw om Ms. Bechard's application form that Ms. Bech~rd had
been laid off, she questioned. Ms. Bechard about her surplus status
because .surplus employees have special rights under the collective
agreement. Ms. Bechard told the selection panel that she 'was not on a
surplus list because there were a number of people laid off at the same
time and the Union had told her she would not get a job recall due to
her relatively brief seniority. Ms. Groen recalled, although she did not
make notes at the time, that Ms. Bechard told h~r that the Ministry of
Transportation had closed'the Sarnia office. Under cross-examination,
she conceded that Ms. Bechard might have told her that a driver examiner
and a supervimor alone were running the office.
We also heard testimony from Mary Jo Nolan, who is the chatham
court services manager for the Ministry of the Attorney General. On
December 11, 1991, Ms. Nolan interviewed the grievor with her union
repr~mentative and questioned her about the discrepancies on her
application form which had just come to light. When asked tO clarify why
9
she had left her previous employment, Ms. Bechard first said that 20
people across the Province had been laid off due to cut-backs and budget
restraints. She then said that she had been laid off for improperly
following procedures. She said that when She received her separation
slip for unemployment insurance purposes, it did not hav~ the bo~ marked
"d~missed" checked off but rather another box marked "other" w~s
checked off with the explanation that she was "dismissed with pay for
three months" Ms. Bechard also told Ms. Nolan that she did not have to
undergo the reg%~lation waiting period at UIC for dismissed employees but
rather was given the shorter waiting period granted to people who have
beem laid off. She also ~aid that ia her meetinq of April ll, 1991, with
Ministry of Transportation management, she had been told she was "laid
off, suspended with pay" She insisted that she had put laid off on her
-application form because that iL what the separation certificate had
said. Ms. Bechard said that she did not name Mr. ~Inch as her immediate
supervisor because she did not have a ~ood rapport with him and she
could not be sure what he would say. She also noted that the application
form did not specify that the name of her immediate ~upervisor was being
asked for, and she therefore felt she could name any supervisor.
A follow-up meetin~ was scheduled for December 17th to allow
the Ministry time to investigate Ms. Bechard's responses. By December
16, 1991, Ms. Bechard read the writing on the wall and tendered a letter
of resignation in the following form:
"December 16th, 1991.
To: Kathleen Fletcher
Court Support Services Manager
~ue to the recent harassment on December 1I, 199I by
management in the presence of co-workers~ I feel I must re~.gn
from my current position of'Court Clerk.
In my former position am Inside Examiner at the Ministry of
Transportation I was laid off due to ALLIGATIONS (sic) of
'misconduct of duties' which are unresolved to date. This
situatio~ is currently at the arbitration level of grievance
proceedings.
This is .an unfortunate situation, however, I do not feel I
should be placed in the position of justifying '@lligations'
which are.untrue; to my current employer.
Yours Very Truly,
Shelley L. Bechard"
We heard testimony from Ms. Bechard on February 20, 1992, an~
received in evidence a copy of her UIC separation slip. On the
separation slip~ in the box marked "other", the employer put. "April
llth-July 5th, 1991, s[~spended with pay". There is ho mention of the
· words laid off. Ma. Bechard testified that she was well aware when she
completed the application form for the court clerk job that she had been
dismissed. She felt that if she had said so on her application form she
would not even be considered for the job .and certainly-would not h~ve
Obtained it. That is probablF a very realistic assessment. She thought
long and hard before putting laid off on the application form'and felt
she could do so because of the ambiguity on her separation slip and the
fact that UIC had treated it as a layoff for purposes of computing the
waiting period. Also~ she was grieuing her dismissal and hoped to be
successful at arbitration when the dismissal might be converted into a
reinstatement. She attempted to justify the explanations given by her
in her interviews with Ms. Groen and Ms. Nolan as being truthful and
not designed to mislead. She also challenged the accuracy of some of the
statements ascribed to her by the interviewers. She gave'no evidence to
11
support her claim of harassment set out in her resignation letter.
Unfortunately, what Ms. Bechard has done subsequent to her
dismissal has undermined the trust relationship, the continuation of
which is essential for reinstatement to her former job. She has
compounded her original error of dishonesty, from which she did not
stand to gain personally, by adding additional instances of self-serving
dishonesty designed specifically ~o induce the Ministry of the Attorney
General to hire her when she knew that it would not have dohe so if ~he
were honest.
There is substantial arbitral jurisprudence in support of the
principle that where information is deliberately withheld or knowingly
falsely given in an attempt to obtain employment then, when subsequently
discovered, the false representation will be sufficient grounds to
terminate the employment relationship. (Re DouGlas Aircraft Co. of
Canada Ltd. and United Automobile Workers~ Local 1967, (1973) 2 L.A.C.
(2d) 147 (Simmons); Re Weyerhaeuser Canada L~d. and International
woodworkersr Local 1-423, (1989) 4 L.A.C. (4'th) 41 (rickets)). The
application form tha't Ms. Bechard signed for the job with the Attorney
General contained the proviso, just above her signature: "I hereby
declare that the foregoing information is. true and complete to my
knowledge. I understand that a false statement may disqualify me from
employment or cause'my dismissal."
The employer may rely on culpable conduct occurring after a
discharge in support of the discharge even where an arbitration board
f~nds that the original discharge was unjust. (see Re Uncle Ben's Tartan
Breweries {B.C.) Ltd. and United Brewery Workers, Local 35~, (1975} ~
L.A.C. (2d) 109 {MacIntyre}~ Re Ethyl Canada Inc. and Energy and
Chemical Workers Union, Local 300, (1984) 13 L.A.C. (3d) 325 (Welling)).
The subsequent behaviour is clearly relevant to the issue of remedy when
an arbitration board has found that an original dismissal was an
excessive disciplinary response to culpable conduct. Where even more
culpable condu~t takes place after the dismissal,' it bears directly on
whether or not the employer and employee can be reinstated into a
trus~ing and harmonious working relationship. Unfort~nately~ this is not
now the case with respect to Ms. Bechard.
Accordingly, the grievance of Ms. Bechard is dismissed. The
grievance of Ms. Paulley is allowed in part and we have determined that
a one-month suspension without pay is the appropriate penalty for what
she did. What she did was dishonest ~but it was not larcenous or
fraudulent. We would not expect a.recurrenee in the future. Thereforer
she will be, reinstated, subject to the suspension, with back pay,
benefits and '~eniority. We will remain seized of jurisdiction in the
13
event there is any difficulty implementing the award for a period of 90
days following its release.
Dated at Toronto this 20th day of March, 1992.
A BARRETT, Vice-Chairperson
J.C ~ANIEL, Member
A. STAPLETON, Member