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HomeMy WebLinkAbout2000-1721.Bodai.01-11-22 Decision ~~~ o@~o EA1PLOYES DE LA COURONNE _Wi iii~~~i~T DE L "ONTARIO COMMISSION DE REGLEMENT "IIIl__1I'" BOARD DES GRIEFS Ontario 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE. (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILE/TELECOPIE. (416) 326-1396 GSB#1721/00 UNION# 01 C088 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Bodal) Grievor -and- The Crown In Right of Ontario (Ministry of Training, Colleges and Universities) Employer BEFORE Ken Petryshen Vice-Chair FOR THE GRIEVOR George Richards Grievance Officer Ontario Public Service Employees Union FOR THE EMPLOYER Kelly Burke Legal Services Branch Management Board Secretariat HEARING August 23 and 30,2001, September 7 and 28,2001 2 DECISION In a grIevance dated February 22, 2001 Ms MarIa BodaI claims that she was dIscharged wIthout Just cause There was no challenge to my JUrISdIctIOn to hear and determIne thIS grIevance Ms BodaI was advIsed of her termInatIOn by letter dated February 22, 2001 whIch was sIgned by Ms JudIth Robertson, DIrector Workplace Support ServIces Branch. The text of thIS letter reads as follows Dear Ms BodaI It has come to my attentIOn that you have engaged In InapproprIate actIvItIes, specIfically SOlICItIng money In exchange for provIdIng passIng grades, related to the eXamInatIOn and trade certIficatIOn process In the Waterloo Area office Pursuant to SectIOn 22(3) of the PublIc ServIce Act, thIS wIll advIse you that you are hereby dIsmIssed for cause from your employment as an EXamInatIOn/ AdmInIstratIve Clerk wIth the Mimstry of TraInIng, Colleges and UmversItIes, effectIve February 22, 2001 The fact that you have compromIsed the IntegrIty of the eXamInatIOn and trade certIficatIOn process for your personal gaIn constItutes serIous mIsconduct and IS a breach of the trust placed In you by the Employer After careful consIderatIOn, I have decIded to dIsmIss you for the above reasons As the letter IndIcates, Ms BodaI was dIscharged because the Employer determIned that she solIcIted money In exchange for paSSIng grades Although the Employer called a number of wItnesses to support ItS contentIOn that It had Just cause In thIS Instance, the key wItness for the 3 Employer was Mr Antomo Carvalho Mr Carvalho was the only wItness to provIde dIrect eVIdence In support of the allegatIOn that Ms BodaI solIcIted money In exchange for a paSSIng grade Ms BodaI testIfied that she dId not SOlICIt money In return for paSSIng grades The Umon took the posItIOn that the Employer has faIled to establIsh wIth clear cogent and compellIng eVIdence that It had Just cause to termInate Ms BodaI' s employment. The partIes recogmze that the result of thIS case would be determIned In large part by an assessment of the credIbIlIty ofMr Carvalho and Ms BodaI The Mimstry of TraInIng, Colleges and UmversItIes ("the Mimstry") has the responsIbIlIty for supervISIng trade eXamInatIOns for skIlled trades The successful completIOn of an exam IS necessary to obtaIn the approprIate CertIficate of QualIficatIOn, enSUrIng that the tradesperson IS qualIfied to perform the work of a partIcular trade Ms BodaI held the posItIOn of Exam/AdmIn Clerk In the Mimstry's Waterloo office SInce at least the early 1990s Included In her responsIbIlItIes In thIS posItIOn are the oblIgatIOns to admInIster and InvIgIlate trade exams and to ensure the securIty of all exam materIal Each trade and there are a number of them, has an exam booklet and answer sheet. The answer sheets are standard forms requmng certaIn personal InfOrmatIOn by the candIdate and contaIn numbers from 1 - 150 wIth each number havIng four chOIces The candIdate IS reqUIred to make the rIght mark wIth a pencIl on the answer sheet for each number that corresponds to a questIOn In the exam book. To protect the IntegrIty of the exam process, the exam InvIgIlator IS to ensure that candIdates do not leave the room wIth the exam book or wIth any wrItten materIal whIch would dIsclose the questIOns contaIned In the exam book. Unless there IS some reason to change them, the questIOns In a trade's exam book remaIn the same The answer sheets for exams WrItten at the Waterloo office 4 are sent to the Mimstry's London office by COUrIer where they are marked by a computer scanmng process At the outset of the hearIng, the Umon suggested that Ms BodaI would not be In a posItIOn to affect a candIdate's exam mark. The Employer's eVIdence, however establIshed that there are ways In whIch an exam InvIgIlator could affect marks SInce Ms BodaI conceded In her eVIdence that there are ways, consIstent WIth the Employer's suggestIOns, to mampulate exam results, It IS unnecessary to reVIew In detaIl all of the Employer's eVIdence on thIS pOInt. Suffice It to IndIcate that the exam InvIgIlator could photocopy the completed exam sheets relatIng to a partIcular trade exam and, upon dISCOVerIng the marks of the persons takIng that exam, could match the marks wIth partIcular exam sheets In thIS way an exam InvIgIlator would be In a posItIOn to know what exam sheets produced a paSSIng grade of 60% and whIch produced a grade In excess of 70%, thereby entItlIng a candIdate to Inter-provIncIal certIficatIOn. With thIS knowledge an exam InvIgIlator could alter eXIstIng marks on an exam sheet or fill In a blank exam sheet In order to produce a partIcular grade Although the Umon Intended to demonstrate that an InvIgIlator would be unable to affect grades and therefore, would be unlIkely to SOlICIt money for paSSIng grades, the Employer establIshed that a person In Ms BodaI's posItIOn would have the opportumty to mampulate a candIdate's grade Ms BodaI's termInatIOn In February 2001 followed many years In whIch there were Issues regardIng the IntegrIty of the exam process In the Waterloo office Ms Robertson, as dId other Employer wItnesses, testIfied about the hIstorIcal context whIch preceded Ms BodaI's termInatIOn. BegInmng In the mId 1990s, there were rum ours cIrculatIng among the staff In the 5 Waterloo office about IrregulantIes In the exam process These rum ours arose when certaIn candIdates achIeved a sIgmficantly hIgher grade upon re-wntIng an exam when compared to theIr earlIer exam results The focus of these rum ours was on Ms BodaI In August 1999 Mr I. Jurca, an unsuccessful candIdate wrote to the Mimstry wIth a number of complaInts relatIng to Ms BodaI None ofMr Jurca's complaInts suggested that Ms BodaI solIcIted money for paSSIng grades After reVIeWIng Mr Jurca's eVIdence It IS my conclusIOn that hIS complaInts were not well founded and arose pnmanly because of hIS unhappIness wIth the rules of the eXamInatIOn process and hIS belIef that Ms BodaI played a role In the non-renewal of a cleamng contract that Mr Jurca had to provIde cleanIng servIces for the Mimstry's Waterloo offices Mr Jurca testIfied that Ms BodaI gave hIm her home phone number and asked hIm to call her at home, whIch he elected not to do In Apnl 2000 Ms Robertson receIved a call from a polIce officer to advIse her that a relIable Informant had told the polIce that IndIVIduals could purchase paSSIng grades In the Mimstry's Waterloo office The polIce would not dIsclose the name of the Informant. When these Issues arose relatIng to the Integnty of the exam process, the Mimstry's response vaned, dependIng upon the CIrcumstances The early rumours led to a close momtonng of the exam process Subsequently Internal audIts were conducted. The InformatIOn from the polIce In Apnl2000 led to a full-scale InVestIgatIve audIt. As of September 5 2000 Ms BodaI was suspended wIth pay whIle the InVestIgatIOn Into her conduct took place It was dunng the course of the InVestIgatIOn that Mr Carvalho dIsclosed a prevIOus expenence he had had wIth Ms BodaI 6 Mr Carvalho came to Ontano from Portugal In 1986 He had spent some tIme In Portugal workIng as a polIceman. After completIng an apprentIceshIp program In Ontano and whIle employed at FreIghtlIner Mr Carvalho unsuccessfully wrote the automotIve exam In May 1996 He was also unsuccessful when he wrote the truck and coach exam In August 1996 Ms BodaI InvIgIlated both of these exams and Mr Carvalho called her dIrectly to arrange to wnte the August 1996 exam After WaitIng the necessary 90 days, Mr Carvalho agaIn contacted Ms BodaI to make arrangements for re-wntIng the exam Mr Carvalho's testImony WIth respect to hIS contact wIth Ms BodaI at thIS tIme IS as follows Mr Carvalho phoned Ms BodaI, IdentIfied hImself, and advIsed her that he wanted to re-wnte the exam She said that she would lIke to talk to hIm but dId not want to have a conversatIOn on the office lIne Without explaInIng what she wanted to dISCUSS, Ms BodaI gave Mr Carvalho her home phone number and asked hIm to call between 5 00 and 700 p.m that evemng. Mr Carvalho called as dIrected from hIS home, wIth hIS wIfe present. After he asked If It was Mana and she said It was, Mr Carvalho IndIcated who he was and asked why she wanted hIm to call her at home Ms BodaI then advIsed Mr Carvalho that she had a proposal for hIm and told hIm that for $1 000 she would let hIm get hIS lIcense When he asked her what he had to do Ms BodaI told hIm that he would fill out the personal InfOrmatIOn on the exam sheet, but not answer the questIOns Ms BodaI told hIm that the answers would be taken care of afterwards He asked her Ifhe would get an Inter-provIncIal lIcense and she said no because hIS first grades were too low When Mr Carvalho told her that It was too expensIve and attempted to negotIate a lower amount, Ms BodaI said that there were more people Involved, but made no reference to any names When he asked where the exams 7 were sent, Mr BodaI said that they were sent to London. Mr Carvalho completed the conversatIOn by tellIng Ms BodaI that he could not afford to pay her $1 000 and asked her whether he could call her back and arrange to wnte the exam a thIrd tIme, to whIch she responded that he could. After endIng the conversatIOn wIth Ms BodaI, Mr Carvalho told hIS wIfe that Ms BodaI had asked for money and said he could not belIeve people lIke that worked for the government. When hIS wIfe asked If he would pay Mr Carvalho told her that he would not pay After makIng the necessary arrangements wIth Ms BodaI, Mr Carvalho dId re-wnte the truck and coach exam on July 31 1997 He had no further conversatIOn wIth her about paYIng for a paSSIng grade Mr Carvalho faIled the exam on thIS latest attempt. Mr Carvalho dId talk to a few fnends, IncludIng Mike Brown, hIS foreman, about the conversatIOn he had had wIth Ms BodaI Mr Brown suggested that hIS InabIlIty to pass the exam mIght be a result of there beIng a red mark next to hIS name Mr Carvalho had no further contact wIth anyone from the Mimstry untIl June 2000 For the three year penod SInce he had last wntten the exam, Mr Carvalho testIfied that he dId not ImtIate attempts to re-wnte the exam because he dId not trust people In the Mimstry's office In Waterloo By June 2000 Mr Carvalho was workIng at Kenworth Trucks Ms L Thomas, a traInIng consultant wIth the Mimstry attended at Kenworth at that tIme to keep In contact wIth actIve apprentIces Ms Thomas met Mr Carvalho at Kenworth and determIned that he was not workIng legally Mr Carvalho contacted Ms Thomas In January 2001 and asked her to look Into an upgradIng course for hIm so that he could re-wnte the exam Ms Thomas dId provIde Mr Carvalho wIth an upgradIng program and, on February 14 2001 Mr Carvalho attended at Ms 8 Thomas' office to dISCUSS arrangements for the exam Dunng theIr dIscussIOn Mr Carvalho told Ms Thomas that he was glad to see that Mana was not there He also told her that he felt comfortable wIth her and that he had put offwntIng the exam because he thought there was an X besIde hIS name Ms Thomas asked what he meant and Mr Carvalho told her about the evemng telephone conversatIOn that he had wIth Ms BodaI In essence, Mr Carvalho told Ms Thomas that Ms BodaI told hIm that he would pass the exam If he paid her $1 000 Ms Thomas pulled up hIS name on the computer and showed Mr Carvalho that there was nothIng hIghlIghted by hIS name Ms Thomas, who was a fnend of Ms BodaI, asked Mr Carvalho If he was tellIng the truth, to whIch he replIed In the affirmatIve and Ms Thomas concluded that there was no basIs to dIsbelIeve hIm She was upset by what she had heard and told Mr Carvalho that he would have to speak to her manager In addItIOn to Ms Thomas' eVIdence and her notes of her conversatIOn wIth Mr Carvalho I heard testImony from other wItnesses who spoke to Mr Carvalho After Ms Thomas reported the matter to hIm, Mr Speers, the actIng area manager spoke to Mr Carvalho dunng the evemng of February 14 2001 and prepared notes of thIS conversatIOn. Ms M. FreIre and Ms J Hannah, both Mimstry representatIves, IntervIewed Mr Carvalho on February 15 2001 A wntten record of thIS IntervIew was sIgned by Mr Carvalho and entered as an exhIbIt. The InVestIgatIve team lead by Mr Alexander IntervIewed Mr Carvalho on February 19 2001 and recorded hIS responses In ItS report. In all of thIS eVIdence, Mr Carvalho provIded a verSIOn of the relevant events whIch IS consIstent WIth hIS testImony at the heanng. In summary Mr Carvalho told these IndIVIduals that Ms BodaI offered to secure hIm a passIng mark Ifhe paid her $1 000 When asked by Ms FreIre and Ms Hannah why he dId not report the IncIdent 9 earlIer Mr Carvalho IndIcated that he had lost trust In the Waterloo office, as well as the apprentIceshIp program generally He testIfied that he dId trust Ms Thomas Before decIdIng to dIscharge Ms BodaI, Ms Robertson met wIth her and others on February 22,2001 for the purpose of gIVIng Ms BodaI the opportumty to respond to the allegatIOns agaInst her One of the questIOns she was asked related to the allegatIOn that she gave her home phone number to clIents When Ms BodaI was asked dunng the InVestIgatIOn about thIS, she demed It and at a later occaSIOn said she could not recall gIVIng her home phone number to clIents When asked about these two responses at the February 22, 2001 meetIng, Ms BodaI IndIcated that she had made "A bad chOIce of words" After consIdenng all of the relevant cIrcumstances, Ms Robertson concluded that she belIeved Mr Carvalho and Issued Ms BodaI's termInatIOn letter The Mimstry employed Ms BodaI for approxImately 23 years She has a dIscIplIne free record and she has receIved good appraisals over the years Dunng her employment, she cared for her senously III parents, wIth her mother paSSIng away In 1993 and her father paSSIng away In early 2001 Ms BodaI IS a dIabetIc SInce her termInatIOn she has expenenced a number of health problems and she has reqUIred psychIatnc help Ms BodaI has been unable to secure any meamngful regular employment SInce her termInatIOn. Dunng the course of the InVestIgatIOn and In her eVIdence before me, Ms BodaI demed compromISIng the Integnty of the eXamInatIOn process She demed SOlICItIng money for paSSIng marks and she asserted that she never made the proposItIOn attnbuted to her by Mr Carvalho GIven her dealIngs wIth so many candIdates, she testIfied that she dId not have a specIfic 10 recollectIOn of her dealIngs wIth Mr Carvalho When asked dunng her eXamInatIOn In chIef to respond to Mr Carvalho's testImony about the evemng conversatIOn, she said, "As far as I am concerned, It dId not happen" Ms BodaI dId not know why Mr Carvalho would lIe about the matter other than to suggest that It had to do wIth hIS havIng been caught workIng Illegally for a number of years and that he vIewed her as the reason why he faIled the exams When asked dunng her eXamInatIOn In chIef about gIVIng her home phone number to Mr Carvalho Ms BodaI said, "I don't recall that" Dunng her cross-eXamInatIOn, she demed that she gave her home phone number to clIents In ItS submIssIOns, the Umon argued that Ms Robertson was Inappropnately Influenced by the rum ours of mIsconduct and the phone call from the polIce, such that she dId not rely only on Mr Carvalho's descnptIOn of the solIcItatIOn of money In my VIew the eVIdence suggests otherwIse Ms Robertson demed thIS suggestIOn when put to her dunng cross-eXamInatIOn. More Importantly much of the Employer's eVIdence went to provIdIng the context for Mr Carvalho's testImony and the Employer's treatment of Ms BodaI The eVIdence supports the conclusIOn that the Employer dIscharged Ms BodaI for SOlICItIng money from Mr Carvalho consIstent WIth the reason set out In the termInatIOn letter As would be expected, the Umon conceded that SOlICItIng money for paSSIng grades IS senous mIsconduct. The Umon expended consIderable effort dunng ItS cross-eXamInatIOn ofMr Carvalho to challenge hIS credIbIlIty and recogmzed In ItS submIssIOns that Mr Carvalho's eVIdence was troublesome for ItS case However the Umon maIntaIned that, gIven all of the eVIdence, Ms BodaI should be gIven the benefit of the doubt. The Umon argued that It was 11 lIkely that Mr Carvalho made the false accusatIOn agaInst Ms BodaI to explaIn why he waited so long to challenge the exam and to generally protect hImself The Umon also submItted that, gIven her posItIOn, Ms BodaI could be a vIctIm of retalIatIOn by candIdates who consIstently fall the exam, such as Mr Carvalho Although he developed a dIStruSt ofMs BodaI and the apprentIceshIp system, Mr Carvalho's faIlure to ImtIate a complaInt agaInst Ms BodaI after agaIn faIlIng the exam IS not partIcularly surpnsIng. He was able to work In the truck and coach mechamcal trade for years before hIS contact wIth Ms Thomas By January 2001 Ms Thomas arranged for an upgradIng program so that Mr Carvalho could agaIn re-wnte the exam. There IS no eVIdence whIch suggests that Mr Carvalho needed to JustIfy why he worked so many years wIthout a lIcense When Mr Carvalho attended the Mimstry's office In February 2001 to dISCUSS the exam, he asked Ms Thomas If there was a mark by hIS name It IS not surpnsIng, gIven the CIrcumstances as descnbed by Mr Carvalho that he would want to ensure that hIS prevIOus refusal to pay money to Ms BodaI would not Influence the exam process It was only when Ms Thomas asked hIm why he thought there mIght be a mark by hIS name that Mr Carvalho told her of the evemng conversatIOn wIth Ms BodaI Mr Carvalho had nothIng to gaIn by falsely aCCUSIng Ms BodaI of SOlICItIng money for a paSSIng grade GIven Ms BodaI's posItIOn, there IS some potentIal for retalIatIOn agaInst her by candIdates who are dIssatIsfied wIth the exam process Mr Jurca IS an example of someone who complaIned about Ms BodaI In part because she was a representatIve of what he perceIved to be an unfair process However as the Umon Itself conceded, there IS no eVIdence from whIch one 12 can conclude that Mr Carvalho IS attemptIng to retalIate In any way agaInst Ms BodaI IfMr Carvalho had such an IntentIOn, one would have expected that he would have Instantly complaIned when he faIled the exam after hIS evemng conversatIOn wIth Ms BodaI In applYIng the usual tests to assess credIbIlIty I found Mr Carvalho to be a credible wItness Mr Carvalho testIfied about the evemng conversatIOn wIth Ms BodaI In a straightforward manner and maIntaIned hIS verSIOn of the events In the course of a thorough cross-eXamInatIOn. He descnbed the relevant events In consIderable detaIl and In a manner whIch suggested that hIS testImony was truthful It would be dIfficult to conclude from the content and the manner of hIS testImony that Mr Carvalho was engagIng In a fabncatIOn. Whenever asked, IncludIng hIS response dunng hIS testImony at the heanng, Mr Carvalho conveyed essentIally the same facts about hIS evemng conversatIOn wIth Ms BodaI As noted prevIOusly Mr Carvalho had no reason to fabncate a story agaInst Ms BodaI He only told Ms Thomas about the evemng conversatIOn after he InqUIred as to whether there was a mark by hIS name and she asked hIm why he had made such an InqUIry Ms BodaI's testImony dId not contaIn a sImIlar consIstency or a sImIlar truthful qualIty When asked dunng the InVestIgatIOn about whether she gave her home phone number to clIents, Ms BodaI said she could not recall and at another tIme demed dOIng so Even thought she was aware that these dIfferent responses were troublIng to Ms Robertson, Ms BodaI responded In the same way dunng her testImony startIng WIth the answer that she could not recall As Ms BodaI conceded, there would be no reason for her to gIve her home phone number to a clIent. The Issue of whether she gave a clIent her home phone number IS not a matter WIth whIch one would expect 13 any uncertaInty Mr Carvalho and Mr Jurca testIfied that Ms BodaI gave them her home phone number Her eqUIvocatIOn on thIS Issue In lIght of the testImony ofMr Carvalho and Mr Jurca, does not enhance Ms BodaI's credIbIlIty I also found Ms BodaI's response to the questIOn of whether she solIcIted money from Mr Carvalho to be troublIng. To reIterate, Ms BodaI Said, "As far as I am concerned, It dId not happen" rather than "I dId not do It." HavIng regard to all of the relevant eVIdence, It IS my conclusIOn that the Employer has establIshed, by cogent and compellIng eVIdence, that Ms BodaI solIcIted money from Mr Carvalho In exchange for a paSSIng grade By her conduct, Ms BodaI compromIsed the Integnty of the exam and certIficatIOn process Such conduct also constItutes a senous breach of trust. Ms BodaI has consIderable semonty a dIscIplIne free record and personal CIrcumstances whIch evoke sympathy However the nature of the mIsconduct and her demal of It, lead me to conclude that the SubstItutIOn of a lesser penalty would be Inappropnate In the CIrcumstances The Employer has demonstrated that It has Just cause to termInate Ms BodaI's employment. AccordIngly Ms BodaI's gnevance dated February 12,2001 IS dIsmIssed. At the outset of the heanng and agaIn dunng ItS final submIssIOns, the Umon requested that I comment on ItS contentIOn that the Employer faIled to comply wIth ArtIcle 22 14 5 of the CollectIve Agreement. ThIS provIsIOn provIdes that "The partIes agree that at the earlIest stage of the gnevance procedure, eIther party upon request IS entItled to receIve from the other full dIsclosure" The Umon IndIcated that It had requested certaIn InformatIOn at an early stage of the process and subsequently reIterated ItS request, but dId not receIve the dIsclosure It sought untIl after a conference call wIth the Vice-Chair Although the Umon acknowledged that the late 14 dIsclosure dId not compromIse Its abIlIty to represent Ms BodaI, It submItted that the Employer representatIves should be advIsed of the oblIgatIOns under ArtIcle 22 14 5 The Employer explaIned that the delay In thIS Instance had to do wIth the sensItIve nature of the InformatIOn requested by the Umon. The Employer submItted that It would not be appropnate to comment on the matter based on the representatIOns by the Umon. The oblIgatIOn set out In ArtIcle 22 14 5 on both partIes IS clear Upon request, a party IS entItled to receIve full dIsclosure at the earlIest stage of the gnevance process The oblIgatIOn to dIsclose early In the process IS Intended, among other thIngs, to assIst a party In makIng an early assessment of ItS posItIOn and to assIst In the resolutIOn of dIsputes Although no purpose wIll be served by examInIng In detaIl what occurred In thIS Instance, I sImply note that the provIsIOn does not contaIn an exceptIOn for sensItIve InfOrmatIOn. As wIth any CollectIve Agreement provIsIOn, the partIes are oblIged to comply wIth ArtIcle 22 14 5 Dated at Toronto thIS 22nd day of November 2001 " Ken Petryshen, Vice-Chair