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HomeMy WebLinkAbout2007-2361.Luz.09-06-04 Decision Commission de Crown Employees Grievance Settlement règlement des griefs Board des employés de la Couronne Suite 600 Bureau 600 180 Dundas St. West 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tél. : (416) 326-1388 Fax (416) 326-1396 Téléc. : (416) 326-1396 GSB#2007-2361 UNION#07-49 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Canadian Union of Public Employees - Local 1750 (Luz) Union - and - The Crown in Right of Ontario (Workplace Safety and Insurance Board) Employer Vice-Chair BEFORENimal Dissanayake FOR THE UNIONJim Morrison Canadian Union of Public Employees ? Local 1750 National Staff Representative FOR THE EMPLOYERGurjit Brar Workplace Safety and Insurance Board Counsel HEARING July 22, November 3, 14, 16, December 3, 2008 April 17, 21, 22 & 30, 2009. - 2 - Decision [1]This decision deals with the termination grievance filed by Ms. Tania Luz. [2] Ms. Luz was hired on December 6, 2006 as a Revenue Recovery Specialist (?RRS?) at the Workplace Safety & Insurance Board (WSIB?) Employer Service Centre. She commenced a nine month probation period, which included three months of training, passed the training, and was confirmed as a permanent employee effective September 7, 2007 following successful completion of her probation. [3] Ms. Luz was terminated on October 9, 2007. The letter of termination signed by Ms. Katie Sciani, Director of the Employee Service Centre, reads as follows: As discussed, this letter represents formal notice that your employment with the Workplace Safety and Insurance Board (WSIB) is terminated effective immediately, October 9, 2007 due to your dishonest conduct as outlined below. When questioned about your workload on multiple occasions by different managers to determine how you were keeping up with your assigned work, you responded that you were fine, implying that you were up to date with your work. This subsequently turned out to be false. On September 10, 2007, Jeff Sharpe discovered a significant backlog in your registrations. You were questioned about this backlog on multiple occasions and your responses were inconsistent. In an initial meeting you acknowledged having a registration backlog and attributed it to your sister, a Customer Service Representative (CSR). You indicated the registrations were from your sister and other CSRs and they were given to you in August and were already overdue. In a second meeting, you indicated that the backlog was your own, and that your sister did not provide you with the registrations. - 3 - Finally, in our third meeting, you indicated that you simply did not realize you even had a backlog. You also stated that you only received three registrations from your sister or other CSRs and that you had not received any since May. We also discovered that you obtained ?voluntary? registrations from Customer Service Representatives (CSRs) and coded them as your own leads from May to August 2007, misrepresenting your work. Your responses and our information suggest that you were not truthful when questioned about the state of your workload and the origin of the backlog of unactioned registrations. Your dishonesty has undermined the trust and confidence of management. The significance of your conduct is further aggravated by your brief tenure with the WSIB as you just recently passed your probationary period. Your actions have irreparably damaged the employment relationship. Consequently, we have no alternative but to dismiss you from your employment immediately. Any outstanding monies will be forwarded to you directly. The WSIB will provide a lump sum gross payment of two weeks pay to assist you with the transition. If you have any questions please call Jan Herington, Associate Human Resources Business Partner at (416) 344-5686. On behalf of the Employer Service Centre and WSIB, I wish you the best in your future endeavours. [4] The major responsibility of a RRS was to register employers with the WSIB. There were three primary means by which employers became registered. First, employers voluntarily register by submitting a registration form or contacting the WSIB (?Voluntary Registration?). Second, the WSIB maintained an information sharing agreement with the Canada Revenue Agency. The agency refers to the WSIB, any employers it identifies to be possibly not registered with the WSIB. RRS?s at WSIB follow up these leads to have employers registered (?CRA Registrations?). Thirdly, the primary function of a RRS was to actively track down employers who do not register, either intentionally or through ignorance of their obligation to register. RRS?s would seek out these employers in various - 4 - ways, including internet, directory and yellow page searches, perusing of newspaper advertisements, and by personal observation of employer vehicles, worksites, signs in neighbourhoods, restaurants, shops, etc. These registrations which result from proactive efforts of a RRS will be referred to as ?personal registrations?. Once an employer is registered with the WSIB, the RRS would establish an account for the employer. That account is then assigned by management to a Customer Service Representative (?CRA?), for maintenance on a continuing basis. [5] The employer has taken the position that Ms. Luz engaged in two areas of culpable conduct, which will be referred to as ?the backlog issue? and ?the coding issue?. The employer asserts that Ms. Luz had been dishonest with the employer. In a nutshell, the employer has concluded that Ms. Luz had misrepresented to management the volume and the source of the backlog of registrations she had. Secondly, it is the employer?s position that Ms. Luz intentionally coded voluntary registrations from employers as personal registrations which she had achieved through her own efforts. The employer explicitly stipulated that it does not rely on the existence of the backlog per se as a ground for discipline. Rather, its concern is about Ms. Luz?s representations about her backlog. THE EVIDENCE [6] Mr. Sharpe testified that the WSIB established the Revenue Recovery Program in 2002 with the goal of tracking down and registering employers who do not voluntarily register. The RRS?s worked in two teams of fifteen. Ms. Luz was hired into the team managed by Mr. Rob DiRusscio. Mr. Sharpe managed the other team. However, at some point Mr. Sharpe managed both teams on an interim basis, after Mr. DiRusscio left the area. Then in June 2007 Mr. Gianpaolo Betti was appointed as manager of Ms. Luz?s team. - 5 - [7] When a RRS locates an employer, a ?candidate account? is set up, and the employer is contacted to obtain information needed to complete the registration. The account is expected to be set up on a data base system called ?RESET? within 24 to 48 hours of locating an employer. All employer information and a record of communications and steps taken with the employer are input into RESET (referred to as ?RESET Notes?). [8] A monthly report is created setting out the total number of voluntary, CRA and personal registrations achieved by the Centre during the month. The report is based on information entered into RESET by the RRS?s, and is submitted to the WSIB Board of Directors and the Ministry of Labour. The RESET information was also used to evaluate the performance of employees, who were expected to achieve the average number of registrations achieved by the team. THE BACKLOG ISSUE [9] The employer alleges that Ms. Luz had misrepresented the extent and source of her backlog. The letter of termination refers to multiple occasions when different managers made inquiry about Ms. Luz?s backlog. Mr. Sharpe testified that in early August, Ms. Luz brought to the attention of management that she had developed carpel tunnel on her wrist. At the time, Mr. Sharpe and Mr. Betti met with Ms. Luz and inquired if she had difficulty with the workload because of her injury. She assured them that it was not a problem. [10] Mr. Sharpe testified that about a week after Ms. Luz had been assessed to be fully recovered from her injury, he inquired how she was and whether her wrist injury had put her behind in her work. Mr. Sharpe testified that Ms. Luz ?left me with the impression that she was doing OK?. He stated that if Ms. Luz had told him that she had a backlog, he would have taken away some of her work and redistributed it. - 6 - [11] Mr. Sharpe testified that on September 10, 2007, some operational issues caused him to go around to all RRS?s, to find out what workload each had. He spoke to about fifteen RRS?s and took away work from some for re-distribution. Mr. Sharpe described his conversation with Ms. Luz as follows: ?I asked her how she was doing. She responded ?OK?. I asked if she had any backlog. She said that she had ?some?, that she had been focussing on her CRA registrations and that she was almost done with those. I asked how many the backlog was, and she said that she didn?t know, that she would have to count. I asked where the backlog was. She pointed to a folder on a shelf within her cubicle. I said ?count them right here?. There were two piles. One small and one big. We started to count the larger pile and I asked what that pile was. She said those are ones she had not yet actioned. I asked if they had candidate accounts and notes. She said ?no?. So we counted that pile. She got to about 20. She still had about the same amount to go. I said ?its a significant backlog, we have to get these reallocated immediately?. Then I asked what the other pile was. She said those are registrations she was working on. I asked whether they had candidate accounts and whether she had called on those. She said ?yes?. I asked her to count that pile. She counted ten and had two to go. I told her to keep the twelve she had been working on and to focus on those and her CRA registrations, that I?ll take the other pile and redistribute. Then she pulled out two Independent Operator Questionnaires and gave them to me. She explained that the two questionnaires had been faxed to her a while back, that she had told the employers to fax them directly to CSR?s, that the employers had faxed them to her by error and that she had been holding on to them for sometime. I took those also for redistribution?. [12] Mr. Sharpe testified that three registrations in Ms. Luz?s backlog were from May 2007, ten from June and the rest from July or August.The volume and the staleness of the registrations in Ms. Luz?s backlog was a concern to Mr. Sharpe. - 7 - He felt that the reputation of the WSIB was at risk.He apprised his Assistant Director, Mr. Ahsan Khan about Ms. Luz?s backlog. Mr. Khan suggested that Mr. Sharpe discuss the situation with Ms. Jan Herington in Human Resources. [13] On September 11, 2007, Mr. Sharpe met with Ms. Luz. He told her that her backlog had serious implications on the Board?s customer service and its reputation. He reminded her of the expectation that candidate accounts are to be done within 24 to 48 hours, and that usually registration is to be completed within 10 to 15 days. Mr. Sharpe testified: ?She explained that about a month prior she had received a pile of registrations from her sister and other CSR?s, that they were already old, that she put them aside until she completed her CRA work. I said that after she received them, they became her responsibility, that she should have brought them to the manager?s attention. I asked why she didn?t mention this when I approached her a month earlier. Her response was that she should?ve done it, that what she did was wrong, that it will never happen again?. Mr. Sharpe advised Ms. Luz that he would be meeting with her again. In consultation with Ms. Scaini and Mr. Khan, Mr. Sharpe requested Mr. Brian Tastula, Ms. Vettor?s manager, to speak to Ms. Luz?s sister, Ms. Doreen Vettor, who was a CSR in the Small Business Section, and find out why she had given a pile of voluntary registrations to Ms. Luz. [14] Mr. Sharpe testified that the next morning September 12, 2007, Ms. Luz approached him in his office. She was visibly upset and crying. She told him that she had been up all night, and asked why the employer was talking to her sister, that her sister had done nothing wrong, that it was her backlog, and that if there were any consequences she should face them, not her sister. Mr. Sharpe responded that management wanted to find out why Ms. Vettor had given Ms. Luz a pile of registrations. Ms. Luz stated that it had been a misunderstanding, that it was her own backlog, and that her sister had given her only two or three - 8 - registrations back in May. She asked whether it was wrong to get two or three registrations from a CSR. Mr. Sharpe testified that he told Ms. Luz that that was not ?a big deal?, but the concern was that Ms. Luz had said that she received a pile of registrations from her sister and other CSRs a month ago, and the fact that they had sat on Ms. Luz?s desk for that long. He told Ms. Luz that he would be meeting with her again with union representation. Ms. Luz asked whether she was going to be terminated. [15] A further meeting took place the same afternoon.Attending were Mr. Sharpe, Ms. Herington, Ms. Luz and union representative Ms. Mary Cianciulli. Mr. Sharpe reviewed his earlier meetings with Ms. Luz. Ms. Luz explained that her sister had given her only 2 or 3 registrations, that she was accountable for her own backlog and that ?to be quite honest she had not even realized that the backlog had got to that size?. [16] Mr. Sharpe testified that Ms. Luz?s explanation that she received only 2 or 3 registrations from Ms. Vettor contrasted with her earlier statement that she got ?a pile of registrations? from her sister and other CSRs. He stated that when Ms. Luz was asked to explain that contradiction, she replied that she ?mis-spoke?. He also testified that ?it seemed she didn?t want me to see the backlog because she didn?t give me the folder until after I had asked her several questions?. He stated that RRSs know approximately how many registrations they have at any given time and that he had never known a RRS who did not know that she had a backlog. [17] The same four individuals met again the next day September 13, 2007. Mr. Sharpe again reviewed Ms. Luz?s prior explanations about the backlog. He testified ?We then presented the options. The first option was termination. But we said we will consider a performance improvement plan if Ms. Luz and the union agreed to extend the probation. I said we have a serious performance issue - 9 - in that she had this backlog that dated back so far, and her not approaching management, and when approached she was not easily forthcoming with the information. Considering that she gave different explanations as to how the backlog occurred, that we didn?t feel she was truthful about what actually happened. I said that given her short tenure, termination was something we were considering, but we said that if she agreed to go back on probation with a warning letter on file for 18 months and a performance improvement plan with set measures and regular meetings with managers, we would be agreeable.? The union agreed to consider the options and get back. The next day the employer was advised that the union would not agree to an extension of probation. THE CODING ISSUE [18] Filed in evidence was an e-mail dated April 4, 2007 from Mr. Sharpe sent to Employee Service Centre RRS?s. It included the following: Statistics: It is very important to code your registrations with the appropriate alias name. . ?RRT2007? for your own leads . ?CRA2007? for this years CRA campaign . NO ALIAS name for VOLUNTARY REGISTRATIONS (this work will be captured by user ID in our production reports). **Please review all of your accounts registered for this year to ensure the proper alias name was used. If you used the RRT2007 alias on any voluntary registrations, please type over the alias with ?ERROR? on a priority basis. Please note that as part of our business objectives we will continue to review registrations for classification decisions, documentation (DMAS), Reset notes (including use of appropriate alias) etc. [19] Mr. Sharpe testified that the e-mail was sent because managers had noticed that some RRSs, including Ms. Luz, were coding voluntary registrations incorrectly. Despite the e-mail, Ms. Luz continued to code incorrectly. Mr. Sharpe told her that he wanted her to do the corrections immediately. She responded that she did - 10 - not know how to do the corrections. As a result, he decided to send a second e- mail to all RRSs. This e-mail dated April 18, 2007 read: Rob and I are currently working on projections so it is important that the coding for our statistics is correct. If you used the RRT2007 alias on any voluntary registrations, - DO NOT PUT AN END DATE ? please type over the alias with ?ERROR?. If you haven?t already done so, please make the required corrections by the end of the week. [20] Mr. Sharpe also referred to a meeting at the end of March between management (including himself and Ms. Scaini) and the RRSs, at which the appropriate coding was reviewed, and the importance of proper coding was emphasized. [21] Mr. Sharpe testified that the employer undertook an investigation into the source of Ms. Luz?s backlog to verify whether she had been truthful. The investigation revealed the registrations from May, June and July were ?either her sister?s or other small business CSRs?. Mr. Sharpe testified that during this investigation it also came to light that Ms. Luz had coded many voluntary registrations which she obtained from CSRs, as ?personal?. This raised a concern that Ms. Luz was misrepresenting the true nature of the registrations by passing off voluntary registrations as registrations obtained through her own efforts. [22] A meeting was held on October 4, 2007, attended by Ms. Luz, Ms. Cianciulli and Ms. Patricia Homonnay (Union representatives), Mr. Betti, Ms. Herington and Mr. Sharpe. The employer representatives indicated that it wished to discuss some new information that had surfaced.Ms. Luz was asked to describe her understanding of what CRA, voluntary and personal registrations were. She described them correctly. She was asked to give some examples of personal registrations. She referred to registrations obtained through internet searches and - 11 - personal observation in neighbourhoods. Next, Ms. Luz was presented with a registration (Exhibit 8A) and asked to explain why she had coded it as personal, when it had been sent by the employer to the Guelph office, and forwarded by the Guelph office to the Employer Service Centre. Ms. Luz agreed that it was a voluntary registration, and explained that she had made a ?typo? when she put the code in on page 2. It was then pointed out that she had actually typed ?personal lead through personal observations?. Her only explanation to that was that ?it was an error?. When asked how she made errors on both pages, she did not explain. [23] Next, Ms. Luz was shown one of several registrations she had coded as ?personal? and had typed in ?personal lead through CSR Networking with (name of CSR)?. She explained that she had received those registrations from CSRs and thought it was ?OK? to code it that way. When asked why she thought so, she replied that Mr. Sharpe had told her that it was ?OK? to do that. Mr. Sharpe denied that he had ever told her that, and pointed out that in several discussions and e-mails it had been clearly laid out how to code voluntary registrations. Mr. Sharpe reminded that he had also personally met with Ms. Luz and discussed the appropriate coding. [24] Following the meeting, Mr. Sharpe was not satisfied that the improper coding resulted from ?typos? or errors. There was an overall sense that Ms. Luz was not truthful with regard to both her backlog and her coding of registrations. The management representatives who attended the meeting recommended to the WSIB Executive Board that Ms. Luz be terminated. [25] Mr. Sharpe gave evidence about Ms. Luz passing probation effective September 7, 2007. Around the same time, there were 23 probationary RRSs completing their probation. Sometime in August, Mr. Sharpe and the two RRS managers met with Ms. Scaini, to determine their continuing employment status. In the end, the - 12 - decision was to appoint all probationary employees as permanent employees. When Ms. Luz?s status came up, the records indicated that she was ?a little below average overall?. However, she was above average on her personal registrations. Considering her above average performance in personal registrations, it was determined that she would be made permanent. [26] In cross-examination, Mr. Sharpe was questioned about his earlier testimony that he personally discussed coding with Ms. Luz. He said that it happened at Ms. Luz?s work station sometime early in April 2007. He testified that the monthly statistics indicated a high level of personal registrations. When managers scrutinized individual spread sheets, it was revealed that a number of RRSs, including Ms. Luz were coding registrations given by CSRs, as personal registrations. Ms. Luz had done this when she was doing registrations as part of her training practicums. According to Mr. Sharpe he spoke to Ms. Luz at her desk to advise that those registrations should be coded ?voluntary?. [27] Counsel for the union advised Mr. Sharpe that Ms. Luz would deny that such a conversation occurred. It was suggested to Mr. Sharpe that to the contrary, while Ms. Luz was doing her training practicums, Ms. Luz asked Mr. Sharpe ?whether it was OK to do networking with CSRs and put it down as a personal lead? and that Mr. Sharpe had said that it was. Mr. Sharpe replied that such testimony would be incorrect. [28] It was put to Mr. Sharpe that he did not count any registrations at Ms. Luz?s work th station on September 10. Mr. Sharpe disagreed. He agreed however, that when he asked to see the backlog, Ms. Luz gave ?everything? and did not attempt to hide any of her backlog. He also agreed that Ms. Luz took ownership of the backlog and apologized. - 13 - [29] Mr. Gianpaolo Betti, RRS Manager, testified that it was his practice to go around randomly to RRSs on his team to find out ?whether they are overwhelmed?. If a RRS indicated that she was, he took some work away and distributed it to those who were not as busy. He said that he paid particular attention to Ms. Luz because thth of her wrist injury. On September 5 or 6, he approached Ms. Luz at her desk to find out whether she had the 6 or 7 registrations the Ottawa Regional Office had inquired about. He saw a folder of unactioned registrations sitting on her desk out in the open on a tray. He estimated that there were 10 to 15 voluntary registrations in the folder. He instructed her to action those immediately. He asked her ?is she OK with the workload she had? and she replied ?yes?, and explained that she had fallen behind because she had been concentrating on completing CRA registrations. Mr. Betti did not work the week of September 10, 2007. However, upon his return the following Monday, Mr. Sharpe asked him whether he had been aware that Ms. Luz had a backlog of 40 to 50 registrations. Mr. Betti replied that he was not. [30] Mr. Betti testified that since the Centre had stopped supporting the Small Business, his team should not have had any voluntary small business registrations. The discovery that Ms. Luz had small business registrations caused him, together with Mr. Sharpe, to review all of the registrations she had done. During the review, he found that there were many registrations Ms. Luz had coded as personal, which did not fit the profile of a personal registration. He explained that in registering a personal registration typically there is a series of notes on RESET, setting out telephone calls, letters and interaction. Many of the registrations coded by Ms. Luz as ?personal? did not have any RESET notes. On the contrary, the information was consistent with the profile of voluntary registrations. In fact, some registrations indicated on their face that they had been sent in to the WSIB by employers and assigned to CSRs. He testified that the review disclosed that - 14 - Ms. Luz had, as a pattern, coded voluntary small business registrations as ?leads she had found on her own?. [31] Mr. Betti stated that on his analysis of the information revealed during the investigation, he agreed with the conclusion set out in the termination letter that Ms. Luz had misrepresented voluntary registrations as personal registrations. He particularly pointed out that Ms. Luz, in passing off voluntary registrations she had received from CSRs as personal registrations, had provided rationalizations for each. For example she had typed in ?personal lead through personal observation? in several registrations. In others she had typed in ?personal lead through CSR networking?. That indicated to Mr. Betti that Ms. Luz had gone ?to great length to give a rationale to show that it was her own registration.? It showed that the improper coding was not a result of inputting error as Ms. Luz had claimed. [32] Ms. Jan Herington, Acting Manager of Recruitment of the WSIB Human Resources Department, testified that Mr. Sharpe informed her that the previous day he had found a ?very large pile? of registrations on Ms. Luz?s desk. He told her that there were approximately 50 registrations of which about 40 were unactioned, and that when questioned Ms. Luz had been very evasive as to where the registrations came from and why she had so many. [33] Ms. Herington testified that she attended a meeting with management and Ms. Luz on September 12, 2007. At that meeting, Ms. Luz was asked whether she was aware that registrations are expected to be actioned within 24 to 48 hours, and, that Ms. Luz replied that she was aware, but had lost track of how many she had. She also stated that she was not aware that she was not supposed to take registrations from CSRs, and that about a month earlier she had received a pile of registrations from her sister, who was a CSR. Ms. Herington testified that Ms. Luz did not dispute when Mr. Sharpe mentioned that she had a backlog of 40 to 50 - 15 - registrations, but explained that she had lost track of the number of registrations she had. [34] Ms. Herington said that Mr. Sharpe discussed with her the issue of what penalty should be imposed on Ms. Luz. He told her that it would be proper to terminate Ms. Luz, but that he wanted to give her a second chance and provide her with all the support she needs in the future. He said that her probation would be extended to December 8, 2007 and a written warning put on her file. [35] Mr. Roberto DiRusscio, Manager of a RRS team, testified that he had discussed proper coding with his team as a whole on several occasions. In addition, he said that on one occasion Ms. Luz had told him that she had made a coding error on a registration and did not know how to correct it. Mr. DiRusscio testified that he took her through the proper way to do a correction. [36] During cross-examination, Mr. DiRusscio agreed that it was permissible for RRSs to obtain leads by networking with internal sources, including CSRs. He agreed that if a RRS obtains a lead from an internal source and pursues it to complete a registration, it would be a personal registration. However, he emphasized that if a RRS obtains a registration from a CSR which had been sent in by an employer, it is clearly a voluntary registration and not a personal registration. [37] Ms. Rochelle Spiegel, a CSR, testified for the union. The gist of her testimony was to the effect that it was a common practice for RRSs and CSRs to network and share information, and for CSRs who were very busy to pass on registrations to RRSs for completion. She testified that she had given registrations to Ms. Luz on several occasions. In cross-examination, Ms. Spiegel agreed that the registrations she had given Ms. Luz were voluntary registrations. - 16 - [38] Ms. Patricia Homonnay, Chief Union Steward, testified that Ms. Luz had told her during her probation that she felt she was not receiving regular feedback and support because of the non-availability of managers on the floor. Ms. Homonnay recalled that she raised this issue at a meeting convened between management and the union. She testified that Ms. Scaini responded to the effect that management had been very busy with a massive recruitment drive at the time. [39] Ms. Luz testified that on a typical day, managers were available only for a few hours because they were busy with recruitment. She felt that during her probation she did not receive ?regular performance feedback? from any manager as required by article 3.03. The only recall she had of any manager talking to her about her work was when Mr. Sharpe once told her that he had no issues about her performance. [40] Ms. Luz testified that during her second practicum in training, Mr. Sharpe was near her cubicle and she asked him, ?If it was permitted that we receive registrations from CSRs and use them as personal leads?, and that he replied that ?it would be fine?. [41] Ms. Luz denied that Mr. Sharpe had talked to her about incorrect coding. Nor could she recall coding being discussed at any staff meetings. When asked whether she had seen the two e-mails relating to coding, she replied ?not until these arbitration meetings?. However, when union counsel pointed out that it is addressed to all RRSs at the Centre, she stated that it was very possible that it was sent to her. However, she explained that she received a high volume of e-mails, and she does not read every e-mail. She stated that it was also possible that she had opened those e-mails and ?not known what they were?. - 17 - [42] Ms. Luz testified that the only time she recalled of a manager talking to her about her workload prior to September 10, 2007 was in relation to her wrist injury. She stated that no manager had ever explained to her what constituted ?a backlog? or what to do if she had more work than she could handle. th [43] It was put to Ms. Luz that Mr. Sharpe had testified that on September 10, she had a backlog of 41 registrations and asked whether that testimony was correct. She replied, ?I don?t believe there were that many?. When asked how many she had, she replied ?may be 15?. She testified that she later approached Mr. Sharpe and took ownership of the backlog and explained that she had networked with CSRs and obtained registrations from them. She told him that she did not know it was wrong to get registrations from CSRs and apologized. [44] Ms. Luz testified that she got registrations from CSRs and coded them as ?personal leads?, because she ?thought that we were allowed to network and get registrations from CSRs and code them as personal leads?. Union counsel showed Ms. Luz exhibits 8A and 8B. She agreed that those were registrations she had received from CSRs, which she coded as personal, and recorded a notation ?personal lead, through personal observation?. She explained that she had done so probably because these were instances where the CSRs who gave the registrations knew that they would not be allocated the particular registration, or it may be she had misplaced the sticky note indicating the CSRs name, and she did not want to put down the wrong CSRs name. [45] On numerous occasions Ms. Luz testified that she did not intend to misrepresent the nature of the registrations to the employer. She stated that she had no incentive to do so, because there was no extra money or recognition for having a high volume of personal registrations. - 18 - [46] Ms. Luz testified that the present allegations and her termination had shattered her self-esteem and confidence. She had recently been engaged. Relying on her secure government job and salary, she had also purchased a house recently. She said that she loved her job as RSS and had looked forward to a long career with the WSIB. She said that she ?sincerely apologize to everyone for having to attend the arbitration and for having anyone think I was deliberately trying to miscode my work to better my position as a RRS.? She reiterated that that was not her intention, that she did what she did only because she thought she was allowed to do so. She asked that she be given ?a second chance? and assured that she would ?do a good job?. [47] In cross-examination, employer counsel reviewed with Ms. Luz the practicums and test she had done during training.She agreed that upon completion of training in early March, she had the knowledge and requirements required to do the RRS job, and specifically knew the difference between voluntary and non-voluntary registrations. [48] Ms. Luz reiterated that she did not recall Mr. Sharpe or any other manager discuss with her how to properly code registrations. She agreed that she likely would have received the two e-mails about coding. Counsel suggested to Ms. Luz that regardless of whether any manager had talked to her or whether she had read the particular e-mails, she was aware of the direction and expectation of management set out in the e-mails, on how to properly code. Ms. Luz agreed. She also agreed that the registrations she got from CSRs were voluntary and that she had coded them as personal because of what Mr. Sharpe had told her. [49] Employer counsel put to Ms. Luz some registrations that came from CSRs, which Ms. Luz had properly coded as voluntary during her practicums. She was asked why she had not done the same with the registrations in question which were also - 19 - obtained from CSRs. She explained that the registrations from CSRs she coded during her practicums were given to her by management. In contrast, the other registrations were obtained by her own networking with CSRs. She testified that the difference in her mind was that in the former she had no personal contact with the CSRs, while in the latter she did. However, she agreed that in both cases, the registrations were voluntary since they had been sent in to the WSIB by the employers. When asked whether it was her view that since she personally asked a CSR for those voluntary registrations, they could be coded as her own personal registrations, she replied, ?correct?. [50] Ms. Luz testified in cross-examination that she did not, in her own mind, have any concern that she had ?a backlog?, and reiterated that she could not recall her backlog being more than 15 registrations at any time. [51] Upon cross-examination, Ms. Luz clarified that when she had testified that no manager had spoken to her about proper coding, she had meant that no manager had told her that ?it was wrong to code registrations obtained from CSRs as personal.? [52] Ms. Luz testified that in her mind whether a CSR provided her with a lead or an actual registration which had been sent in by an employer, the registration became her personal registration which she put down as ?CSR networking?. Ms. Luz was presented with a number of registrations she had received from CSRs and coded as personal. In those, she had typed in ?personal lead through personal observation?. In one case, she had typed in ?personal lead through internet search?. Counsel pointed out that there were no RESET notes indicating how and where she made the personal observations or which web sites she searched to locate the employers in question. Moreover, it was pointed out that on the face of the registrations Ms. Luz obtained from the CSRs, it was clear that the employers had submitted the - 20 - registrations to the WSIB weeks before her involvement. Ms. Luz was asked, why in those circumstances, she recorded ?personal observation? and ?internet search?. Ms. Luz?s response was to the effect that she may have been in error because at the time she was coping with a high volume of work. She agreed that what she did could be seen by management as ?misrepresentation?, and stated that her ?notes could have been better?. However, she repeated that she did not intend to misrepresent. CONCLUSION [53] The employer relies upon three acts of culpable conduct on the part of Ms. Luz. First, that she had on multiple occasions, provided false information to managers who had questioned her about her workload. Second, that following Mr. Sharpe?s interaction with her on September 10, 2007, Ms. Luz had misrepresented to management the size and the source of her backlog. Finally, it is alleged that Ms. Luz intentionally attempted to pass off voluntary registrations she had obtained from CSRs as personal registrations she had made through her own efforts. [54] On the evidence before me, I cannot conclude on a balance of probabilities that on multiple occasions prior to September 10, 2007, Ms. Luz intentionally misrepresented the size of her backlog. Even though Ms. Luz had no recollection, I accept the testimony of the employer witnesses that they made the inquiries as set out in this decision. That evidence indicates that the inquiries were made in passing, very informally. In none of those inquiries was Ms. Luz explicitly asked for the size or amount of her backlog. To Mr. Sharpe, she advised that she had ?some? backlog. Upon being questioned she conceded that she had work to catch up on. To Mr. Betti she admitted that she had ?fallen behind? because she had been concentrating on CRA registrations. When Ms. Luz responded that she was ?doing o.k.? or ?doing fine?, it is quite possible that she had no concern in her own mind about the state of her workload and was stating that she would be able to - 21 - catch up with her workload.The uncontradicted evidence is that the managers did not penalize RRSs who had built up a backlog of work. On the contrary, assistance was provided by taking away some work from those RRSs and redistributing it. Therefore, Ms. Luz would have had no reason to ?hide? her backlog. On the basis of the evidence, I do not infer that she intentionally misrepresented the size of her backlog on any occasion prior to the events of September 10, 2007. [55] Likewise, the evidence does not disclose, on a balance of probabilities that Ms. Luz misrepresented the volume of her backlog on and following September 10, 2007 either. The evidence is that when Mr. Sharpe asked whether she had a backlog, she said that she had some.When asked how many registrations she had she replied that she did know and that she would have to count. Moreover, when Mr. Sharpe asked to see her backlog of registrations, she promptly gave him all of her backlog of registrations. Indeed, the evidence is that she volunteered the information that she had been holding on to two stale Independent Contractor Questionnaires which had been mistakenly sent to her, and produced those as well to Mr. Sharpe. Mr. Sharpe?s conclusion that Ms. Luz misrepresented the size of her backlog is based on his belief that any RRS would know how many registrations she had at any given time. However, in the absence of evidence of a practice of RRSs keeping a tally of their registrations, it is not reasonable to infer that Ms. Luz knew, but did not reveal the number of registrations she had, when Mr. Sharpe made the inquiry. [56] However, I find that Ms. Luz?s testimony about the volume of registrations she handed over to Mr. Sharpe is not reliable, and Mr. Sharpe?s evidence in that regard is to be preferred. I do not find Mr. Betti?s evidence that he saw a pile of about 15 registrations on Ms. Luz?s desk a few days earlier to be in conflict with Mr. Sharpe?s evidence that he counted 41 registrations in his office. Such a finding - 22 - would be premised on an assumption that what Mr. Betti observed on Ms. Luz?s desk was all of her registrations. That would not be a reasonable assumption because Mr. Betti was not at the time attempting to ascertain the size of Ms. Luz?s backlog of registrations, but merely made a casual observation. Given all of the other evidence, it is more likely that Mr. Betti only saw the smaller of the two piles, consisting of 12 registrations which Ms. Luz had been working on. [57] On the contrary, Mr. Sharpe?s evidence was unshaken that he took the bigger pile of unactioned registrations from the grievor, which he counted in his office. He counted 41 registrations. This evidence is supported by the evidence of Ms. Herington and Mr. Betti about contemporaneous statements Mr. Sharpe made to them to the effect that he had found out that Ms. Luz had a backlog of 40 to 50 registrations. [58] I turn next to the employer?s allegation that Ms. Luz misrepresented the source of the registrations within her backlog. In support of that, reliance was placed on what the employer saw as contradictory explanations Ms. Luz provided at different times as to how she got the registrations. Having carefully reviewed the evidence on this issue, I agree with the employer. I find that Ms. Luz?s initial explanation to Mr. Sharpe that she got ?a pile? of registrations from her sister and other CSRs, was the correct information. However, once Ms. Luz became aware that the employer was speaking to her sister, Ms. Luz attempted to change her story, and in the process gave different explanations as to how she came to possess the registrations in question. It is very probable that Ms. Luz was motivated by her desire to protect her sister from possible sanctions for giving her a pile of registrations, which Ms. Luz had initially described to Mr. Sharpe as ?already old?. While that motivations is understandable, Ms. Luz?s misrepresentation to the employer on a matter directly related to her work nevertheless is culpable conduct. - 23 - [59] By far, the most serious allegation against Ms. Luz relates to the coding issue. It is common ground between the parties, and Ms. Luz herself admitted that the registrations in question were in fact voluntary registrations, and that Ms. Luz had incorrectly coded them as ?personal?. The issue is whether the incorrect coding was a dishonest act on Ms. Luz?s part as the employer asserts, or whether it was an innocent mistake. [60] In this regard, the union adduced evidence in an attempt to establish that Ms. Luz did not have the benefit of the guidance of her managers during probation because they were too busy with other duties, and not available to employees regularly. The union went so far as to assert that the employer may have been non-compliant with article 3.03 by failing to provide ?supervision and regular feedback? to Ms. Luz during her probation. Assuming, without finding, that Ms. Luz did not receive the kind of supervision and feed back contemplated by article 3.03, I find that to be immaterial, because there is no evidence that Ms. Luz?s improper coding was a result of lack of supervision and feedback. I still have to examine the evidence and determine on a balance of probabilities, whether the incorrect coding was an intentional act of dishonesty or whether there is an innocent explanation. [61] In this regard, once it is established that Ms. Luz coded voluntary registrations sent in by employers as personal registrations, the onus is on Ms. Luz and the union to establish an innocent explanation. Personal registrations by definition are those achieved through the efforts of the employee. The registrations in question had been sent in voluntarily by the employers and therefore clearly did not fit the profile of a personal registration. Ms. Luz admitted that she was aware at all material times that these were in fact voluntary registrations. Therefore, she has the onus of explaining why she coded them as ?personal?. - 24 - [62] I have numerous reasons to conclude based on that evidence, that Ms. Luz did intentionally and knowingly attempt to pass off voluntary registrations as registrations she had achieved through her own efforts. I set out below only the most significant of those reasons. [63] First, it is very clear that the employer had consistently given direction that voluntary registrations are to be coded as such. The evidence is that RRSs were taught this requirement in training. This requirement was reinforced by two subsequent e-mails addressed to all RRSs. Moreover, the employer had developed a specific coding to correct voluntary registrations erroneously coded as ?personal?. This evidence establishes clearly that the employer wanted registrations to be coded properly. Each of the 3 types of registrations, i.e. voluntary, CRA and personal, had its own code, and RRSs were consistently reminded that the appropriate code is to be used for each type of registration. [64] In this context of evidence indicating an expectation on the part of the employer that voluntary registrations be not coded as personal and consistent reminders to that effect, it is not plausible that Mr. Sharpe would authorize one employee to do just that. Ms. Luz was very clear in her testimony that, whether or not she had read the e-mails on coding, she was aware that voluntary registrations were to be coded as voluntary and not as personal. She agreed that she was aware that the registrations which had been sent in by employers to the WSIB, and passed on to her by CSRs, were in fact voluntary. Her explanation for coding such voluntary registrations as personal was that she had understood from a conversation with Mr. Sharpe during her practicums that it was permissible to do. [65] Mr. Sharpe during his testimony denied that he had such a conversation. I prefer Mr. Sharpe?s testimony in this regard because of its improbability and because such a statement from Mr. Sharpe to Ms. Luz would be completely opposite to all - 25 - of the other efforts made by Mr. Sharpe and other managers to ensure that voluntary registrations are not coded as personal, and to ensure that voluntary registrations erroneously coded are corrected on a priority basis. [66] However, even if the benefit of the doubt is given to Ms. Luz, that she somehow misunderstood a conversation she had with Mr. Sharpe as allowing her to code voluntary registrations obtained from CRAs as personal registrations, it still does not support Ms. Luz?s innocence. When Ms. Luz was asked to explain why she coded the registrations in issue as personal, one would expect that her sole response would be to say that she did that because Mr. Sharpe had told her that it was allowed. On the contrary, she attributed the ?personal? coding to inputting errors on her part. That simply does not make sense. It is inconsistent with her testimony that she believed at the time that she was allowed to code those registrations as personal. If she had such an honest belief, she would not have been ?in error? in coding those registrations as she did. [67] The most compelling evidence refuting Ms. Luz?s claim to innocence is in relation to the notes she typed in with regard to registrations she had obtained from CSRs. As the evidence I have reviewed discloses, in many of those she typed in to the effect ?personal lead through personal observation?. In others, she typed in to the effect ?personal lead through internet search?. Those entries are descriptive of how the particular employers were located. Obviously, what she typed in was absolutely fictional and untrue. She had clearly not achieved those registrations through personal observations or internet searches on her part at all. The registrations to the contrary had been voluntarily sent in by the employers. Ms. Luz had received the actual registrations from a CSR. All of this is undisputed. When asked to explain during testimony, Ms. Luz merely stated that she made an error. In the circumstances, the conclusion is unavoidable that by typing in some form of personal effort on her part in locating the employers, Ms. Luz was - 26 - intentionally attempting to depict the registrations as the result of her personal effort, thus justifying the ?personal? coding. That evidence is inconsistent with a belief on Ms. Luz?s part that she was permitted to take voluntary registrations from CSRs and code them as personal. If she was under such a belief she would have typed in ?registration through net-working with CSR? or something to that effect reflecting the truth. [68] The employer accepted that it had the burden of proof and submits that it has met that burden. That burden of proof has recently been described in very simple terms by the Supreme Court of Canada in F.H. v. McDougall et. Al, 2008 SCC 53, th 297 D.L.R. (4) 193, at paragraph 49 per Rothstein J. as follows: In the result, I would reaffirm that in civil cases there is only one standard of proof and that is proof on a balance of probabilities. In all civil cases, the trial judge must scrutinize the relevant evidence with care to determine whether it is more likely than not that an alleged event occurred. (emphasis added) [69] Applying that standard of proof, I have concluded that Ms. Luz engaged in culpable conduct in two respects. First, she misrepresented to the employer the source of her backlog of registrations in an attempt to protect her sister from possible sanctions. Second, she intentionally coded voluntary registrations as personal in an attempt to pass them off as registrations achieved by her own efforts. APPROPRIATE PENALTY [70] Employer counsel drew my attention to the two following excerpts from Brown & th Beatty,Canadian Labour Arbitration, (4 Ed) at 7:3330: An employee?s trustworthiness can be called into question by acts of dishonesty that do not involve deprivation of property or a financial loss. Indeed, some behaviour is so unethical and so inconsistent with the goals and objectives of an enterprise that it raises real doubts about the - 27 - employee?s capacity and/or willingness to adhere to the most fundamental rules of honesty and loyalty. . . . Because of the nature of the work and the constituency they serve, public servants must be especially vigilant in ensuring they do not do anything to advance their own agendas that might prejudice their employer?s interests or reputations. [71] Relying on the mitigating criteria set out in Re Steel Equipment Co. (1964), 14 L.A.C. 356 (Reville) at pp. 356-8 and Re Wm. Scott Co., (1977) 1 C.L.R.B.R. (P.C. Weiler) at pp. 5-6, employer counsel submitted that Ms. Luz did not have any significant mitigating circumstances in her favour. He particularly pointed out that she only had approximately 10 months of service. [72] Employer counsel submitted that dishonesty can constitute just cause for dismissal. He argued that considering the business of the Employer Service Centre and the nature of the work Ms. Luz did as RRS, her offence was particularly serious. He submitted that the employer cannot afford to have dishonest employees on its staff, and urged me not to exercise my discretion to substitute a lesser penalty. [73] The thrust of union counsel?s submission was to the effect that Ms. Luz?s conduct was not intentional, but the result of ?a mistake? on her part. He argued that the employer had failed to produce clear and cogent evidence that her conduct was intentional. Therefore, he pleaded that Ms. Luz be re-instated with full redress. In the alternative, counsel submitted that if some culpability is found, I should substitute a lesser penalty which is more proportionate to the offence. [74] Since I have already concluded that Ms. Luz did engage in culpable conduct, I must determine whether dismissal was an appropriate response in all of the circumstances. I have concluded that I ought to substitute a lesser penalty. - 28 - [75] ?Dishonesty? is a very broad term encompassing a range of unacceptable conduct. At the high end of the scale is theft.The present arbitral jurisprudence does not stand for the proposition that in every case of dishonesty, or for that matter in every case of theft, there is just cause for dismissal. In each case, the arbitrator must examine all of the circumstances and determine the appropriate penalty. [76] The seriousness of the offence must be treated as a key factor in determining the appropriate level of penalty. In the present case, Ms. Luz?s acts of ?dishonesty? fall in the lower end of the scale. I also note that while Ms. Luz had only short service with the employer, she had no prior discipline. In other words, she had not been subject to corrective discipline. The evidence is also that before she joined the employer, she held a position of trust as Head Balancing Teller with a bank. It is a reasonable assumption that she had been a satisfactory employee in that capacity, because following her termination she had been re-hired by the bank into that same position, with the knowledge of the allegations against her by the employer and her termination. I do not find the evidence indicative of a habitually dishonest individual. On the contrary, I conclude that this is a case of a 25 year old making a foolish decision in a desire to portray her work abilities in a better light. [77] I agree that the employer cannot afford to have dishonest RRSs on its staff. However, that assumes that Ms. Luz cannot be rehabilitated through corrective discipline. I am not at all satisfied that to be the case. Had Ms. Luz owned up to her wrong-doing when confronted by the employer, I would have been prepared to consider substituting a relatively minor penalty for her conduct. However, she did not admit to any wrong-doing on her part even at arbitration, and continued to attribute her conduct to innocent mistakes. In the circumstances, I have determined that a substantial penalty short of the ultimate penalty of dismissal should be substituted, to impress upon Ms. Luz that she is unlikely to get a further - 29 - ?second chance? if she is found to have engaged in dishonest conduct in the future. [78] Accordingly it is ordered as follows: 1. Ms. Luz shall be re-instated in her former position forthwith.. 2. The period between her termination and her re-instatement shall be recorded as a period of suspension without pay. 3. The grievance is allowed to the extent set out above. The union requested that in the event Ms. Luz is reinstated, an order should issue that the employer provide her with a period of ?refresher training?. I decline to make such an order. It would be up to the employer to determine whether any training is required or useful, considering the period of time Ms. Luz has been away from work. [79] I remain seized with jurisdiction to deal with any difficulties the parties may encounter in implementing the orders made herein. th Dated at Toronto this 4 day of June 2009. Nimal Dissanayake, Vice-Chair