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HomeMy WebLinkAbout1994-1941.HILL.95_12_13 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DEL 'ONTARIO 1111 GRIEVANCE COMMISSION DE \\ D " SETTLEMENT REGLEMENT G\\;~ # BOARD DES GRIEFS C\,2-~ ~ff 180 DUNDAS STREET WEST SUITE 2100 TORONTO. ONTARIO. M5G lZ8 TELEPHONEIT~L~PHONE (416) 326-1388 r ,'.~O RUE_DUN~\UREAU 2100, TORONTO (ONTARIO) MSG lZ8 FACSIMILE IT~Lf~COPIE (4 '6) 326- '396 , -) GSB # 1941/94 ..._ .......,-....J,J-- .-.\ I OPSEU # 95COO1 \ bl;C" 13 .j} 5 I , IN THE MATTER OF AN ARBITRATION CRO~ I j :::/,,) Under GRIEV ""1"7'" . j -_._-- .l~-~E CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Hill) Grievor - and - The Crown in Right of Ontario (Ministry of Natural Resources) Employer BEFORE 0 Gray Vice-Chairperson FOR THE G Leeb GRIEVOR Grievance Officer Ontario Public Service Employees Union FOR THE S Patterson EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING April 21, 1995 October 20, 23, 1995 Decision The grievor's employment as a purchasmg officer with the Mimstry of Natural Resources was terminated on November 9,1994, when he was given this letter from Jim MacDonald, the Ministry's Manager of Corporate Purchasing: Dear Mr Hill. I have reviewed the fmdings of the recent investigation concerning your mvolvement in the mISappropriation of Ministry funds. Based on the results of our investigation, and our previous discussions, I have concluded that you have dJ.verted Ministry funds through inappropriate use of gasoline credit cards. Needless to say, the misappropriation of Ministry property cannot be tolerated. Accordingly, under authority delegated to me by the Deputy Minister pursuant to Section 23 of the Public Service Act I hereby chsmiss you for cause, in accordance with Section 22(3) of the Act, effective lDlmedIately You have the right to grieve thIS action pursuant to Article 27 of the Collective Agreement and Bill 117 If you wish to pick up your personal belongings from your office, Sue MacIntyre will be available to assist you. The grievor ad nuts, as he dId some two months before he was dlScharged, that he misappropriated Mmistry funds by usmg Ministry credIt cards to purchase gasoline for personal use. The issue in this proceeding is whether discharge was an exceSSIve reaction, in all the circumstances. The union's representative stated at the beginning of the hearing before me that the gnevor was not seelung com- pensation, only reinstatement. Background The grIevor began working for the Ministry as a clerk m October 1966 By 1973 he had risen to a management position in the Lanark District office. In 1980 he was promoted to another management position m the MInistry's Kemptvllle office. When that position was phased out in the mId 1980's he be- came Regional Operations Manager in that office. That pOSItion was elimInated in a reorganizatIon effected m June 1992 He then became a Purchasmg Officer 2 - m the KemptvIlle office ThIs last posItIOn fell wIthm the bargammg UnIt repre- sented by the UnIon. The grIevor and hIs wIfe have two teenage chIldren. HIS wIfe worked as a RegIstered Nursmg AssIstant before the children were born. Thereafter, she re- mamed at home to care for the children. In 1985, Mrs HIll returned to work full- time. In the expectation that Mrs. HIll would continue to work full-tIme, the HIlls borrowed money and built a home. In 1986, Mrs. Hill suffered recurrence of a back mJury ThIS led to surgery and an end to her mcome from full-time em- ployment. In and after 1987, she earned a modest mcome from part-time em- ployment. Mrs. Hill had a further hospitalization m 1991 or 1992, and was un- able to work even part-time for several months m that year In 1991 or early 1992 the Hills' daughter began suffermg from depressIOn and debIhtatmg mIgraine headaches, which theIr family doctor was unable to treat successfully over a perIod of several months. UltImately, she was placed under the care of an Ottawa psyclnatrist in late 1992 PsychIatric treatment contmued through 1993 A worsening in November 1993 led to a 15 day hospi- talization in December 1993 Mr Hill had dIfficulty understanding lus daugh- ter's dIfficulties, and there was tensIOn between Mr and Mrs. HIll about how to respond to them. These circumstances created stress for Mr Hill, as dId the state of the family's finances. It appears that after 1985 the Hill family's expendItures ex- ceeded its revenues. In and after 1992, Mr HIll's use of his own credIt cards, m- cludmg his gas credIt cards, regularly approached the hmits of lus credIt. The Grievor's Defalcations The grIevor commuted to work in KemptVllle from Perth, usually m a car pool whose members each took turns drIving the others. The grievor's work also involved travel. If he travelled for work m his own vehIcle he dId so imtIally at lus own expense, and would later be paid a "Plileage" allowance based on dis- tance travelled for purposes of lus work. He could also take a vehIcle owned or leased by the MImstry on work-related trIps. For each MInIstry vehIcle there was a pouch contaInIng the keys, Insur- ance and other documentation, a log book and a gasolme credit card These credIt 3 - cards are generated by the M1OIstry, and are honoured by each of the major gasohne retaIlers. Each card bears the hcence plate number of the vehIcle for which it is to be used, and a code 1OdIcat1Og the dIstnct or regIOn 10 which the vehicle is based. When the Mimstry ceases using a vehicle, the correspond1Og gasohne credit card would ord1Oarily be returned to the indivIdual responsible for the fleet and destroyed. A MmIstry gasoline credit card is meant to be used to purchase gasoline for the vehicle to which It relates. The user is expected to place the customer copy of the "chit" generated in a purchase transaction with the log book, in which he or she is to record details of the use of the vehicle. One of the other copies of the chit retamed by the retailer would eventually accompany the invoice sent to the Mimstry for all gasohne purchases on such cards during a given time period. It appears that the grievor's use of Ministry credit cards to purchase gasoline for his own vehicle began in late October 1992' The grievor testified that the first time he did that was on an occasion when he was taking his own vehicle on Mimstry busmess. He was short of funds, and would have had difficulty pay- ing for the gasoline needed. He said it was his intention then to repay the Minis- try at the end of that month or the next month, out of the cheques he expected to receive for reimbursement of expenses. He did not do so, however He used the expense reimbursements to pay other debts. HIS use of Ministry cards contmued thereafter The gnevor owned two vehicles, a car and a truck, and it appears he was fueling both using Ministry credit cards. The results of an audIt later conducted by the Ministry, which are unchallenged, show that on 11 occasions in the 5 month period from late October 1992 to late March 1993 and 175 occasions in the 16 months between the beg10mng of April 1993 and the end of July 1994, the grievor used one MImstry card or another for gasoline purchases wluch cannot be connected with the fueling of a MInistry velucle. There were no improper pur- chases in August 1994. He appears to have made one improper purchase on Sep- tember 2, 1994, days before he confessed to lus misconduct. The total cost to the MInistry of the improper purchases eventually identified by the audit was $6211.12 That figure is not dIsputed by the grievor - 4 - The gnevor's nearly 200 Improper purchases were made on 27 dIfferent credit cards. Some cards were only used a few times. A few cards were used re- peatedly - one of them over 50 times. Some of the cards were assocIated with vehicles still in active use. The gnevor testified that sometImes, after returning a Mmlstry vehicle that he had driven on Mlmstry business, he delayed retummg the assocIated card and documentatlOn over the lunch hour or over mght, durmg which time he used the card to fiUlus own velucle. Other cards, ones the grievor used more frequently, were cards for velucles no longer m use or, in one case, a duphcate of a card for an active vehicle. The grievor testified that he found these cards on his desk from time to time. He saId he presumed people put them there because until the reorgamzatlOn in 1992 he had been the person m charge of the fleet, the person to whom such materIals would preViously have been returned, and had had some responsibIlities WIth respect to the fleet for a period after the reorgamzation. He testified that he rationalized retaining at least one of these cards on the baSIS that it could be used to fuel newly acquired vehicles for wluch cards had not yet been issued. As an example of this need, he referred to an oc- caSIon when it had been necessary to fuel a vehicle he and another employee had pIcked up in Barrie and driven to Kemptville. The grievor testified that at first he put the customer copy of chits from his Improper purchases on lus bureau at home. Several months after he started domg this, he said, his WIfe threw the accumulated chits out. He made no at- tempt thereafter to keep track of lus purchases but always intended, he said, to sort tlus out with the employer eventually Asked in cross-examInation why he had not contmued keeping receipts, he adopted lus psycluatnst's earher obser- vation that after the initial chits were thrown out he had probably felt It was hopeless In addItion to the mortgage on the famIly home, by early 1994 the grievor owed $12,00000 to 14,00000 on lus own credit cards, $400000 on a loan taken out to finance his current vehicle and $6000 00 on a credIt umon loan taken out to finance a previous vehicle. In May 1994, the gnevor approached lus bank with a view to consolidating debts. He arranged for a $25,000 00 line of credIt secured on the eqwty he and his WIfe had m their home. Thereafter, as statements came in the mall, he paId a number of debts from draws agaInst that lme of credit. - 5 - The gnevor testified that hIS conscience was bothered by his Improper use of M10istry credIt cards He had in mmd that he should also deal WIth that mat- ter when he consohdated his other debts, but he could not figure out how to ap- proach the problem. His use of the cards continued to the end of July 1994, when lus vacation began. He saId It was then that he decided to stop us10g the cards as a first step in address10g thIS matter The audit shows that there were no Im- proper purchases in August. In cross-examination, employer counsel put it to the grievor that he stopped making purchases in August only because he was away on vacation and chits sIgned by him during that time would therefore have raised suspicion. The gnevor demed that, repeating that he stopped us10g the cards then because he had decided "not to or hopefully not to" use the cards agam. He also testified that he would have taken lus 1993 vacation at about the same time of year The audit shows that his use of M10istry credIt cards cont1O- ued unabated during July, August and September of 1993 In mId-August 1994, a clerk 10 the Kemptville office was checking the gasoline purchase chits. Doug Earl, a purchasing officer, offered to assist her They noticed that some cluts signed by the grievor had the same licence number as those signed by another employee. It appeared to them probable that the grievor was using Mimstry credit cards to put gasohne in his own vehicle. The clerk felt she had to report this to Jim Bailey, the District Support Services Su- pervisor at the Kemptville office. Knowmg that her report would result m an in- vestigation, Mr Earl deCIded to alert the grievor He made photocopIes of the cluts that had raised the concern, and placed them in an envelope on the grievor's desk, without indicating on the envelope or its contents where they had come from. Although the grievor was scheduled to be absent on vacation all of August, he did attend at work on August 19, 1994 for a meeting he and other purchasing agents had been asked to attend with theIr new supervIsor, who worked in the Ministry's Huntsville office. While there, he opened the anonymous envelope. M- ter examining its contents, he knew that something was happemng concermng his use of credit cards. He did not speak to anyone then, however He returned to his vacation, which contmued until September 6, 1994 It appears that he used a Mimstry card once again, on September 2, 1994. A chIt bearing that date and the gnevor's signature was among those received by the Mimstry Although the - 6 grIevor dId not deny hIS SIgnature, he could not account for hIS havmg used a Mmistry card after hIS vacation began. Investigation and Admission The clerk did alert Mr BaIley Over the next two weeks or so, as time al- lowed, Mr Bailey looked into chIts signed by the grievor since the begmning of that year He told Jim Anderson, the DistrIct Manager for of the KemptvIlle DIS- trIct, that he was making such an mvestIgation. When he had finished, on Sep- tember 6, 1994 he informed Mr MacDonald that it appeared the grIevor had misused credIt cards to the extent of $1300 00 to $1600 00 The grievor returned to work on September 6, 1994 He went to the clerk who normally handles fleet matters. He told her that he had been using a dupli- cate credIt card improperly, and asked who used the vehIcle to which It related. He went to the employee she Identified and apologized to him for any problem lus actions had created. He then went to speak to Jim Anderson, but Mr Ander- son was not then in the office. The grievor met with Mr Anderson the followmg day, September 7, 1994, and confessed to improper use of Mimstry credIt cards He described his personal problems. He asked If the matter could be handled lo- cally Mr Anderson rephed that Jim BaIley had told him that someone who re- ported corporately had been mIsusmg credit cards, and that he was surpnsed that the grievor was the person Mr Bailey had been investigating. He also saId that on lus advice Mr BaIley had spoken to someone "up the line," so the matter could not be handled locally He suggested that the grievor speak to his supervi- sor The gnevor called Mr MacDonald, hIs supervisor's manager, who worked in Sault Saint Marie. He called Mr MacDonald within an hour of speakIng to Mr Anderson. He also spoke to Mr BaIley, and apologIzed to hIm for the trouble he had caused. It appears hkely that his dIScussion with Mr BaIley preceded IDS diSCUSSIon wIth Mr MacDonald. The grievor contmued to commute to work wIth Mr BaIley thereafter untIl his dIscharge two months later Mr MacDonald testified that during their conversation of September 7, 1994, the grlevor told him that he had been usmg MImstry credit cards for per- sonal purchases, that he had ceased domg so durmg IDS vacation that summer - 7 and that hIS purchases had been m the range of $1300 00 to $1600 00 The grievor also told hIm that he had retained chIts but his wife had thrown them out, and that he had always mtended to make restitution. Mr MacDonald said it had been his impression that the throwmg out of cluts had been a recent occur- rence, but acknowledged that the gnevor had not saId that. In cross- examination, it was put to him that when the grievor gave a dollar figure or range for the value of the purchases during tlus lmtial conversation he had also said "it may be more" Mr MacDonald said he would not disagree with that. When questlOned about his testimony that the grievor had said he had stopped usmg cards during his vacation, Mr MacDonald said there was a "fuzzy" refer- ence to his vacation from which he took it that the gnevor had stopped usmg the cards "at or around" lus vacation. An auditor, Denise Anten, was then assigned to perform. an audit to de- tenmne, among other tlungs, the value of the grievor's improper purchases. She found It necessary to obtam copies of chits from several gasoline compames when she discovered that the MInistry'S copies were missing for most of 1993 That delayed the final tally until well after the gnevor had been dIscharged. By late October 1994, however, the employer knew that the grievor had used a number of credit cards on a total of at least 90 occasions from October 1992 on, that the total value of those Improper purchases was in excess of $3000 00 and that the total of all improper purchases was likely to be well in excess of that figure once the copIes of the missmg cluts were obtained from the gasoline retaIlers. The Meeting of November 1, 1994 As part of the investigation of the grievor's misconduct, on October 31, 1994 Mr MacDonald asked the grievor to attend a meeting with him in Kemptville the following day Ms. Anten came to the meeting as welL After- wards, all three of them signed these notes of the meeting: Jim MacDonald and Denise Anten met WIth Greg Hill on November 1, 1994 to discuss the ongoing investigation into the misuse of minlStry gasohne credit cards by Greg Hill. Jim had sent an agenda for the meetmg to Greg on October 31, 1994. Jim brIefly reviewed the agenda, then he reviewed the chronology of events that had led up to the meeting. In September 1994, Greg had told Jim over the phone that he had used minlStry credit cards for hlS own purposes to the tune of $1,300 to $1,600. 8 - Greg now told us that thIS had been a guess Jun mdICated that consIderably more than this had been found, however the mvestIgatIOn was not yet completes as m1ssmg records were awa1ted from the OJI compames. Greg saId he got rId of one particular card 10 h1S posseSSlOn at the end of July and d1d not use 1t wh1lst on vacatIOn 10 August. When presented WIth eVIdence that Greg had used the card on September 2, 1994, Greg saId that he could not contradict the eVIdence he may have destroyed the card before he called Jim in September He later re-called tak10g the card to the fleet coordInator 10 September and askmg whIch vehIcle the card belonged to. Greg thought that the hcence plate to which the card was coded was inactive. In fact, the licence plate had been put back mto use, and a new credit card had been Issued for that licence plate with a Kemptville identIfier Jim presented several scenarIOS' credit cards used by Greg for inactlve vehIcles, credit cards used by Greg for active vehIcles that he had not sIgned out, credit cards used by Greg for both vehicles that he had signed out and for his personal use. Greg feels that some of the missing chits and wary entnes may simply be due to sloppy record keep mg. Greg began having fmancial problems around the begmning of the 1990's. He used up hIS available crewt around the time of reorganIzation. Greg cannot recall when the mISuse of ministry credit cards began, but does not think It goes back more than two years. Greg takes responsibility for any credit card purchases signed by hun whIch were not recorded m the vehIcle dianes, even though some of the purchases may have been legItunate. When asked how Greg came to have credit cards for mactIve vehIcles in his posseSSIOn, he responded that they just appeared on his desk. (perhaps from staff who thought that he was still responsible for the fleet.) One card that appeared on his desk had no expIry date. Greg thought this would be handy to keep for emergencies, e. g. new vehIcles for which cards had not been made up yet, or for vehicles whose documentatIon may have been accIdentally left at an employee's home. Greg admits to then using this card for personal use. Greg has since found another card 10 his desk. ThIS card had expired. He destroyed It. Some of the records needed to complete the mvestIgation could not be located. Greg was asked if he knew the whereabouts of these records. Greg stated emphatIcally that he had not destroyed any records. He had taken records to the nursery for storage in the past. Durmg reorgamzatlOn there were boxes everywhere, and the box could have gone astray during that time. Greg stated that he had never trIed to cover up his misuse of credit cards by destroymg the chItS sent to the mmistry WIth the gas mVOlces. Greg was responsible for the fleet before reorgamzatlOn, and for about a year durmg the transitIOn period. He does not recollect any misuse of crecht cards prIor to the 1992 reorgamzatlOn. When asked J.f he had diverted any other mmlStry assets to hIS own use, Greg emphatIcally demed it. - 9 - Greg stated that the past two years have been very stressful, resultmg from the 1992 reorganiZatIOn, personal financial problems, and the Illnesses of his wIfe and daughter He never reahzed that hIS personal use of mmistry credIt cards had been so extensIve. Jim talked about the next steps in the investigation. The OPP had not been contacted, however thIS was still a possibility Jun adVIsed Greg to seek counselling from hIS union representative, the local human resources consultant and employee assistance programs. When asked if Greg would have the ability to repay the amount of mmlStry funds dIverted to hIS personal use, Greg said he may have several options. to borrow the money, pay over tune, or pay from hIS severance pay I have read this statement, and agree that it is a true record of our meeting. With reference to the fourth and fifth paragraphs of these notes, the grievor tes- tified that he had been surprised to learn at the meeting that he had used a card on September 2, 1994. He said that at that point he thought he had stopped us- ing the cards after July 1994 The Discharge Decision During lus examinatlOn-in-chief, Mr MacDonald testified that he had two concerns as a result of the meeting of November 1, 1994 with the grievor One arose out of the tension between the auditor's discovery that the grievor had used a Mimstry credIt card in September and Mr MacDonald's understandmg that the grievor had stopped using Ministry credit cards around July As he im- tially described it, this first concern was that the auditor's dIscovery contradIcted something the grievor had told him earlU!r His other concern was that when con- fronted with the variety of scenarios in which cards had been used, the only ex- planation the grievor offered of how the cards had come into lus possession was that from time to time he found the cards on his desk. Mr MacDonald felt the grievor had been "less than forthcoming" about how he obtained the vanous cards he had used. He testified that those two concerns m conjunctIOn wIth the thefts themselves formed the basis of his decision to termmate the gnevor's em- ployment. During his cross-examinatIOn Mr MacDonald stated, as I have already noted, that the grievor's comment in the September conversation about having stopped usmg cards contained only a "fuzzy" reference to hIS vacatIOn. He ac- knowledged that if the grievors vacation extended from the end of July to be- yond September 2 (as the evidence indIcates it did) then the gnevor dId not mlS- -10 lead hIm m September Asked to agree that on those facts the gnevor was not lymg to hIm, Mr MacDonald saId "techmcally, he would not be" After that ex- change, and wIth reference to thIS concern and the fourth paragraph of the notes of the meeting, Mr MacDonald saId that "he told me one thmg early m the meet- mg and another thing later" (emphasIs added) Mr MacDonald was also cross-exammed about the other concern he identIfied. that in the meeting of November 1 the grlevor had been "less than forthcoming" about the way the varIOUS card use scenarIOS had come about. He saId that when the varIOUS methods were dIscussed, the grievor "was not pre- pared to add any commentary about how mechanically he made that happen, other than the suggestIOn that from time to time cards appeared on hIS desk." Mr MacDonald acknowledged that the grievor had admitted each of the scenar- IOS, had accepted responsibilIty for all of the transactIOns identIfied and had not refused to answer any question asked of him. His attention was then drawn to the tenth paragraph of the notes of the November 1. That paragraph records the grievor's haVing answered a specific question about how cards came Into rus pos- session In one of the scenarIOS' cards relating to inactive verucles. The notes do not record his haVing been asked a similar question about other scenanos Mr MacDonald then saId that simIlar questions had been asked about the other scenarios. Reminded of rus earlIer acknowledgment that the gnevor had not re- fused to answer any question, Mr MacDonald replied that "sometimes lus an- swers weren't there or weren't appropriate." In the end, Mr MacDonald agreed that the lack of forthnghtness WIth which he was concerned was the grievor's unwillingness to volunteer more about how he had acquired and used the cards Dunng his examlnation-in-chief, Mr MacDonald saId that he dId not con- SIder remoVing the grIevor from employment upon hearmg rus admISsIOns m September because he was giVing the grievor "the benefit of the doubt." The gnevor "seemed remorseful and contrIte," he saId, and he "dIdn't want to pre- Judge whatever else mIght happen" as a result of the mvestlgatIOn. In re- examination he said that at the early stages he had no reason to "pass any com- mentary" on whether what the grievor had told rum was true, but that he later came to have doubts about whether the grlevor was bemg truthful. In cross- examination he said that the grievor's admIssIons of theft m September had not been enough to suggest to rum that the grIevor's job duties should be changed In -11 the meantIme. He stated that those admIssIOns dId not give rum concern that the grIevor would misapproprIate funds thereafter, although he dId ask the grlevor's supervIsor to look at hIS purchase orders. He said that he did not decide to ter- minate the grlevor's employment untIl after the meetmg of November 1 He dId not base his deciSIOn on the thefts alone, he said, but on three factors. the thefts plus the two concerns he had Identified concerning what the grievor saId or did not say at the meetmg of November 1, 1995 Asked at one point whether he was saying that the thefts were reason enough for his deciSIOn to dIscharge the grIevor, Mr MacDonald said only that he did not make that decision. Mr MacDonald presented the letter of November 9, 1994 to the grievor at a meetmg held that day During his opening statement union counsel alleged, and the grievor subsequently testified, that after gIving him this letter Mr MacDonald told him that he should get his UnIon to go to do their job for him, and that he would not have any problem with whatever the decision was. The audit continued after the grievor was discharged. In a letter dated December 20, 1994, the grievor was advised that it had by then been determined that his improper purchases totalled $5,824.16, and that that amount would be deducted from the vacatIon and other credits to wluch he had become entItled as a result of his discharge. Psychiatric Evidence Soon after his employment was terminated, the grievor attended on Dr Gonzalo Araujo, the Ottawa psychiatrist who had treated his daughter Dr Araujo testified that at that time he found clinical evidence that the grievor was sufferIng from short term memory impairment, cognitive fragmentation and mIld to moderate impairment of concentration. The grievor reported to rum what the doctor described as "a sigmficant sleep disorder and the secondary appear- ance of anxiety disorder" Dr Araujo concluded that these were the result of stress, and identified the illnesses of his daughter and wife and the family fi- nanCial problems as stressors which had been present over a perIod of years. In a report to the grIevor's family physiCian dated December 6, 1994, Dr Araujo stated that I am convinced that Mr Hill has been, at least over the past 6 to 8 months, a VIctim of dysthymia. The circumstances that currently involve Mr Hill can 12 - m my mmd be at least partIally attributable to the multItude of stressful factors that have atThcted hIm and I honestly beheve that a course of psychlatnc treatment wIth supportive psychotherapy and the JudIcious use of an antIdepressant mIght slgmficantly contribute to Improve Mr Hill's performance and II not restored (SIC] completely his functlOnmg at least to a totally acceptable level. In a letter to the umon dated April 13, 1995, Dr Araujo stated that The burden of debilitating illness, fIrst on his wife and also his daughter, coupled with mcreasmg fatlgue on hIS work schedule, appeared to have provoked what is called "DYSTHYMIC DISORDER" In thIS condition, associated to mood disorders, there is a combination of: a) Physical - i.e. decreased energy, fluctuations in sleep patterns, partlcularly insomma. b) Mental aCUlty i.e. lack of concentratlon, dllficulty makmg decisions, unpulsive Judgement, c) Emotional I.e., ll'ntability, lack of enjoyment of usually pleasurable actiVItIes, which carry a decreasmg sense of self-esteem and m a VIClOUS cll'cle, contribute to a decrease in everyday functionmg. As the stressful circumstances were compounded by financial stressors, Mr Hill dIscussed havmg mcurred m inappropriate maneuvers that motlvated hIS dIsmissal. He sees hIS responsibility for domg these things, yet m my opinion, they could have, to a sIgnificant degree, been motivated by poor judgement associated with his condition of Dysthymia. As Mr Hill continued to attend for therapeutic counselling, he has described progreSSIVe unprovement of his symptoms in physical, mental and emotlonal areas, while receIvmg also a course of antldepressant medIcations. I am hopeful that the combinatIOn of antidepressant medIcatlons and the support of therapy will result m a substantlal recovery Needless to say I am completely convinced that should Mr Hill be allowed to perform any dutles WIth regards to preVIOUS employment experience, that his behaviour can be expected to reflect a normal performance. "Dysthymic DIsorder" is a term used In the American Psycluatnc Asso- CIation's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) to de- scribe a collection of symptoms, the essential feature of which is a chronically de- pressed mood that occurs for most of the day more days than not for at least 2 years, where those symptoms cause climcally significant distress or ImpaIrment In social, occupatIOnal or other important areas of functiomng. Dr ArauJo testI- fied that from what the gnevor told him he had concluded that by November 1994 the gnevor had suffered the chromc depression and other symptoms aSSOCI- ated WIth dysthymIa for about 5 years. He explaIned that when dysthymia In an IndIVidual has become a dIsorder, the indiVidual's judgment is impaIred and he or she can become reckless or Indifferent about comphance with legal and other - 13 rules (traffic rules, for example) with which the indIvIdual would have complied before the onset of the dIsorder Dr ArauJo's understandmg of the improprieties WhICh led to the grievor's discharge was that they involved mIsuse of gas vouchers over period of years The grievor had described this to him as being out of character, and Dr ArauJo saw thIs as consIstent with and a symptom of the grievor's dysthymIa. He dId not know the number or value of the grievor's misappropriations, nor the point in time when they had begun. Jim Bailey also resides in Perth. He and the grievor regularly commuted to their work in the Kemptville office together Indeed, he has known the grievor since 1977, before their employment with the Mimstry took either of them to Kemptvllle. Mr Bailey testified that he had not notIced any change in the grievor's health over the time he had been commuting to Kemptville wIth him. Doug Earl was also asked about his dealings with the gnevor since hIs own arri- val at the Kemptville office in August 1993 The grievor was cross-examined about the extent to which he engaged m social activities surroundmg the local gun club and shooting, particularly his son's shooting in tournaments It emerged that whIle the gnevor had accompanied hIs son to various meets, this was at the encouragement of the grievor's brother, who paid all or most of the assocIated expenses. Jim Bailey's Prior Defalcations When he testified in October 1995, Mr Bailey had been with the Mmistry for about 26 years, most of them in management, the last 10 of them in the Kemptvllle office. During his cross-examInation, Mr Bailey was asked about events which occurred in 1983 or early 1984, when he was the DIStriCt Manager of Carleton Place Distnct. He acknowledged that while in that position he had repeatedly made Improper use of government telephones. In partIcular, he made personal long distance calls durmg working hours over a period described in cross-exammatIon as "a year or two" and in re-exammation as "a year or more." These activities were noticed, and he was spoken to. There was a MImstry in- vestigatIOn, in whIch he partICIpated, to Identify the improper calls and deter- mme theIr value He testified that the value of those calls was about $250000, for which he offered to make and did make restitution. - 14 - Mr BaIley testIfied that m addItIOn to makmg restitutIOn, he was told he would be removed from all promotIOn lIsts There was no other dIscIplme Apart from a brief secondment to the federal Department of FIshenes, Mr Bailey had remained employed by the MmIstry, in management pOSItIOns, ever since. Re-examination of Mr BaIley by employer counsel elICIted the fact that the mdlVldual to whom he placed the improper long distance calls was also a Mmistry employee, a person with whom he also had business dealmgs, and that part of his involvement m the investigation was to Identify calls to that person which he could prove were business calls. This evidence of its past treatment of Mr Bailey emerged during the em- ployer's case-in-cluef, before it had closed its case It did not call anyone to ex- plain thIs treatment of Mr Bailey or to show how it had responded to any other employee's misappropnations. There was no request for an adjournment m order to locate witnesses who could provide such eVidence, and no suggestIon that the evidence about Mr Bailey had caught the employer by surpnse. Argument Employer counsel argued that tlus IS not a case in which there are suffi- CIent mitigating circumstances to warrant a less severe response to the gnevor's thefts than discharge. He referred to the Board's decisIOns m Rl,ce, 754/85 (Samuels) and Campanaro, 2232/93 (Watters) WIth respect to the considerations wluch should be brought to bear in making such an assessment. He noted that the grievors thefts were planned, deliberated and repeated. He suggested that on the eVidence the gnevor had not had a crushing debt load, and that depres- SIOn arising out of Ius daughter's Illness did not Justify the mIsconduct wruch be- gan in late October 1992 He suggested that the testimony of Messrs. BaIley and Earl and, indeed, that of the gnevor contradIcted the psychiatnc testimony that the gnevor had had a problem which would have led to changes m behaViOur and withdrawal from SOCIal actiVities which would have been noticeable to others. He argued that it appeared from that evidence that the gnevor was not m a de- pressed state until after he was discharged. Employer counsel argued that the gnevor's havmg ceased to use MInistry credIt cards m August 1994 dId not reflect the begmmngs of reform but was only - 15 - a strategy to aVOId detection, and that the credIt card use In September 1994 re- flected a resumptIon of hIS prevIOus pattern. He submItted that the grievor had confessed only as a result of learmng that he was under Investigation, and even then only to the amount whICh had been discovered by Mr Bailey He asked me to find that the grievor was less than full and frank in his disclosures to man- agement, and that his apparent remorse sprang only from his having been caught. He suggested that alleged InconsistencIes between the gnevor's testi- mony on October 20, 1995 and his contInued testimony on October 23, 1995 demonstrated that his testimony was unrelIable and that he continued to be less than forthnght even in the hearing before me. As for the earlier treatment of Jim Bailey, employer counsel noted that Mr Bailey had participated in the investigation of hIs wrongdoing, had apolo- gized, had repaId the Ministry and had been disciplined through removal from promotion lIsts. He argued that that case should be distinguished from tlns one because the decision makers and context were both different. With respect to context, he invited me to fmd that in the 10 years since Mr Bailey's thefts there had been a recogmtion that theft should not be condoned. He also noted that there was no evidence to show that the financial role of a DIstnct Manager, the positIon Mr Bailey occupied at the time of hIs thefts, was as sigmficant as that of the grievor at the time of hIs defalcations. He submItted that the UnIon had failed to discharge the onus It bore to prove similarity in that regard if it WIShed to rely on the Bailey case. The union's representative offered two lines of argument. One was that the eVIdence showed that the grievor had been suffenng from a mental illness which explained his misconduct and that having been successfully treated for that illness it was unlikely that he would repeat hIs misconduct. The other was that the employer's own actions showed that discharge was an excessive reac- tion. The employer actions relied upon were the employer's haVIng left the grievor in his Job for two months after he had confessed to theft, and the em- ployer's prior treatment ofMr Bailey While distinguishing the facts in Rice, supra, the union's representative accepted the observatIon at page 4 of that deCISIon that every case must be determined on its own facts and the essential bottom hoe is whether or not, in hght of the gnevor's conduct and - 16 - surroundmg CIrcumstances, It IS hkely that the gnevor will be an acceptable employee in the future He referred to two Board deCISIons In which a grIevor gUIlty of multIple thefts was reInstated. Kenny, 509/91 (Kaplan) and LeBrun, 2980/92 (Keller) The union's representative invited me to find that the grievor was a credible, sincere individual. He submItted that there had not been the inconsis- tencIes in testimony alleged by employer counsel. He urged me to conclude that the grievor could be an acceptable employee in the future, havIng regard to the surrounding cIrcumstances, the grIevor's unblemished record of servIce from 1966 until his credIt card use began in 1992, and his otherwise conscIentIOUS per- formance of lus job thereafter right up to the date of his discharge. He argued that the grievor failed to proVIde a more detaIled account of lus activIties in Sep- tember and November 1994 only because lus illness left lum unable to do so. He noted that the grievor had offered to help with the Mmistry investigation, as Mr BaIley had, and had made restitution, as Mr B8.1ley had, and that his circum- stances were otherwise similar to or more worthy of leniency than Mr Bailey's. He challenged the assertion that theft had in some way become less tolerable in tlus workplace smce 1984. He submItted that there could not be a more lenient standard for members of management than there was for employees represented by the union. Decision Theft is an extremely serious employment offence. It strikes at the ele- ment of trust essential to any employment relatIOnship DIscharge is not In- variably the appropriate response to theft, but it is pnma facl,e appropriate when the employee has perSIsted m denying or concealIng lus mIsconduct or the mIS- conduct involves sometlung more than a single, ImpulSIve takmg. In asseSSIng whether discharge IS an excessive reaction in any partIcular case, however, an arbitrator must balance the interests of the employer and employee In determIn- mg the likelihood that the employment relatIonslup can be restored. The central question has been put a number of ways. In Re Dommwn Stores Ltd. and Retail, Wholesale and Department Store Unwn, Local 414 (1982), 6 L.A.C (3d) 193, for example, arbItrator Kates put the question this way at p 201. would a long term suspension serve the purpose of balancmg the employer's concerns about the rIsk to the enterprISe should the gnevor be - . 17 rem stated wIth the gnevor s potentIal m future, to serve as a rehabIlItated employee? While I accept that Mr HIll had stresses m his hfe m October 1992, when he began stealing from the employer, the psychiatric evidence does not ade- quately support any suggestion that at that pomt he was suffermg from any sub- stantial cognitive Impairment as a result. I am not satisfied that his psychia- trist's diagnosIs in November 1994 "explains" in any sigmficant way the grievor's having begun steahng in October 1992 His major stressor at that point in time was his finanCIal sItuation. He began stealing m order to meet lus financIal needs. Wlule thIS may have begun with a rationalization that it was a temporary borrowing to cover a work related expense, it soon became a source of additional funds to support a life-style which, however modest, he simply .could not afford m the cIrcumstances. I accept that as these thefts went on the stresses in the grievor's life in- creased, that these stresses were increasingly debilitating, and that this partly explains why the thefts went on for as long as they did. Another reason for the duration and magnitude of these thefts is that they were not detected, as they would have been if some rudimentary business controls had been in place. This IS not meant as blame of the victim, but to explam my observation that the number of thefts and the length of time over which they occurred is not the measure of the thiefs deviousness that it might have been in other circumstances. He signed his own name to the chits, and thereby created a record oflus misconduct. He dId notlung to conceal that record. It was there to expose him whenever anyone com- pared the chits with the vehicle logs for the vehicles to which the cards related. Mr MacDonald's decision to discharge the grievor rested in part on lus as- sessment that the gnevor had smce tried to mislead lum and had not been suffi- ciently forthcoming concerning the details of his misdeeds. I am not persuaded that the grievor attempted to mislead Mr MacDonald. The grievor was frank and forthnght in lus testimony before me. HIS tes- timony on October 23 dId not contradict what he said on October 20 on either of the two pomts referred to by employer counsel in lus argument. His psycluatrist testified that the gnevor had observable difficulties with memory and cogmtIon in mid November 1994. Although two co-workers seem not to have noticed a change in the gnevor, I accept his psychiatrists assessment that the grievor - 18 - would have been havmg such difficultIes for some months prIor to that. Accord mgly, it would not be surprIsmg Ifby November he had forgotten havmg used a MmIstry card once m September Indeed, It would not be terribly surprIsmg If he was never, or only briefly, COnsCIOUS of haVIng done so. In any event, I am satis- fied that the grievor honestly beheved what he told Mr MacDonald about when he had ceased usmg the Mirustry's credIt cards. Mr MacDonald's testimony about the gnevor's supposed evaSIveness at the meeting of November 1, 1994 did not bear up particularly well under cross- examinatIOn. The notes of the meetmg record the grievor's having been asked about one scenarIO. They do not record hIs having been asked about others. WhIle I accept that the notes were not intended to record the meetmg verbatim, it IS a reasonable expectation that they would record those things whIch gave Mr MacDonald particular concern at the tnne. In any event, havmg regard to the clirucal findmgs that the gnevor's psychiatnst made a couple of weeks after the meetmg, I find that any apparent vagueness or unresponsiveness on the grievor's part at the meetmg was more likely a consequence of cogrutive impaIr- ment than of deceit or deliberate evasiveness. Still, the gnevor did steal repeatedly, and deliberately The frequency of the transactions and the number of different cards used suggests that he put some thought and energy into purswng this course once he set out upon It. HIS thefts cannot be described as impulsive. HaVIng regard to the nature of the gnevor's misconduct, even taking mto account his long and otherwIse unblem- ished service, I would have been inchned to dISmiss the gnevance if it were not for the way Mr MacDonald responded to the grievor's admISSIOns, the employer's prIor reaction to Mr Bailey's thefts and the complete absence of evidence that those reactIOns were atypIcal of the employer As I have already noted, the central question here is the likehhood that the employment relationship can be restored. Whatever mIght have been the re- action of another employer, tIns employer's decision maker dId not dIscharge or suspend the grIevor or even alter his job dutIes in September 1994 when he ad- mItted having committed numerous thefts totalling $130000 to $160000 and maybe more. That reactIOn is cogent evidence that It would have been possible to restore and contmue the gnevor's employment relatIOnshIp WIth thIs employer If . 19 - hIS wrongdomg had been as Mr MacDonald understood from theIr conversation m September 1994 There are two obvious differences between what Mr MacDonald beheved m September and what he knew in November One is that by November he knew that the gnevor had stolen over $3000 00 and lIkely much more, not $1300 00 to 160000 The caveat "and maybe more" would not, I think, have suggested to Mr MacDonald the possibility of a variation that large. The second obvious dif- ference IS that in September 1994 Mr MacDonald believed (from, or despite, whatever the grievor may have saId) that "until recently" the grievor had had the cluts for lus improper purchases. In fact, he had ceased any attempt to keep track of his takmgs more than a year earlier When it was drawn to his attention that he had left the grievor at work after hearing his confession, however, Mr MacDonald did not say he would have done otherwIse had the grievor confessed to thefts of $6000 00 and/or made no comment about his having kept chits. When given the opportunity to say whether he would have discharged the grievor in November had he not had the two concerns he said arose out of the grievor's conduct at the meeting of Novem- ber 1, he simply said that that was not the decision he had made at the time For reasons I have already set out, I am persuaded that those two concerns were overblown. The conduct with which he was concerned dId not warrant Mr Mac- Donald's conclUSIon that the grievor was being less than honest with him. All that remains of the factors on which Mr MacDonald based his decision, then, is the fact of the thefts themselves, something Mr MacDonald did not say was rea- son enough to discharge the grievor If the grievor's employment could continue unaltered after he had admIt- ted haVing stolen $130000 to $160000 and perhaps more from the employer m a number of transactions over an extended period, why could it not contmue when it appeared that the amount taken was two or three or even four times as much, If the inaccuracy of the first admIssion dId not reflect an attempt on the grievor's part to misled? In answering that question I must consider the further fact of the employer's treatment ofMr Bailey's defalcations in 1984. - 20 . In Brown and Beatty, Canad~an Labour Arb~tratwn (3rd ed , Canada Law Book, August 1995), the authors make these observatIOns at paragraph 7 4414 Dl,Scnmmatwn. Arbitrators have generally been sensitive to the basIc principle that similar cases must be treated in a like fashIOn, which simply reflects a universal precept of faIrness and Justice. Accordingly, in assessmg the reasonableness of a sanction rmposed on an employee, arbItrators have regarded the penaltIes mvoked by the employer in srmilar circumstances m the past as tending to reveal the actual concern that management has for such behaVIOur Accordingly, when an employee is able to prove that other employees who engaged in the same conduct for whIch he was dIscIplined were either not disciphned at all, or suffered much less severe disciphnary sanctions, arbItrators generally will find the employer to have dIscrrmmated against that employee even though it may be established that the employer dId not act m bad faIth or did not intend to dIscrimmate against her personally Srmilarly, making an example of one or more of those who engage in the same misconduct IS discrimmatory and inconsistent WIth the concept of Just cause. In the former circumstances arbitrators would likely completely exonerate the employee of any wrongdomg while m the latter, the penalty rmposed would be reduced to conform to that which was or had been traditionally imposed in the past. However, It is obvious that the principle demanding equality of treatment is only applicable where it can be shown that the matenal circumstances of the gnevor's case substantuilly conform to the CIrcumstances of those who were treated more leniently Therefore, where it is found that the penalty rmposed on the grievor was based on matenally dIfferent cIrcumstances, an allegation of dIscnmmatory treatment will necessarily fail. (footnotes omitted) Although there are distinctions between Mr BaIley's case and the grievor's, it is difficult to see how they can account for the huge difference in the employer's responses Mr Bailey misappropriated roughly $250000 over ape. riod of more than a year Mter this was discovered he admitted what he had done, as the gnevor has. I do not consider It a relevant dlstmction that Mr Bai- ley then participated m the mvestIgatIOn of hiS own wrongdomg The grievor was certainly ready and willing (although perhaps not entIrely able) to assist in the mvestigatIon of his wrongdomg. Both agreed to make restitution. The dIfference m the amount taken - $2500 00 in 1983 dollars versus roughly $6000 00 in 1993 dollars - surely cannot account for the employer's discharging the grievor when the only dISCiplIne Mr Bailey received was removal from consIderatIon for further promotIOn. In the absence of a convmcmg explanation of the contrary, common sense suggests that the employer's need for honesty and mtegnty in a member of Its - management must be as great as for any bargalmng umt employee. The em- 21- ployer argues that the umon cannot rely on comparIson WIth the treatment of Mr Bailey because It has not shown that Mr BaIley's financIal role as a DIstrICt Manager was as sIgmficant as the grIevor's finanCIal role m lus Purchasing Offi- cer posItion. The grievor's finanCIal role was not so sigmficant as to result in his immedIate removal from hIS posItIOn or even modIfication of lus dutIes when he admItted that he had stolen $1300 to $1600 00 and perhaps more. I do not accept the employer's argument that the severity of the discipli- nary response which is appropriate 10 any particular case depends to any extent on who makes the decision on the employer's behalf. Nor do I accept, in the state of the evidence before me, the bald assertion that theft had become less tolerated or less tolerable in this Mmistry since Mr Bailey's defalcations. There IS no evidence before me to suggest that the employers level of tol- erance changed over time and, more importantly, no evidence that such a change was communicated to employees. Indeed, there was no evidence that Ministry employees generally, or the gnevor in particular, had ever been warned that misappropriation of goods or services would or could result in dIsmissal. Wlule such evidence is not generally necessary (or always sufficient) to sustain a dIS- charge for theft when there is no evidence that the employer has ever treated theft lemently, its absence is SIgnificant here in lIght of the evidence about the prior treatment of Mr Bailey and of Mr MacDonald's initial treatment of the grievor after he had confessed to theft. If evidence of such communications ex- isted, I would have expected to hear it in reply after the grievor testIfied that al- though he knew that what he was domg was wrong, he did not think that he would be dIscharged for doing it. Had there been evidence of intervemng com- munications of concern about theft and warnings of consequences incompatible with the earlIer treatment of Mr BaIley, that earlIer treatment would not have played as large a part in my assessment in this matter as it must in the state of the eVIdence before me. Having rejected the VIew Mr MacDonald took of the grievors behaVIOur at the meeting of November 1, 1994, I am at a loss to see how any relevant dif- ference between Mr Bailey's case and the grievor's could account for the very great difference 10 the way they were treated. - 22 - The gnevor does not ask that he be treated exactly as Mr BaIley was He only asks that he be remstated wIthout compensation. The effect of that would be to substitute a very lengthy suspenSIOn wIthout pay as the dIscIplmary re- sponse to his wrongdoing I strongly dIsapprove of the gflevor's mIsconduct. He IS undoubtedly gUllty of senous wrongdomg whIch cannot be excused by reference to the stresses he experienced in his life at the tIme. Nevertheless, I am satisfied, as Mr MacDon- ald apparently was m September 1994, that the gflevor IS unlIkely to repeat hIS misconduct. Unlike Mr MacDonald, I have not been persuaded that the grlevor tried to deceive the employer about the scope or mechamcs of rus wrongdomg af- ter It was detected. The potential for rehablhtatIon of thIS employment relation- smp is no less than It was in Mr Badey's case. In the extraordInary state of the evidence before me, I am thus dflven to the conclusion that dIscharge was an ex- ceSSIve reaction to the grlevor's mIsconduct, and that faIrness reqwres hIs rem- statement. I fully apprecIate that an employer has a legItImate interest in deterring others from senous misconduct of thIs sort by imposmg severe disciplme on those who commit it. Without commentmg agam on the state of the eVidence as it re- lates to the weight this employer seems to have assIgned to that interest m the past, I find that a suspensIon WIthout pay of substantial duration would been suffiCIent to satIsfy that mterest m this case. The union's indicatIOn at the outset that the grlevor was not seelung compensation relieves me of the need to deter- mme with precision how long that suspension ought to have been. The employer IS therefore dIrected to forthWIth reInstate the gnevor to the pOSItion he occupied at the tIme of his dIscharge in November 1994, WIthout loss of semorlty and WIthout compensatIOn for the loss of anything he mIght have earned or enjoyed in the meantime had he not been dIscharged. If the gflevor has not repaid the MIniStry the dIfference between $6211 12, the amount whIch the audit finally determmed he had misappropflated, and the amount deducted from payments made to hIm after rus dIscharge on account of hIS vacation and other credits, he IS to repay that amount to the Mlmstry WIthout mterest m such man ner as the partIes may agree or, faIlmg agreement, by payroll deductIOns of no more than 10% of gross pay each pay peflod, whICh the employer IS hereby authorized to make. 23 - One final comment IS m order In these proceedmgs the grIevor Identified his then over-extended financial CIrcumstances and depressed mental state as CIrcumstances whIch led hIm to act "out of character" and steal from the em- ployer Having been required by thiS decision to reinstate the grlevor, the em- ployer now shares with the grlevor a legitimate mterest in ensurmg that the conditions which led to lus past wrongdoing are not repeated. Accordingly, the employer will have, at least for a time, a legitimate mterest in knowmg more about the gnevor's financial circumstances and mental state from time to time than it might care to know or be entitled to know with respect to other employ- ees. If it IS necessary to impose conditions on the reinstatement in order to give effect to that legitimate Interest and the parties are unable to agree on such conditions, I would be prepared to impose conditions which are reasonable in that regard. It IS not my intention that the grievor's reinstatement should await the resolution of any issue arising out of this comment, however The grievor is to be reinstated forthwith, and the matter of conditions as to the monitoring of the grievor's financial and mental state may be dealt with thereafter I remain seised of any issue arising out of the implementation of this award which the parties are unable to resolve themselves. Dated this 13th day of December, 1995