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HomeMy WebLinkAbout2001-0562.Guelph.04-01-29 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2001-0562 UNION# 01C403 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Guelph) Grievor - and - The Crown III RIght of Ontano (Mimstry of TransportatIOn) Employer BEFORE Damel HarrIs Vice-Chair FOR THE UNION Peggy SmIth ElIot, SmIth BarrIsters and SOlICItorS FOR THE EMPLOYER Carol Ann Witt Counsel Management Board Secretanat HEARING June 10 & 11 October 22 & 28 November 5 & 25 2002 Apnl 1 & 8 2003 2 DeCISIon ThIS IS a dIscharge gnevance Pauelette Guelph's employment as a "hot-lIne operator" wIth the Mimstry of TransportatIOn (hereafter "the Mimstry") was termInated on June 22, 2001 She had been an employee of the Mimstry for approxImately 22 years The letter of termInatIOn was sIgned by Morah Fenmng and reads as follows Dear Ms Guelph. On Wednesda, Ma, 2nd 2001 you were suspended wIth pa, and wIthout loss of credIts to allow Management to carn out a complete mvestIgatIOn wIth regard to a possible conflIct of mterest and mIsuse of govermnent propert, ThIS mvestIgatIOn concluded that you engaged m extensIve outsIde actIvItIes whIch brought you mto a posItIOn of conflIct of mterest and contravened the Pubhc ServIce Act, RegulatIOn 977 SectIOn 15(1) (2) and (3) You had an obhgatIOn to dIsclose your sItuatIOn to the Deput, Mimster and faIled to do so The failure constItutes a VIOlatIOn of the ConflIct ofInterest gUIdehnes and a breach of pubhc trust. I have reVIewed the report of the mvestIgatIOn and have determmed that there IS Just cause for dIsmIssal. Therefore b, the authont, delegated to me b, the Deput, Mimster under sectIOn 23 of the Pubhc ServIce Act, you are dIsmIssed effectIve Immedmteh You have the nght to file a gnevance m accordance wIth the CollectIve Agreement. Smcereh The Mimstry first became concerned about the gnevor's actIvItIes outsIde of the workplace as a result of charges made to a Mimstry credIt card Issued to the gnevor The Shared ServIces Bureau (hereafter SSB) sent a confidentIal memorandum to the gnevor on January 30 2001 It reads as follows 3 Re Amencan Express Corporate Card Account The AMEX monthh accounts reports dated Ian 10 2001 mdIcate that your account IS past due exceedmg 60 (SIxt,) days The outstandmg balance for thIS penod IS categonzed as follows Total New Charges Payments Due 90 Days+ 60 Days 30 Days + Other Debits past 30 Days $12,941 02 2, 107.58 5953 71 487973 Refer to Mimstn DIrectIve (Corporate ServIces Finance B-I0) dated 1995 0421 whIch states your responsibIhtIes as a corporate cardholder Please take appropnate actIOn to settle the account. If there IS a dIscrepanc, WIth your last statement contact Amencan Express at 1-800-568-2639 Thank you for your help m thIS matter That memorandum was copIed to Tim Ferguson. He was the Program Manager of LICenSIng ServIces for the Mimstry Upon receIpt of hIS copy he dIscussed the matter wIth the gnevor's ImmedIate supervIsor LInda Bethune They also dIscussed the gnevor's recent absenteeIsm and personal cell phone use whIle at work. Mr Ferguson Instructed Ms Bethune to dISCUSS the Amex charges wIth the gnevor and cancel the card. He ImtIated a Waiver of lIabIlIty for the outstandIng amount wIth SSB He subsequently obtaIned a detaIled lIst of the expenses charged to the card. When Mr Ferguson revIewed the detaIls of the credIt card charges he contacted Alan TaIt, the Manager of Internal AudIt ServIces The concerns raised wIth Mr TaIt were the use of her personal cell phone on Mimstry tIme, the Amex charges, absenteeIsm and the general SuspICIOn that the gnevor was operatIng a busIness USIng Mimstry tIme and resources The eVIdence at the heanng clearly establIshes that the gnevor was operatIng a retaIl store In downtown KIngston throughout thIS penod, and pnor 4 The gnevor was off work for medIcal reasons from about February 21 2001 SeemIngly she knew nothIng of the Mimstry's nascent InVestIgatIOns at that tIme but she was In receIpt of the SSB memo of January 30 2001 regardIng the Amex arrears Ms Guelph confirmed In her eVIdence that she knew of the Mimstry's concerns WhIle off sIck she attended at the Mimstry offices to provIde Ms Bethune wIth a medIcal note and to fill out her tIme sheets Ms Bethune asked Ms Guelph to turn In her Amex card. She replIed that It had already been destroyed. Although Ms Bethune dId not explaIn why she wanted the card returned, Ms Guelph testIfied that she knew that the Mimstry was concerned SInce she had receIved a couple of letters askIng her to pay the outstandIng balance She said In her eVIdence that the balance OWIng could have been In the thousands and consIsted of a mIxture of personal and busIness charges Ms Guelph first learned formally of the Mimstry's concerns by letter dated Apnl 30 2001 She was put on notIce of a "suspected conflIct of Interest" and Instructed to attend a meetIng wIth Mimstry InVestIgators on May 3 2001 She was warned that she mIght be dIsmIssed. She had not been suspended pnor to Apnl 30 2001 because she had been off sIck and had also asked for a leave of absence to commence May 1 2001 Ms Guelph testIfied that she attended a meetIng on May 1 2001 to dISCUSS the requested leave of absence At that meetIng she learned that It would be approved on the condItIOn that she remaIn avaIlable for the May 3 meetIng and any other meetIngs or dIscussIOns reqUIred. She also testIfied that If she had to be avaIlable for such meetIngs she mIght Just as well return to work and so advIsed Ms Bethune and Mr Ferguson. In the result, she was suspended wIth pay pendIng InVestIgatIOn effectIve May 2,2001 that beIng her first scheduled workday folloWIng her sIck leave Ms Guelph dId attend the May 3 2001 InVestIgatIOn meetIng WIth a Mr DavId Dell, the InVestIgator Also In attendance were BettIna Toemg, audItor and Parveez Maqbool the Local 5 Umon PresIdent. Ms Guelph testIfied that she felt qUIte comfortable at the meetIng. She said It was, "very laid back" She also testIfied that she was not able to fully express herself because she was not thInkIng straight havIng Just come off of a stress leave On May 14 2001 she provIded a lengthy wntten response to Mr Dell's allegatIOns The InVestIgator subsequently prepared a report whIch was presented to Mr Ferguson on June 4 2001 Mr Ferguson dIscussed It WIth Jane Albnght, the Employer RelatIOns officer Jane GIbson, the Human Resources Consultant, LInda Bethune, the Manager of ClIent ServIces and wIth Alan TaIt and DavId Dell, the InVestIgators He recommended to Morah Phenmng that Ms Guelph be dIsmIssed. A further meetIng wIth the gnevor was held on June 11 2001 The NotIce of that meetIng reads as follows ThIS IS to advIse that a meetmg has been scheduled for 11 00 a.m. on June 11 2001 m Boardroom #4 located m the Conference Buildmg at 355 Counter Street, Kmgston, Ontano K7L 5A3 The purpose of thIS meetmg IS to dISCUSS the facts and CIrcumstances mvolvmg a potentIal conflIct of mterest wIth your dutIes as a pubhc servant. As dIscIphne ma, result from thIS meetmg, you ma, be accompanIed b, an OPSEU representatIve of your choosmg If you or an OPSEU representatIve do not attend, proceedmgs wIll take place and you wIll not be entItle to mput at a future date That meetIng was attended by Mr Ferguson, LInda Bethune, Sharon Gibson, Paulette Guelph and Parveez Maqbool Mr Ferguson revIewed the Mimstry's concerns, whIch fell under the folloWIng headIngs - workIng at her retaIl store whIle on paid, short-term sIck benefits and knowIngly vIOlatIng conflIct of Interest gUIdelInes, 6 - mIsuse of the Mimstry Amex card, - mIsuse of Mimstry telephone - mIsuse ofMimstry computers Ms Guelph was gIven an opportumty to answer these allegatIOns but made no response As a result, the gnevor's employment was termInated as set out above The foregoIng narratIve broadly sketches out the uncontradIcted facts ThIS was a lengthy heanng, takIng eIght days, stretchIng over mne months The eVIdence Includes viva voce testImony dozens of documents and vIdeo tape surveIllance eVIdence I wIll refer to further and other eVIdence as reqUIred to IllumInate my reasons for decIsIOn However I have carefully consIdered all of the eVIdence and the submIssIOns of the partIes regardIng the eVIdence and the applIcable Junsprudence and conclude that the dIscharge must be upheld. FIrst and foremost, the gnevor used the Mimstry' s Corporate Amex credIt card to her retaIl busIness's advantage There IS no dIspute that dunng the penod In questIOn she had no cause to charge any expense to the Mimstry All of the charges were for her benefit eIther personally or In her capacIty as the propnetor of her retaIl store known as "Trendsetters" Much of the gnevor's JustIficatIOn for her actIOns IS that she dId not know she was dOIng anythIng wrong. She was seemIngly of the VIew that any purchase on the Corporate Amex card was allowed, provIded the bIlls were paid. The gnevor faIled even that standard. She dId not pay the charges as they fell due, and It was her unpaid Amex bIlls that tnggered the InVestIgatIOns that led to her dIsmIssal She testIfied that as of the date of gIVIng her eVIdence the Amex bIll stIll remaIned unpaid. It must be apprecIated that the charges at Issue are not IncIdental The outstandIng balance that provoked Mr Ferguson was close to $13 00000 $8000 of whIch was greater than thIrty days overdue The gnevor admItted In her eVIdence that she used the Mimstry Amex card 7 to purchase Inventory from "Yellow Rose" "FashIOn Wigs" and "lB Imports" From December 2000 to February 2001 those purchases totaled some $3200 00 In her eVIdence the gnevor qUIbbled about purchases from "DIscount Beauty SupplIes" She admItted to bUYIng some Items for the store but said she also bought some Items for her personal use The total of purchases from DIscount Beauty SupplIes was $2140 45 There are many other purchases from many other supplIers that appear to be busIness purchases In any event, Ms Guelph admIts to USIng the Mimstry Amex card to finance her retaIl store's Inventory Next, the surveIllance eVIdence establIshes that Ms Guelph worked at her store on March 19 20 and 21 2001 beIng days for whIch she receIved short-term sIck benefits Even acceptIng the submIssIOns made on her behalf that such work was not InCOnsIstent WIth a "stress" leave, one cannot but consIder that the short-term sIck leave plan was an advantageous contnbutIOn to her busIness undertakIng denved from her employment and was used as such. The Umon argued that the work undertaken at the store was consIstent WIth her medIcal restnctIOns However there IS no medIcal eVIdence as to the nature or extent of her Illness such as would permIt the drawIng of such a conclusIOn. The physIcIans' reports filed as exhIbIts are vague In that regard. Next, her use of the Mimstry's telephone system IS abuse on any scale It was submItted on her behalf that any non-employment related telephone calls were only ever made on her lunch or relIef breaks Mr DavId Dell, the InvestIgator was cross-examIned regardIng the gnevor's non- Mimstry telephone usage By hIS estImate the gnevor made 75 5 hours of non-Mimstry calls over a sIx-month penod. Although some of that estImate may be questIOnable, even so over that penod the gnevor seemIngly took no lunch and vIrtually no relIef breaks At the same tIme, she complaIned of stress, fatIgue and headaches from performIng the dutIes of her posItIOn. It IS appropnate here to explaIn her dutIes 8 The gnevor was a telephone hot-lIne operator for the Mimstry She took calls from the vanous lIcensIng offices, provInce-wIde If an unusual sItuatIOn presented Itself In a lIcensIng office, eIther vehIcle lIcense related, or dnver lIcense related, field staff would call the hot-lIne for assIstance There IS often a queue of calls Without doubt the gnevor was paid to spend the maJonty of her tIme answenng telephone enqumes That IS, reCeIVIng rather than placIng calls To have spent almost every break and lunch penod on the telephone In aid of mIndIng her retaIl store must have Interfered wIth the performance of her regular dutIes On her own account she depnved herself of any apprecIable respIte dunng the workday for months on end, whIch surely would have contnbuted to her professed need to take tIme off sIck, due to stress Further a large proportIOn of the calls at Issue were to the supplIers whIch show up on the Amex credIt card statement. Those calls were predomInantly long dIstance calls AccordIngly the gnevor clearly denved an advantage from her employment as a publIc servant to her busIness, In the form of sIgmficant and sustaIned telephone usage FInally the InVestIgatIOn revealed non-Mimstry use of computer resources A number of documents on her computer appear to be busIness related. The gnevor's explanatIOn was that the documents were assIgnments from vanous courses she had taken wIth Mimstry approval It may well be that some of those documents were for course assIgnments However It IS clear that some of them were for her busIness In some measure the number of documents and the apparent pnvate busIness use of the computer IS de minimis However the use of the computer cannot be seen In IsolatIOn from the other transgressIOns set out above Taken as a whole, the gnevor made sIgmficant and contInued use of Mimstry resources to operate her busIness undertakIng. 9 A submIssIOn made on behalf of the gnevor was that the letter of termInatIOn cIted an InapplIcable conflIct of Interest regulatIOn. The then current regulatIOn was Reg 435/97 amended by Reg 480/00 The letter of termInatIOn referred to RRO 1990 Reg 977 The employer urged me to Ignore thIS clencal error The umon said that the newer regulatIOn IS more onerous and that the earlIer regulatIOn would not catch the facts of thIS case The relevant provIsIOns are as follows 1 Reg 435/97 9 A pubhc servant shall not become employed b, or engage m a busmess or undertakmg outSIde hIS or her employment m the servIce of the Crown m an, of the followmg CIrcumstances 1 If the pubhc servant s pnvate mterests m connectIOn wIth the employment or undertakmg could conflIct WIth hIS or her dutIes to the Crown 2 If the employment or undertakmg would mterfere wIth the pubhc servant s abIht, to perform hIS of her dutIes to the Crown. 3 If the employment IS m a professIOnal capacIt, and IS likeh to mfluence or detnmentalh affect the pubhc servant s abIht, to perform hIS or her dutIes to the Crown. 4 If the employment would constItute full-tIme employment for another person. ThIS paragraph does not apph wIth respect to a pubhc servant who IS employed part-tIme b, the Crown or IS on a leave of absence (as defined m subsectIOn 70 (1) of RegulatIOn 977 of the ReVIsed RegulatIOns of Ontano 1990) or a secondment. 5 If m connectIOn WIth the employment or undertakmg, an, person would denve an advantage from the pubhc servant s employment as a pubhc servant. 6 If government premIses, eqUIpment or supphes are used m the employment or undertakmg o Reg 435/97 s 9 R.R.O 1990 Reg 977 15 - (1) A pubhc servant shall not engage m an, outSIde work or busmess undertakmg (a) that mterferes wIth the performance of hIS or her dutIes as a pubhc servant; (b) m whIch he or she had an advantage denved from hIS or her employment as a pubhc servant; (c) m whIch hIS or her work would otherwIse constItute full-tIme employment for another person, or 10 (d) m a professIOnal capacIt, that wIll, or IS likeh to mfluence affect the carrymg out of hIS or her dutIes as a pubhc servant. (2) A pubhc servant who consIders that he or she could be mvolved m a conflIct of mterest, m that he or she mIght denve personal benefit from a matter whIch m the course of hIS or her dutIes as a pubhc servant he or she IS m a posItIOn to mfluence shall dIsclose the sItuatIOn to hIS or her depun mmIster agenc, head or mmIster as the case ma, be and shall abIde b, the advIce gIven. (3) A pubhc servant who consIders that he or she could be m a posItIOn of conflIct WIth the mterests of the Crown ansmg from an, of hIS or her outsIde actIvItIes shall dIsclose the sItuatIOn to hIS or her depun mmIster agenc, head or mImster as the case ma, be and shall abIde b, the advIce gIven. (4) ContraventIOn of an, of the provIsIOns of subsectIOn (1) or dIsregard of subsectIOn (2) or (3) ma, be consIdered as cause for dIsmIssal It IS sectIOn 9 (6) of the new regulatIOn that more firmly catches the gnevor's conduct. Undoubtedly the gnevor breached that subsectIOn. In any event, a fair readIng of 0 Reg 977 also prohIbItS the conduct of the gnevor To the extent that the employer's reasons for dIscharge are confined to the letter of dIscharge and ItS InCorporatIOn of Reg. 977 15 (1) (2) & (3), the gnevor's dIscharge IS none the less a reasonable response to the facts at hand pursuant to s 15 (4) On her own eVIdence, the gnevor's actIvItIes Interfered wIth the performance of her dutIes FIrst, and as set out above, she said that she suffered debIlItatIng stress from her Job answenng telephone calls Her self-demal of breaks In order to engage In more telephone calls could only have exacerbated those complaInts, contrary to s 15 (1) (a) Second, there can be no doubt that the gnevor engaged In her retaIl busIness on the basIs of advantages denved from the Mimstry contrary to s 15 (1) (b) She financed Inventory USIng the Mimstry's credIt card. She used the Mimstry's telephone system and long-dIstance callIng facIlItIes to place calls to her supplIers She was able to spend tIme at the store whIle drawIng sIck pay and made some small use of the Mimstry's computers for retaIl busIness purposes Largely the gnevor's explanatIOn IS that she 11 dId not know It was wrong to run her store on the Mimstry's back. I am not persuaded of thIS These CIrcumstances dIsclose such a blatant and contmumg mIsuse of Mimstry resources that the gnevor knew or ought to have known that she was engaged m a busmess undertakmg m whIch she had an advantage denved from her employment as a publIc servant. Much was made m the eVIdence of the gnevor' s oblIgatIOn to obtam a conflIct of mterest rulIng and of whIch regulatIOn was applIcable There IS also a conflIct m the eVIdence regardmg whether she was specIfically told to obtam a rulIng. Suffice It to say that the gnevor was of the VIew that there was no need to obtam a rulIng. She had done so m the past regardmg a dIfferent busmess venture and concluded on her own, from that pnor expenence that there was no conflIct. The salIent pomt to be denved from that eVIdence IS that the gnevor certamly knew from first hand expenence, what the earlIer regulatIOn forbade and that a rulIng was reqUIred. Further although the mmdmg of a retaIl fashIOn store IS not on ItS face m conflIct WIth the Mimstry's telephone hot-lIne actIvItIes, I should thmk that a request for a rulIng that mcluded a proposal to use Mimstry resources as they were used here would draw a predIctably negatIve response She knew that she should obtam a rulIng and faIled to do so contrary to s 15 (3) Applymg eIther regulatIOn to the gnevor's conduct leads to the same result. The umon' s relIance on restnctmg the employer to the arguably more lement, earlIer regulatIOn does not assIst the gnevor Fmally the gnevor's wntten response of May 14 2001 offered to provIde further mformatIOn and documentatIOn to support the gnevor's explanatIOns for her conduct. The umon argued that the employer dId not take the gnevor up on those offers The opportumty to provIde such explanatIOns and supportmg matenal also presented Itself to the gnevor at the heanng before thIS Board and was not dIscharged sufficIently to explam m a satIsfactory way the gnevor's vanous 12 behavIOrs Notably the letter IS sIlent on the Issue of the credIt card charges At the tIme of the heanng, the charges remaIned outstandIng and no credIble JustIficatIOn was or could be gIven for treatIng the Mimstry's credIt card as a lIne of credIt for the gnevor's retaIl store AccordIngly there IS no basIs for Interfenng wIth the employer's decIsIOn to dIscharge the gnevor In all of the cIrcumstances, the dIscharge IS upheld. DATED at Toronto thIS 29th day of January 2004 . 'r..' ~\ .. I. .. .. . . .. .... . .,.. ''I . .