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HomeMy WebLinkAbout1994-1050BRADLEY96_03_08 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1 Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1ZB FACSIMILE/TELECOPIE (416) 326-1396 GSB # 1050/94, 1424/94 OPSEU # 94G045, 94G192 IN THE HATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Bradley) Grievor - and - The Crown in Right of ontario (Ministry of Education & Training) Employer BEFORE H Finley Vice-Chairperson J Carruthers Member D Montrose Member FOR THE G Richards GRIEVOR Grievance Officer ontario Public Service Employees Union FOR THE D Costen EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING March 5, 1995 May 17, 19, 1995 July 10, 1995 November 17, 1995 DECISION The Gnevor, Harvey Bradley, was dIsmIssed on August 25, 1994 from hIS posItIOn as a VocatIOnal RehabIhtatIOn Counsellor With the Mimstry of EducatIOn at the E. C Drury School where he had been employed smce 1970 At the time of the heanng he was forty-mne years old, dIvorced and the father of two children. At that time, he had not found other employment. The E. C Drury School (the School) whIch IS located m Milton, OntarIo, IS a week-day, resIdential and day school servmg 270 deaf students at the pre-school, elementary and secondary levels. Most students come to the School at four or five years of age and remam untIl they are eIghteen. Those at the School are members of the deaf commumty whIch IS a small and rather tIghtly krut group Mr Bradley gneved hIS dIsmIssal and had prevIOusly gneved hIS suspensIon WithOut pay The partIes agreed that the two gnevances flow out of the same SItuatIOn and that they should be merged for the purposes of arbItratIOn. Dunng the arbItratIon hearmg, the follOWing mdIvIduals testIfied. Mr Harvey Bradley The Gnevor, who testIfied through Ms. Heather Hawthorn, a hearmg mterpreter, who mterpreted the proceedmgs throughout for hIm. Mr Bradley uses both SIgn and VOIce Constable Rick Earl Constable With the Halton RegIOnal Pohce for the past 5 12 years. He was seconded to the Cnmmal InvestigatIOn Branch and was ImtIally gathenng mformatIOn on another cnmmal mvestIgatIOn With respect to Harvey Bradley m August 1993, and as part of that mvestIgatIOn he revIewed the Mimstry's files whIch related to Harvey Bradley 1 Mr Paul Bartu From 1985 he was Supenntendent of E C Drury School m Milton and from 1993 he was also Supenntendent of SIr James WhItney School m BellevIlle He uses both sIgn and VOIce Mr DavId RegIs Vlce-PnnclpalofE.C Drury, Secondary level and part of the management team. From 1985 to 1988, he was the EducatIOn Co-ordmator for the Secondary level and m that capacIty was responsible for the GUIdance Department. Mr RegIs was mvolved m the development of the V ocatIOnal RehabIlItatIOn Counsellor posItIOn and the selectIOn ofMr Bradley for that posItIOn. As Head of the GUIdance Department, Mr RegIs was Mr Bradley's lInmedIate supervIsor and was also mvolved m the evaluatIOn of the posItIon and the reclassIficatIOn process. He uses both sIgn and VOIce The facts, for the most part, are not m dIspute, although the perceptIOn of certam events does dIffer For the purposes OfthIS arbItratIOn, Mr Bradley has admItted to havmg falSIfied three academIC transcnpts. In spIte of thIS admIsSIOn, the Board has determmed that It would be helpful to the partIes to have the eVIdence presented m some detaIl. Tlus WIll, the Board belIeves assIst them m understandmg the reasonmg of the Board m arnvmg at ItS declSlon as to whether It should uphold the dIsmIssal or SubstItute a lesser penalty Mr Bradley was hIred by the Mimstry of EducatIOn m 1970 as a ResIdentIal Counsellor Dunng hIS tIme at the School he was promoted to a ResIdentIal Counsellor II and subsequently to ResIdentIal Counsellor III. In these posItIOns he had ongomg, personal contact WIth students m the reSIdentIal, phYSICal and recreatIOnal aspects of then dally lIves at the School. Followmg hIS promotIOn to ReSIdentIal Counsellor III m 1980, he supervIsed other counsellors, was responsible for prepanng and admmlstenng the reSIdence budget and for lIalSlng WIth parents concernmg then chIld's reSIdentIal placement. He then worked as the School's VocatIOnal and RehablhtatIOn Counsellor from 1985 to 1991 Both Mr Bartu and Mr RegIs testIfied to hIS good work performance and lus excellent communIcatIOn SkIlls. They also gave eVIdence that they had a good and trustmg workmg relatIOnshIp WIth lum for a number of years. 2 In 1985 that the Employer decIded to establIsh a new posItIOn of VocatIOnal RehabIlItatIon Counsellor to assIst secondary students prepanng to graduate WIth post-secondary fundmg, wntmg applIcatIOns to post-secondary mstItutIons and WIth Job placements. It was to be a smgle posItIOn operatmg out of the GUIdance Department. The work mvolved meetmg WIth students on an ongomg basIs and detemumng the elIgibIlIty and feasibIlIty of student applIcants and explonng optIOns WIth them. It also requIred consultmg WIth teachmg and resIdentIal staff, as well as WIth a number of staff from the Mimstry of CommunIty and SOCIal ServIces (MCSS), the usual fundmg agency The mdIvIdual m thIS posItIOn would have contact wIth post- secondary mstItutIOns, such as unIversItIes m the Umted States whIch serve mdIvIduals who are deaf, and other local educatIOnal facIlitIes and agencIes m the home areas of the students. The Employer was seekIng anyone on staff who could fill the role, regardless of that mdIvIdual' s partIcular qualIficatIOns. It was lookmg at the mterest, skIlls and background of applIcants m the context of the VocatIOnal RehabIlItatIOn Counsellors m the MImstry of CommunIty and SOCIal ServIces. The posItIon was vIewed as a change of dutIes at the outset, and was a tnal posItIOn evaluated annually The posItIon no longer eXIsts due procedural changes m the Mimstry of CommunIty and SOCIal ServIces. Once the declSlon to appomt was made, an mternal postmg was CIrculated to all reSIdentIal staff. Although the claSSIficatIOn of the posItIOn was at that tIme unclear, It was generally agreed that It would be comparable to a ResIdentIal Counsellor II or III A memo was sent to staff pnor to the Job selectIOn process describmg the posItIOn, but not lIstmg credentIals reqUIred. There were five applIcants for the posItIon, all of who were mtervIewed by a team of four staff. Mr Bradley, one of the candIdates, relIed, m part, on the fact that he had worked for V ocatIOnal RehabilItatIOn m CalIfornIa for an eIghteen-month penod. ThIS was VIewed by the team as one of hIS strengths and thIS was reflected m the contemporaneous notes of the chaIr of the team, DaVId RegIs. Mr Bartu, who was not mvolved m the selectIOn process, recalls havmg a conversatIOn WIth Mr Bradley around the tIme of the mtervIew In whIch he IndIcated that he had worked In the field of vocatIOnal rehabIlItatIOn In CalIfornIa for approXImately 1 Yz years Mr Bradley testIfied that he was "tryIng to recall" and belIeves he saId that he "had some 3 expenence as a volunteer dunng the Los Angeles nots [1965] and was also under VocatIOnal RehabIlItatIOn at the tIme of the nots" He testIfied further that he was a clIent of CalIfornIa V ocatIOnal RehabIlItatIOn m RIversIde, CalIfornIa, and, at the tIme ( 1967 to 1969170), he was asked to work WIth a vocatIOnal rehabIlItatIOn counsellor openmg files for black/deaf clIents. (Mr Bradley IS, hImself, black.) It was Mr Bradley's eVIdence that he never SaId that he "worked for pay" m CalIfornIa. His explanatIOn as to how the mtervIew team mIght have been gIven thIS ImpressIOn was that hIS descnptIOns of the servIces and polICIes m each provmce WhICh he outlIned for the team, could have caused the confuSIon. In the result, Mr Bradley was the successful candIdate, the unammous chOIce of the selectIOn team. He began to work m the pOSItIOn m October 1985, and the School's newsletter, organIzed by Mr Bartu, noted hIS appomtment to the pOSItIOn as follows v R S / Counsellor Position We are most fortunate to be able to assign Mr Harvey Bradley to the role of a Vocational Rehabilitation Services liaison officer for this school year Mr Bradley is a very experienced R.C. III and has also had several years ofV.R. experience in CalIfornia. Since we have a very busy graduating class this year, Mr Bradley will be extremely busy and will work very closely with Dave Regis in the Guidance Department. ThIS announcement was based on a conversatIOn that Mr Bartu had With Mr Bradley, accordmg to Mr Bartu's testImony He was clear that there could have been no confuSIon between "volunteenng" and "workmg" as the SIgns for these two words are qUIte dIstmct. Mr RegIS also testIfied that he had been told several tImes by Mr Bradley that he had a degree m VocatIOnal RehabIlItatIOn from CalIfornia. There was no eVIdence that Mr Bradley had objected to the partIculars of the announcement. Mr Bradley's eVIdence was that he dId not see thIS newsletter m 1985 Mr Bradley receIved five appraIsals between the commencement of the VocatIOnal RehabilItatIOn positIon and the summer of 1991 They vaned from "an average Job" and "defimtely above average" to "excellent work" In 1986, Mr RegIS wrote to hIm and commended hIm on ms. . Independence and ImtIatIve 4 . Industry and ResponsibIlIty . Co-operatlve RelatIOns wIth other ProfessIOnals . Role Model . Counsellor, and . Growth Mr RegIS also expressed the hope that the "classIficatIOn of [hIS] pOSItIon [was] not far away With a pay schedule appropnate to the skIlls and responsibIlItIes of your V.R. Counsellor pOSItIOn" In 1989 Mr Bradley receIved the followmg memorandum from Mr RegIS m cOnjunctIOn WIth hIS performance appraIsal Thank you, Harvey, for another very successful year of Vocational Rehabilitation work. This year's graduating class was very large, but you have handled large caseloads efficiently and effectively You have served the students well. The workshop of "How to Use an Interpreter" was excellent. Thanks for making the arrangements and making sure it ran well. Thanks again -- have a good summer! "Signed" D Regis EducatIonal Co-ordinator Guidance Department Shortly after assummg the posItlon, the Gnevor approached the Employer WIth a VIew to havmg the pOSItIOn reclaSSIfied and therefore the pay for the pOSItIOn mcreased from the ReSIdentIal Counsellor III rate at whIch he was bemg paId. Mr Bradley testIfied that he told Mr RegIS that he was stressed, overworked, and had both finanCIal and mantal problems and that he told Mr Bartu that he was under pressure Mr Bactu demes that complamts were brought to hIm outSIde the request for claSSIficatIOn, and Mr RegIS testIfied that the dISCUSSIons he had WIth the Gnevor were comparmg fanuly notes and the general problems one meets m havmg fanuly responsibIlItIes. Accordmg to Mr Bradley's testImony, dunng the clasSIficatIOn dISCUSSIOns, he was offered Social Worker I clasSIficatIOn but he refused this because It dIdn't pay enough and he felt that he was worth more. Eventually, he explamed, the Employer agreed to the SOCIal Worker II clasSIficatIOn, provIdmg he had a degree. He testIfied that tlus was warranted based 5 on the complexItIes of the Job dutIes as a whole and on the actual work and time mvolved m fulfillmg the responsibIhtIes of the posItIOn. He also testIfied that the financIal stress that he found hImself under would be allevIated If the classIficatIOn were upgraded and the pay mcreased. In February ofthat year Mr RegIs drew the range and extent ofMr Bradley's actIvIties m hIS posItIOn to the attentIOn of Mr Bartu and others m the form of a memorandum detaIlmg these activItIes. In 1987, the Employer set about reclassIfymg two VocatIOnal RehabIhtatIOn posItIOns, the one held by Mr Bradley at E.C Drury School, the other held by Rasa McFadden at SIr James WhItney School. Tlus process followed a gnevance brought by Ms. McFadden m November of that year WhICh was later settled. Mr Bartu testified that the mandatory, ffiImmum reqUirement for a VocatIOnal RehabihtatIOn Counsellor was a Bachelor of SocIal Work degree and expenence and background m vocatIOnal rehabIhtatIOn counsellmg. Mr RegIs gave eVIdence that Mr Bradley at no time expressed concern to hIm that the credentials reqUired were unreasonable for the pOSItion or that he mIght not qUalIfy Havmg determmed that the posItions should be a SocIal Worker II (AtypICal) they drafted PosItIOn SpecIficatIOns for the two posItIOns m 1987 and they were approved m 1988 The E C Drury School VocatIOnal RehabIhtatIOn Counsellor posItion was classIfied as a SOCIal Worker II (AtYPIcal) for the followmg reasons Position provides professional social work services to clients, conducts interviews, compiles socIal hIstories and assesses vocational potential. Position counsels, implements treatment/training plans to assist clients to resolve their problems and develop their maximum potential, evaluating the effectiveness of the treatment plan and modifying or revising it as necessary Position liases with employers (to encourage them to hire the deaf) and consults with other members of professional disciplines to secure social/case history and/or further assessments, position liaises with community agencies (e.g. hospitals, workshops) to promote/provide VRS consultation. The skIlls and knowledge reqUired to perform to Job at full working level were hsted as follows . BSW in Rehabilitation Counselling, . progressively responsible previous experience in counselling and rehabilitative services. . The work requires thorough knowledge of social service and rehabilitation prmciples, theories and techniques with proven ability to apply them in the vocational setting; 6 . a good knowledge of social programs, policies and services is necessary along with detailed knowledge of community agencies/resources providing vocational services to the disabled, . knowledge of the referral procedures of these agencies is also required. . The work requires knowledge of diagnostic and treatment procedures utilized by related disciplines, . a working knowledge of all pertinent legislation/regulations and their application to VRS programs. . Good knowledge of various physical, emotional and mental disabilities and their medical, psycho-socio vocational impact; . Knowledge of occupations and employment markets is also required. . Proven assessment, interviewing, counselling and psycho-social diagnostic skills are necessary for the formulation, implementation, and modification of treatment plans, and in order to assist clients in arriving at realistic vocational goals. . Case management and organization skills are necessary to analyze chent priorities and meet program deadlines. . Work requires the ability to effectively liaise with, and maintain good working relationships with community agencies, other professional staff, and potential employers of VRS clients. . Excellent verbaVsigning and written communication skills are required in order to address groups, prepare case history reports, and develop submissions for vocational training requests. . Interpersonal skills are needed in order to effectively deal with, and establish rapport with clients, families, staff, schools, community agencies, employers, etc.. The "Class Senes QualIficatIOns for SOCIal Workers" mdIcates a reqUIrement for formal academIC socIal work qualIficatIOns and emphaSIzes that "All formal academIC socIal work traInIng must have been obtame~atD..illYersltIes or Schools of SOCIal Work ofrecogmzed standmg." They note as well that Basic qualifications are established in terms of degree requirements in social work. Certain universities in Canada and the United States may accept a small number of "special students", who, while lacking a degree, are deemed qualified to take the course offered to M.S.W candidates, and fulfill all course requirements, including the theses. While no degrees are granted in these cases, successful "special students" receive a diploma, certificate or other formal proof upon completion of the course. The SocIal Worker II pOSItIon reqUIred one of the followmg I Completion of academic work for the M..S.W Degree. 2. B.S. W Degree, supplemented by at least two years of social work experience following degree training. 3 Successful completion of a two year course as a "special student" 4 Successful completion of a social work course in a country other than Canada or the United States, supplement by at least three years of Canadian social work experience, 5 Membership in the British Association of Psychiatric Social Workers Members must have completed a two year social work course, supplemented by another year's study for the mental health certificate. However, university graduates complete a one year social work course, then take the one year course necessary to obtain the mental health certificate. 7 The above mentioned equivalents are not necessarily all-inclusive and other kinds of qualifications ma)' be acceptable. However, these will be evaluated in relation to the basIc degree requirements applicable in the social work class series. In order to confirm Mr Bradley m the classificatIOn, the reqUIrement was conveyed to hIm, and he was requested to produce a resume along With documentary proof of lus academIC qualificatiOns ThIS request for a resume and credentials was first made, accordmg to Mr Bradley, m November 1987 Accordmg to hIS testimony, the request was for ongmal documents. He described hIS VIew of the process III a memorandum to Mr Bartu dated January 4, 1988 It reads m part as follows Subject: Reclassification - Vocational Rehabilitation Counsellor I don't quite know where to start, however, I approached you in April 1986 asking about a reclassification for my position as a V.R. Counsellor at E. C. Drury School. You advised me that you would check into this and that you would let me know what could be done. At the end of November 1987, Mr Lawton called and asked to see me in his office. Mrs. Jukes acted as an interpreter for Mr Lawton. Mr Lawton said that I would need a resume to clarify my job duties and educational work experience background. By the end of December 1987,1 completed the resume. I was, at this time, told by you that I would need a transcript from Riverside City College to determine if my qualifications are equivalent to that ofa Social Worker II. There has been delay after delay and still nothing has been settled. I know that the job I am doing here at E.C.D is far more complex than the job of Vocational Rehab Worker in the Ministry of Community and Social Services and classifying this position as a Social Worker II would not be out of line. Furthermore, I would have expected full support from you and Mr Wollaston to have this reclassification put through as quickly as possible as I have been overworked and underpaid for the past 3 years. The classification of Social Worker I is not a fair classification for this position as the work and responsibility is at least worthy ofa Social Worker II position. My current classification ofR.C. III is only $500 00 per year less than that of the Social Worker I position that you are offering me. This is not a fair offer I would very much appreciate your consideration and that ofMr Wollaston in supporting my reclassification to that ofa Social Worker II position. My job duties have fallen behind in the past few months, while I have been trying to prepare the resume that was necessary and now I am being asked to send for a transcript. I do not have the tune to send for this information and feel that this information is not necessary If you are 8 supportive of my reclassification to that of Social Worker II based on the requirements of the position the Personnel should not need any further information. I would appreciate your support in this matter "Signed" Harvey Bradley Vocational Rehabilitation Counsellor Mr Bartu recalled havmg a conversatIOn WIth Mr Bradley concerning the fact that the SocIal Work degree IS unusual m the Umted States and that a degree m VocatIOnal RehabIlItatIOn and expenence m that would probably be a sUItable eqUIvalent and that It seemed more appropnate than a SocIal Work degree. Mr Bradley provIded the Employer WIth the follOWIng documentatIOn m early 1988 1 A transcnpt from RIverSIde CIty College, RIverSIde, CalIfornIa mdIcatmg that he entered the College m September 1966 and was granted an ASSOCIate m Arts degree m SocIOlogy-SocIal Work on June 16, 1970 2 A dIploma from Gallaudet College, Washmgton, D C m hIS name mdIcatmg that he was granted a Bachelor of SCIence degree m PhYSICal EducatIOn on May 17, 1976 3 A dIploma and transcnpt from Western Maryland College, Westmmster, Maryland, mdIcatmg that he had passed the "ComprehensIve ExammatIOn m EducatIOn for the Deaf' m 1979 and had ten graduate credIts, resultmg m the grantmg of a Master of EducatIOn degree on August 22, 1980 4 A provlSlonal certIficate for elementary and secondary educatIOn dated July 28, 1980 and effectIve for a five-year penod, granted by The CouncIl on EducatIOn of the Deaf. S A resume prepared m late 1987 fearly 1988 whIch reflected the above educatIOnal achIevements and a "ProfessIonal Employment Record" shOWIng, m part, work at the "VocatIOnal RehabIlItatIOn Centre, San Bernardmo, CalIforma m 1967/1968, and, at the VocatIOnal RehabIlItatIOn Centre, Los Angeles dunng those same years No dutIes were shown for the San Bernardmo pOSItIon but the Los Angeles pOSItIon showed the follOWIng: Internship -provided personal, social, vocational and educational 9 counselling; and guidance of students on an individual basis, -provided Resource Centre assessment; -promoted to Counsellor 1- 1968-70 [sic] Major Responsibilities~ -provided professional teaching and guidance of students on group basis, -conducted group counselling sessions, including discussions and workshops, -conducted Liaison work with Community and Government Agencies, -administered Scored and Interpreted aptitude, Interest, Ability and other Psychological Tests for individual groups, Notlnng was shown for the penod, 1970 to 1976 when he was at the E. C Drury School. However, the penod from 1976 to 1985, when he commenced the VocatIOnal RehabilItatIOn pOSitIOn is detaIled as is hiS work m that pOSitIOn. Fmally, the resume sets out ills active mvolvement outside the school m the OntarIO ASSOCiatIOn for the Deaf, the Canadian Deaf Sports ASSOCiatIOn, the Ontano Cultural SOCiety of the Deaf, and the Canadian Cultural SOCiety of the Deaf. Mr Bradley submitted the above documentatIOn to the Employer and it was attached by them to the form willch was reqUired to mitiate the reclassificatIOn of the VocatIOnal RehabilItatIOn Counsellor pOSition and was sent to the Mimstry of EducatIOn m Toronto and was duly processed. Mr Bradley testified m cross-exammatIOn that when Mr Bartu asked for ongmals, he asked for the documents he had submitted back but that Mr Bartu did not return them. Mr Bradley contmued m hiS pOSition as VocatIOnal RehabilItatIOn Counsellor and receiVed notice of the reclassificatIOn of the pOSition and the consequent change m salary m 1988 However, m June, 1991, Mr Bradley was suspended With pay pendmg the dispOSitIOn of certaIn charges unrelated to thiS matter and of which he was acqUitted. Dunng the mvestigatIOn of these charges, the corporate file of Mr Bradley came mto the hands of the Halton RegIOnal PolIce, m particular, the officers assigned to the mvestigatIOn of the charges. Constable RIck Earl, who testified at tlns arbitratlOn hearmg, reviewed the file as part of lns mvestigatlOn and observed certam discrepancies and unusual typographical differences m the documentatIOn which was m Mr Bradley's file as part ofthe reclassificatIOn process. These raised questIOns m 10 - hIS mInd whIch he followed up wIth the InstItutIOns and workplaces lIsted and wIth the E.C Drury School. His InvestIgatIOn and contacts wIth the InstItutIOns In questIOn led Constable Earl to conclude that wlule Mr Bradley had In fact attended RIversIde College, lus area of study was commerce, not socIal sCIences, that hIS work history In CalIfornIa was false, and that Mr Bradley had supenmposed hIS name on hIS common-law wIfe's academIc transcnpts and dIplomas. He demonstrated the basIs for hIS concluSIOns durIng hIS testImony Constable Earl dId not prOVIde any mformatIOn speCIfically related to the 1985 Job competItIOn. A meetIng was held WIth Mr Bradley In October 1993 and was attended by Mr Bradley, a umon steward, an mterpreter for Mr Bradley, Mr Bartu, and Kathy MareskI, Issues CoordInatorlInvestIgator, ProvIncial Schools ProJect. Mr Bradley was Informed that the Mimstry was aware that the credentIals submItted by lum With respect to the VocatIOnal RehabilItatIon posItIOn had been checked With the ISSUIng InstItutIOns and were now known to be false. Mr Bradley IndIcated through hIS steward that he would like to dISCUSS the matter but that lus lawyer had advIsed hIm not to do so He was mformed that hIS suspensIOn would contInue Dunng the InvestIgatIOn of the dIscrepancIes In the documentatIOn Constable Earl had concluded that Mr Bradley had altered the academIc credentIals of his common-law wIfe who happened to be a staff member at the E. C Drury School. Indeed her name and SOCIal securIty number remained on some She was IntervIewed by those InvestIgating the matter on behalf of the School In November, 1993, and she admItted that Mr Bradley had, WIthOUt her knowledge, used her transcnpts and that she had known thIS to be true SInce the end of August 1993 when Mr Bradley told her that he had done so Dunng hIS exammatIOn-In-chIef, Mr Bradley was asked to explain why he prepared falsIfied documents relatmg to hIS expenence and lus credentials. He gave the folloWIng explanatIOn. I was under a lot of pressure. I worked many hours and was almost never home. I didn't have a lot of support from work except from Mr Regis and he was unable to do anything for me. I was on the road a lot and was working day and mght to meet different area offices and they all wanted 11 me to do it their way and I was not told that in interview or at the Mississauga office. For example, the writing style for a family history I had to write it for them Mississauga way, the Cambridge/Galt way, or the Orillia way, and so on. I was always adapting and that caused a great deal of stress. It was frustrating. I came into the system when they were trying to decentralize and I was reporting to different area offices and it was a very difficult job If I had only reported to one it would not have been a problem and it caused stress and I told my supervisor many times and he could not do anything, he himself felt stuck and then when he asked for credentials, the document, I didn't know, I didn't know I just felt problems with marriage, and kids, and asking to do file. I just did it and then I felt awful because I did it to him (Mr Bartu). I never thought the paper would go anywhere because he needed the original and I thought the matter was dropped and I didn't do anything more. I thought I would lose my job and I felt that the whole thing, after doing all the networking, I felt at a lost trying to save my marriage and my job In August 1993, when the matter of the documents was brought to hIS attentIOn by the PolIce, he testIfied that he was "shocked because [he] dIdn't thmg the paper work had gone anywhere because [he] dIdn't gIve ongmals" and that he was surpnsed when the matter came up m Court, havmg thought that the paperwork had been destroyed. He dId, at that pomt, he explamed, feel badly He testIfied that he thought the change m hIs pay mIght have come about because he had been "grandfathered" as he had heard that thIS happened to some of the teachers On November 10,1993, Mr Bradley was acqUItted of the unrelated charges but a week later found hImself charged WIth three counts of uttenng forged documents under the Cnmmal Code, s. 326 (1) 326 (1) Every one who, knowing that a document is forged, (a) uses, deals with, or acts upon it, or (b) causes or attempts to cause any person to use, deal with, or act upon it, as if the document were genuine, is guilty of an indictable offence and is liable to imprisonment for fourteen years. (2) For the purposes of proceedings under this section, the place where a document was forged is not material. 1953-54, c.51, 2. 311 On July 4, 1994, he pleaded gUIlty to one count ofuttenng a forged document. A convIctIOn was recorded on one count, the other two counts were WIthdrawn. In the context that Mr Bradley had no pnor cnmmal record and m accordance WIth the Jomt submIssIons of counsel respectmg sentencmg, hIS one-year sentence was suspended and he was placed on probatIOn for twelve months. The matter of the fraudulent mIsrepresentatIOns by Mr Bradley was reported m the general press, and that of the deaf communIty 12 In August, 1994, the group that was mvestIgatmg thIs matter for the School, mtervIewed Mr Bradley agam and gave hIm an OppOrtunIty to comment on the documents, even though they were aware that he had pleaded gUIlty to the one fraud charge. Accordmg to the mvestIgatIOn report, he gave a lustory of the sItuatIon that led hIm to falSIfy the documents, stressmg the dIfficulties of the positIOn. He apologIzed, stated that he was glad that no one got hurt and mformed the group that he looked forward to returnmg to work and provmg hImself agam. On August 25, 1994, Mr Bradley was dIsmIssed "for cause m accordance WIth sectIOn 22 (3) of the PublIc ServIce Act" A deputy minister may for cause dismiss from employment in accordance with the regulations any public servant in his ministry Dunng cross-exanunatIOn, Mr Bradley was asked why he made no reference to the vocatIOnal rehabIlItatIOn expenence m hIS mItIal applIcation m 1970 He explamed that he was never really mterested m applymg but that the supenntendent at the time asked hIm to apply and ills Wife was worlang there He dId not "go after the Job", and SImply filled out the form Without gIvmg It any partIcular thought, bemg young at the time, he testified. When asked to explam the falSIfied resume he produced m 1987/1988 he saId that he was under pressure, and as an explanatIOn for Mr RegIs' testImony that nothmg had been mentIOned about "volunteer vocatIOnal rehabIlItatIOn work", Mr Bradley suggested that Mr RegIs mIght have forgotten and that had other members of the mtervIew team been at the hearmg, he was sure "one of them would remember" There was no eVIdence that he was troubled by havmg receIved a conSIderable amount of money ($27, 773, accordmg to the Mimstry) from the Mimstry between 1986 and 1993, based on hIS fraudulent chums. Mr Bradley testIfied that he found hIs Job challengmg and loved It, and that he would like to return to that posItIOn Ifhe were remstated. He told the Board that he had learned a lot, that what he dId was "stupId" and that he "should have taken It [ the documents he had provIded] back and not let It go through" He would tell 13 others, he explamed, not to do thIS even If they are stressed, and that they should, m contrast to hIm, get help SUBMISSIONS The Employer referred the Board to the followmg cases Re McKenna and The Crown in Right of Ontario (Ministry of Transportation and Communications) (1980) 28 L.A.C (d) 410, (GSB, Swan) The gnevor m thIS case applIed as an external applIcant for a posItlOn as a MobIle Auger Operator ThIS IS heavy eqUlpment whIch IS often dnven on publIc lughways. The Board accepted that a clean dnvmg record "constItuted a matenal factor to be consIdered m the selectlOn process." On the applIcatlOn for the gnevor checked the "no" box to the questlOn "Any accIdents?", left the "convIctlOns of suspenslOns block" entuely blank and sIgned to "certIfy the above statements to be complete and correct" The gnevor's explanatlOn was "that he dId not advert to the Importance of the document smce he had been fillmg forms and domg tests all day" At the tIme ofthe job competItlOn and hIS success, hIS lIcence was mjeopardy, bemg subject to dIscretlOnary suspenslOn. A mmor mfractlOn would have mcreased the possibIlIty of suspenSlOn wlule a major mfractlOn would have resulted m a mandatory suspenslOn. It was clear that the gnevor would not have been hued had lus accurate dnvmg record been available to the employer and the Board found that "the gnevor literally got the job because lus dnvmg record was concealed" and that "the gnevor was on hIS own admIsslOn entuely aware of the nature of hIS record" The Board charactenzed the reason for whIch the gnevor had been dIsmIssed as "mIsrepresentatlOn" as opposed to "lymg" and found that, whIle there was no duect warnmg of the consequences of mIsrepresentatlOn, there was a general duty to be honest and reasonably forthcoming about material factors The Board upheld the dIsmIssal and dIstmgUlshed thIs 14 case from that of Maw, infra, on the basIs of the length of servIce ofMr Maw [EmphasIs added] Re OPSEU (Dain) and The Crown in Right of Ontario (Ministry of Education) (1994) GSB 3814/92 (Gorsky) In thIS mstance, the gnevor had applIed for a geographIcally restncted pOSItIOn when she lIved outsIde the area defined m the postmg and m doing so had lIsted her resIdence as bemg WIthm the area. The gnevor explamed that she had been told by fellow employees of others who had done the same and that she had also heard that the employer had, on occaSIOn, overlooked the restnctIOns and that, m fact, the restnctIOn was not consIdered that Important by the employer She also acknowledged that her WIsh to advance her career "overcame any mIsgIvmgs she mIght normally have about mIsrepresentmg the true facts" She was appomted to the pOSItIon, m part, because she was the only applIcant resIdmg wrthm the deSIgnated area. Dunng the employer's mvestIgatIOn of thIS matter It came to lIght that the gnevor had also falSIfied some travel expense claIms. In consIdering hIS deCISIon, Vice-chaIr Gorsky took mto account the gnevor's "past good record" mcludmg "her record of publIc servIce", "along SIde of the Gnevor's contmumg actIons to mIslead the Employer" WhIle he belIeved that she was "genumely of the VIew that she can be trusted and has learned from her mIstakes", he was cogmzant of her subsequent acts ofprepanng and submIttmg a back-dated lease and changmg her drIver's lIcence. WhIle the ArbItrator would have consIdered reducmg the penalty If there were some less senSItIve pOSItIOn to whIch she could be assIgned and he expressed the WIsh that he could find a baSIS for amvmg at a dIfferent result as he saw the gnevor havmg "a good deal of potentIal whIch wIll now be lost to the Employer" In the end, he concluded that the dIsmIssal should be upheld. Re Municipality of Metropolitan Toronto and Canadian Union of Public Employees, Local 79, 31 L.A.C (4th) 79 (Spnngate) The gnevor was employed by the corporatIOn as a welfare VISItor and her responsibilItIes mvolved meetmg applIcants for aSSIstance m then homes, gathenng and recordmg the 15 mformatIOn on the applIcatIOn, determmmg elIgibIlIty and completmg paper work WhICh resulted m assIstance cheques bemg Issued to the applIcant. She was dIscharged for havmg "used her pOSItlon to defraud the corporatIOn of at least $44,729 43, followmg the Employer's mvestlgatIOn whIch uncovered the mIsappropnatIOn of74 cheques over a two-year penod. The gnevor was charged, pleaded gUIlty and was gIven two years' probatIOn and ordered to make restltutIOn whIch she managed through her mother mortgagmg her house and lendmg her the money At the tIme of the court hearmg she wrote a lengthy letter of apology to the employer m whIch she expressed remorse and assumed responsibIlIty for her actIOns The Umon acknowledged the Impropnety of the conduct but submItted that she should be remstated because of the unIque CIrcumstances. The eVIdence showed that the thIrty-four year old gnevor's lIfe had, from early days been filled wIth abuse, both phYSIcal and sexual, and that her adult lIfe had been Impalred. She expenenced severe physIcal, emotIOnal and financIal stress at many penods m her lIfe. For a penod oftlme she managed to nse above thIS and followmg her completIOn of Grade 12 she obtamed a socIal servIce dIploma from one communIty college whIle workIng part tlme and later a clnld care dIploma at another communIty college whIle attendmg part-tlme. At the tlme of the mCIdents whIch took place over a two-year penod, she was marrIed to a man WIth kIdney dIsease who became unemployed. He had four chIldren from a prevIOus mamage WIth psychologIcal problems and the couple had two chIldren. She became the major breadwmner, and was faced wIth the expense of her husband's consIderable unmsured medIcatIOn expenses and $500 per month m day care expenses. Dunng that penod as well, her brother commItted SUIcIde, the last straw, accordmg to the gnevor She testIfied that she had had personal counsellmg for at least two decades and that she had not found any of thIS really helpful untIl she began to work WIth a partIcular counsellor at the tlme of the dIscharge. At the hearmg there was testlmony from a forensIc psychologIst who had assessed the gnevor m preparatIOn for the court proceedmgs, a consultant who prepared the proposal for sentencmg m the court matter and the SOCIal worker counsellor WIth whom the gnevor was currently workmg. The Board consIdered, among other factors, the mIsconduct of the employer m the context of psychologIcal consIderatIOns and looked at other cases m whIch remstatement had occurred for such reasons. 16 The reasons were vaned and mcluded the followmg (1) depressIOn and no recall of the conduct, [Re Metropolitan Toronto (municipality) and Metropolitan Toronto Civic Employees Union, Loc. 43 (1988), 4 L.A.C (4th) 336 (Kennedy)] (2) theft" not motIvated by any lack of honesty, but by a lughly dIsturbed emotIOnal state brought on by a umque combmatIOn of stress" [Re Air Canada and I.A.M., Lodge 148 (1989), 7 L.A.C (4th) 194 (Hope)] (3) an out-of-control gambhng habIt smce overcome [Re R. Angus, Division of Finning Ltd. And Independent Union of Heavy Equipment Trades (1991) 21 L.A.C (4th) 88 (Laux) (4) The tnggenng of a sequence of events whIch lead to compulsIve and destructIve behavI our, namely theft [Re OPSEU (Kenny) and The Crown in Right of Ontario (Ministry of Transportation) (1992), Unreported, GSB 509/91(Kaplan)] The maJonty of the Board concluded that "the gnevor's conduct was largely motIvated by financIal conSIderatIOns" and that "part of the stress she was under at the tIme related to her ongomg conduct of defraudmg the corporatIOn. It determmed further that "on an ObjectIve assessment of the eVIdence, there were unable to conclude that the gnevor's actIOns were somethmg over whIch she had no control. The matter of deterrence also weIghed heaVIly WIth the deCISIOn m thIS case. In the end the Board, whIle notmg that It had a great deal of sympathy for the gnevor, commented that "Sympathy and compassion alone, however, are not a sufficient basis to reinstate her in the light of the nature of her deliberate dishonest conduct towards her employer" and upheld the dismissal. [EmphasIs added] The Umon Nommee, K. MacDonald, filed a detailed dIssent m wluch, among others, she made the followmg pomts and they are cIted here as bemg helpful and appropnate conSIderatIOns m a case such as the one before us 17 1 The eVidence and corroboratmg eVidence before the Board, that of a psychologist, consultant/assessor and social worker therapist provided the best eVidence the Board could have hand with respect to the gnevor's psychological condition. 2 The stressors at the time the misconduct began were mcreasmg and financial need was not the only stress she was dealmg With. 3 The eVidence was sufficient to support the conclusiOn that the conditiOn whiCh gave nse to the gnevor's antisocial conduct was under control and Will not recur m the future. 4 The gnevor had more stressors than did the gnevor m Kenny and more "unique finanCial Circumstances" than some outstandmg loans. 5 The gnevor was smcerely remorseful. 6 "The gnevor apologized to her employer m wntmg and was candid and forthright m her testimony before our board." 7 She comphed With the restitutiOn order a month after itS bemg made 8 The experts, whIle not givmg the impossible guarantee, testified that the gnevor has copmg mechanisms m place which allow her to deal With work-related and personal stresses. 9 The gnevor had an excellent employment record up to the time of her discharge 10 "[T]he gnevor's actiOns were not motivated by basiC dishonesty but by mental distress caused by a uruque combmatiOn of stresses that assailed" her 11 The maJonty has rejected the uncontradicted eVidence that stresses m the gnevor's hfe caused the theft and should have at a minimum conSidered as a mitigatmg factor the explanatiOn of the gnevor that the theft occurred as a result of her mental state 12. The loss of her employment will have devastatmg consequences, she has "mountamous debts", her chances of reemployment are shm. 13 Based on the Circumstances mitigatiOn of the penalty is appropnate at a minimum. Re Breweries' Employers Industrial Relations Assn. And Western Union of Brewery, Beverage, Winery & Distillery Workers, Local 287, (1992) 29 L.A.C 409 (Alberta.) (Moreau) The gnevor m this case was a seventeen-year employee m a bottlmg plant. He admitted 18 to polIce, although not nght off, that he had taken beer the value of whIch was $56 40 At a meetmg a few days later, he apologIzed, made no excuses for hIS behavIOur, and was dIsmIssed three days later He testIfied that hIS dIsmIssal had had a severe Impact on lus personal lIfe and that he had been unable to find comparable employment. In the declSlon ArbItrator Moreau noted that In theft cases, the breach of the employment relationship is so significant that only compelling evidence of mitigating circumstances will support the conclusion that the trust relationship can be restored. [EmphasIs added] Further, the gnevor must convmce the Board that he or she IS someone who can be trusted agam and "an unmedlate and candId adnnssIOn IS a strong mdlcator of a remorseful and perhaps otherwlse employee." In the result, the ArbItrator found that The personal circumstances of the grievor and the other arguments submitted in favour of mitigating the discipline imposed are insufficient to reinstate the grievor Given the amount of deliberation and the absence of evidence of real remorse at the time of apprehension, the harm done in thIS case to the employment relationship must be viewed as irreparable. The dIsmIssal was upheld. The Urnon submItted the followmg cases m support of ItS posItIOn. Re The Queen in Right of Newfoundland and Newfoundland Nurses' Union (1983) 8 L.A.C (3d) 97 (Newfoundland) (Easton) The gnevor, m thIS case was a nurse who, m her applIcatIOn for a hospItal posItIOn, was found by the Board to have "knoWingly Withheld mformatIOn about her employment lustory that should have been placed on the applIcatIOn form" She dId not mdicate a recent employment penod durmg whIch she had worked m a medIcal settmg and was released before her probatIOnary penod was completed. The employer submItted that her fallure to do so prevented It from domg a proper reference check and that It would not have lured her had that mformatIOn been avaIlable The unIOn argued that the Gnevor supplIed other references, worked at the hospItal satlsfactonly for 17 months and for 3 weeks follOWing the Employer's dIscovery of the 19 omISSIOn. It also made the pomt that no patIents or staff were harmed by the gnevor's actIOn. In ItS deliberatIOns, the Board consIdered the sItuatIOn m the context of the factors whIch were mItIally set out by ArbItrator ShIme m a case of Job-applIcatIOn falsIficatIOn, Re Gould Manufacturing of Canada Ltd. And U.S. W (1972) 1 L.A.C (2d) 314 at p 317 [applIcatIon for JudIcIal reVIew dIsmIssed 2 L.A.C (2d) 155 n, 33 D.L.R. (3D) 527, [1973] 2 O.R. 279] They are as follows (1) The nature and character of the falsIficatIOn and the matter or offence concealed (2) The number of matters concealed. (3) The date when the falsIfied or concealed matter occurred m relatIOn to the sIgnmg of the employment applIcatIOn. (4) Any warmngs contamed on the employment applIcatIOn. (5) Whether the revelatIOn of the matter or offence concealed would have resulted m the employer not hmng the mdIvIdual. (6) The tIme that has elapsed between the sIgmng of the false applIcatIon form and the date of dIscovery (7) Whether the employer acted promptly upon learnmg of the falSIficatIOn of the employment record. (8) The semonty of the gnevor (9) Whether the gnevor was m fact dIscharged for the falsIficatIOn. (10) The matenalIty of that falsIficatIOn or matter or offence concealed to the work performed. (11) SpecIal consIderatIOns such as a sensItIve employment pOSItIOn. The Board concluded that the gnevor's conduct was reprehensible, but that when weIghed agaInst her satIsfactory seventeen-month performance and good rehabIlItatIve potentIal, that her career as a nurse should not be ended. She was ordered remstated WIth a loss of all benefits and 20 wIth a one-month probatlOnary penod. Re Bay St. George Residential Support Board Co-operative Apartment No.4, Stephenville and NewfoundlandAssociation of Public Employees, (1993) 31 L.A.C (4th) 364 (Newfoundland) (Alcock) The gnevor a rehef caregIver m a home for developmentally handIcapped adults wIth eIght years semonty, was charged, and subsequently convIcted on a charge of assault for whIch he receIved two years probatlOn and traffickmg for whIch he receIved a Jail term of three months. NeIther ofthe mCIdents leadmg to the convlctlOns was work-related. The gnevor mformed hIS employer pnor to bemg charged that he had "gotten mto trouble" and requested a leave of absence to '"make matters nght With hIS famIly" He told hIS employer that he mIght be charged, convIcted and mcarcerated. He mdIcated he would possibly plead guilty Withm a month, the matter had been before the Court, and the employer, follOWing a meetmg With the parents of the two resIdents m the gnevor's care, dIsmIssed the gnevor He had been allowed to work dunng that month. The employer acknowledged that there had been no vlOlence towards resIdents on the part of the gnevor m the past, nor had he gIven any reason to doubt lus trustworthmess. The employer expressed concern over the gnevor's Judgement m future, partIcularly smce he was workmg wIth vulnerable chents. It was also mdlCated to the Board that the fundmg agency had a pohcy of havmg new hIres go through an RCMP clearance check for the presence of a cnmmal record. There was, as well, the worry that the gnevor's remstatement could reflect negatively on the Board and could have an Impact on the attItude of the communIty The unlOn submItted that the mCIdent was the result of the consumptlOn of a large quantity of alcohol, prevlOUS provocatlOn, and was unpremedItated and out of character, and that the gnevor was not a drug dealer It also argued that the gnevor was forthnght With lus employer, had a good work record and was an excellent prospect for rehabihtation. The unIon acknowledged, however, that some form of dIscIplme was warranted and the Board went on to consIder the Issue of '"quantum of penalty" 21 --~ The ArbItrator found that there was no actual effect on the employer's reputatIOn and whIle It recogmzed the parents' concern and theIr role m the gnevor's dIsmIssal, It noted that "theIr concerns must be balanced agamst the concerns of all other partIes who were affected by tills matter The ArbItrator rejected the employer's argument that If the gnevor had assaulted someone on one occasIOn, that he could do It agam, notmg that "By that lOgIC, anybody who made a mIstake once IS assured ofmakmg the same mIstake agam." It was the opmIOn of the ArbItrator, as well, that the Crown's declSlon to proceed on the assault charge by way of a summary offence as opposed to an mdlctable one WIth much more senous consequences, demonstrated a recogmtIOn for the "less senous nature of the mCldent" and that the conVIctIOn does not deserve anythmg but mlmmum consIderatIOn m the employment relatIOnshIp The ArbItrator also conSIdered the Court's response to the traffickmg conVIctIOn whIch resulted m a three-month sentence, m the context of the possiblhty of a maxImum of hfe. The Arbitrator concluded that it was unreasonable to conclude that any conviction is enough to trigger a discharge and that since the Courts distinguish amongst offenders, and that employers should do the same. [EmphaSIS added] ArbItrator Alcock balanced the mterest ofthe employer, the gnevor, the reSIdents, then parents and the communIty and concluded that (1) [The grievor's] conduct has not damaged the employer's reputation, (2) there are reasonable grounds for presuming that some damage to reputation might occur if he is reinstated, (3) there are only minimal grounds for concern that the grievor will commit assault again (whether on or off the job); (4) it is understandable that other staff would appreciate why the employer was reluctant to retain the grievor in light of his record; (5) there were breaches of the Criminal Code- but neither the incidents nor their implications were as serious as the employer suggests. In the end, and m the context of the two cnmmal conVIctIOns, he/she ordered remstatement to the gnevor's former pOSItion WIth a probatIonary penod for the duratIOn of hIS court probatIOn and concluded that a four-month suspenSIon WIthOut pay was "a Just and eqUItable response" 22 Re City of Brandon and Canadian Union of Public Employees, Local 69, (1990) IS L.A.C (4th) 155 (ManItoba) (BaIzley) The gnevor, a smgle parent wIth a dependent chIld, and a temporary clencal employee wIth the CIty of Brandon was applymg for permanent posItIOns as they were posted and m fillmg out seven applIcatIOns attached a resume that falsely mdIcated that she had completed Grade 12. When asked to produce venficatIOn of thIS to confirm her qualIficatIOns followmg her success m obtaImng a permanent pOSItIon m the treasury department, the followmg mormng she told the personnel officer that she was upset, and confessed that she dId not have her Grade 12. She explamed she was two credIts short and three-quarters of the way through the hIgh-school eqUIvalency test. The employer's ImmedIate concern W AS that the employee to whom a permanent pOSItIOn had Just been offered had lIed. In ItS conSIderatIOn of dIsmIssal, the employer took mto account the fact that there were other qualIfied applIcants for the pOSItIon, that a speCIal level of trust was reqUIred m the treasury department, and that a suspenSIOn would mean that the gnevor would return to that positIOn and depnve an employee who had not lIed of the pOSItIOn. The Board noted that thIS SItuatIOn was dIstmgUIshable from others whIch have conSIdered the Issue of false mformatIOn on an applIcatIOn form and that IS that m most cases, the gnevor was not an mternal applIcant, that IS, already an employee of the hmng employer The ArbItrator concluded that It would be unfair to other applIcants If she were returned to the pOSItIOn for WhICh she had competed, and then went on to conSIder whether or not she should be returned to her pOSItIOn as a temporary clerk. He/She VIewed the seven applIcatIOns as "all part of the same act" rather than as a pattern of mIsrepresentatIOn and recogmzed both the senousness ofthe gnevor's actIOn and her admISSIon that she had made "a mIstake" The dIssenter "was not Impressed With the gnevor's contntIOn and was "not convmced by her eVIdence or demeanour that she accepts a duty of frankness to her employer" The maJonty of the Board conSIdered the employment relatIOnslnp m ItS deliberatIons as follows An employer is entitled to demand honesty from its employees. The employment relationship is, after all, based on mutual respect and trust. The difference between the view of the board and the city is that the board is satisfied that while the grievor has come dangerously 23 close, we do not feel that her actions have irreparably damaged the employment relationship We feel the rehabilitative potential of the grievor is good and that the employer's legitimate consideration of deterrence IS sufficiently served by imposing the penalty referred to herein. [Emphasis added] Re Ontario Secondary School Teachers' Federation (Gilmour) and Durham Board of Education, (1990) Unreported (Hunter) The gnevor m thIS mstance, was a technIcal teacher and when he began hIS employment represented hImself as havmg a Grade 12 graduatIOn certIficate and prmtmg expenence About eIght years mto hIS teachmg career, a questIOn arose WIth respect to a Bachelor of Arts degree from the Umverslty of Toronto whIch the gnevor claImed he had and on the basIs of whIch he enrolled m and completed a Bachelor of EducatIOn degree from the UmverSlty of Toronto and a Masters of EducatIOn Degree at Niagara Umverslty, m Buffalo, New York. The Bachelor of Arts undergraduate degree was a prereqUIsIte for enrolling m both of these degree programs. When questIOned about Ius degree the gnevor mamtamed steadfastly that he dId have the degree and that he SImply needed more tIme to produce It. He dId eventually produce a photocopy of a dIploma whIch the Employer deCIded was questIOnable and It mSlsted that confirmatIOn from the Umverslty admmlstratIOn was necessary That was not forthcommg, m fact the UmverSlty mdlcated that ItS records showed that he had no such degree and the Governmg CouncIl voted to revoke hIS Bachelor of EducatIOn degree and the Mimster of EducatIOn revoked hIS certIficate of qualIficatIOn to teach for at least a two-year penod, after whIch tIme he could reapply The mvestIgatIOn showed that neIther the CertIficatIon DIVISIon of the Teachers' FederatIOn, nor Niagara Umverslty, nor the Mimstry of EducatIOn had an academIC transcnpt of the gnevor's claImed degree. The CertIficatIOn DIVISIon dId not rely on hIS undergraduate degree to move rum to the top category on the salary gnd. ArbItrator Hunter, weIghed the gnevor's lack of honesty towards the Board of EducatIOn, hIS faIlure to apologIze or explam at arbItratIOn agamst hIS ten years of exemplary servIce and hIS 24 twenty-two month suspenslOn wIthout pay and concluded that a "substantIal penalty has been, and Will contmue to be, extracted." The gnevor was, m the result, remstated "Without back pay If and when hIS certIficate of qualIficatlOn IS remstated by the Mimster of EducatlOn" Re OPSEU (Maw) and The Crown in Right of Ontario (Ministry of Transportation and Communications) (1975) GSB 1/75 (Beatty) The gnevor m thIS mstance was dIsmIssed for twIce operatmg the Mimstry's vehIcles whIle hIS operator's lIcence was under suspenslOn and for fallmg to notify the Employer of the suspenSlOns. The Board found, based on the eVIdence, that dunng one of the penods the gnevor "dId not know and actmg reasonably had no reason to assume that he was engagmg m culpable behavlOur when he drove the Mimstry's vehIcles. " On the other hand, It found that dunng the other penod the gnevor "conducted hImself m a manner whIch was clearly at odds With the general law of thIS junsdIctlOn and mdeed hIS own MmIstry's announced polIcy" The Board noted that It vIewed the gnevor's conduct With extreme gravIty and that even though the gnevor had not engaged m any culpable behavlOur smce that tIme the employer was entItled to rely on It to mvoke some dIscIplmary sanctlOn. The Board then amved at the decIsIon that thIS was a case m whIch It should exerCIse ItS dIscretlOn. It consIdered that the actlOn of the gnevor dId not constItute a pattern of conduct, that the gnevor would suffer specIal economIc hardshIp, and that the gnevor was, m ItS opmlOn, an employee who should be afforded the opportunIty to demonstrate that he could respond to correctIve and progressIve dIscIplme In the result, the Board reduced the penalty of dIsmIssal to a suspenslOn of three months Without pay The Board m the Maw case drew the attentlOn of the partIes to an earlIer decIslOn, Re u.s. W Local 3257 and The Steel Equipment Co. Ltd. (1964), 14 L.A.C 356 (Reville) m whIch the followmg factors were consIdered m the mItIgatlOn of penalty. 1 The previous good record of the grievor- 2. The long service of the grievor - 25 3 Whether or not the offence was an isolated incident in the employment history of the grievor - 4 Provocation - 5 Whether the offence was committed on the spur of the moment as a result of a momentary aberration, due to strong emotional impulses, or whether the offence was premeditated. - 6 Whether the penalty imposed has created a special economic hardship for the grievor in the light of his particular circumstances. - 7 Evidence that the company rules of conduct, either unwritten or posted, have not been uniformly enforced, thus constituting a form of discriminatIOn- 8 Circumstances negativing intent, e.g., likelihood that the grievor misunderstood the nature or intent of an order given to him, and as a result disobeyed It - 9 The seriousness of the offence in terms of company policy and company obligations - 10 Any other circumstances which the board should properly take into consideration, e.g., (a) failure of the grievor to apologize and settle the matter after being given an opportunity - (b) where a grievor was discharged for improper driving of company equipment and the company, for the fIrst time, issued rules governing the conduct of drivers after the discharge, this was held to be a mitigating circumstance - (c) failure of the company to permit the grievor to explain or deny the alleged offence. DaVId Costen, Counsel for the Employer commented that tlus was a sad case, smce Mr Bradley was one of the success stones at the School. However, he submItted that the mIsconduct whIch was work-related was not spur of the mmute, nor was It admItted promptly Indeed, Mr Costen, argues, the Employer dId not find out from the gnevor, but learned of the fraud through the Pohce. The mIsconduct commenced m 1985, and whIle not contmuous, occurred agam m 1988 The puttmg together and creatmg of the fraudulent documents was done over a penod of tlme and must be conSIdered to be premedItated. It demonstrated a clear mtent to mIsrepresent hIS quahficatIOns for finanCIal gam. Further, the Gnevor drew a SOCial Worker II salary over a 26 penod of five years, and as a result, knowmgly receIved approxImately $27,000, from the Mimstry, a sum he receIved through deceptIOn. The posItIon of VocatIOnal RehabIlItatIon Counsellor m partIcular, IS one of consIderable trust and mdependence and m conductmg hImself as he has done, the Gnevor has severed trust wIth both the students and the Employer In a field WhICh relIes on credentIals, ills credibIlIty m future wIll be problematIc. Mr Costen noted the Irony m the SItuatIon that the very person whose Job It was to ensure that the students had proper credentIals should mIsrepresent hIS own. The Board should not, Mr Costen argued consIder the Gnevor's excuse of overwork and underpay, nor should It gIve weIght to the personal and financIal stresses m Mr Bradley's lIfe, as no detaIls were put before us. He concluded that there are no factors WhICh mdICate that mItIgatIOn IS appropnate. On top of the reasons above, he noted that the benefit receIved was not mImmal, there was no mentIOn of restItutIOn, there was no mdependent eVIdence of rehabIlItatIve potentItIal and further, the Gnevor has stIll not been upfront about the fraud m the 1985 Job competItIOn. Sympathy for Mr Bradley and a dIfficult employment future should not hold sway m tins case and the gnevance should be dIsmIssed. George RIchards for the Umon dId not quarrel WIth the facts, and agreed that the Issue to be deCIded IS whether or not the penalty of dIsmIssal should be mItIgated m the case of thIS Gnevor Mr RIchards mamtamed that the Board should not Ignore the fact that the Employee had not mIsconducted hImself on any aspect of the Job Itself, and that he was of the opmIOn that the Gnevor could stIll serve as a role model for the students, bemg certam that he would not tell them to lIe, cheat or steal. He submItted that eVIdence of rehabIlItatIVe potentIal can be found m the Gnevor's lengthy and preVIously unblemIshed employment record. He also drew the Board's attentIOn to the Gnevor's pOSItIon m the deaf commumty, notmg that he had been reelected to the executIve follOWIng hIS conVIctIon. There are, he mamtamed, reasons to VIew the offence as less than totally destructIve of the employment relatIOnshIp Some general conSIderatIon of faIrness should apply m each case and m thIS case the Board should note that shortly after the submISSIOn of the reclaSSIficatIOn that the reqUIrement for credentIals was relaxed m the SOCIal Worker 27 category, and that prevIOusly, the Mimstry of EducatIOn had accommodated a teacher convIcted of a senous offence (sexual assault, more specIfically, the klss10g of a student) The Gnevor's apology whlle not ImmedIate, dId come after hIS gUilty plea and Its tard10ess should not be held agaInst hIm gIven that he was 10structed by hIS counsel not to speak of the matter The Board should, Mr RIchards submItted, take 1Oto account the accumulatIOn of stresses, - the long hours, mantal problems, varIOUS bosses - and the fact that the Gnevor perceIved that he mIght lose hIS Job Ifhe dId not he about It. The Board should also consIder the patently ObVIOUS falSIficatIOn carned out by the Gnevor and, It may be that fundamentally, the Gnevor dId understand that what he was do1Og was wrong and that hIS conSCIence acted as a bar to hIS domg a better Job. It IS not, accord1Og to Mr RIchards, that Mr Bradley dId not have the mtelhgence to carry out a clever forgery Mr RIchards recogmzed that the offence IS senous and that suspensIOn WIthOUt pay for some period IS to be expected. He asked that the penalty of dIsmIssal be mItIgated and that the Gnevor be re10stated as of December, 1993 WIth semonty and that the quantum be left to the partIes. ThIS IS, he submItted, an appropnate case for glv10g the Gnevor one more chance DECISION In com1Og to its deCISIOn the Board has weIghed the 10terests of the Gnevor and those of the Employer, ItS chents and staff, 10 the framework of the appropnate cntena set out 10 the cases above. It has also consIdered the factors 10 the context of the EducatIOnal and SocIal ServIces Sectors and the dependence ofthose sectors on the authentIcIty of the credentIals. It IS helpful to note the mean10g ofthe word "credentIal" The Oxford Umversal DIctIOnary gIves the follow1Og meamng "Letters or written warrants recommend1Og or entltl10g the bearer to credIt or confidence" The related word credence gIves, 10 part, the follow1Og mean10gs "FaIth, confidence 10, rehance on" and "trustworth1Oess, credIt, repute." Both of these sectors place a hIgh value and rehance on presented credentIals and It IS not expected that one IS reqmred to 28 valIdate each and every credentIal at the source. On Mr Bradley's SIde of the balance sheet, three cntena stand out. The first IS hIS length of servICe whIch IS apprOXImately 21 years (1970-1991) It IS greater than any of those mdIvIduals remstated m the cIted cases. Dunng that time, hIs work hIStOry as mdIcated by the eVIdence of the Employer's Witnesses and hIs most recent performance appraIsals, is a posItIve one And finally, there IS no questIOn, should the Board not remstate hIm, that thIS Will result m economIC hardshIp to hIm personally He IS, by now, 50 years of age, and comes wIthm two mmonty groups. The first, With dIsabIlItIes, has an unemployment rate whIch the Umon demonstrated IS well above the natIOnal average. The second, the VIsible mmonty group, Mr RIchards submItted, would make employment more dIfficult for Mr Bradley However, no eVIdence was presented to show that a hIgher rate of unemployment eXIsts among older VIsible mmonty males, or older black males m partIcular, m Canada or OntarIO There was no eVIdence of the effect that It would have on hIS chIldren and whIle we do not know of hIs contributIOn to theIr support or the source of mcome of the custodial parent, we can assume that It could have some effect. On the Employer's SIde, there has been an effect, although slIght to ItS reputatIOn, through the newpaper reportmg of the mCIdent. A more senous effect, although no eVIdence was presented m thIS regard, can be assumed as to how the mtegnty of the mstItutIOn and ItS staff IS VIewed by parents, profeSSIonals and other mstItutIOns. The nature of the VocatIOnal RehabIlItatIOn Counsellor pOSItIOn and that of ResIdentIal Counsellor IS, m both cases sensItIve, m part, because the mdIvIduals occupymg those pOSItIOns deal With vulnerable clIents. In the first, the mdIvIdual occupymg that pOSItIOn IS trusted and relIed upon by the Employer, the students, the parents, the other profeSSIOnals and the mstItutIOns and companIes WIth whIch the VR Counsellor has contact. In the second, the ReSIdentIal Counsellor IS relIed upon by the Employer, the students to whom he IS a surrogate parent, and the parents of the students. 29 It is the opillion of the Board that the Employer was patient and considerate durmg the mvestIgatiOn and follow-up to that, and that it respected Mr Bradley's nght to place lus side of the story before the Employer and to have it heard. We do not m thiS case, find any provocatiOn. The Job competition m 1985 m which Mr Bradley was successful was, m the opillion of the Board, appropnately carned out and the fact that Mr Bradley did not have an mterpreter, as he alleged, was qUite appropnate, m that he would not have had one available to him durmg his work. Further, the Employer was highly Supportive of Mr Bradley m lus quest for reclassificatiOn, although the reclassificatiOn might not have happened qUite as qUickly as Mr Bradley would have liked. The reclassificatiOn process, a regular, bureaucratic procedure, which was mitIated at Mr Bradley's request, was carned out m the usual manner, and the delay ofwluch Mr Bradley complained cannot be laid solely at the feet of the Employer, given that it was caused, m part, by Mr Bradley's failure to be forthnght about his credentials at the outset. Nor was there any eVidence that Mr Bradley suffered from any emotiOnal or psychological illness or condition which would explain his actiOns. He testified that he was suffenng stress, given that he was overworked, and havmg problems With his cluldren, his marnage and lus finances. However, these are not illnesses or conditiOns which compare With those cited m the cases above Wlnle the first one stemmed from his work, the others all resulted from hiS handlmg of hiS personal lIfe, for which the Employer is not responsible. Wlnle an Employer may be empathetic and accommodatmg as regards personal difficulties, it is the responsibilIty of the employee to manage hiS or her personal affaIrS and to seek help when difficulties arise. It is also important to any resolutiOn of such difficulties that the employee is aware that he or she may very probably be contributmg to the problem and Will need to accept responsibilIty for some of the changes which a solution neceSSitates. The misconduct m thiS mCident is dIrectly related to work. It occurred m the work enVironment and affected persons m that enVironment. Mr Bradley, accordmg to the report of one of the meetmgs held pnor to hiS dismissal, stated that he was relIeved that "no one was hurt" It is mdicative of lus mabilIty or unWillmgness to appreCiate the import of what he has done that he actually belIeved at that time that no one was hurt. In hiS testimony, he did acknowledge that 30 hIS actIOn had hurt Mr Bartu. However, he faded to see the hurt caused to Mr RegIs, as hIS frIend, hIS colleague, hIS supervIsor and supporter, the hurt caused to lus common-law wIfe, a staff member at the School, when he used her credentIals thereby mvolvmg her m a cnmmal actIvIty, the hurt caused to hIS colleagues who gave hIm theIr professIonal respect, the hurt caused to hIS colleagues who had competed WIth hIm m the 1985 Job competltIOn, the hurt caused to the students who looked up to lum, and the hurt caused to the parents of the students who put theIr trust m hIm. The mIsconduct m thIS mstance was not a spur of the moment response nor dId Mr Bradley own up to It promptly The actIOns of Mr Bradley to falSIfy lus credentIals began pnor to the 1985 Job competItIOn and contmued untll he was suspended WIthout pay m December, 1993, when he receIved the last of 74 cheques compensatmg hIm at the SocIal Worker II rate, a baSIs, whIch has been proven and admItted to as fraudulent. Mr Bradley explamed that he felt so badly because he dId "not thmk the paper would go anywhere", not because he had mIsled lus Employer He seemed to tlunk that If the papers had not gone anywhere, then the submIssIon of the fraudlent documents to the Employer would not have been a problem. His explanatIOn that he thought he was being paId at the hIgher rate because he mIght have been grandfathered, wIth no eVIdence that he went to enqUIre about It, IS not an explanatIOn that tlus Board IS prepared to countenance. Even if It were the reason, It would not do away WIth the fraudlent credentIals. Wlule the Board apprecIates that clIents want to follow the adVIce of theIr counsel, there IS no eVIdence that Mr Bradley dId anytlung when that was no longer a strIcture, to be forthnght WIth hIS Employer and to accept responsibilIty for the creatIOn and the submIssIon of the fraudulent credentIals or, for the knoWIng acceptance of more than $27,000 based on fraudlent mIsrepresentatIOn, over a penod of approXImately 7 1/4 years. He sImply responded to the Employer's call for meetmgs. There was no letter of apology, no conveyance of apology to Mr Bartu or to Mr RegIs. There was no suggestIOn to the Employer or to the Board by Mr Bradley that he felt mdebted to the Employer to the extent of approxImately $27, 000 or that he should repay that amount or a portIon of It. Indeed, the Board was left WIth the ImpressIOn that Mr Bradley felt that he deserved that money, even If It was based on fraudulent credentIals. His 31 apology at the employer-InItiated meetmg more than a month after hIS convIctIOn on thIS matter, was "for hIS part m It" and was qualIfied by the blammg of the Employer for the problems WIth hIS Job and by lus statement that he belIeved, some how, that hIS havmg worked hard and done a good Job, offset the fraud that he had commItted. It IS one tlung to admIt to havmg done somethmg and It IS qUIte another to accept responsibIlIty for It. In hght of these factors, the Board must conclude that Mr Bradley's potentIal for rehabIlItatIOn IS not good. Acceptance of responsibIlIty for admItted mIsconduct, and a smcere feelmg of remorse are two prereqUIsItes for rehabIlItatIOn and Mr Bradley has not, m the OpInIOn the Board, satisfied these prereqUIsItes. For the above reasons, the Board has concluded, followmg a weIghmg ofthe eVIdence, that the trust between Mr Bradley and the Employer IS Irreparably broken and that remstatement IS not feasible It therefore dIsmIsses the gnevances of Mr Bradley ,/ i b~ "\ Dated at '--~- &'75"7 ~ \ H.S March 8, 1996. ~ ~ :; . ~J.J Carruthers, Member ~~ --\~~ ~ D C Montrose, Member 32 .