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HomeMy WebLinkAbout2004-0009.Seguin.05-01-13 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# 2004-0009 UNION# 2004-0234-0073 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (SeguIn) Union - and - The Crown In RIght of Ontano (Mimstry ofCommumty Safety and CorrectIOnal ServIces) Employer BEFORE Richard Brown Vice-Chair FOR THE UNION GavIn Leeb BarrIster and SOlICItor FOR THE EMPLOYER Sean Kearney Counsel Management Board Secretanat HEARING August 16 October 1 and December 9 2004 2 DeCISIon Gary Segum began workmg at the Maplehurst CorrectIOnal Centre as an unclassIfied correctIOnal officer on January 16,2004 He was dIscharged exactly one month later When Mr Segum was engaged to work at Maplehurst, the MmIstry of CorrectIOnal ServIces and Commumty Safety was not aware he recently had been fired by Management Trammg Corp (MTC), the finn engaged by the mmIstry to operate the Central North CorrectIOnal Centre (CNCC) The gnevor was dIscharged by the mmIstry as a result of hIS pnor termmatIOn commg to hght I Mr Segum's career as a correctIOnal officer began m November of 1994 when he became an unclassIfied employee at the Guelph CorrectIOnal Centre He successfully competed for a classIfied posItIOn there m 1999 and held It untIl October of 2001 The gnevor was not dIscIplmed dunng hIS seven years workmg m Guelph When that facIhty closed m 2001, he accepted a Job wIth MTC at CNCC located m Penetangmshene The gnevor was dIsmIssed by MTC on January 6,2004 Later that same day he apphed to the mmIstry to be rehIred. MTC's decIsIOn to dIsmIss Mr Segum was precIpItated by an mCIdent that occurred m the CNCC kItchen, on December 23,2003, mvolvmg hun and a female employee In a wntten statement gIven that day, she alleged he grabbed her buttock wIth a "hght squeeze" She went on to say "If the officer had come to me nght away and apologIzed I would never have taken tlllS any further" The gnevor testIfied he "patted" her buttock as he left the kItchen because he mIstook her for another employee He also testIfied that, after returnmg to hIS umt, he dIscovered someone had phoned from the kItchen about the mCIdent there Reahzmg "It was the wrong woman", he returned to the kItchen to apologIze, only to learn she was 3 m the heutenant's office Accordmg to the Mr Segum, upon gomg to the office, he was ordered to return to IllS UnIt ThIS testImony mIrrors the contents of an occurrence report completed by the gnevor on December 23 In that report, he expressed a desIre to "apologIze whole-heartedly to the woman m questIOn" As Mr Segum IS the only wItness WIth dIrect knowledge of what occurred on December 23, I accept IllS uncontradIcted eVIdence as an accurate account of what transpIred WhIle m the employ of MTC, Mr Segum had prevIOusly receIved a three- day suspenSIOn for a sexually mappropnate comment made to a nurse two years earher Accordmg to a notIce of cautIOn dated January 25, 2002 and sIgned by the gnevor, the nurse asked hIm what she should do He rephed "you could do me, but I'm marrIed." When she obJected, he rephed. "Sorry I'm Just kIddmg " The gnevor learned of hIS dIsmIssal at a meetmg held on January 6, 2004 and attended by a UnIon steward and two management representatIves, one of whom was MTC's human resources manager, Jeff Mayer Immediately after tlllS meetmg, Mr Segum and IllS steward accompanIed Mr Mayer to IllS office where they prepared a letter appeahng the dIsmIssal Accordmg to Mr Mayer, the gnevor said he dId not want IllS wIfe to know what he had done, because he was concerned she would leave hnn They dIscussed the prospect of hnn bemg relllred by the mmIstry to work at another correctIOnal facIhty Mr Mayer was asked m cross- exammatIOn whether he said the gnevor would be rehIred If the mmIstry dId not know why he had been fired. He rephed. "No I told hnn IllS chances were pretty good." They also dIscussed what Mr Mayer would say If contacted by mmIstry officials In partIcular, Mr Mayer said he would reveal only the posItIOn held by the gnevor and the start and end dates of IllS employment, but not how It had ended. Dunng exammatIOn-m-chIef, Mr Mayer testIfied the gnevor asked what would be dIsclosed to the mmIstry Asked m cross-exammatIOn whether he mIght have volunteered tlllS mfonnatIOn, the human resource manager rephed "I 4 don't thmk so " When testIfymg, Mr Segum was not asked who first raised the subJect of dIsclosure Later on January 6, Mr Segum faxed a letter and resume to Bnan Ross, co- ordmator of the mmIstry's correctIOnal servIces recnlltment UnIt The letter begms wIth the followmg statement "I am a correctIOnal officer at the Central North CorrectIOnal Centre "On the resume, under the headmg "employment hIstOry", the first entry IS "2001-Present Central North CorrectIOnal Centre" Mr Segum testIfied these documents were produced on hIS computer from files prevIOusly created when he had apphed for work wIth the provmcIaI pohce and federal government Accordmg to the gnevor, he modIfied an earher letter by msertmg Mr Ross's name and addmg the correctIOnal facIlItIes where he wIshed to work. Mr Segum testIfied that, m the emotIOnal turmOIl of the moment, he "overlooked" the reference to current employment at CNCC In cross-exammatIOn, he conceded hIS chances of bemg hIred by the mmIstry were greater If hIS termmatIOn at CNCC was not dIsclosed. On January 9, Mr Segum spoke to Mr Ross on the telephone Accordmg to Mr Ross, when the gnevor was asked why he wanted to leave CNCC, he cIted poor workmg condItIons and the possibIhty of a labour dIspute Dunng cross- exammatIOn, Mr Ross conceded IllS phone call wIth the gnevor followed many calls from other correctIOnal officers, wantmg to return to the mmIstry from CNCC, who gave as theIr reasons workmg condItIons and the prospect of a labour dIspute Asked whether It was possible the gnevor dId not mentIOn workmg condItIons, Mr Ross answered It was possible only If hIS memory was faIhng Mr Segum gave a very dIfferent account of thIS phone call He denIed both bemg asked why he was leavmg CNCC and saymg anytlllng about workmg condItIons Accordmg to Mr Segum, the conversatIOn began wIth Mr Ross notmg the gnevor was m Penetang and askmg what was happenIng there He rephed "they are tlllnkmg of gomg on stnke " He testIfied he dId not volunteer any 5 mformatIOn about bemg fired because he was embarrassed by what he had done He also testIfied about another phone conversatIOn wIth Mr Ross that occurred about a year before the one m questIOn Accordmg to Mr Segum, on the earher occaSIOn, he dId mentIOn workmg condItIons as a reason for wantmg to return to the mmIstry Dunng the January 9 phone call, Messrs Ross and Segum dIscussed the mmIstry obtammg references from two people who had worked as managers at the Guelph CorrectIOnal Centre Mr Segum testIfied he also suggested a reference be obtamed from Jeff Mayer, the human resource manager at CNCC, knowmg Mr Mayer would reveal he was no longer workmg there In cross-exammatIOn, Mr Ross admItted he could not deny the gnevor mentIOned Mr Mayer Mr Ross dId not contact anyone at CNCC but he dId speak to people who had worked wIth Mr Segum m Guelph The gnevor was offered an unclassIfied posItIOn at Maplehurst CorrectIOnal Complex on January 16 and began workmg there on January 19 for a contractual term endmg September 30, 2004 Unlike most unclassIfied correctIOnal officers, he was appomted as a C02 and paid at level 2 ThIS treatment reflected the gnevor's long expenence as a correctIOnal officer On January 30, Mr Ross learned from IllS assIstant deputy mmIster, Gary Commeford, that the gnevor had been dIsmIssed by MTC for sexually mappropnate conduct Mr Ross and a deputy supenntendent from Maplehurst, RICk WIlson, met wIth the gnevor and the local UnIon presIdent on Pebnmry 10 Accordmg to Mr WIlson, the gnevor was "forthcommg" at the meetmg about what had transpIred at CNCC Mr Segum said he had been counseled by someone there not to dIsclose thIS mformatIOn to the mmIstry when applymg for a Job The gnevor also apologIzed to Mr Ross If he had been mIsled. The meetmg ended wIth Mr Segum bemg told he was suspended wIth pay, for up to five days, pendmg mvestIgatIOn He was also told he could be dIsmIssed. Havmg heard nothmg by the mornmg ofPeb 16, he reported for work The gnevor thought he was "m the 6 clear", despIte not havmg been notIfied of the employer's final decIsIOn Upon learnmg Mr Segum had reported for duty, Mr WIlson nnmedIately told hnn to go home Dunng a telephone conversatIOn later that day, Mr WIlson read the termmatIOn letter to the gnevor II What really happened dunng the telephone conversatIOn on January 9? I accept as true the Mr Segum's uncontradIcted testImony that he named Mr Mayer as a person who could provIde a reference DId the gnevor say workmg condItIons and the prospect of a labour dIspute were hIS reasons for wantmg to leave CNCC, somethmg that would have Imphed he was stIll employed there? On tlllS score, he was dIrectly contradIcted by Mr Ross Is It more likely that Mr Ross's memory IS faulty or that the gnevor hed by ImphcatIOn dunng the phone call on January 9 and then hed agam under oath about what he had said on the phone? In answenng tlllS questIOn, I note Mr Ross's mabIhty to recall whether the gnevor, dunng the same phone conversatIOn, suggested a reference be obtamed from Mr Mayer I also note Mr Ross had a prevIOUS conversatIOn wIth the gnevor, m whIch the latter dId mentIOn workmg condItIons as a reason for wantmg to leave CNCC, as well as numerous snnIlar conversatIOns wIth other correctIOnal officers In these cIrcumstances, It would be dIfficult for Mr Ross to recall accurately who said what and when It was Said. Moreover, It seems unlikely the gnevor would have Imphed he stIll worked at CNCC, whIle at the same tIme suggestmg Mr Ross contact Jeff Mayer at MTC If contacted, Mr Mayer would have dIsclosed the start and end dates of the gnevor's employment wIth MTC, thereby reveahng he no longer worked there Mr Segum knew thIS IS what Mr Mayer would do As noted by UnIon counsel, there would have been httle pomt m the gnevor lymg to Mr Ross by ImphcatIOn and then suggestmg he contact someone who would have uncovered the he The foregomg 7 analYSIS leads me to prefer the gnevor's testImony that he dId not say he wanted to leave CNCC because of workmg condItIons and the possibIhty of a labour dIspute III A number of general conclusIOns emerge from the eVIdence and factual findmgs recounted above Mr Segum omItted to tell the mmIstry that he had been fired for sexually mappropnate conduct I have no doubt thIS omISSIOn was deliberate Mr Segum engaged m actIve mIsrepresentatIOn as well as paSSIve non- closure In the documents faxed to Mr Ross on the afternoon of January 6, the gnevor mIsrepresented that he was currently employed by MTC, whereas he had been termmated earher that day However, I have concluded no mIsrepresentatIOn was made dunng the telephone call on January 9 Was the mIsrepresentatIOn made by fax on January 6, a few hours after the gnevor had been fired, deliberate or madvertent? In answenng thIS questIOn, I begm by exammmg the nature of the statements about whIch the employer complams (1) the first sentence of the letter saymg "I am a correctIOnal officer at the Central North CorrectIOnal Centre", and (2) the entry on the resume saymg "2001-Present Central North CorrectIOnal Centre" The resume entry IS more about the duratIOn of the gnevor's employment at CNCC than about IllS current employment status there In contrast, the letter clearly mdIcates the gnevor was currently employed at CNCC The representatIOn made by the gnevor on the afternoon of January 6 about how long he had worked at CNCC IS erroneous, but the extent of the error IS only a few hours The representatIOn about hIS current employment status was absolutely wrong when the fax was sent, even though It would have been correct a few hours earher Mr Segum claims he overlooked tlllS reference to current employment when prepanng these documents from files on hIS computer 8 Notmg the gnevor conceded bemg "upset and desperate" on January 6, counsel for the employer urges me to conclude tlllS emotIOnal tunnOII resulted m a dehberate falsehood about employment status In my VIew, emotIOnal turmOIl IS a neutral factor Just as upset and despair mIght lead one person to he, If mclmed to dIshonesty and tlllnkmg clearly enough to plot such a strategy, the same emotIOns mIght cause an honest person to make a mIstake by nnpaInng mental processes In decIdmg whether the gnevor on January 6 deliberately mIsrepresented the status of hIS employment wIth MTC, I take mto account hIS entIre course of conduct when seekmg to be relllred by the mmIstry In partIcular, on January 9 Mr Segum suggested Mr Ross contact Mr Mayer, even though the gnevor knew such contact would reveal hIS employment wIth MTC had ended. In my VIew, thIS suggestIOn provIdes ample reason to doubt the gnevor on January 6 made a dehberate mIsrepresentatIOn about hIS current employment status wIth MTC WeIghmg all of the factors revIewed above, I conclude on the balance of probabIhtIes, that the gnevor made an madvertent mIstake as he claims IV Most of the cases cIted by counsel mvolve an actIve mIsrepresentatIOn by a Job apphcant who was lllred after tlllS false statement was made and dIsmIssed when the falsIficatIOn was dIscovered. I wIll reVIew these cases before turnmg to the only one cIted that deals wIth a candIdate for employment who was fired for paSSIve non-dIsclosure at the tnne of lllnng The cases about falsIfymg employment apphcatIOns fall mto two categones, reflectmg very dIfferent legal approaches One IS Illustrated by the decIsIOns revIewed and apphed m Douglas Alrcraft Co and Unzted Automobzle Workers (1973),2 L.A.C (2d) 147 (SImmons) Based on several awards, most deahng wIth mIsrepresentatIOns about the health of a candIdate for employment, Professor SImmons wrote 9 Prom the foregomg arbItratIOn decIsIOns, mcludmg the Amencan ones, there appears to be at least four possible results that may anse whenever an apphcant falsIfies hIS employment apphcatIOn form to whIch a statement IS attached sIgnIfymg that the mfonnatIOn whIch he IS gIvmg IS the truth One, IS the mformatIOn whIch IS wIthheld or wrongly gIven, IS mnocently wIthheld or gIven Then, If that mformatIOn IS not matenal to the Job perfonnance, the employee wIll m all hkelihood not be dIsmIssed from employment when thIS error IS subsequently dIscovered Secondly, If the mfonnatIOn IS matenal to the performance of the Job then, notwIthstandmg the fact that It has been mnocently wIthheld or gIven, the employee may mdeed be dIsmIssed Tlllrdly, m mstances where the mfonnatIOn IS dehberately wIthheld or knowmgly falsely gIven m an attempt to gam employment then, when subsequently dIscovered, the false mIsrepresentatIOn wIll be sufficIent grounds to termmate the employment relatIOnslllP The fourth and final possible result may mvolve a Waiver of the nght m the employer to termmate the employment relatIOnshIp If hIS conduct clearly mdIcates that he condones that whIch the apphcant has done (pages 153 and 154) The essence of the Douglas Alrcraft treatment of falsIficatIOn IS that ItS dIscovery allows management to fire an employee, If he or she would never have been lllred but for the falsehood. ThIS arbItral approach IS consIstent WIth the one apphed by the JUdICiary m three cases cIted by employer counsel Allcroft v Adams (1907), 28 S C.R. 365, Cornell v Rogers Cable5,ystems Inc (1987), 17 C C.E.L 232 (Ont DISt Ct), and Schafer v Pan Matrzx Informatlcs Ltd, [1987] A.J No 528 (Alta. Q.B ) A very dIfferent tack was taken m Gould Manufacturzng of Canada Ltd. and Unzted Steelworkers of Amerzca (1972),1 L.A.C (2d) 314 (ShIme) upheld [1273] 2 O.R. 279 (DIV Ct), where the gnevor had hed about hIS cnmmal record. Havmg revIewed a number of Amencan cases deahng wIth tlllS sort of falsIficatIOn, ArbItrator Shnne wrote A reVIew of those cases mdIcates that not every falsIficatIOn of an employment apphcatIOn constItutes Just cause for dIscharge The relevant factors are as follows 10 (1) The nature and character of the falsIficatIOn and the matter or offence concealed. (2) The number of matters concealed (3) The date when the falsIfied or concealed matter occurred m relatIOn to the sIgnmg of the employment apphcatIOn (4) Any warnmgs contamed on the employment apphcatIOn (5) Whether the revelatIOn of the matter or offence concealed would have resulted m the employer not hInng the mdIvIdual (6) The tune that has elapsed between the sIgnmg of the false apphcatIOn form and the date of dIscovery (7) Whether the employer acted promptly upon learnmg of the falsIficatIOn of the employment record. (8) The senIonty of the gnevor (9) Whether the gnevor was m fact dIscharged for the falsIficatIOn (10) The matenahty of that falsIficatIOn or matter or offence concealed to the work performed. (11) Special consIderatIOns such as a sensItIve employment posItIOn The dIfference between these two approaches was carefully artIculated m Ralston Purzna o.fCanada Inc and Energy and Chemlcal Workers Unwn (1982), 7 L.A.C (3d) 45 (Pntchard) In an earher case I had occaSIOn to reVIew the arbItral decIsIOns m tlllS area. see Re Splers andMlnzstry o.fNatural Resources (GSB 181/78) Fundamentally, the Douglas Alrcraft approach supports the proposItIOn that once the employer dIscovers the falsIficatIOn, the employer should be free to act as he would have If he had been aware of the true facts at the tune the gnevor was lllred. Thus, If full dIsclosure would have caused the employer not to hIre the gnevor at the outset, the employer should be free to dIscharge the gnevor once the true facts are dIscovered. The Gould approach IS premIsed on the behef that the mqUIry must be gUIded by consIderatIOns other than sImply how the employer would have acted and that these consIderatIOns should mclude matters whIch have occurred between the date of employment and the dIscovery of the falsIficatIOn Furthermore, Gould necessanly suggests that whIle the employer IS nonnally free to detennme who he wIshes to lllre, once that person has been hIred (even followmg some falsIficatIOn), the decIsIOn as to whether or not the person can be dIsmIssed must canvass a broader range of mterests than those whIch mfonn the mItIallllnng decIsIOn In partIcular, the mterests of the employee are added to the balance and must be weIghed 11 along wIth the employer's mterest m makmg mformed employment decIsIOns The JustIficatIOn for the Gould approach IS both contractual and statutory ArtIcle 21 03 of the collectIve agreement and s 44 of the Labour Relatwns Act, R.S 0 1980, c 228, reqUIre the arbItrator to consIder not only whether or not there was Just cause for dIscIphne, but also whether the penalty unposed -- dIscharge m tlllS case -- IS Just and reasonable m the CIrcumstances That IS, once an employee comes under the umbrella of the collectIve agreement and the statute as the gnevor dId when he was lllred, he may only be dIscharged followmg a consIderatIOn of the dIscharge decIsIOn m hght of the notIOns of Just cause and Just and reasonable penaltIes The Gould approach argues, m effect, that m elaboratmg and determmmg these notIOns, the arbItrator can and should not restnct IllS attentIOn to a smgle fact, how would the employer have acted If he had known the true facts at the outset? Rather, the arbItrator must consIder all relevant matters mcludmg the mterests of the employee (pages 53 and 54) ThIS analysIs led ArbItrator Pntchard to choose Gould Manufacturzng over Douglas Alrcraft I have decIded to apply the analytIcal framework set out m Gould Manufacturzng For the reasons found m Ralston Purzna, I am persuaded thIS approach IS the correct one In addItIon, It has been apphed by the Gnevance Settlement Board m two prevIOUS cases (1) Splers and Mlnzstry o.{ Natural Resources, cIted m the above passage from Ralston Purzna; and (2) McKenna and Mlnzstry ofTransportatwn and Communzcatwns (1980), 28 L.A.C (2d) 410 (S wan) Does the Gould Manufacturzng approach treat an mnocent mIsrepresentatIOn dIfferently than a deliberate one? In my VIew, an affirmatIve answer IS found m the first factor hsted by ArbItrator Shune whIch combmes two elements "the nature and character of the falsIficatIOn and the matter or offence concealed" I take the "nature and character" of the falsIficatIOn to mclude whether It was done conscIOusly or madvertently ThIS dIstmctIOn was exphcItly addressed at the Gnevance Settlement Board by then VIce-Chair Swan mMcKenna He wrote 12 Does It matter whether the mIsrepresentatIOn was mtentIOnal or mnocent? [T]he employee's state of mmd at the tune of the mIsrepresentatIOn IS another factor to be consIdered m the assessment of the wrongfulness of the conduct (page 418) All other thmgs bemg equal, someone fired for makmg an mnocent mIsrepresentatIOn has a better chance of bemg remstated than someone dIsmIssed for deliberate mIsrepresentatIOn V The only case of non-dIsclosure cIted by counsel IS Brztlsh Columbw Rehabllztatwn Soclety and Health SClences Assoc ofBrztlsh Columbw (1993),36 L.A.C (4th) 415 (HIckhng) In that case, a socIal worker applymg for aJob wIth the socIety presented a resume hstmg a number of prevIOUS employers, but makmg no mentIOn of one that had tennmated hun as a probatIOnary employee He was lllred by the socIety and then dIsmIssed when hIS pnor termmatIOn came to hght Professor HIckhng began by notmg the common law does not, as a general rule, VISIt a duty to dIsclose on those entenng mto contracts of employment If an employee told a he, made a posItIve representatIOn that was untnle, that constItutes a basIs for dIscIphnary actIOn The employer could tennmate the contract But there IS no general duty of dIsclosure That proposItIOn may be old, but It stIll finds expreSSIOn m modern Canadian texts and cases Bell v Lever Brothers Ltd mvolved a contract under whIch the company bought out the remamder of the contracts of the chaInnan and vIce-chairman of the board of a SubsIdIary company WhIlst employed by the company they had entered mto secret speculatIOns m cocoa for theIr own personal profit ThIS placed them m a posItIOn of conflIct between theIr mterests and those of theIr employer Takmg tlllS secret advantage out of theIr employment was found to be a grave breach of theIr duty both to Lever Brothers and the subsIdiary company Had the facts been dIscovered dunng the term of theIr servIce, Lever Brothers could and would have dIsmIssed them Havmg spent $50,000 to cancel the two servIce contracts, Lever Brothers dIscovered theIr mIsconduct It sued to recover the money paid as well as the amount of the profit The claim faIled. 13 The case certamly supports the commonly expressed proposItIOn that mere sIlence IS not mIsrepresentatIOn However, as I pomted out at the heanng, there are exceptIOns where the law reqUIres dIsclosure Two of these exceptIOns may be relevant One IS the case mvolvmg a special fiduciary relatIOnshIp Another IS contracts uberrzmaefidel (of the utmost good faith) ThIS partIcular exceptIOn was raised m Bell v Lever Brothers Ltd Itself In a contract uberrzmae fidel all matenal facts must be dIsclosed. Contracts of msurance and of partnershIp and famIly settlements fall wIthm thIS category Lord Atkms refused, however, to extend the category of contracts uberrzmaefidel to mclude ordmary contracts of serVIce There IS nothmg m the relatIOn of master and servant, he said, to place agreements m that category An employee IS under no overndmg obhgatIOn to dIsclose hIS past faults Nor IS a person obhged to do so m negotIatmg a contract of serVIce ldem, at pp 228-9 Lord Atkm dId not attempt to lay down an exhaustIve hst of contracts uberrzmaefidel Further, whIlst ordmary contracts of employment do not fall wItllln that category, there may be contracts of employment of a special character that do The exceptIOns are likely to be rare, perhaps, but an example can be found m Courtrzght v Canadzan Pacffic Ltd, supra That case mvolved a lawyer who was suspected of "mfluence peddlmg" and knew (although he constantly reIterated hIS mnocence) that he mIght be charged wIth an offence under the Crzmznal Code Followmg negotIatIOns m whIch no mentIOn was made of the possibIhty of bemg charged, he was offered a posItIOn WIth the defendant company The Ontano Court of Appeal found It unnecessary to formulate any broad contractual duty It was sufficIent that m the partIcular cIrcumstances the "non-dIsclosure constItuted a failure to meet the standards of good faith reqUIred m negotIatIOns for the contemplated professIOnal relatIOnslllP" (pages 431 to 434) Turnmg to the legal regIme of collectIve bargammg, the arbItrator commented on the dearth of cases deahng wIth non-dIsclosure by Job apphcants If one scours the mdIces to the Labour Arbltratwn Cases or the now defunct Western Labour Arbltratwn Cases, one can certamly find entnes that refer to a "failure to dIsclosure" or "non-dIsclose" or the like When one exammes those cases It seems that they all mvolve sItuatIOns m whIch an apphcant had warranted the completeness of the employment hIstory In that context non- dIsclosure IS clearly a breach of that specIfic undertakmg The cases are not, however, authonty for the proposItIOn that m the absence of such an undertakmg, a failure to dIsclose IS an employment offence 14 [N]eIther Palmer and Palmer nor Brown and Beatty IdentIfy a smgle case m whIch arbItrators have held there to be a duty to speak up m the absence of a contractual undertakmg as to completeness Nor, although reference IS made to mIsrepresentatIOn, do they IdentIfy any case m whIch It has been held that a mere failure to dIsclose, m the absence of a contractual undertakmg, amounts to a mIsrepresentatIOn (pages 437 and 438) Based upon thIS reVIew of the law, Professor HIcklmg decIded the gnevor was not obhged to dIsclose the fact he had been termmated by a prevIOUS employer No authonty dIrectly m pomt havmg been cIted or found, I shall treat the matter as one of first unpreSSIOn m the arbItral context My conclusIOn IS that, generally, m merely submIttmg a resume an apphcant for employment does not warrant the completeness of ItS contents In the absence of a duty, contractual or otherwIse, to speak up, the mere omISSIOn to mclude a reference to a partIcular Job, even m the same area, IS not an "employment offence" It IS not dIshonest to fall to dIsclose an earher unfortunate expenence m the absence of such a duty I see notlllng m the nature of a collectIve agreement to warrant a dIfferent conclusIOn than would have been obtamed at common law I do not thmk that the obhgatIOn upon an apphcant for employment IS any hIgher m the one context than m the other The employer can qUIte readIly protect Itself by askmg appropnate questIOns at the mtervIew or by mSIstmg upon a complete statement of employment hIStOry as the basIs for engagement (pages 438 and 439) VI Applymg the legal prmcIples revIewed above to the facts at hand, I conclude Mr Segum was obhgated not to make false statements about IllS tennmatIOn at CNCC, but he was not under any obhgatIOn to dIsclose tlllS matter If not asked about It HIS mIsconduct hes not m any failure to dIsclose, but rather m the mIsrepresentatIOn, made to the mmIstry on January 6, that he was currently a correctIOnal officer at CNCC 15 In determmmg whether thIS mIsconduct provIded Just cause for dIsmIssal, I am gUIded by the factors hsted m Gould Manufacturzng Some of these factors favour the employer the gnevor's tennmatIOn by MTC-I e the matter concealed by the mIsrepresentatIOn-occurred the very same day as the mIsrepresentatIOn Itself, only a few weeks passed between the mIsrepresentatIOn and the mmIstry's dIscovery of It, and the employer tennmated the gnevor less than three weeks after thIS dIscovery I accept as accurate Mr Ross's testImony that there was a "very strong" chance the gnevor would not have been hIred If hIS full hIStOry at CNCC had been known to the mmIstry Two factors clearly favour Mr Segum hIS mIsrepresentatIOn was madvertent rather than deliberate, and he dId not complete an employment apphcatIOn, let alone one contammg a warnmg about falsIficatIOn The gnevor's mIsrepresentatIOn concealed hIS termmatIOn for two mCIdents of sexually mappropnate conduct at CNCC MIsconduct m the form of sexual harassment IS especIally matenal to employment as a correctIOnal officer because of the hIstory of male chauvmIsm m correctIOnal facIlItIes Nonetheless, some mCIdents of harassment are more senous than others, and those m questIOn were not at the top of the scale The first was saymg to a nurse "Y ou could do me, but I am marrIed." The openmg part of tlllS comment IS offensIve and mappropnate because It refers to sex between the gnevor and the nurse However, the second part of the comment mdIcates the gnevor vIewed hIS marriage as a barner to any such sex occurrmg Taken as a whole, the comment was a crude and mIsgUIded attempt at humour, not a real sexual proposItIOn The other mCIdent was pattmg the buttock of a kItchen worker whom the gnevor mIstook for someone else Sexual touclllng IS more offensIve when It IS not welcomed by the recIpIent than when It IS The touchmg m thIS case was unwelcome to the woman who receIved It, but there IS no eVIdence as to how It would have been vIewed by the mtended recIpIent Even If welcomed by the recIpIent, sexual touclllng that occurs m the 16 pubhc areas of a workplace IS completely unacceptable One final comment about the gnevor's mIsconduct at CNCC he nnmedIately apologIzed after the first mCIdent and attempted to do so after the second. The apphcatIOn of senIonty or length of servIce m thIS case IS not clear-cut As pomted out by employer counsel, Mr Segum was tennmated by the mmIstry only a couple of weeks after bemg relllred. UnIon counsel noted the gnevor prevIOusly spent seven years workmg for the mmIstry m Guelph, before hIS employment was termmated as a result of the facIhty there closmg Accordmg to the collectIve agreement then m force, he was deemed to have resIgned and was entItled to severance pay Notmg the mmIstry gave sIgnIficant weIght to the gnevor's pnor servIce m decIdmg to rehIre hIm, wIthout so much as an mtervIew, counsel for the UnIon urged me to gIve tlllS servIce snnIlar weIght when determmmg whether there was Just cause for dIsmIssal In reply, employer counsel contended the gnevor should get no credIt for hIS work at Guelph, especIally as he had receIved severance pay when IllS employment there ended. I am persuaded by the unIon's argument that Mr Segum's claim for remstated IS buttressed by hIS seven years as a mmIstry employee m Guelph Those years of serVIce represent a sIgnIficant mvestment by hnn m a career wIth the mmIstry as a correctIOnal officer In addItIon, the absence of any dIscIplme dunng those years provIdes good reason to predIct the gnevor can be rehabIhtated by some penalty short of dIscharge Beanng m mmd all of the foregomg factors, I conclude those supportmg dIscharge are substantIal, but they are outweIghed by those supportmg remstatement The employer IS dIrected to remstate Mr Segum, as an unclassIfied employee, for a tenn equal m length to the penod from IllS dIscharge to the end of hIS then eXIstmg unclassIfied contract-I e from February 16 to September 30, 2004 I have decIded not to award any compensatIOn to the gnevor In makmg thIS decIsIOn, I have not overlooked the possibIhty IllS mItIal contract would have been 17 renewed If he had not been fired wIthout Just cause On one hand, thIS possibIhty supports a claim for some back pay On the other hand, Mr Sequm's mIsrepresentatIOn about IllS sexually mappropnate conduct also contributed to IllS loss of pay In my VIew, remstatement wIthout compensatIOn stnkes a fair balance between the competmg mterests m tlllS case Dated at Toronto thIS 13th day of January 2005 ~ li...~~ /RIchard Brown VIce-Chair