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HomeMy WebLinkAbout1995-0651MOUNSEY97_06_19 OWT"ARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'OWT"ARIO ~ 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 FACSIMILEfTELECOPIE (416) 326-13PtJ GSB # 651/95 OPSEU # 95D053 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Mounsey) Grievor - and - the Crown in Right of Ontario (Ministry of Housing) Metro Toronto Housing Authority Employer BEFORE N Dissanayake Vice-Chair FOR THE R. Murdock GRIEVOR Counsel Ryder, Wright, Blair & Doyle Barristers & Solicitors FOR THE P pasieka EMPLOYER Counsel Filion, Wakely & Thorup Barristers & Solicitors HEARING January 16, 1996 April 26, 1996 July 3, 22, 23, 1996 November 18, 19, 28, 1996 December 2, 3, 1996 February 18, 1997 March 10, 11, 1997 ~ 2 DECISION This is a grievance dated May 18, 1995 filed by Mr Elroy Mounsey, wherein he claims that he was unjustly terminated by the employer, from his position of Special On-Site Security Officer ("Security Officer") The grievor commenced his employment with MTHA on November 4, 1991 and was discharged on May 16, 1995 Except for a 6 month period in 1993 when he received a secondment to the Race Relations Branch as a Race Relations Officer, he worked in the security Services Branch as a security officer , It is common ground that the grievor is a practising Seventh Day ! Adventist The tenets of that religion required followers to refrain from working on the Sabbath On June 15, 1994 when his return to the Security Services Branch from his secondment was imminent, the grievor sought accommodation in writing as follows I am a Seventh Day Adventist by religion, and observance of the Sabbath starts from Friday sunset to Saturday sunset I am therefore requesting that "Reasonable Accommodation be given to me to worship on the Sabbath Ms Carol Osler, Director of Security, granted the requested accommodation by verbally agreeing not to schedule the grievor to work from Friday Sunset to Saturday Sunset This accommodation was immediately implemented by the grievor's supervisors The evidence indicates that while working full-time at the MTHA, from early April 1993 the grievor was also employed part-time as a security officer with Northwest Security Services, ("Northwest" ) a private Security ....,...----- -------------------; .---- 3 company providing security services to clients on contract One of the clients of Northwest was at Tuxedo Court in Scarborough, a four building hi-rise residential apartment complex The grievor worked at Tuxedo Court almost exclusively There is no evidence that the employer was specifically aware of the grievor's part-time job at Northwest A number of its employees had part-time security jobs with Northwest and other private security companies While employees were required to sign a conflict of interest form upon hire and periodically thereafter, the evidence is that only some employees had declared their part-time employment in the form The grievor had not done so because he did not believe that his part-time job at Northwest had a potential for conflict with his full-time job with the employer The grievor carried on with both his jobs without incident until the employer's attention was drawn to a porion of a tender dated March 30, 1995, submitted by Northwest, which was seeking to secure a contract for provision of security services at certain MTHA sites The Northwest tender included a section titled "Qualifications of Instructors" The tender stated that Northwest had retained Assets Protection Management to provide all its training and that Assets Property Management retains "individual specialists" to teach specific components of the training program It went on to state that the specialists so retained included a number of MTHA employees including the grievor The following description was set out about the grievor Elroy Mounsey, MTHA - MRO, to teach courses race relations and harassment in the workplace Mr Mounsey has taught courses to Northwest Protection Services staff in the past 12 months and gained invaluable experience in this area while working in MTHA's Race Relations Branch ----~ r --- 4 Upon reading the foregoing, the employer understood it as stating (a) that the grievor had taught courses in race relations and (b) that he had taught such courses for a period of 12 months The employer was concerned that there may have been a potential conflict An investigation was undertaken Mr George Pangborn, Manager of Mobile and Field Operations, met twice with Mr Bruce McBean, President of Northwest Ms Carol Osler interviewed the grievor (with trade union representation) on April 5th, May 10th and May 16th, 1995 The investigation culminated with the issuance of the following letter of dismissal on May 16, 1995 This is a follow up to the issues that were discussed with you in our meetings of April 5, May 10 and most recently May 16 1995 in the presence of your union representative At these meetings concerns about your employment with another security company as it specifically related to your employment status at MTHA were raised with you You were reminded that in July of 1994 you requested that you be accommodated in your work due to religious reasons This accommodation required rescheduling your shift so that you did not work on your Sabbath days We accommodated your request rescheduled your shifts and had your co workers work in your place on those days On or about May 10 1995, it was learned that you were working for this other security company on many of those Sabbath days where you represented to us that you were unable to work When confronted about this situation you offered the explanation that any work you may have done on those days would have been outside the time frames of the accommodation you had received When asked how that may have happened given the extensive hours worked you provided no satisfactory explanation On the basis of this information we have concluded that the terms of your accommodation have been abrogated and the trust necessary for a viable employment relationship has been violated You have shown disrespect for those who legitimately are entitled to be accommodated due to religious reasons As a consequence your employment relationship with MTHA is terminated effective immediately , ---- 5 In her opening statement employer counsel, stated that the employer would be relying on three grounds as constituting just cause for the grievor's discharge (1) That the grievor sought and received accommodation for absentation from work at MTHA during the Sabbath and abused that accommodation by working for Northwest during the Sabbath (2) That the grievor's employment at Northwest constituted a conflict of interest, which the grievor had failed to declare in the conflict of interest form (3) That the grievor posed a health and safety risk to himself and his fellow employees because the hours the grievor performed at Northwest were so extensive that he would not have been adequately rested and alert in his job at MTHA Union counsel submitted at the outset that the employer should not be permitted to rely on grounds (2) and (3) because they were raised for the first time at arbitration Counsel particularly stressed that the letter of discharge does not refer to any grounds other than the alleged abuse of the accommodation In final argument, employer counsel submitted that, whether characterized as a conflict of interest concern or a health and safety concern, grounds (2) and (3) were in effect the same Namely, that the extensive hours the grievor did in his part-time job at Northwest did not permit him to effectively discharge his obligations to his full-time employer In other words, the conflict concern also was about the volume of work the grievor did at Northwest, and the impact of that on his full- time job at MTHA ~----- ~- , ,- 6 Having carefully considered the evidence relating to the employer's investigation, including the three interviews of the grievor, together with the letter of discharge itself, I uphold the union's submission that the employer's position at arbitration constitutes an inappropriate change of grounds The evidence clearly indicates that the employer's initial concerns upon reviewing the Northwest tender had to do with a possible conflict of interest However, that conflict arose out of a concern that the grievor had been teaching courses on race relations and harassment in the workplace for a period of 12 months Indeed, the employer strongly suspected that the grievor used MTHA training material in teaching these courses at Northwest The evidence establishes that these concerns of the employer were unfounded The grievor only taught a course at Northwest on one half day It was taught on a voluntary basis The training did not involve race relations or harassment What the evidence indicates is that Northwest had falsely claimed in its tender that the grievor had taught race relations and also falsely gave the impression that he had taught over a period of 12 months and the grievor had not been party to the preparation of the Northwest tender In fact, he was not aware that his name was being used in the tender It is not clear whether or not, following its investigation, the employer was satisfied that its initial suspicions were unfounded What is clear, however, is that in terminating the grievor's employment, the employer no longer relied on the initial grounds of conflict it had started off with Indeed, counsel did not put forward at arbitration the grounds of a conflict on the basis of the grievor's training at Northwest, as justification for the discharge i~ 7 Instead, employer counsel submitted that the conflict related to the fact that the grievor had performed a part-time security job with extensive hours which would have adversely impacted upon his full-time employment with the MTHA It is the fact of these extensive hours at Northwest that the employer also relied on to claim that the grievor posed a health and safety risk when he worked at MTHA Upon a careful review of the notes taken by the employer at the three interviews with the grievor as part of its investigation, this position cannot be substantiated Throughout those meetings the concern of the employer was about the content and the amount of the training the grievor did at Northwest No doubt, once the employer had access to the payroll records of Northwest, there was reference to the amount of hours the grievor worked for Northwest However, those discussions had two purposes, neither of which had to do with a suspected conflict The employer was confronting the grievor, who had indicated that he had done only minimal hours for Northwest, with contradictory information from the Northwest payroll records, which indicated that his hours were substantial Secondly, the employer was seeking an explanations as to how the grievor could have performed those extensive hours without working during the Sabbath This approach of the employer is confirmed by the discharge letter itself The letter, in the first four paragraphs reviews the information the employer was relying upon Then in the fifth paragraph it sets out the conclusion reached on the basis of that information It is stated "On the basis of this information we have concluded that the terms of your accommodation have been abrogated and the trust necessary for a viable - ......-- 8 employment relationship has been violated" There is no reference whatsoever to a concern that the grievor had been in a position of conflict of interest or that he had posed a health and safety risk There is reference in paragraph 4 to the "extensive hours" the grievor had worked at Northwest However, the point raised is that given those hours, the grievor's position that he did not work during the Sabbath was not believable At the second interview with the grievor on May 10, 1995, Ms Osler asked a question "Elroy, for the same time you worked considerable overtime !. for MTHA - How are you able to perform at 100%" At the third interview on May 16th, the same question was repeated This is the only reference during the three meetings, each of which lasted a considerable period, to anything remotely related to a concern about the impact of the grievor's part-time job on his ability to do his duties at MTHA effectively That single question asked rather incidentally, particularly in the absence of a reference to such a concern in the letter of discharge, does not permit a finding that, even in its own mind, the employer relied upon conflict of interest as a grounds for the grievor's discharge Therefore, the Board upholds the union's objection If just cause is to be established, the employer must do so on the grounds that the grievor abused the accommodation he received The accommodation the grievor sought and received was to be not scheduled "from Friday sunset to Saturday sunset" It is clear that during the employer's investigation, the grievor consistently took the position that he never worked at Northwest during the accommodation period, .,--------------- ~- ~ --.- 9 i e sunset Fr i da y to sunset Saturday In her opening statement union counsel reiterated this position The Seventh Day Adventist Church has issued a "sunset calendar", which sets out to the minute the exact time of sunset for each day of the year However, the evidence is clear that this sunset calendar is not part of a strict church dogma, but merely a guideline Therefore, in the Board's view, evidence that the grievor did not strictly adhere to the exact times set out in the sunset calendar would not be adequate to establish that he breached or abused the accommodation granted by the employer The evidence must indicate that the grievor worked during the Sabbath period to such an extent, as would lead to a reasonable inference of dishonesty on his part The issue of whether the grievor abused the accommodation by working at Northwest on the Sabbath must necessarily turn on a determination of credibili ty Throughout the employer's investigation the grievor took the position that he did not work during the Sabbath at all This was the position put forward on behalf of the grievor at the commencement of this hearing also Subsequently however, when confronted at the hearing with documentation to the contrary, he conceded that on one Friday, August 5th, 1994, he worked a full shift during the Sabbath period as a favour to his supervisor who had to fill a vacancy created when a scheduled employee called in sick The union and the grievor maintalned throughout the hearing, that apart from that single occaSlon, the grievor did not work at Northwest during the Sabbath The employer, on the other hand, took the position that on numerous occaSlons the grievor worked at Northwest during , ~- 10 the Sabbath period, a period for which he had sought and received accommodation from the employer During its investigation into the circumstances surrounding the , grievor's employment at Northwest, the payroll records from Northwest came to the attention of the employer While these records indicated clearly that the grievor had worked on several Saturdays, they did not indicate the time of day he worked Therefore there was no proof from the documents themselves that the Saturday hours were performed prior to sunset The grievor insisted that he did not commence any Saturday shift until after sunset Nevertheless, due to the substantive number of hours worked on Saturdays, the employer strongly suspected that at least some of the hours must have been performed prior to sunset on Saturday Therefore, the employer pressed on with its investigation As part of this investigation, the grievor was interviewed on three separate occasions The grievor was accompanied by an union representative at each of these interviews The first meeting was on April 5, 1995, was attended by Ms Carol Osler, Ms Sheila Scarlett, Manager, Mobile and Dispatch, the grievor and union steward Mr Terry Fleming Ms Scarlett took notes at the meeting Ms Scarlett's notes record that in explaining why he believed that his employment at Northwest did not create a conflict of interest, the grievor stated that he worked at Northwest "one shift a month" The notes further record that later in the interview Ms Osler directly asked "How often do you work for Northwest"? The grievor's reply is recorded as "one or two shifts a month" --- 11 In their testimony, both Ms Osler and Ms Scarlett reiterated that the grievor stated on August 5th that he only worked one or two shifts a month at Northwest The employer obtained the payroll records on or about April 7th They established beyond any doubt that the grievor worked much more than one or two shifts per month at Northwest At this hearing the grievor denied that he had stated at the April 5 interview that he only worked one or two shifts per month He insisted that the notes taken by Ms Scarlett, and the evidence of Ms Scarlett and Ms Osler were simply not accurate On a review of the evidence I conclude that the grievor did state on August 5th that he only worked one or two shifts per month First, that fact is recorded by the contemporaneous notes taken by Ms Scarlett and corroborated by two witnesses At the May 10th interview the grievor was represented by Mr Ken Gangasinghe, local union president and Mr Terry Thibeault, union steward The evidence indicates that Mr Thibeault took notes at this meting On May 16 the grievor was represented by Mr Gangasinghe Neither union official testified and Mr Thibeault's notes were not produced to contradict the employer's evidence as to what transpired at these interviews More importantly, the union steward Mr Fleming was present at the interview He was not called to corroborate the grievor's testimony and to contradict the evidence of the employer From the failure to call Mr Fleming, I draw the inference that he would not have contradicted the employer's testimony that the grievor did state that he only worked one or two shifts a month at Northwest Furthermore, the notes taken by Ms Scarlett at subsequent interviews held on May 10 and May 16, indicate that on several occasions Ms Osler put ....- 12 it to the grievor, that it now had information that the grievor had performed substantive hours for Northwest including on 32 Saturdays in the period March 1994 to April 1995, whereas the grievor had stated on April 5th that he only worked one or two shifts per month If the grievor had not made such a statement on April 5th it is reasonable to expect that he would have immediately corrected Ms Osler by asserting that he had not made such a statement on April 5th It is unnatural, to say the least, for the grievor to say nothing to correct Ms Osler, if Ms Osler had wrongly accused the grievor of uttering an untruth on April 5 As noted, it is now beyond doubt that the grievor in fact performed substantive hours for Northwest Thus, the conclusion is inescapable that the grievor was untruthful and attempted to mislead the employer on April 5th It was oniy when faced with irrefutable documentary evidence to the contrary, that he admitted to the substantial number of hours he worked for Northwest The next issue then is whether any of those hours performed by the grievor for Northwest fell within the Sabbath period, a period during which the grievor did not want to work for the MTHA The evidence the employer relies on to argue that the Saturday hours performed for Northwest by the grievor fell within his accommodation period, i e sunset Friday to sunset Saturday, conslsts of "daily logs" from Northwest Daily logs are documents filled in by security offic~rs working for Northwest, essentially recording the activities and incidents which occur during a shift Also filed were several "Incident Reports" and "Occurrence Reports", recording any disturbances, illegal or criminal acts or other serious incidents encountered by the security officers during the shift Due to the crucial :.-----y 13 importance of this evidence, much time was spent at the hearing on these documents reviewing in detail the various entries recorded It is not necessary in this award to review the details in the daily logs, Occurrence Reports or Incident Reports The Board concludes that to any reader, many of these would clearly indicate that the grievor was at work at Northwest sites during the Sabbath accommodation period Even the union did not dispute that, on their face, the daily logs would suggest that on many Saturdays, particularly in the summer months, the grievor reported to work at times ranging from 5 00 to 6 00 P m when sunset was around 9 00 P m If these times are accurate, the grievor would have been routinely breaching his accommodation by working for Northwest during the Sabbath The position of the union at this hearing, however, is that the times recorded in the daily log sheets are inaccurate and did not reflect the actual times when the grievor worked The union's position is that due to his religious beliefs, an elaborate arrangement was reached between the grievor and his supervisor at Northwest, Mr Denys Ramsahoye, to implement a split shift whenever the grievor worked on a Saturday evening According to the union, under this arrangement, while the grievor's partner started the shift at the scheduled time (usually 6 00 pm), the grievor started the shift at around 9 00 pm, after the sun had set In order to compensate for the late start, the grievor did not end his shift at the scheduled time While the other officer quit at the usual time (usually 3 00 am) the grievor continued to work alone to make up a full shift Therefore if he started at 9 00 pm, he would work till 6 00 a m the next day ........... 14 The difficulty, however, is that the daily logs do not disclose different start or end times for the grievor On the contrary, many of them record the grievor and his partner as starting together at 6 00 pm, when sunset was not until 8 30 pm, 9 00 pm, or even later The explanation of the union and the grievor is that the daily logs were deliberately filled in that manner, setting out inaccurate shift times for the grievor, because it would have been complicated to set out different shift times for the two officers and that may have been confusing to the client The union called three witnesses, Mr Denys Ramsahoye, Mr Spencer I Fraser and Mr Ed Robinson in support of the "split shiftH explanation I have carefully reviewed the documentation and the union's evidence I have concluded that the union's explanation is not credible As a general matter, the grievor's credibility is suspect Some examples will suffice to illustrate why the Board finds that to be the case I have already noted that he misled the employer on April 5 by asserting that he only worked one or two shifts per month for Northwest Only when confronted with the payroll records did he admit that he had worked substantive hours Secondly, throughout the employer's investigation and the grievance procedure the grievor had insisted that he had never worked for Northwest during the Sabbath That position was asserted even during the opening address by the union at this hearing Then the employer produced the daily log sheets showing clearly that the grievor worked a full shift during the Sabbath on August 5, 1994 The grievor then admitted to that violation, but continued to insist that that was the only time he worked during the Sabbath He testified that on that occasion he breached the Sabbath accommodation "as a favourH for Mr Ramsahoye his supervisor When asked why he had not disclosed that infraction to the employer during .... - 15 the interviews, his response was a very unconvincing "may be at the time I didn't recallH I find that not believable According to Mr Ramsahoye, that was the only time he had ever asked the grievor to work on the Sabbath and he was taken by surprise when the grievor agreed to work If, as the grievor says, he strictly observed the Sabbath and this was the one and only time he breached it, it is not believable that less than a year later he would forget such a profound incident On the contrary, that incident would likely have stood out in his memory While three witnesses testified about the deliberate arrangement for split shifts and about the practice of not disclosing the split shifts in the daily logs, that evidence is not credible in the face of all of the other evidence There were many inconsistencies in their evidence as to how the alleged arrangement worked Mr Ramsahoye, the grievor's supervisor at Northwest, who also did some security guard work himself, testified that the Tuxedo Court site was one of the roughest, so much so that he had difficulty finding employees who were willing to do security work there When asked to describe the types of "problemsH encountered at Tuxedo Court, he listed "stabbings, domestic violence, drunks, drugs and occasional shootingsH He testified that it was the duty of a Northwest security guard who encounters criminal activity to call the police and "maintain the crime scene, deal with any victims, and if possible apprehend the offenders" He agreed that the security guard may be required to testify in criminal courts, and that in so doing the guard may have to rely on documentation such as Daily Log s , and Occurrence Reports He also agreed that therefore it was important to be careful with such documentation Specifically, he agreed that because of the potential for use in courts and because occurrence reports were also forwarded to the -------- ..."...- 16 client, it was important to be as accurate as possible with the documentation Daily logs are signed by security officers Mr Ramsahoye testified that by signing, the officer certifies that to the best of his knowledge the log was accurate During cross-examination employer counsel pointed to several daily logs which on their face indicated that on those Saturdays both Mr Ramsahoye and the grievor started work at 6 00 P m He was asked why the log would show the grievor as starting at 6 00 P m if he did not in fact start till 9 00 P m Mr Ramsahoye testified that the different start times for himself and for the grievor were not set out ~to keep it simple" On another occasion he said that the logs were done showing both officers starting and ending at the same time ~for the sake of simplicity" Given the admitted importance of daily logs and occurrence reports and the critical role these contemporaneous notes may play in bringing perpetrators to justice in criminal courts, it is not conceivable that experienced security officers such as Mr Ramsahoye and the grievor would put down false information in such documents for a reason as trivial as ~to keep it simple" No credible explanation was provided as to what was so confusing or complicated about setting out the correct start and finish times for each officer Besides, some of the daily logs are very specific For example, the daily log for June 25, 1994 shows Mounsey and Ramsahoye working a shift from 6;00 p m to 3 00 a m The activity for the shift was entered in the log by the grievor An entry at 1800 hours reads "Reported on duty with D Ramsahoye Took possession of (1 ) Pager (2 ) Cellular phone and 2 sets of site keys" The next entry at 1815 hours reads "D Ramsahoye, G Bye p-- ...- 17 and myself in meeting with Metro Police 42 Division to discuss site matters" This log not only indicates that the grievor started his shift at 1800 hours or 6 00 pm, it specifically describes the activities engaged in by the grievor at 6 00 P m and 6 15 P m To review a further example, the log for Saturday July 16, 1994 indicates that the grievor and Mr Ramsahoye did a shift from 6 00 p m to 4 00 a m At 3 45 a m on Sunday July 17, 1994, the grievor prepared an Occurrence Report relating to a disturbance It reads in part "On Saturday 16th July 1994, at approximately 2000 hours while conducting routine exterior patrol of 20 Tuxedo Court s/o Ramsahoye and myself observed a number of black males etc " The report goes on to describe that "as s/o Ramsahoye and myself approached the group" a male "threatened us with physical violence" The daily log for Saturday August 20th 1994 is a further example It was filled out by Security Officer Gordon Bye It sets out the officers on duty to be "Gordon Bye/Elroy Mounsey" The corresponding shift times are written out as "1800-0400 hrs/ 1800-0400 hrs", clearly suggesting that both officers did a 6;00 p m to 4 00 a m shift Moreover, the following entries are made "1800 s/os Bye and Mounsey reported on duty, obtained pager, cell-phone and site keys" "1820 s/os stationed outside lobby of 40 Tuxedo " "1850 s/o Mounsey patrolled garage of 40 Tuxedo" It is to be noted that all of the times set out in the foregoing examples fall well withln the grievor's Sabbath period The entries are clear and specific that at the specified time the grievor was at work performing specific tasks It is slmply inconceivable that if the grievor .,-~- 18 was not even at work at these times, such entries would be made, particularly by the grievor himself Such a practice would make daily logs absolutely meaningless and useless There are other reasons which cast doubt on the union's explanation of the daily logs As the employer pointed out, the evidence does not bear out a practice among Northwest officers generally, or the grievor specifically, of not disclosing split shifts in daily logs A number of daily logs for days other than Sabbath days, explicitly set out different start and end times for the two officers on duty when split shifts occurred Some of these were filled out by the grievor himself If split shifts could be disclosed accurately on non-Sabbath days, it is difficult to see why the same would not have been done on Sabbath days, if in fact split shifts occurred Furthermore, Mr Ramsahoye testified that the client would have preferred if the security coverage at Tuxedo Court extended till later in the morning, rather than end at 3 00 a m or 4 00 a m The grievor's evidence is that he started his shifts not at 6 00 p m but at around 9 00 p m after sunset and that he worked beyond the normal shift end of 3 00 a m in order to make up for the late start Thus if he started at 9 00 P m rather than 6 00 p m he would have to work till 6 00 a m rather than 3 00 a m The client, according to Mr Ramsahoye, would have been quite pleased to know that a guard was on duty for that extended period Given that Northwest would have been keen to impress thelr clients with a view to obtaining renewal of their contracts, it is not believable that Northwest would deliberately falsify its record to its own detriment merely because of a desire to keep the documentation simple Northwest has shown :-,."....""-- 19 a willingness to make untrue claims, that the grievor had trained in the area of race relations for a period of 12 months, in order to impress upon its potential clients It is unlikely that they would conceal true facts which are in its favour There is another piece of circumstantial evidence, which casts doubt on the union's theory As noted, the officers make entries on daily logs about their activities and observances during the shift For example if an officer patrols a certain area, checks a certain hallway or entrance, or observe something suspicious, those events are routinely recorded together with the time of the activity or the incident Curiously, on the saturday/sunday shifts which the grievor claims to have worked from 9 00 P m (rather than from 6,00 pm) there is no activity recorded in any of the daily logs beyond the normal shift end If the normal shift ended at 3 00 am, but the grievor continued to work for 2 or 3 additional hours to make up for his late start, he must have done some duties such as patrol a certain area, check a hallway or entrance At least occasionally he must have made some observations These are routinely noted in the daily log However, it is striking that there was not a single entry made in any of these logs beyond the time of the normal shift end On the other hand, in many of these logs entries were made describing the grievor engaging in various tasks between 6 00 P m and 9 00 P m That strongly suggests that the grievor's shift also started and ended at the normal time There is a further circumstance in the evidence which is troublesome The evidence indicates that once the grievor was subjected to an investigation as a result of the assertions made by Northwest in its tender, the management at Northwest was most sympathetic and supportive of -- 20 the grievor Yet, despite being confronted with an accusation that he had worked for Northwest during the Sabbath, according to the grievor he made no attempt to contact Northwest management to see if there were any records which would prove his innocence When asked under cross-examination why he had not attempted to obtain the time sheets to prove his innocence, the grievor's explanation was that on April 5th Ms Osler had directed him not to talk to anyone at Northwest The notes taken by Ms Scarlett establishes that the direction from Ms Osler on April 5th was that the grievor not speak to Northwest until Ms Osler has had an opportunity to talk to everyone involved The grievor, through his profession, was experienced in gathering evidence It is difficult to imagine that even if he understood Ms Osler's direction to be an indefinite prohibition against speaking to Northwest, he would blindly comply by going through the investigation, discharge and grievance procedure without seeking out evidence to support his innocence, if indeed he believed that he did not work on the Sabbath The evidence is that Mr Ramsahoye discarded the grievor's time sheets, which would have disclosed the exact times when he worked on a given day, only in November 1995 - some six months after the grievor's discharge For that long, clear proof of the grievor's innocence would have been there for the asking It is likely that the grievor would have known that some form of time sheets or schedules will be kept by his employer Even if he was not specifically aware of the existence of time sheets, it is reasonable to think that if he believed in his innocence, he would have at least attempted to find out, at least after his discharge, whether any company documentation existed which would establish his hours of work His inaction, in the Board's view, is inconsistent with a man who believed in his innocence - 21 The totality of the evidence strongly contradicts the union's theory I find that the grievor did work during the hours as recorded in the daily logs The next issue is whether that conduct of the grievor is culpable so as to justify the penalty of discharge Union counsel submitted that even if the Board concludes that the grievor did work an hour or two before sunset on Saturdays that should not be treated as culpable conduct Counsel pointed to the testimony of the grievor's pastor, Rev Ledford Morris, to the effect that while the church expects its followers to refrain from work between sunset Friday to sunset Saturday, the church does not monitor or strictly enforce such a rule He said that it was up to each individual to observe the Sabbath according to his or her own f , conscience Based on this evidence, counsel argued that each individual may interpret and follow the rule either strictly or flexibly A flexible interpretation of the rule according to her, would permit an individual to work an hour or two at the end of the Sabbath day in order to earn a living, provided that he had spent the rest of the Sabbath in worship She submitted that if the Board were to find the grievor's conduct culpable, it would in effect be forcing upon him a strict and orthodox interpretation of the church tenet, something even the church itself does not do While this argument appears to be very logical, I find that it does not assist this grievor The evidence is uncontradicted that the grievor is a devout follower of the Seventh Day Adventist Church He regularly attended church on the Sabbath and spent a good part of the day in church, engaged in worship or in organizing and leading various religious activities Rev Morris corroborated the grievor's testimony in this -- 22 regard In the circumstances, if the grievor had admitted that he worked during the last few hours of the Sabbath and told the employer and the Board that according to his conscience he did not consider that to be a breach of his religious obligations or his accommodation with the employer because he still spent the majority of the Sabbath day in religious activity, the union's argument would have had some merit, at least in support of mitigating the seriousness of the breach of the accommodation However, this grievor had not taken the position at any time that it was acceptable to work during the Sabbath at all In fact, he had maintained throughout, that except on August 5th, he had never worked between Friday sunset to Saturday sunset When asked whether working on the Sabbath on August 5th was wrong, he emphatically said "For that I have to go down on my knees and ask for god's forgiveness" Had he been forthright with the employer, it could have been argued that that was indicative of a guilt- free conscience On the other hand, the grievor's continuing attempt to conceal the truth is indicative of a guilty mind On the totality of the evidence I find that the grievor worked on the Sabbath on numerous occasions knowing very well that by so doing he was abusing or misusing the accommodation he had obtained from the employer The Board had before it only a collection of daily logs for some of the days in the period of approximately one year between June 1994 and May 1995 Those indicated that the grievor worked on approximately 32 Saturdays Out of these approximately on 10 to 12 days the grievor was working for periods of 2 to 3 hours prior to sunset That in the Board's view cannot be characterised as a case of a trivial or technical breach The violations are substantial The grievor would or ought to have known that it was dishonest to work these kind of hours during the Sabbath, when --------- - 23 he had requested for accommodation from the employer on the basis that there was a need to refraln from working between sunset Friday to sunset Saturday The evidence indicates that on two occasions the employer called on the grievor to work on the Sabbath He did not give any indication that i he was flexible and would consider working at least a few hours Instead , he simply reminded the employer that he had an accommodation from sunset ! f e to sunset The accommodation due to religious beliefs is statutory a [ obligation imposed on employers Misuse of the statutory right is a f serious offence which should bear serious consequences Moreover, the grievor aggravated the situation by steadfastly denying his wrong-doing and by attempting to mislead the employer as well as the Board All of the evidence indicates that the grievor had been a good worker He only had one relatively minor disciplinary reprimand on record Had he acknowledged the wrong-doing and showed some remorse and regret, it would have given the Board some confidence that he could reasonably be expected to learn from his mistake, and that a trusting relationship between the employer and the grievor could be restored However, such an expectation is not reasonable given his continuing attempt to deny any wrong-doing in the face of overwhelming evidence to the contrary In the Board's view, his lack of candour and remorse casts doubt on his trustworthiness even more than his offence itself The grievor's seniority is only 4-1/2 years In all of the circumstances, the Board is not prepared to exercise its discretion to substitute the penalty imposed For all of those reasons, the grievance is hereby dismissed - 24 Dated this 19 day of June 1997 at Hamil ton, ontario /~~~.L Nimal V. ssanaya e Vice Chairperson