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HomeMy WebLinkAbout1994-1129DYER_PAPPLE_SMELTZ2 ( OWTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONrARIO GRIEVANCE COMMISSION DE 1111 SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1Z8 TELEPHONEITELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILEITELECOPIE (416) 32(5-1396 GSB # 1129/94, 1180/94, 1191/94 OPSEU # 94E207, 94F208, 94F209 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (DyerjPapple/Smeltzer) Grievor - and - The Crown in Right of ontario (Ministry of Transportation) Employer BEFORE: N Dissanayake Vice-Chairperson M Vorster Member F Collict Member FOR THE G Adams GRIEVOR Grievance Officer ontario Public Service Employees Union FOR THE D Costen EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING March 15, 24, 29, 1995 september 21, 1995 October 16, 20, 1995 November 1, 1995 May 22, 27, 1996 August 15, 1996 ( 2 DECISION These are three individual grievances filed by Ms Christine Dyer, Ms Nicole Papple and Mr Robert Smeltzer respectively, which were heard together The grievors claim that they were dismissed without cause Ms Dyer's seniority date is April 22, 1985 Since February 1986 she was employed with the Ministry in the classified service as an Inside Examiner From May 30, 1994 until her dismissal on August 17, 1994 she occupied the position of Driver Examiner on an acting basis Ms Papple was a member of the unclassified staff Starting in May, 1991 she had a number of consecutive contracts and at the time of her dismissal on August 17, 1994 held the position of Driver Examiner (Probationary) Mr Smeltzer, a member of the classified service had a seniority date June 11, 1990 His "home position" was that of patrol Foreman, but since May 10, 1993 was on a training assignment performing the duties of a Driver Examiner He was also dismissed on August 17, 1994 At the time of their dismissal the 3 grievors were employed at the Driver and Vehicle Examination Centre in Orangeville, Ontario The actual conduct that led to their dismissal is not in dispute ( 3 The orangeville Centre is one of 22 Driver and Vehicle Examination 'fl. Centres coming within the South-West Region Office The Orangeville Centre was headed by a supervisor, who was a member of the bargaining unit On a day to day basis the centre was run for all intents and purposes by this bargaining unit supervisor since there was no member of management working out of the orangeville Centre Mr Harold Cavey held the position of supervisor of the orangeville Centre until his retirement on April 29, 1994 Mr John Bishop replaced Mr Cavey as supervisor on an acting basis, starting May 2, 1994 Sometime in early July 1994, Mr Bishop was reviewing a list of licences recently issued, when he noticed that on his first day as supervisor, the 3 grievors had received 'M' class (motor cycle) licences Mr Bishop became suspicious because he could not see how the three employees could have done a road test that day since they were very busy He brought this to the attention of Mr Bert Killian, Regional Manager for the South-West Region Mr Killian and Mr Bishop discovered that road test score sheets for the 3 employees had been completed, which indicated that they had indeed taken road tests on May 2, 1994 However Mr Bishop still felt that it would have been physically impossible for them to have taken the road test on May 2 Mr Bishop and Mr Killian checked the vehicle registrations and discovered that the vehicle plate numbers (of the motor cycles supposedly used for the tests) in each ( 4 of the score sheets were phoney Mr Killian contacted higher management and an investigation was launched The score sheet for a road test is an official ministry document with space for information to be filled in by the candidate and a number of boxes to be marked by the Driver Examiner administering the test Ms Dyer's score sheet indicates that she used a "Harley Davidson" motor cycle for her test, while Ms Papple's and Mr Smeltzer's indicate "Honda". Each sheet also set out the plate number of the motor cycle used Each grievor had signed the sheet containing this information Thirty skill and knowledge boxes were to be marked by the driver Examiner as "satisfactory" or "not satisfactory" Each of the three score sheets had "satisfactory" markings for all but one of the thirty boxes Mr Smeltzer's "approach position" was marked "not satisfactory" Ms Papple had the "not satisfactory" box marked for "speed" and Ms Dyer had the "not satisfactory" box marked for "lane position" In each sheet the candidate was marked as "passed" on the overall test Mr Smeltzer signed as examiner on the tests for Ms Papple and Ms Dyer, while Ms Papple signed as Mr Smeltzer's examiner What is beyond a shadow of a doubt is that all of the information in the score sheets was purely fictional While upon reading the score sheets, one is led to the clear impression that ( 5 each of the grievors had taken a road test on a specific motor cycle with a stated plate number, the investigation revealed beyond any doubt that the motor cycles, and the plate numbers were imaginary The "not satisfactory" and "satisfactory" marks assigned to the various aspects of the test were also fictional, because none of the three grievors ever took a road test All of the information in the 3 forms was filled out by Mr. Smeltzer However, there is no doubt that all three grievors were aware of the false information, when each signed the form As a result of this false documentation, the three grievors received 'M' licences When confronted by the investigator, each grievor admitted that no road test was taken Each grievor, was suspended with pay for two weeks pending further investigation Effective August 17, 1994 each of the grievors was dismissed According to Ministry requirements the first step towards obtaining a 'M' licence to be eligible to ride a motor cycle was to pass a written test, which results in the issuance of a temporary licence for 90 days This licence, known as the 'R' licence, entitled the candidate to ride a motor cycle with certain restrictions, and is intended to provide an opportunity to train in preparation for the mandatory road test which must be passed within 90 days to obtain the regular 'M' licence \ 6 For Ministry employees, the usual procedure was to be road tested by the supervisor or by a driver examiner from a different location brought in for that purpose The three grievors did the written test and obtained legitimate 'R' licences However, they did not fulfil the rest of the pre-requisites for the licence They had no training on how to ride a motor cycle Nor did they do the mandatory road test Yet, they issued themselves 'M' licences, which for all intents and purposes authorized them to ride motor cycles on public roads and highways They knowingly circumvented the road test by filing false documentation Also significant is the timing of the grievors' actions The evidence indicates that for sometime the grievors had been aware that the new "Graduated Licensing System" (GLS) would be coming into force at the end of June 1994 They knew that under GLS, the obtaining of most licences, including the 'M' licence, would become much more difficult in terms of the pre-requisites and the time it took to complete In order to avoid the impact of the GLS, an applicant had to complete the road test prior to June 6, 1994 By issuing themselves 'M' licences in the manner described above, the grievors beat the deadline for avoiding the GLS The Board is of the view that on the face of the foregoing, the grievors' conduct is extremely serious The positions they occupied as Driver Examiners are very sensitive ones requiring utmost trustworthiness and integrity They test members of the 7 public and authorize them to operate vehicles on public roads They work completely independently A driver examiner's decision to issue or not issue a licence is not subject to scrutiny or review by any supervisor The conduct of the grievors, the issuing of 'M' licences to themselves based on phoney documentation they prepared, must necessarily bring into serious question the integrity and trustworthiness of these employees in the eyes of the employer Moreover, by their conduct the grievors created a significant safety risk. Firstly, they gave themselves licences to ride motor cycles on public roads, when they had not met the important prerequisites of training and road testing Furthermore by creating phoney documents, they qualified themselves to issue 'M' licences to members of the public Since they themselves were not qualified to ride a motor cycle, they were not qualified to properly assess the ability of members of the public There is at least the risk that they may issue licences to unqualified persons Given the sensitive nature of the jobs, the employer's interest in the integrity of the whole vehicle licensing system and the breach of trust that resulted from the grievor's conduct, the Board would be inclined to uphold the discharges unless there are very compelling circumstances which mitigate the seriousness of the misconduct in a significant way Indeed, the union has raised a number of factors, which it is argued, do call for mitigation of 8 the penalty The union concedes that some discipline is warranted However, it is submitted that dismissal was an excessively harsh penalty in the unusual circumstances of this case The union suggested that a 10 to 20 day suspension without pay would have been a more appropriate penalty The Board first turns to the more usual mitigating factors Ms Dyer and Mr Smeltzer had moderate seniority with approximately 7 years and 5 years respectively Ms Papple was a contract employee and had no seniority None of the grievors had any prior discipline on their records Moreover, all of the evidence indicates that the grievors had been competent and hard working employees whose performance gave no concerns whatsoever to the employer The evidence indicates that the grievors exhibited varying levels of remorse. The union relies on the fact that when confronted all 3 grievors admitted to falsifying the score sheets and to having given themselves 'M' licences without taking the required test In the Board's view, the employees can hardly claim any credit for admitting to that wrong-doing, in circumstances where their misconduct had been exposed beyond doubt In those circumstances the admission is of little or no significance and is not by itself indicative of remorse \ 9 When confronted by the employer, Ms Papple openly admitted that she had not taken the test and that the information on the score-sheet was false However, she stated that the score sheet was prepared only for "statistical purposes" and insisted that it was done on the instructions of Mr Cavey, the supervisor Mr Papple told the investigator that Mr Cavey was a very strict supervisor who expected employees to comply with his directions without asking any questions She was adamant that she did nothing wrong because she was acting on her supervisor's directions She gave no apology and even became aggressive when accused of wrong- doing She put the entire blame on Mr Cavey During examination in chief, Ms Papple was asked why she signed Mr Smeltzer's test score sheet as "passed" when she knew that Mr Smeltzer had not done any road test and that the information in the score sheet was phoney She replied "Because Mr Cavey told us to sign on Monday ourselves That was the only thing left to do to complete the process" Ms Papple testified that Mr Cavey was fully aware that she did not know how to, and did not plan to, ride a motor cycle According to her, he instructed that the 3 employees give themselves a "Ministry upgrade" 'M' licence, solely for the purpose of being able to do testing Later on, when asked what the impact of her dismissal was on her, she related that the emotional suffering was harder than the financial loss Then she went on "If I could take everything back I would I made a horrible serious mistake But I hadn't 10 really thought it through properly I am upset with myself for " that because I am an intelligent woman" She said that she blindly followed Mr Cavey's instructions and that "if someone tells you to jump off a cliff you don't I did " Ms Dyer, when confronted, also admitted that she did not do a road test and that the information on her score sheet was phoney She admitted that looking back at what she did, she felt it was wrong During her testimony Ms Dyer admitted that when the employer confronted her she realized that what she did was wrong, although no wrong was intended When asked if she apologized she said "I said I was sorry That I didn't mean to do anything wrong" When confronted by the investigator, Mr Smeltzer admitted that he knew that what he did was wrong but that it was not intended to be a fraud At the hearing when asked if he felt he did anything wrong, Mr Smeltzer replied, "Yes I did wrong I should have gone up to check whether what I was told to do was the proper thing I should have questioned higher people" . The foregoing evidence on the usual mitigatory factors by itself would not have persuaded the Board to reduce the penalty However, the union has led evidence as to some unusual circumstances, which it claims significantly mitigate the subjective blameworthiness of the grievors There are two aspects I 11 to this evidence The Board must examine the evidence and consider to what extent if any, these circumstances affected the grievors' conduct which on its face appears to be outright fraud The ~ractice relating to testing for licences The evidence is that the official Ministry policy always has been that no driver examiner is authorized to issue a class of licence which he/she does not possess This is not surprising since it is obvious that a person cannot assess an applicant's abilities in order to be awarded a licence, unless he/she has attained those abilities by obtaining that same class of licence However, it is the uncontradicted evidence based on the employer's own records that this policy was not always followed, at least at some driver examiner centres, including the Orangeville Driver Examination Centre Ms Papple only had the 'G' licence which entitled her to operate automobiles and small trucks up to 11,000 kg Therefore she was only qualified to test for 'G' licences However, the ministry records establish that between July 22, 1991 and June 30, 1994, in addition to issuing 2511 'G' licences, Ms Papple had issued a number of classes of licences, which she herself did not possess She had issued 3 'A' licences for tractor-trailers, one '0 I licence for large trucks, 7 'pI licences for buses up to 24 passengers and ambulances, 22 'M' licences for motor cycles and 2 12 , Z ' air-brake endorsements required to operate air-brake equipped "" vehicles such as tractor-trailers, large trucks, buses and school buses The evidence is that Ms Papple did not have any of these classes of licences and had received no training The evidence is also uncontradicted that she did this testing for the public on the directions of Mr Cavey the supervisor, who was fully aware that Ms Papple only possessed the 'G' licence herself On May 2nd 1994, Mr Bishop's first day as the Acting Supervisor at Orangeville she did a number of 'M' motor cycle tests While the documents went to Mr Bishop and he signed those, it is not evident that he was specifically aware at the time that Ms Papple did not have a 'M' licence herself When Mr Smeltzer started his driver examiner duties, he possessed a "AZ" licence The evidence indicates that he too issued a number of licences for which he was not qualified Between May 1993 and March 1994 Mr Smeltzer issued a total of 24 'M' licences for motor cycles eventhough he did not himself possess that class of licence He testified that he started issuing 'M' licences while he was employed at the Kitchener Driver Examination Centre, where none of the four examiners on staff had a 'M' licence When he was directed to do 'M' tests he told his supervisor Mr Doug Currie that he did not have a 'M' licence The supervisor told him that unlike for other licences, for'M' licences an examiner need not have that class of licence Then after Mr Smeltzer transferred to orangeville, Mr Cavey assigned him to do 13 not only 'M' tests but also 'B' licences for school buses Mr ;-."Y Cavey told him that the fact that he did not have a 'B' licence did not matter and directed him to do those tests Mr Smeltzer testified that he did not feel comfortable about it but he complied He had no training whatsoever to do 'B' tests, but read ministry material to acquaint himself with the road tests Subsequently, Mr Smeltzer took the course through a bus company at his own expense and obtained his 'B' licence in March 1994 Ministry records indicate that in total Mr Smeltzer administered 12 'B' tests, the majority of them at a time when he himself did not possess that licence Mr. Cavey's involvement in the grievor's misconduct Mr Cavey was a bargaining unit employee Nevertheless, he ran the orangeville Centre for all intents and purposes and the employees took day to day directions from him The evidence is that Mr Cavey was a very demanding and authoritarian supervisor, whose goal was to maximize production even if it meant not following proper procedures For instance, the Ministry required that a road test be of a specific duration However, on busy days, Mr Cavey demanded from the Driver Examiners that they shorten the tests There is evidence that Mr Cavey was prepared to "cut corners" in order to maximize the number of tests done Mr Cavey was not called to testify by either party There is conflict in the evidence of the grievors as to the exact role he \. 14 played in the grievors' obtaining of their 'M' licences By the time the situation came to light Mr Cavey had retired After Mr Cavey's involvement came to light during the interviews of the grievors as part of the employer's investigation, the employer interviewed Mr Cavey on July 12, 1994 The investigator's notes of the interview were filed in evidence The notes, which were signed by Mr. Cavey, indicate that when asked what he actually told the grievors about testing for the 'M' licence, Mr Cavey stated that he told them that if they wanted to upgrade, Monday May 2nd would be a good day to do it, since it was the first day of motor cycle testing after the winter The notes indicate that they were told that they will have to do the road test and that they were not told to fabricate test information However, Mr Cavey stated that the grievors may have misconstrued and "taken it as a gift" He denied that he had instructed the employees to fill out score- sheets When asked in closing if he had any other information to add, he stated that "staff May have misconstrued my meaning regarding upgrading " Subsequently, Mr Cavey on his own initiative called the employer and said that his conscience was bothering him, that he had done something stupid and had not been quite forthright at the July 12, 1994 interview As a result a second interview with Mr Cavey was held on July 15, 1994 At this second interview, Mr Cavey stated that on his last day of work, he was attending a retirement party held by the staff in his honour and felt I \ 15 magnanimous and stupidly told the employees "to commit an act of fraud" He said that despite knowing that the grievors did not have motor cycles and did not have any training, he had told them to give themselves 'M' licences through a Ministry upgrade He did not however, tell them how exactly they should do it Nor did he tell them to fabricate documentation He said that he did not expect the grievors to fill out score sheets or to book their road tests through the computer system The testimony of the grievors is not consistent as to what they were exactly told by Mr Cavey However, based on all of the evidence, the Board is satisfied that Mr Cavey suggested to them that they give themselves 'M' licences on the Monday, and gave his approval for that Mr Cavey was aware that once he left, there would be no staff qualified with a 'M' licence at the Orangeville Centre Since Ms Papple and Mr Smeltzer already were doing 'M' testing to his knowledge, he thought that they may as well give themselves the colour of right to do so by getting the 'M' licences The Board is also satisfied that for Mr Cavey this was also a way of showing gratitude to the grievors, who had been loyal to him However, the evidence is that Mr Cavey did not instruct the grievors as to how exactly they were to upgrade themselves The only evidence is that Mr Cavey understood that the grievors would subsequently take a motor cycle course including a road test, thereby giving legitimacy to the licences already received 16 What then is the significance of this evidence relating to the practice of unqualified employees conducting road tests and the encouragement offered by Mr Cavey to the grievors to upgrade their licences to a 'M' licence? To say the least, it should be alarming to any reasonable person, to learn that members of the public have been tested and issued licences by persons who themselves were unqualified for the licence in question Ms Papple has for instance has road tested 3 tractor-trailer licence applicants, and 2 air-brake endorsements, when she herself possessed only the most basic 'G' licence for operating automobiles Ms Papple and Mr Smeltzer have issued many 'M' licences for motor cycles under similar circumstances Ms Papple had never ridden a motor cycle but was testing members of the public and issuing licences to them Mr Smeltzer road tested people for school bus licences, eventhough he himself was not qualified with a 'B' licence There were indications in the evidence that this dangerous practice may not have been confined to Ms Papple and Mr Smeltzer or to the orangeville Centre It is a disturbing thought that there probably are individuals presently operating tractor-trailers, school buses and motor cycles on public highways, who have not been road tested by a qualified driver examiner While expressing our serious concerns about this situation, it is not within this Board's powers to address those concerns Hopefully, the employer, if it has not already done so, would choose to take remedial steps on its own initiative, now that it 17 has come to light The issue for this Board in this proceeding is '" whether this evidence operates to lessen the culpability of the grievor's actions The Board is satisfied that the grievors' immediate purpose in obtaining the 'M' licence was not to be able to personally ride a motor cycle but to upgrade their qualifications The grievors were aware that as a result of the GLS, the employer would be hiring more full-time driver examiners. The more licences they hold, the stronger their chances would be in any competition In fact there is evidence that each of the grievors did apply for a driver examiner competition setting out their 'M' licences which they had given themselves without satisfying the pre-requisites The Board accepts that at the time the grievors embarked on their actions, they intended, as discussed with Mr Cavey, that they would legitimize their 'M' licences by subsequently completing a college course which included a road test However, we are also convinced that, had the grievors thought the matter through carefully, they would have realized that in practice that would not have happened It is inconceivable that the grievors would register and attend a college course leading to a 'M' licence when the records indicate that they already possessed that licence Such a step would have clearly exposed the fact that they had given themselves 'M' licences without a road test by filing false documentation The grievors in all probabilities would not have done that In fact, there is no evidence that between the time they obtained them 18 licences on May 2, 1996 until their discharge on August 17, 1996 they took any concrete steps to register for any such course Whatever their purpose was, there is no doubt that the grievors should reasonably have known that what they were doing was wrong While we cannot in any manner excuse their conduct, the Board is satisfied that in their own minds they would have perceived the gravity of their actions differently The driver examiner administering the road test for a 'M' licence did not at any time have to actually ride a motor cycle The test consisted of two parts First, the examiner observed from a vantage location the candidate manoeuvre his cycle around a pylon course set out for him in a parking lot In this part, the candidate's ability to balance while taking the turns and his control of the vehicle is assessed In the second part of the road test the candidate rides the motor cycle on public roads, while the examiner follows behind in a car, observing the candidate's control of the motorcycle and the observance of traffic rules The grievors Papple and Smeltzer had performed these duties and issued 'M' licences Dyer was aware that her colleagues who did not possess an 'M' licence issued "M' licences with the full awareness and indeed under the direction of the supervisor Since the supervisor did not appear to have any safety concerns about persons with no 'M' :Licence issuing 'M' licences, it is believable that the grievors would think that the supervisor would not have any greater concern about persons with improperly obtained 'M' licences doing those same functions In Mr Smeltzer's case two supervisors at different locations had told 19 him that since no riding of a motor cycle was involved he could competently do 'Ml tests despite not having his own 'Ml licence Given this belief on the part of the supervisors, the grievors may well have in time believed that in order to do 'M' road tests competently and without any safety hazards, one need not necessarily have the demonstrated ability to ride a motorcycle by possessing a legitimate 'M' licence with regard to Mr Cavey's role, when he suggested that the grievors upgrade themselves with a 'M' licence, the grievors saw it as a parting gift from the retiring supervisor They saw it as an opportunity to add to their credentials and jumped at the idea The evidence indicates that neither Mr Cavey nor the grievors took time to think through how exactly they were going to achieve their objective. Once the process was launched by completing the written test and booking a road test, they did not know how to proceed Mr Cavey had not told them how exactly it could be done That is when they decided to put through false documentation as the means of completing the process they had started The Board is also satisfied that through these events, the grievors had some guilt - an awareness that they were doing something wrong These are intelligent people They put down fictional models of motor cycles and plate numbers on an official ministry form No reasonable person could have thought that such conduct was acceptable The Board also does not accept that the i \ 20 grievors were merely obeying the directions of Mr Cavey to upgrade themselves The evidence does not indicate that Mr Cavey gave any "direction" It was more in the nature of a suggestion or an offer Even if he did, the grievors had no reason to believe that failure to comply will result in some sanction since Mr Cavey was retiring that same day The Board finds that the grievors foolishly decided to take up Mr Cavey's offer without properly assessing what it may involve Their culpability lies in the fact that they did not back off from the process they innocently started, even after they realized that it cannot be achieved without being dishonest Instead, they carried on by creating false documentation and giving themselves the licences and refrained from discussing this matter at any time with their new supervisor, Mr Bishop As the Board has noted the Dr i ver Examiner position is one requiring utmost trust and integrity Under normal circumstances, we would have upheld the discharges despite any seniority and discipline free records However, this misconduct occurred under unique circumstances We are satisfied that if not for Mr Cavey's encouragement and ill-advice, the grievors would not have embarked on their foolish mission Ms Dyer and Mr Smeltzer were classified employees with moderate seniority They were very competent and hard-working employees and had no prior discipline Most importantly, while ( 21 explaining Mr Cavey's role, they accepted blame both during the investigation and before this Board During their testimony their demeanour evidenced genuine remorse Despite the seriousness of their misconduct, the Board is satisfied that the trust that was lost as a result of their actions can be restored The employer is directed to reinstate Ms Dyer and Mr Smeltzer forthwith It will be at the employer's sole discretion as to whether they will be reinstated to the acting driver examiner positions they held at the time of their discharge or to their "home positions" considering the seriousness of their actions, the Board directs that Ms Dyer and Mr Smeltzer are not entitled to any compensation The time between their discharge and reinstatement will be recorded as a period of suspension without pay Different considerations apply to Ms Papple She was a contract employee with no seniority under the collective agreement Before the investigator she admitted to no wrong-doing During her testimony she expressed regret, but only in the form of self pity for what she had to endure since her discharge She insisted that she was merely following Mr Cavey's orders, because he was a strict supervisor who did not want his staff questioning his orders The Board did not find that part of her evidence to be credible She admitted to no wrong-doing and readily put the entire blame on Mr Cavey She did not show that level of remorse that can reasonably be expected after such serious misconduct In all of the circumstances, specially considering that Ms Papple was ( 22 a contract employee with no vested seniority, her grievance is hereby dismissed Before leaving this matter, the Board must emphasize that this decision should not in any way be seen as a signal that the Board expects the employer to be lenient on dishonest Driver Examiners The only reason for the reinstatement of Ms Dyer and Mr Smeltzer is that the Board believes that due to the Ministry's breach of its own practice and because of the encouragement on the part of the supervisor, they may not have realized the seriousness of their conduct Without those exceptional circumstances, their seniority, discipline-free records nor demonstration of remorse would have been enough to cause the Board to intervene The Board remains seized to deal with any difficulties the parties may have in implementing this decision Dated this IltIPay of December, 1996 at Hamilton, Ontario ~~-;~ N Dissanayake Vice-Chairperson ~'-c:v~ M Vorster Member ;1 1. ~ .~ r L?:McJ 04~ F co't-t-fct Member DISSENT Re Dyer/Papple/Smeltzer, G S B #1129/94, #1180/94, #1191/94 Subsequent to a review of all of the evidence in this case, this Member is in reasonable agreement with the majority as set out in this case at pages 19 and 20, as follows "The Board is also satisfied that through these events, the grievors had some guilt - an awareness that they were doing something wrong These are intelligent people. They put down fictional models of motorcycles and plate numbers on an official ministry form No reasonable person could have thought that such conduct was acceptable. The Board also does not accept that the grievors were merely obeying the directions of Mr Cavey to upgrade themselves The evidence does not indicate that Mr Cavey gave any "direction" It was more in the nature of a suggestion or an offer Even if he did, the grievors had no reason to believe that failure to comply will result in some sanction since Mr Cavey was retiring that same day The Board finds that the grievors foolishly decided to take up Mr Cavey's offer without properly assessing what it may involve Their culpability lies in the fact that they did not back off from the process they innocently started, even after they realized that it cannot be achieved without being dishonest. Instead. they carried on by creating false documentation and giving themselves the licences and refraining from discussing this matter at any time with their new supervisor, Mr. Bishop." (p 19, 20 of award, underscoring added) However, this Member dissents with the majority with reference to the following, "As the Board has noted the Driver Examiner position is one requiring utmost trust and integrity Under normal circumstances, we would have upheld the discharges despite any seniority and discipline free records However, this misconduct occurred under unique circumstances We are satisfied that if not for Mr Cavey's encouragement and ill-advice, the grievors would not have embarked on their foolish mission (p 20 of award) This Member is not convinced of the above. The majority award does not reinstate Ms Papple who had been a contract employee with no seniority However, the award does provide for the reinstatement of both Ms Dyer and Mr Smeltzer In the view of this Member, the action of termination of these '1 three people taken by the Employer, should be upheld, for the following reasons f The grievors are intelligent people They worked mdependently as Driver/examiners They had the authority to test and approve a vehicle licence for an applicant. This authority was unfettered - even by their supervisor That is, the supervisor did not "second guess" the Driver Examiner with reference to who should be issued a licence This responsibility rested with the Driver Examiner. Notwithstanding the above, the grievors did for themselves. that which they would not do for any member of the public! That is, they misrepresented and falsified documents which resulted in the issuance to them of M licences These actions resulted in the termination of the grievors In the view of this Member, the issue in this case is not the question as to whether or not.any: of the grievors can be rehabilitated to the point that the trust of the Employer in the grievors can be restored, or that they can be returned to useful work with the Employer, as rationalized in the award at page 21 Rather, The issue in this case is whether or not the employment relationship between the grievors and the Employer has been so irretrievably broken owing to the violation of trust demonstrated by the grievors in the performance of their duties, that it can ~ be restored It is the position of thiS Member that this employment relationship has been irretrievably destroyed, and that the Employer's decision to terminate the grievors should stand As to whether or not any of the gnevors can be rehabilitated, we have only the 3 statement from each of them made at the hearing, that they would not violate the trust placed in them again This may be so, but in the view of this Member, that is fiQ1 the question to be answered by this Board The Board's jurisprudence is reasonably clear on matters associated with trust as related to the duties and responsibilities of a position As stated in BRADLEY, G S B #1050/94, 1424/94, " having worked hard and done a good job (does not) offset the fraud that he had committed In light of these factors, the Board must conclude that Mr Bradley's potential for rehabilitation is not good" (p 32 of award) Quite unlike BRADLEY, the grievors in this subject case (Dyer/Papple/Smeltzer) have expressed some remorse associated with their actions - (some months after the occurrence and investigation interviews) - and have claimed that the fraud or breach of trust would not happen again However, in the view of this Member, the actions of the grievors were a "revelation of character" which had to be considered by the Employer and which weighs heavily as related to the question as to whether or not the Employer could ever again place the grievors in a position that would require both ~ and responsibility The jurisprudence advanced by the Union to support its position of minimal penalty and the re-instatement of the grievors was very distinguishable from the subject case and the line of jurisprudence (BRADLEY, DAIN, MCKENNA) advanced by the Employer For example, the Union presented cases associated with momentary aberrations, (eg presentation of false documents as in SPIERS, GSB #181/78 and THOMSON GSB #1794/90) or in cases involving extenuating circumstances (as in PAULEY/BECHARD, GSB #1171/91, #1172/91) In fact, the only case on point presented by the Union was MENZIES, G S B #751/91, 4 and this case, a case where an employee was reinstated after engaging in 32 discreet acts of theft over a period of 12 months - which in the award were improperly (in the view of this Member), referred to as "aberrations - is manifestly wrong! In this MENZIES case there was no evidence to support a finding of emotional illness on the part of the grievor, and the sole witness who came forward to support the rehabilitative possibility for the grievor was llQ1 a medical or rehabilitative expert, but, rather, was Miss J Bishop, a student in pastoral counselling She testified, essentially, to the effect that Ms Menzies had "some stress in her life" (including her recent discharge), and that she required 'therapeutic dialogue" to enable her to understand her own behaviour However, the Board, in MENZIES, at no time, " received (any) direct medical evidence on whether she (the grievor) needs treatment by a licenced specialist at this time" (p 13 of G S B #751/91 ) By comparison with the above, the jurisprudence in - BRADLEY, G S B #1050/94, DAIN, G S B #3814/92, and McKENNA, 28 L A.C (2d), P 410 - is on "all fours" with this DYER/PAPPLE/SMEL TZER case That is, the employees involved in .all of these cases were in a position of.tru.s.t. The improper actions they engaged in were directly related to the fundamental nature of their duties and responsibilities. In each case, the grievors were found to have violated the trust associated with the fundamental and basic duties associated with their jobs Accordingly, the Employer terminated the employment relationship and the penalty of discharge was upheld in each of these cases The majority in thiS case has held that there were mitigating circumstances in this case such as, the involvement of Mr Cavey, the apparent but limited inconsistency in the practices of the Employer relative to the issuance of licences, and so on However, as stated earlier, the grievors are intelligent people They knowingly, and with intent, falsified ministry documents for the purpose of having Issued to them, M motocycle licences They had to determine how to falsify the documents so that the licences would be issued to them They had the authority to sign the falsified documents - and 5 they did this (All but Ms Dyer - but she knew that her falsely completed document had been improperly signed and submitted) The grievors did not "come clean with reference to the licencing information until they were presented with it at the time of the investigation, many weeks af1e.r the documents had been submitted and licences were issued, and they used this new licencing information on their letters of application as a qualification when applying for a full time Driver/Examiner position In view of all of the above, this Member would conclude that there are no mitigating circumstances in this case sufficient to justify or ameliorale the actions taken by the grievors Finally, an excerpt from the Canada Post case (SHIME), with reference to both the matters of tr.u.st and the timing of the actions taken by the grievors, are significant, as follows "The grievor with full and complete knowledge of the risk he ran chose to engage in the conduct described - it was not momentary Having courted the consequences. he must now live with those consequences" (page 4) (underscoring added) This Member would conclude that the action of the Employer to terminate all three of the grievors should have been upheld in this case F T Collict