Loading...
HomeMy WebLinkAbout2001-1222.Lewis.01-02-15 Decision o NTARlO EMPUJYES DE LA COURONNE CROW"! EMPLOYEES DE L DNTARlO GRIEVANCE COMMISSION DE l1li l1li SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE, (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILElTELECOPIE. (416) 326-1396 GSB#1222/99 OPSEU#99El19 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (LeWIS) GIievor - and - The Crown III Right of Ontano (Mimsm of Educatlon and TraImng) Employer BEFORE RandI H. Abramsk." Vice ChaIr FOR THE George Richards GRIEVOR Gnevance Officer Ontano PublIc ServIce Employees Umon FOR THE Ben Ratelband, Counsel EMPLOYER McCarth, Tetrault Bamsters and SolICItors HEARING Februa.n 17 2000 Ma, 12,2000 Ma, 23 2000 August 14 2000 September 26 2000, December 22, 2000 AWARD On August 17 1999 the gnevor Mr Earl LewIs, was dIscharged by the Mimstry of EducatIOn and TraInIng. He was dIscharged for SOlICItIng donatIOns from pnvate compames on behalf of the Mimstry and a chantable orgamzatIOn, the ChIldren's Wish FoundatIOn, then expropnatIng tre donatIOns for personal use At Issue IS whether the gnevor was dIscharged for cause, or whether another penalty should be substItuted as Just and reasonable In all of the CIrcumstances Facts On August 17 1999 the gnevor was handed the folloWIng termInatIOn letter August 17 1999 Mr Earl LewIs Dear Mr LewIs It has come to my attentIOn that you have solIcIted pnvate compames for chantable donatIOns The letters requestIng the donatIOns were wntten on the former Mimstry of EducatIOn and TraInIng letterhead. These solIcItatIOns were for the purported benefit of a well-known chanty The Chanty has confirmed that you are not actIng on theIr behalf You then expropnated the donatIOns for your own personal use Pursuant to SectIOn 22(3) of the Public Service Act thIS wIll advIse you that you are hereby dIsmIssed from your employment as a Learner ServIces Officer wIth the Mimstry of EducatIOn, effectIve August 1 ih 1999 The fact that you have mIsrepresented yourself, on behalf of the Mimstry and the Chanty to these pnvate busInesses, for your personal financIal gaIn, constItutes senous mIsconduct and IS a breach of the trust placed In you by the Employer Furthermore your actIOns had the potentIal to cause senous damage to the eputatIOn of the Mimstry of EducatIOn. After 2 careful consIderatIOn, I have decIded to dIsmIss you for all of the above reasons SIncerely Victona McArdle ActIng DIrector Independent LearnIng Centre The eVIdence, most of whIch was not dIsputed, overwhelmIngly shows that dunng July 1999 Mr LewIs solIcIted chantable donatIOns of passes or tIckets from pnvate compames - Niagara HelIcopters, Maid of the Mist and WhIrlpool Jets - on behalf of the Mimstry and the ChIldren's Wish FoundatIOn whIch he Intended to use dunng hIS famIly vacatIOn In Niagara Falls He would first call these compames from work to SOlICIt donatIOns on behalf of the Mimstry and then would follow-up by letter on Mimstry letterhead, USIng hIS tItle as "Learner ServIces Officer" and fax them from the Mimstry's fax machIne A typIcal letter IS the folloWIng one to WhIrlpool Jets July 20 1999 Ms MamIe Klose WhIrl pool Jets Niagara - on- the- Lake Dear Ms Klose RE COMPLIMENTARY TICKETS Further to our telephone conversatIOn of thIS afternoon, please accept thIS letter as a request for a FamIly Pass on your excItIng nde As I mentIOned to you, we have a fund-raiser each year wIth all left over proceeds gOIng to the ChIldrens' Wish FoundatIOn. 3 If you have any questIOns please call me at 416-325-4373 Would you please call to confirm receIpt of thIS request. The tIckets are raffled off and the lucky WInners venture on your nde I presume the WInners wIll be there eIther Monday July 26 or Tuesday July 27 1999 As per your InstructIOns, they wIll phone In advance for reservatIOns Respectfully Earl CLewIs Learner ServIces Officer Mr LeWIS acknowledged, on both examInatIOn-In-chIef and cross-eXamInatIOn, that there was no "fund raiser each year wIth all proceeds gOIng to the ChIldren's Wish FoundatIOn" and that no tIckets were to be "raffled off" The tIckets were to be used by hIS famIly whIle on vacatIOn. On July 21 1999 a SImIlar letter requestIng a "ComplImentary FamIly Pass" was sent to Niagara HelIcopter statIng that "[e]very year at the Mimstry we have a fund raiSIng event WIth all momes collected gOIng to the ChIldrens' Wish FoundatIOn." It was hoped "we can count on your firm's generous support." A SImIlar request was made to the Maid of the Mist Steamboat Company The Mimstry first became aware of these letters when Ms Ana PIerce of Niagara HelIcopters called the Mimstry to InqUIre If Mr LeWIS was connected to the ChIldren's Wish FoundatIOn. She had found It SUSpICIOUS when Mr LeWIS called to pIck up the tIckets hImself, saYIng he had made a donatIOn to the ChIldren's Wish FoundatIOn for 4 them, when hIS letter had said that the tIckets were to be raffled off Ms PI erce was advIsed that neIther the Mimstry nor Mr LeWIS had any connectIOn to the ChIldren's Wish FoundatIOn. The Mimstry's Fact-FIndIng Report, whIch the partIes agreed would be admItted Into eVIdence for the truth of the matters asserted, states that on July 26 1999 Mr LewIs called Niagara HelIcopter and spoke to Anna PIerce He told her that he was callIng from WhIrlpool Jets and asked If he could come over and pIck up the tIckets that had been donated. Ms PIerce told hIm that the tIckets had already been maIled to hIm at the Independent LearnIng Centre (ILC), but that she would leave a set of tIckets at the helIport for pIck up later that day She then asked hIm whether there was someone at hIS office she could contact to get back the tIckets that had been mailed there He replIed, "No they wouldn't know about thIS They were not Involved In It. BesIdes, I have already bought the tIckets and sent the money to the ChIldren's Wish FoundatIOn." The tIckets to Niagara HelIcopter were maIled to the ILC and arnved after he had left on vacatIOn. Mr LeWIS never came to pIck up the tIckets at Niagara HelIcopter The value of the tIckets was $228 00 Dunng the InVestIgatIOn meetIng WIth the gnevor on August 17 1999 the gnevor stated that" I felt sure that gIven the sItuatIOn at WhIrlpool Jets that I dIdn't even attempt to pIck up the tIckets" Later at the same meetIng, he stated that he "asked my wIfe If she wanted to go on the nde She said sure, but I dIdn't go because of the problem earlIer In the day at WhIrlpool Jets" 5 On July 26 1999 Mr LewIS had regIstered hImself for a nde on WhIrlpool Jets Later that day however Ms Klose receIved a telephone call from the Mimstry about Mr LeWIS' request and when he, and hIS party of four arrIved Ms Klose pulled hIm aSIde and told hIm that the tIckets were not for hIS use but were Intended for the WInner of the Mimstry's fund-raiser She told hIm that SInce the tIckets were not beIng used for the fund-raiser they were not valId and were beIng vOIded Mr LeWIS replIed, "I bought them" to whIch she replIed, "no you couldn't have" but she offered hIm dIscount tIckets avaIlable to the publIc She told hIm, "you can eIther pay for them now or we'll see that you don't get on the boat for the tour" Mr LeWIS paid for the dIscounted tIckets and hIS party went on the nde The value of the complImentary tIckets that Mr LeWIS had requested was $214 00 The eVIdence further shows that Mr LeWIS receIved a complImentary famIly pass to the Maid of the Mist, whIch he and hIS famIly used on July 26 1999 The value of these tIckets was $170 40 The eVIdence IS clear that In phone calls and letters to these compames, the gnevor IntentIOnally mIsrepresented the purpose of the request for a donatIOn, mIsrepresented the Mimstry's Involvement and that of the ChIldren's Wish FoundatIOn. He Improperly used hIS posItIOn as a Learner ServIces Officer and the name of the Mimstry as well as that of the ChIldren's Wish FoundatIOn to obtaIn complImentary passes to ndes and attractIOns for hIS own personal use 6 Throughout the InVestIgatIOn and at arbItratIOn, the gnevor InsIsted that what he dId was not wrong because he "would have sent money to the ChIldren's Wish FoundatIOn." Had he used or sold the tIckets he would have sent money - that was hIS Intent all along. He stated that It was never hIS Intent to cheat anyone He stated that In the past, when he had sold a donated Item, he would make a donatIOn to the ChIldren's Wish FoundatIOn. He made these donatIOns anonymously through money orders, and had no records or receIpts to substantIate them. He could not recall dates or amounts When the Mimstry first learned about thIS sItuatIOn, It contacted the DIrector of the ChIldren's Wish FoundatIOn, Kathy WismeskI On August 6 1999 she confirmed In wntIng that "we have no record of reCeIVIng funds or confirmatIOn of a fundraIser beIng held by the Mimstry or Mr Earl LewIs In support of the ChIldren's Wish FoundatIOn." At the arbItratIOn heanng, Ms WismeskI testIfied to the same effect. There was no record of any donatIOns made by the gnevor or record of an approved fundraIsIng event. She testIfied that the ChIldren's Wish FoundatIOn was very concerned about what had occurred because of the value of ItS good name and reputatIOn. In her VIew donatIons were made by these compames because of the Mimstry's Involvement and that of the ChIldren's Wish FoundatIOn. She was concerned that the people Involved, havIng been mIsled once, would be wary of donatIng agaIn to theIr cause On August 17 1999 the Mimstry held an InVestIgatIOn meetIng WIth the gnevor and hIS Umon representatIve At that meetIng, the allegatIOns concernIng Niagara 7 HelIcopter WhIrlpool Jets and Maid of the Mist were conveyed to the gnevor and he was provIded wIth an opportumty to respond and explaIn what occurred. At that meetIng, the gnevor was not fully candId or forthcomIng. He was specIfically asked whether he receIved passes to Maid of the Mist for 1999 and he responded "No I never receIved or used the passes Dr 1999" In fact, the dally log for July 26 1999 less than three weeks earlIer showed that he and hIS famIly used four complImentary passes on the Maid of the Mist. When confronted wIth thIS, he responded "Yes I dId use them - complImentary passes I wIll send a donatIOn to the ChIldren's Wish FoundatIOn now" The gnevor was also asked "Have you wntten any other letters to SOlICIt for chantIes at the ILC or elsewhere?" The gnevor responded "Yes, probably at OT AB I'd have to go back and thInk about It. I can't thInk. I know I got passes from Wild Water KIngdom and In 1999 I got tIckets from them agaIn, In May" He was also asked whether he sent out e-maIls about these tIckets, to whIch he responded "no" Shortly thereafter he was asked whether he had anythIng to add, and he responded as follows I've worked for the government for thIrteen years I've always tned to help wIth federated health, socIal commIttees, Umted Way I've always been honest. I'm apologIZIng. I've never tned to cheat anyone I had a lack of Judgment. I'm a famIly man, marrIed wIth two chIldren. I'd never JeopardIze my career I'll cooperate In any way possIble The umon told me to cooperate and tell everythIng I know At the conclusIOn of the InVestIgatIOn meetIng, the Mimstry dIscharged the gnevor Victona McArdle, then ActIng DIrector of the ILC testIfied that the decIsIOn to 8 termInate was based on a number of factors - the senousness of the gnevor's mIsconduct, the fact that It was repeated ratrer than Isolated, the fact that Mr LeWIS contInued SOlICItIng In thIS manner even after beIng warned not to do so the fact that he was not forthnght and lIed dunng the InVestIgatIOn meetIng, the fact that he offered no explanatIOn for hIS actIOns nor demonstrated true remorse Based on all of thIS, she felt that the trust placed In hIm had been destroyed. In lIght of the gnevor's comment about the Wild Water KIngdom, the Mimstry conducted a further InVestIgatIOn, whIch revealed several addItIOnal IncIdents of Improper solIcItatIOn of complImentary tIckets on behalf of the Mimstry for a chanty event. ThIS "after-acqUIred" eVIdence was admItted Into eVIdence, pursuant to an earlIer rulIng, as relevant to the proceedIng, wIth the partIes to argue regirdIng what weIght, If any to gIve to It. 1 Wild Water KIngdom. The InVestIgatIOn revealed that Mr LeWIS had sought and receIved three complImentary famIly day passes to Wild Water KIngdom In Apnl 1999 valued at $22740 and receIved passes In 1998 as ~ll It was learned that ongInally one pass had been sent to hIm In 1999 and that he requested two addItIOnal passes to be used for "staff and volunteer InCentIves" It was also dIscovered that In May 1999 contrary to hIS assertIOn at the InVestIgatIOn meetIng, he sent e-maIls to staff members offenng to sell the passes at a dIscounted pnce The tIckets were not sold and on September 11 1999 - after hIS dIscharge - the gnevor returned the tIckets to Wild Water KIngdom, statIng that "[y]ou 9 were kInd enough to donate these to the Mimstry of EducatIOn and TraInIng but we were not able to use them" 2 Dresses for Humamtv The InVestIgatIOn further found that on September 2, 1998 Mr LewIs wrote to the Hudson Bay Company on Mimstry letterhead, requestIng five tIckets to the Dresses for Humamty event. That letter states, In pertInent part, as follows September 2, 1998 Ms L Carter The Hudson Bay Company Dear Ms Carter RE DRESSES FOR HUMANITY I am wntIng to you at thIS tIme on behalf of tre Mimstry of EducatIOn & TraInIng, The Independent LearnIng Centre wIth a donatIOn request. Every summer we have a pIcmc and fund raiSIng for the "ChIldren's Wish FoundatIOn" The employees of thIS branch are very excIted about Pnncess DIana's dresses and we are hopIng that you could count on your generous donatIOn of 5 tIckets to the above event. We would raffle the tIckets off to the hIghest bIdder and all momes raised would be sent to the "ChIldren's Wish FoundatIOn" and The Hudson Bay Company would be noted for sendIng us the tIckets In the past we have receIved tIckets from "The Ontano SCIence Centre" "Paramount Canada's Wonderland" "Manneland" and the "Maid of the Mist" In Niagara Falls If I can answer any questIOns you may have, please feel free to contact me at 416-325-4373 Respectfully 10 Earl CLewIs Learner ServIces Officer Upon receIpt of the tIckets, the gnevor sent out e-mmls to staff, statIng that the Hudson Bay Company had donated some passes to the show of Pnncess DIana's dresses He stated that the pnce for each pass IS $13 00 "but I would lIke to raffle them off, wIth the proceeds gOIng to the ChIldren's Wish FoundatIOn." When one employee responded that she would lIke to buy a raffle tIcket, the gnevor responded as follows I shouldn't have used the word "Raffle" We wIsh to sell the tIcket for the $13 00 whIch they are pnced at and I wIll send the money to the "ChIldren's Wish FoundatIOn." If you are stIll Interested please Just bnng the money and I wIll gIve you a tIcket. There was no annual pIcmc and no raffle nor was a raffle ever Intended. 3 Canada's Paramount Wonderland The InVestIgatIOn found that on Apnl 28 1998 the gnevor requested a famIly season pass to Canada's Paramount Wonderland. On Mimstry letterhead, the gnevor wrote, In pertInent part, as follows I was hopIng to obtaIn a FamIly's Season Pass for one of our student/students as an AwardIReward for some student or students who are deservIng of same I am sure you wIll agree that sometIme a lIttle reward provIdes great InCentIve and a pass as suggested above would do wonders for a student's ambItIOns 11 OngInally Mr LewIS requested two passes but later called Wonderland to request four passes Four passes were sent to Mr LewIs at the Independent LearnIng Centre There IS no "Award/Reward" for deservIng students wIthIn the ILC 4 SPIce GIrl Tickets Also In Apnl 1998 Mr LewIs requested three complImentary tIckets to the SpIce GIrlS concert that was to be held at the Molson's AmphItheatre In July 1998 "to be used as an InCentIve or award to certaIn students" AccordIng to the Fact-FIndIng Report, Mr LewIs told Michelle Magder who was responsIble for group tIcket sales wIth Umversal Concerts Canada, the company that operates the Molson AmphItheatre, that he was requestIng the tIckets for a chantable cause to help out underpnvIleged school chIldren In the school system. She Informed hIm that the concert was sold out and she could not gIve hIm complImentary tIckets, but she agreed to order hIm three tIckets and to Waive the normal admInIstratIve fee of $15 00 per tIcket due to the cause The tIckets were paid for by Judy LewIs, the gnevor's wIfe The tIckets were used by the gnevor's chIldren. On June 17 1998 the gnevor wrote to Ms Magder on Mimstry letterhead, that "[o]n behalf of the Mimstry of EducatIOn and TraInIng, The Independent LearnIng Centre, I am wntIng to thank you very much for all your tIme and efforts In obtaInIng the SpIce GIrl Tickets" He contInued "I am sure the chIldren who wIll receIve these tIckets would lIke to thank you personally but we thought It better If I dId " 12 There IS only one example of a donatIOn to the ChIldren's Wish FoundatIOn In relatIOn to a pass sold by the gnevor The gnevor had stated, dunng the InVestIgatIOn meetIng, that he sold one of the 1998 Maid of the Mist passes to a co-worker Sherry SmIth, at the face value of the pass In January 1999 the ChIldren's Wish FoundatIOn receIved a cheque from Sherry SmIth for $35 00 an amount less than the face value of the pass The gnevor had no recollectIOn of what happened to the other passes that he receIved In 1998 although he recalled that he dId not sell them The gnevor testIfied that the Impact of hIS dIscharge has been devastatIng. He IS 56 years old and has a hIgh school educatIOn. He has been unable to find work, leavIng hIS wIfe as the sole support of hIS famIly He has one adult daughter and two mInor chIldren, and hIS termInatIOn has caused a great deal of stress and dIfficultIes wIth the famIly At the tIme of hIS dIscharge, the gnevor had worked for 13 years wIth the government. He worked as a Learner ServIces Officer wIth the Independent Learmng Centre (ILC) The ILC pnmanly serves as a correspondence school for approxImately 30 000-40 000 adult students tryIng to obtaIn a secondary school dIploma. Staff provIdes the publIc wIth InfOrmatIOn about ILC servIces and programs, process applIcatIOns for course enrolment and ensure course reqUIrement s and prereqUIsItes are met, and update student records IncludIng lesson and test results as well as Inventory (course matenal) loans and returns 13 AccordIng to Ms McArdle, the posItIOn of Learner ServIces Officer whIch IS not closely supervIsed, offers a number of opportumtIes for an employee who seeks financIal gaIn. GIven the Importance of a secondary dIploma, elIgibIlIty reqUIrements mIght be overlooked to gaIn enrollment, lost matenals mIght be "found" deadlInes mIght be extended and so forth. The gnevor's work record was dIscIplIne-free, but In the Fall of 1998 Mr LewIs was specIfically warned by the DIrector of the ILC Paul Raymond, not to SOlICIt chantable donatIOns on Mimstry letterhead. Mr Raymond testIfied that In the Fall of 1998 someone found at the fax machIne a copy of a letter wntten by Mr LewIs, on Mimstry letterhead, addressed to the Raptors SOlICItIng basketballs to be auctIOned off at an ILC pIcmc wIth the proceeds to go to the ChIldren's Wish FoundatIOn. It was brought to hIm and he stated that he called Mr LeWIS Into hIS office He showed Mr LeWIS the letter and told Mr LeWIS not to use Mimstry letterhead to SOlICIt for chanty that the tnllIon was sacred as It represented the Government, and that what he dId was not acceptable Mr Raymond testIfied that the gnevor responded that he dIdn't realIze that It was a problem. Mr Raymond told hIm It was a problem, that It was fraud, and that It must not happen agaIn. He said that Mr LeWIS responded that In hIS pnor Job It had not been a problem but agreed that he would not do It agaIn. Mr LewIs's recollectIOn of thIS conversatIOn was a bIt dIfferent. At the arbItratIOn heanng, he testIfied that Mr Raymond approached hIm at the front counter not hIS office, and told hIm that he found a fax that Mr LeWIS had sent to the Raptors requestIng 14 basketballs and that he asked hIm not to do that agaIn, to whIch he replIed "I won't." In hIS VIew It was not a "you are not to do thIS" type conversatIOn. What he took from It was that he was not to SOlICIt basketballs or approach the Raptors and he never dId that agam. It was hIS VIew at the tIme, that Mr Raymond would not be upset If he got tIckets and sold them and donated the money to the ChIldren's Wish FoundatIOn. At the InVestIgatIOn meetIng, Mr LewIs stated that Mr Raymond dId not mentIOn use of Mimstry letterhead. To the extent that the gnevor's verSIOn of thIS dIscussIOn vanes from that of Mr Raymond, I prefer the testImony of Mr Raymond. Mr Raymond had qUIte a clear recollectIOn of thIS conversatIOn, and I find hIS verSIOn more plausIble than that of the gnevor's It IS unlIkely that such a conversatIOn took place at the front counter and It was defimtely a "you are not to do thIS" type conversatIOn, as the gnevor acknowledged when he admItted that he agreed that he would not do It agaIn. Mr Raymond testIfied that he dId not formally dIsCIplIne the gnevor over the Raptors letter because he thought It Involved one occurrence the gnevor had not realIzed It was a problem and he had promIsed not to do It agaIn. It was "one case of mISJudgment" and he felt that Mr LeWIS now understood the senousness of hIS actIOn. At the tIme Mr Raymond was unaware of any other solICItatIOns of thIS kmd by the gnevor Decision 1 Was there just cause for discharge? 15 Based on the facts set forth above, there IS no doubt that the Mimstry had Just cause to dIscharge the gnevor Based on the ImtIaI findIngs of the InVestIgatIOn as of August 17 1999 whIch were substantIated at the heanng, the gnevor engaged In three cases of senous mIsconduct. He Improperly used hIS posItIOn as a Learner ServIces Officer Improperly used Mimstry letterhead, and knoWIngly mIsrepresented the sanctIOn and Involvement of the Mimstry and the ChIldren's Wish FoundatIOn In order to obtaIn complImentary passes and tIckets for hIS own personal use ThIS was not a case of lack of Judgement. It was fraud perpetrated on three pnvate busInesses They provIded complImentary passes because they belIeved that he was actIng on behalf of the Mimstry and the proceeds would go to the ChIldren's Wish FoundatIOn, none of whIch was true The gnevor's mIsconduct, moreover was dIrectly related to hIS employment, SInce he used hIS posItIOn and tItle, the Mimstry's fax, telephone, address and ItS name to perpetuate the fraud. The gnevor knew or should have known, that hIS conduct was wrong. He was explIcItly told so In the Fall of 1998 by DIrector Raymond. He was told not to SOlICIt chantable donatIOns on Mimstry letterhead agaIn. The gnevor's claim that he understood DIrector Raymond's admomtIOn, as lImIted to the solIcItatIOn of basketballs cannot be credIted. TheIr conversatIOn cannot reasonably have been construed so narrowly In hIndsIght, It may have been better If the gnevor had receIved formal dIscIplIne at the tIme But the DIrector made a decIsIOn to proceed Informally based on the InfOrmatIOn he had at the tIme That IS, that thIS was a one-tIme only occurrence that the 16 gnevor had not realIzed what he dId was a problem but now dId, and he had promIsed not to do It agam. So Mr Raymond dealt wIth It firmly but Informally However the message - do not do thIS agaIn - was very clear Although Informal, the purpose of progressIve dISCIplIne, to put the employee on notIce that hIS conduct IS not acceptable, was met by the DIrector's actIOn. AccordIngly the gnevor knew or should have known, that solIcItatIOns of thIS nature, on Mimstry letterhead, was wrong. Even If there had been no specIfic warnIng, the gnevor should have known what he dId was Improper It IS sImIlar to the sItuatIOn In Re Black Diamond Cheese (Division of Ault Foods Inc) and Black Diamond Cheese Employees Independent Union, Local 555 (1992), 27 L.AC (4th) 428 (Jackson), In whIch an employee was dIscharged for forgIng company letters to secure a mortgage loan. The company's rule was clear that It was an offense to falsIfy records relatIng to work or employment, and the arbItrator concluded at p 439 that "It should be absolutely clear from thIS, If not from basIc CIVIC values, that people should not submIt forged letters" In hIS VIew as he stated at p 438 "knowIngly submIttIng forged letters can only be charactenzed as dIshone st behavIOur " The same IS true here The gnevor's actIOns were dIshonest and that should have been clear to hIm from Mr Raymond's admomtIOn, If not from basIc CIVIC values DespIte beIng warned not to do thIS agaIn, the gnevor contInued to do so He was gOIng on vacatIOn to Niagara Falls In late July 1999 and sought complImentary tIckets to ndes and attractIOns there He called Niagara HelIcopters, WhIrlpool Jets and Maid of the Mist from work, IdentIfied hImself as a Mimstry employee responsible for orgamZIng 17 the Mimstry's annual pIcmc and sought a complImentary pass to be raffled off, wIth the proceeds gOIng to the ChIldren's Wish FoundatIOn. He then followed-up wIth a letter on Mimstry letterhead, and left hIS work number to call If there were any questIOns He then faxed the letter from work. He dId all thIS knowIng there was no annual pIcmc, knowIng there was no raffle, knowIng that the passes were for hIS own personal use whIle on vacatIOn. His actIOns were planned and premedItated. They were not Isolated. The Mimstry had Just cause to dIscharge hIm The after-acqUIred eVIdence reveals further examples of the same type of mIsconduct and corroborates that hIS actIOns In July 1999 were not Isolated events, or an Isolated case of mIsJudgment, but an ongOIng pattern of mIsconduct over a prolonged penod of tIme Although some of the solIcItatIOns Involved other mIsrepresentatIOns - l.e seekIng donatIOns to provIde a fiCtItIOuS reward/incentI ve to deservIng chIldren/students - the goal was the same to obtaIn free tIckets for hIS own use or to sell Time and tIme agaIn he Improperly used hIS posItIOn WIth the Mimstry and the name of the Mimstry and that of the ChIldren's Wish FoundatIOn to fraudulently obtaIn free passes and tIckets The gnevor's testImony that he sent money to the ChIldren's Wish FoundatIOn anonymously was not supported In any manner There were no records of the money orders he stated were sent. He could not recall dates or amounts Dunng the InVestIgatIOn he stated that he would check at home for such Items, but none were presented at the arbItratIOn heanng. The ChIldren's Wish FoundatIOn had no record of 18 any donatIOns by Mr LewIs, nor was he assocIated wIth them In any manner In contrast, there was substantIal eVIdence that the tIckets and passes solIcIted were for hIS personal use and that he sold and attempted to sell many of donated Items I therefore conclude, on the balance of probabIlItIes, that the gnevor sought these donatIOns for hIS personal use and financIal gaIn, not to benefit the ChIldren's Wish FoundatIOn. Based on the eVIdence, the Mimstry had Just cause to dIscharge the gnevor He abused hIS posItIOn of trust wIth the Mimstry His actIOns had the potentIal to harm the reputatIOn of the Mimstry as well as that of the ChIldren's Wish FoundatIOn. 2 Is it just and reasonable in all the circumstances to substitute a lesser penalty? ThIS questIOn presents the heart of the dIspute - whether there are mItIgatIng factors, whIch warrant SubstItutIOn of a lesser penalty ArbItrators have consIdered a number of factors In asseSSIng whether a lesser penalty IS appropnate As set out In Re United Steehwrkers of America, Local 3257 and The Steel Equipment Co Ltd (1964), 14 L.AC 356 (RevIlle), they Include the folloWIng, at p 357-358 (cItatIOns omItted) 1 The prevIOus good record of the gnevor 2 The long servIce of the gnevor 3 Whether or not the offence was an Isolated IncIdent In the employment hIStOry of the gnevor 4 ProvocatIOn. 5 Whether the offence was commItted on the spur of the moment as a result of a momentary aberratIOn, due to strong emotIOnal Impulses, or whether the offence was premedItated. 19 6 Whether the penalty Imposed has created a specIal economIC hardshIp for the gnevor In lIght of hIS partIcular cIrcumstances 7 EVIdence that the company rules of conduct, eIther unwntten or posted, have not been umformly enforced, thus constItutIng a form of dISCnmInatIOn. 8 CIrcumstances negatIVIng Intent, e g. the lIkelIhood that the gnevor mIsunderstood the nature or Intent of an order gIven to hIm, and as a result dIsobeyed It. 9 The senousness of the offence In terms of company polIcy and company oblIgatIOns 10 Any other CIrcumstances whIch the board should properly take Into conSI deratIOn Other arbItrators have looked at whether there has been (1) a frank and prompt admIssIOn of fault; (2) whether the IndIVIdual was In a posItIOn of trust or subJect to mImmal supervIsIOn, (3) whether the act was premedItated and delIberate IT whether It was a spur of the moment; (4) whether there was a clear and consIstent polIcy whIch was known to the gnevor and to other employees (5) the Importance of deterrence and the relatIOnshIp of the gnevor to other employees In thIS regard. Re Lake Ontario Steel Co and United Steehwrkers, Local 6571 (1990) 17 LAC (4th) 136 (Finley) at p 143-144 Re Air Canada and Canadian Auto Workers Local 2213 (1997), 62 L.AC (4th) 151 (Stewart), at p 160 In thIS case, the mItIgatIng factors are the gnevor's length of servIce and pnor good record as well as the fact that termInatIOn has created a sIgmficant economIC hardshIp for hIS famIly because the gnevor has been unable to find work. On the other hand, the offence was not Isolated. It was part of an ongOIng pattern of Improper 20 solIcItatIOn over a substantIal penod tIme It was not a spur of the moment event, but was repeated and premedItated. The gnevor was clearly warned not to SOlICIt In thIS manner and there IS no reasonable lIkelIhood that the gnevor mIsunderstood that dIrectIOn. The mIsconduct engaged In was extremely senous The Mimstry dId a full and thorough InVestIgatIOn and provIded the gnevor wIth a full opportumty to explaIn and respond. When confronted by the Mimstry on August 17 1999 the gnevor was not forthcomIng. There was no full and frank admIssIOn of gUIlt, nor wIth the exceptIOn of the Wild Water KIngdom, an admIssIOn of hIS other solIcItatIOns Those were uncovered by the Mimstry In ItS InVestIgatIOn wIth no assIstance by the gnevor Even though the Umon had advIsed the gnevor to tell the Mimstry everythIng he knew he dId not. LIkewIse, the gnevor's apology at the InVestIgatIOn meetIng was perfunctory and self-servIng. He stated he had "a lack of Judgment" and was "apologlZlng." He expressed a more SIncere apology In the Fall, but he stIll dId not reveal the full extent of hIS Improper actIOns Indeed, there stIll does not appear to be a genUIne understandIng by the gnevor of the mIsconduct Involved. Throughout the InVestIgatIOn and even at the heanng, the gnevor InsIsted that It was hIS Intent, all along, to donate to the ChIldren's Wish FoundatIOn and that what he dId was okay as long as a donatIOn was made to the chanty He dId not seem to grasp that hIS actIOns were stIll fraudulent, even If the money had been sent to the chanty He dId not seem to understand that even If all of the money for the donated tIckets had been sent to the chantable orgamzatIOn, a wrong was stIll done He mIsused hIS posItIOn, he mIsused of the name of the Mimstry and that of the 21 ChIldren's Wish FoundatIOn, and he made mIsrepresentatIOns to the compames Involved. The compames whIch donated tIckets and passes were solIcIted under false pretenses They were duped, by the gnevor Into belIevIng that they were donatIng to the Mimstry of EducatIOn, wIth the proceeds gOIng to eIther "deservIng students" or the ChIldren's Wish FoundatIOn. Yet, all along, the gnevor Intended the donatIOns for hIS own personal use or financIal gaIn. The Umon argued that the gnevor's offense was not dIrected at the Mimstry hIS employer or ItS clIents It notes that there was no eVIdence that the gnevor made any effort to take advantage of hIS Job In hIS dealIngs wIth clIents, or that hIS mIsconduct Interfered wIth the performance of hIS Job That IS true, but the fact remaInS that the gnevor abused hIS posItIOn and the trust placed In hIm by the Mimstry Although hIS offenses were not dIrected at the Mimstry or ItS clients, he repeatedly mIsused hIS posItIOn and the name of the Mimstry for personal gaIn, effectIvely destroYIng the trust placed In hIm as a Learner ServIces Officer I find It sIgmficant that neIther at the InVestIgatIOn, nor dunng the heanng, was a reason or explanatIOn offered for the gnevor's actIOns There was no eVIdence or assertIOn of a medIcal condItIOn or personal sItuatIOn, whIch led the gnevor to act In thIS manner Nor as noted above, IS It clear to me that the gnevor truly understands the senous wrong In whIch he engaged. 22 I have no doubt that the gnevor IS now truly sorry for hIS actIOns His termInatIOn has had a very sIgmficant Impact on hIS famIly As he stated dunng the InVestIgatIOn meetIng, he would "never JeopardIze my career" But, unfortunately that IS exactly what he dId. After beIng told not to do thIS agaIn, he dId so repeatedly Although I find myself sympathetIc to the gnevor's personal cIrcumstances, he alone IS responsIble for the sItuatIOn In whIch he row finds hImself Therefore, based on all of the relevant factors, I cannot conclude that the penalty of dIscharge should be mItIgated. AccordIngly for all of the foregoIng reasons, I conclude as follows 1 The Mimstry had Just cause to termInate the gnevor 2 There IS no basIs, consIdenng all of the relevant factors, to SubstItute a lesser penalty 3 The gnevance IS dIsmIssed. Dated at Toronto thIS 15th day of February 2001 'R H f.hrmtfj(Jj~ C'?u1tt . ," . I. ( , \..; RandI Hammer Abramsky Vice-Chair 23