HomeMy WebLinkAboutWatson 07-06-29
dCX::T1- -04-33 - OQO I
IN THE MATTER OF AN ARBITRATION UNDER SECTION
48 OF THE LABOUR RELATIONS ACT 1995, (as amended)
BETWEEN
Ontario Public Service Employees Union
and its Local 433 ("the Union" or "OPSEU")
AND
"Ongwanada ("the Employer" )
And in the matter of the grievance of Michelle Watson ("the
grievor"), who challenges the termination of her employment.
BEFORE:
R.O. MacDowell
(Sole Arbitrator)
APPEARANCES:
For the Union:
KTistin Eliot (Counsel)
Peggy McDonald
For the Employer:
Alan Whyte (Counsel)
John Fee
Barry Mapplebeck
Rob Bruce
A hearing in this matter was held in Kingston, Ontario, on July 12,
2004.
1
AWARD
I - What this case is about
This arbitration proceeding arises from the discharge of Michelle Watson,
("the grievor") who challenges the termination of her employment. The grievor was
"fired" on January 2, 2007, because she misused one of her Employer's gasoline credit
cards: on five separate occasions between October 15, 2006 and January 1, 2007, the
grievor wrongly used that card, to obtain gasoline for her own vehicle. The total value of
these purchases was about $200.
At the time of her termination, Ms. Watson had been employed by
Ongwanada for approximately 10 years. She has no prior record of misconduct. There
was an issue with respect to sick leave that was discussed with the grievor in a formal
way, in the late summer of 2006; but it is not suggested that this was "disciplinary" in
nature, or that it involved any "misconduct" on the grievor's part. The grievor was
counselled about the need to maintain regular attendance. She was not disciplined.
*
Accordingly, what happened III the fall of 2006 appears against the
background of an otherwise unblemished career. On the other hand, there was more than
one improper transaction involved here; and it is not suggested that the grievor did not
know what she was doing. This was not a single "spur of the moment" event; but rather a
series of similar improper acts, over a period of weeks.
*
2
The Employer contends that these multiple acts of "theft" constitute "just
cause" for the grievor's discharge. The Employer points out that its persolmel policy, (not
incorporated into the collective agreement, but provided to all employees), makes it
perfectly plain that if employees engage in dishonest acts of this kind, then they will be
"putting their jobs on the line" - as, the Employer asserts, the grievor did in this case. In
the Employer's submission, the grievor's conduct is completely incompatible with her
duties, and with her continued employment.
*
The Employer submits that the grievor's discharge should be upheld, and
that her grievance should be dismissed.
*
The Union concedes that the grievor has engaged in serious misconduct,
and that behaviour of this kind often warrants discharge. However, the Union submits
that in the particular circumstances of this case, the grievor should be reinstated - and, in
effect, given a further opportunity to demonstrate that she can be the kind of "good
employee" that she evidently was, prior to these events. The Union submits that in all the
circumstances (to which I will return below) the grievor should be "given another
chance".
In other words, the Union proposes something in the nature of a "last
chance" arrangement - preserving the grievor's employment, but making it clear that if
there is any further impropriety, then her employment will come to an end. For as the
3
Union sees it: what happened in the fall/winter of 2006 - while not to be condoned - was
nevertheless an aberration, that will not be repeated.
II - Some Mechanics
A hearing in this matter was held in Kingston, Ontario, on July 12, 2007>
The parties were agreed that I have been properly appointed under the terms of the
collective agreement, and that I have jurisdiction to hear and determine the matters in
dispute between them. The parties were further agreed that I have the "jurisdiction" to
modify the penalty of "discharge", if I consider it to be "just and reasonable" to do so.
Because Section 48(17) ofthe Labour Relations Act, reads as follows:
il12 Where an arbitrator or arbitration board determines that an
employee has been discharged or otherwise disciplined by an
Employer for cause and the collective agreement does not contain
a specific penalty for the infraction that is the subject-matter of
the arbitration, the arbitrator or arbitration board may substitute
such other penalty for the discharge or discipline as to the
arbitrator or arbitration board seems just and reasonable in all the
circumstances.
*
The collective agreement before me does not contain any "specific
penalties", within the meaning of section 48(17) of the Labour Relations Act.
Accordingly, the primary question in this case, is whether I should exercise the remedial
authority found in Section 48(17) to (as the Union puts it) "give the grievor another
chance".
*
4
I will return to that issue below. First it may be useful to bliefly sketch in
some background. These facts are not substantially in dispute; but to the extent that it is
necessary to assess "credibility", or choose between competing recollections, I have
adopted the approach suggested by the Courts in cases such as Farnya v. Chorney [1952]
D.L.R. 354 at pp. 356-358 (per O'Halloran J.A.), and Landry v. Pratt and Whitney
Canada [1996] 8 W.W.R. 551 (per Yabosik J.).
III - Back2round
The discharge and its consequences: how the events unfolded
The Employer is a social servIce agency that serves "clients" in and
around Kingston, Ontario. The "clients" are individuals with physical or developmental
disabilities, who need assistance with the activities of daily living (meals, bathing,
housekeeping, purchasing groceries, etc.). Ongwanada has about 450 full-time and part-
time employees, who are represented for collective bargaining purposes by OPSEU.
The grievor is 44 years old and has a grade 12 education. She has worked
as a "care-giver" for the Employer for approximately 10 years.
For most of her career, the grievor has worked on a regular part-time
basis, putting in many hours, but without the benefits or the security associated with "full
time" employee status. The grievor's job at Ongwanada was to help the clients, in
5
whatever way she could. Prior to working for Ongwanada, the grievor was immersed in
family responsibilities - including taking care of her disabled husband. There IS no
evidence that she has had any other long term employment.
As I have already mentioned: until the incidents that gave rise to the
grievor's discharge, she had no prior disciplinary record. Moreover, the evidence before
me is that the grievor is a caring and empathetic person, who enjoys her work, and has
real feelings for the disabled individuals whom she is helping. She loves her job, and, it
seems, she does a good job (attendance aside).
On the other hand, her limited skills and education, restrict the kind of
work that she can do, as well as her ability to succeed in the local labour market. That is
why in the summer of 2006 she was pleased to obtain a "full time job", even though she
had to file a "grievance" to get it, and it meant a decline in her take home pay (see
below). But given her husband's situation, the availability of benefits was also important.
*
That is what the grievor put at risk by her misuse of the credit card.
*
The Employer maintains a fleet of vehicles that are used by Ongwanada
employees to transport the clients to appointments or events, to make home visits, to help
with groceries, and so on. The Employer also has a number of gasoline credit cards, that
can be used to purchase fuel for these vehicles. That is where the grievor got the credit
card that she used to buy gasoline for her own use.
6
The grievor's improper use of the credit card, came to the Employer's
attention in December 2007, when the Employer tried to match some gasoline invoices,
to the receipts that employees are required to submit, to verify their purchases. What the
Employer saw were a number of instances - seven, initially - where it appeared that the
grievor had used the credit card to put gasoline into a personal vehicle. And when the
Employer followed up with the service station, the Employer was eventually able to
confirm that, over a two and half month period, there were five (not seven) separate
instances where the grievor had used the credit card improperly.
The Employer had the evidence to confront the grievor, by the end of
December. But the Employer decided that it would not raise the matter with the glievor
until after the Christmas break. Accordingly, on January 2, 2007, (her first day back at
work), the Employer advised the grievor that she would have to attend a meeting with
management, to discuss a "problem" - without, at that point, identifying what the
"problem" was. Nor did the Employer advise the Union about the meeting - which was
its normal practice, unless patient abuse is involved.
The grievor had no idea what the meeting was about. The grievor was
merely told that she had to attend a meeting, and that she should bring a trade union
representative along with her. And as things turned out, it took the grievor several hours
to arrange for union representation, because the local union representatives were not at
work on January 2, so the grievor had to scramble to find someone to accompany her.
7
Eventually, the grievor secured the assistance of Martin Sara, a union staff
representative, who is stationed in Kingston. Ms> Watson met briefly with Mr. Sara
before going into the meeting; but since the purpose of the meeting remained a mystery,
Mr. Sara advised her to remain silent, until they found out what the meeting was about.
The meeting eventually began at about 5.00 PM; and at the opening of the
meeting, an Employer representative (Barry Mapplebeck) told the grievor that they were
investigating some problems with gasoline purchases. He then showed Mr. Sara and the
grievor a document listing seven purchases, (date and amount) between October 15 to
December 5; and asked the grievor whether she had ever used the credit card
inappropriately. The grievor said that she had not.
However, now that they knew what the meeting was about, Mr. Sara asked
for a brief recess, so that he and the grievor could discuss the matter further, between
themselves.
The grievor testified that as soon as she saw the document pertaining to
gasoline purchases, she knew that she had been "found out". And she was engulfed by a
flood of emotions. She knew that what she had done was wrong, and she felt "awful" for
doing it. Because, as she put it in her evidence: she loved her job, and she really cared
for the clients. She also felt that she had done something "really stupid," that might "ruin
her life". But she was taken aback, and was very frightened; so she blurted out a denial.
8
Mr. Sara and the grievor went to the cafeteria to discuss the situation. She
told Mr. Sara that she was sorry for what she had done, and that she knew that it was
wrong, and that it was not the kind of thing which she normally did. The grievor said that
she was not "that kind of person". But she had run into "hard times", and she had made a
big mistake.
The grievor testified that, at that point, she was hoping that she could pay
the money back, or otherwise make amends. Moreover, the allegations contained a
couple of incidents for which she was not responsible. In other words, while generally
right, the Employer's allegations were wrong, in part.
However, as it turned out, the grievor (who was very upset) did not rejoin
the meeting; and when Mr. Sara returned to the meeting room, he did not retract or
modify the blanket denial, that the grievor had made earlier on. Nor did he reveal what
the grievor had just told him. (The truth was that she had done some of the things alleged,
but not others).
The Employer made it clear that it expected the grievor to resign; and the
Employer indicated that if the grievor did resign, then her record would be sealed. On
the other hand, Employer said that if the grievor did not tender her resignation, it would
inform the police, and would press for the laying of criminal charges.
9
Mr. Sara, asked the Employer for the opportunity to think about it
overnight; and he indicated that he would report back to the Employer, by telephone, the
following morning.
*
Mr. Sara later outlined the Employer's proposal (to resign) to the grievor.
But the grievor said that she was not prepared to resign. Accordingly, the following day
Mr. Sara telephoned the Employer to report what the grievor had said. So the Employer
called in the police - as it had threatened to do, the day before,
*
There is no doubt that a resignation might have had some advantages for
the grievor, had she wished to embrace that proposal. But it also had some very real
advantages for the Employer - and in particular: it meant that the grievor would not be
able to file a grievance, or challenge her termination at arbitration.
*
It is apparent on the evidence before me, that the Employer was very
anxious to secure that result. That is why the Employer first threatened, and then initiated
the criminal charges; and that is why it later refused to countenance any withdrawal of
those criminal charges, unless the grievor tendered her resignation.
The Employer was using the threat of criminal charges as leverage to
secure a resignation and avoid the possibility of a grievance; and had the grievor
resigned, no criminal charges would have been laid, or pressed.
10
The following day, January 3,2007, the grievor was contacted by the local
police. The police officer explained the purpose of his inquiry, and gave the grievor the
standard "caution" - warning her that she was not obliged to answer any questions, but
that if she did choose to answer his questions, then her answers might be referred to in
any subsequent criminal proceeding.
The grievor was totally cooperative, and was completely frank and
forthcoming with the police officer. She admitted what she had done, and that what she
had done was wrong; she said she was prepared to take responsibility for her behaviour;
and she offered to pay the money back.
The grievor testified that she did not offer to make restitution with any
hope that it would lead to a withdrawal of the criminal charges. She said that she
shouldn't have used the credit card in the way that she did, so that she "owed"
Ongwanada the money, and she felt obliged to pay it back.
The police officer replied that he would communicate that offer to the
Employer, which he later did. However the Employer said that it was not interested in
"restitution", unless it was accompanied by a resignation. So the criminal charges
proceeded.
*
The grievor testified that she was quite devastated by the consequences of
her behaviour; but that in the shadow of the meeting of January 2nd, she had had a long
11
discussion with her mother, who is a former long-term employee of the Ongwanada. The
grievor's mother told the grievor that she would help the grievor out financially, and that
ifthe grievor loved her job so much, then she should not resign: she should make her case
for "another chance" at arbitration - as, of course, the grievor was legally entitled to do>
Her mother suggested that "worse than that" had occurred at Ongwanada without anyone
being fired, so if the grievor was intent on fighting for her job, then she should do that.
*
In the wake of her termination, the grievor found herself in very real
personal difficulties. She could not find another job, and she was denied "unemployment
insurance" benefits. And as a result, she and her disabled (and also unemployed) husband
went "on welfare" - which was still her only source of income at the time of the hearing,
almost 7 months after her discharge. The grievor also had to secure the services of a
lawyer, and face the spectre of a criminal trial and conviction - with whatever penalty and
social stigma flowed from that consequence. And there were various court appearances
that had to be attended to as well.
On the other hand, immediately after her termination, (and on the advice
of the Union), the grievor accessed the "Employee Assistance Program" - which, as its
name suggests, is designed to provide assistance to employees encountering personal and
family difficulties (which the grievor thought were at the root of her aberrant behaviour
in the fall of 2007 - see below). The grievor went to the EAP for credit counselling, and
for help in devising a strategy to cope with her financial pressures.
12
The details of the criminal proceeding were not put before me; and given
the grievor's confession to police, and frank acknowledgment of wrongdoing, and offer
to make restitution, it is not clear to me why this process took as long as it did. But in the
end, the Crown decided that there was no public interest to be served by proceeding with
the criminal charges. The Crown Attorney advised the grievor that those charges would
be withdrawn once the grievance-arbitration proceeding was completed - and regardless
of the disposition of the grievor's case.
The grievor's story
In the course of these proceedings the grievor frankly acknowledged the
misconduct which gave rise to her termination - as she had done to the police the day
after her discharge meeting, and as was communicated by the police to the Employer>
The grievor also explained her personal circumstances - what was going on in her life -
during the period when these defaults occurred.
To be clear: the grievor did not advance this explanation as any form of
"excuse" for what she had done. However, she did try to explain what she described as a
very "bad time" in her life - as well as things that, in retrospect, she thought had
influenced her judgment and moral compass. Moreover, it is perfectly plain that the
grievor was (and is) wracked with remorse for both what she has done, and for the
consequences (penury, disgrace, humiliation, the prospect of criminal sanctions and
social stigma) that she had brought upon herself and her family. For as the grievor put it:
13
she thought that she had "ruined her life", because her only real employment had been at
Ongwanada - ajob that she loved.
***
Let me digress here, for a moment, to note that when dealing with this
kind of evidence, an adjudicator must bring a sceptical eye to the exercise, and must be
alert to the possibility of an "actor" "in the witness box" (to borrow a phrase from
O'Halloran, l.A. in Farnya v. Chorney, supra). Because it is all too easy for a calculating
individual to construct a self serving rationalization (a "death bed confession", as it
were) - feigning remorse, that s/he does not truly feel, because s/he knows that it will be
in her interest to do so. Moreover, there is a big difference between the "regret" that any
miscreant feels on "being caught", or when contemplating the consequences of his/her
misdeeds, on the one hand, and genuine remorse or contrition on the other. And an
adjudicator should also be careful about putting too much weight on "demeanour", and
the apparent sincerity of the "culprit" who takes the witness stand to explain
himself/herself
Having said that though, I have no doubt whatsoever that the grievor was
being completely candid; and that the feelings on display in the course of her testimony,
were totally credible. The grievor was genuinely remorseful - indeed conscience stricken
- by what she had done, and by the consequences for herself and her family; and there
was an overwhelming sense of regret and self-reproach, which animated her explanation,
from start to finish. I do not think. that any of this was deceitful or synthetic; nor, in my
view, was it calculated to curry favour with the arbitrator
14
***
Be that as it may, what was happening in the grievor's life at the time of
the relevant events? What was the "context", for her obviously improper conduct?
***
As I have already noted, the grievor has only recently been converted to
full-time status; and paradoxically, that "promotion" resulted in a decline in her actual
income - as a result of the change in the number of hours worked, and the elimination of
the percentage paid in lieu of benefits. Moreover - unfOliunately for the grievor - she was
also facing significant and unexpected difficulties at home ("bad times", as she put it),
which magnified the personal and financial pressures.
The grievor explained that her husband does not have steady work. He
usually works until Christmas; but in 2006, he ran out of work in September, and was not
receiving unemployment benefits. That meant that the grievor was the primary support
for the family, at a time when her own income had declined. And the family (but
particularly the grievor) was facing some other challenges as well.
Around the same time, in the summer/fall of 2006, the grievor's children
were facing financial problems, and the grievor felt moved to help out - to give them
money that she did not have, and that she could ill afford. The grievor's unmarried
daughter also arrived on the grievor's door step, with a newborn child whom the daughter
was unable to look after, because of post-part urn depression. And once again, the grievor
felt that she had to step in to support and care for them, as best she could.
15
In these straightened financial circumstances, the grievor lost her car when
she couldn't keep up the payments (a car that she needs to get to and from work, because
she lives some distance from Kingston, where the rents are cheaper); and she also lost
some furniture that was being kept in storage, because she could not meet the storage
charges> So she had to scramble to borrow other people's vehicles, in order to get to and
from work - which is why there were different vehicles involved in the gasoline
purchases. There is no easily accessible pubic transit.
Given her new full-time status the grievor wanted to make sure that she
attended to her work responsibilities, and that she got to work on time - especially in
light of the attendance problems that she had had before. So, ironically, she was misusing
the Employer's gasoline credit card, (at least in part) in order to put gasoline into the
borrowed vehicles that she was using to get to work.
There was (at least in the grievor's mind at the time) no one to whom she
could turn for financial assistance or relief. She did not think that she could borrow
money from friends, or from her mother - who was retired and no longer living in
Kingston, and who was then caring for her own dying mother (the grievor's
grandmother). The grievor said that her mother, too, was going through a "bad time"; and
the grievor did not feel that she could approach her mother with her own problems. Nor
did grievor think about going to the Employee Assistance Program (as she later did), or
speaking to an individual, associated with the Employer's organization, who did
16
counselling for employees whose personal problems might impinge on their work. The
grievor tried to hold things together by herself, and go it alone.
*
Was this prudent? No it was not. Were her straightened circumstances an
"excuse" for using the Employer's credit card inappropriately? No, they were not. And
does her personal situation 'justify" her misconduct? No it doesn't. Nevertheless, I think
that it is useful to record the circumstances in which this clearly inappropriate behaviour
occurred.
*
Following her termination, the grievor apologized to her supervisor for
what had happened, and also wrote a letter of apology to the CEO of the Employer. In
neither case, was this action prompted by advice from others, by rather by the grievor's
own desire to unburden herself. The grievor said that she wanted to express this
sentiment to the CEO personally, but she was told that she would not be allowed on the
premises. So she wrote a letter.
The letter was her own idea, which she composed without prompting or
assistance. It reads as follows (text reproduced verbatim):
I am writing this letter to apologize for what I did I know what I did
was extremely wrong I had no right to do something so terrible to an
organization that has been very good to me.
I've worked for Ongwanada for nearly 1 0 years and I get along good
with my coworkers and I really care for the residence.
Mr. Seaby could you Please find it in your heart to forgive me and
give me one more chance.Before Ongwanada I stayed home for 7
years and took care of my husband so all I know is Ongwanada.
17
Mr. Seaby I am willing to come in and talk to you. I am even
willing to go back to P.T. in the nursing homes or any other
discipline. Please believe me, I'll never ever do anything like that
againe . I realy Put my family (husband, Daughters) threw a lot my
Mother (Maureen Orser) was destroyed when I told her my father
still doesn't know.
This happened in January and I still think about what I did I can't
believe I did something very very stupid I even whent to E.A.P. for
about two months to try and deal with this I am very sorry
Mr.Seaby.
The sentiments expressed in this letter ring true, and are completely
consistent with the grievor's testimony in this proceeding.
IV - The position of the parties, restated
The Employer submits that there was no justifiable reason for the grievor's
aberrant behaviour, nor did the grievor make reasonable efforts to deal with her personal
problems in a responsible way -- either through counselling, or the EAP, or through
borrowing money from friends or relatives. And in any event, as the Employer sees it,
the grievor's financial difficulties are not the Employer's responsibility, and do not
explain or justify her dishonesty. The Employer's policy in this regard is crystal clear:
employees who engage in such conduct, do so, at the risk of their jobs; moreover, the
grievor was not fully and immediately forthcoming when confronted with her misconduct
on January 2.
18
The Employer submits that the element of trust, that is critical to a viable
employment relationship, has, in this case, being completely fractured; and that continued
employment is now untenable. Counsel points out that Ongwanada's employees have
access to "petty cash", and to a gasoline credit card, and to a certain amount of credit at
local retail stores; and that the Employer trusts its employees, to use these funds
responsibly. The employees work on an "honour system"; and in Counsel's submission,
the Employer can no longer trust the grievor in that regard.
Counsel further submits that where there is dishonest behaviour of the
kind that is evident here, the arbitral jurisprudence often supports discharge. Counsel
drew my attention to a number of arbitration decisions to this effect, including two of my
own cases: Re FBM Distillery Co. and Brewery, Malt, and Soft Drink Workers, Local 304
(Grievance of Jerry Bianco) (1993), 32 C.L.A.S 553; and Re Livingston Distribution
Centers Inc. and Teamsters Local Union 419 (Hurd Grievance) (1996) 58 L.A.C.(4th)
129.
***
The Union concedes that the gnevor has engaged III very senous
misconduct, which warrants a significant disciplinary penalty; and the Union also
concedes that there are quite a number of arbitration cases which sustain an employer's
decision to discharge employees who are guilty of "theft". However, Union Counsel
points out that there are also a number of cases where the arbitrator has considered
"mitigating factors", and has substituted a lengthy suspension, instead of a termination.
Theft or dishonesty are no longer "ipso facto" grounds for discharge. See, for example:
19
Carling 0 'Keefe Breweries of Canada Limited and Western Union Brewery, Beverage,
Winery, and Distillery Workers Local 287 (1988) 3 L.AC. (4th) 222 (Ponak); Re Canada
Post Corp> and C. u.P. W (Cole) (1990), 15 L.AC. (4th) 77 (Adell); and Re Metropolitan
Toronto (Municipality) and Metropolitan Trauma Civic Employees Union, Local 43
(1988), 4 L.AC. (4th) 336 (Kennedy). What matters is what is "just" and "reasonable" in
all the circumstances - which, of course, is what the statute stipulates as well.
*
The Union submits that the grievor engaged in serous misconduct which
fairly put her job in jeopardy, but, by the same token, I cannot ignore her long and
heretofore unblemished service, or the difficult personal circumstances in which the
grievor found herself, or the fact that the grievor has already paid a very substantial price
for her misbehaviour - and not just in connection with her loss of employment. For
however serious the grievor's misconduct may have been (and Counsel does not
minimize the seriousness of what the grievor did); so were the consequences for Ms.
Watson, and her family. Because she not only lost her job and her livelihood, but she has
also had to cope with the criminal charges - and with months of unemployment, and
months of uncertainty, and months of trying to get by "on welfare".
This is hardly a "light sentence" for someone as near the edge, financially,
as the grievor was.
In Counsel's submission, the grievor's situation may not justify her
actions, but it is still understandable in human terms - even if she did not respond
20
properly to the pressures that she was facing; and, in Counsel's submission, there is no
doubt that the grievor is truly remorseful, and has taken positive steps to make amends -
including an almost immediate acknowledgment of responsibility, and a willingness to
make restitution. Counsel also urges me to take into account the grievor's limited
education, her poor employment prospects, and the serious financial hardship that she has
suffered to date - and will continue to suffer if she is not reinstated.
The Union submits that something in the nature of a "last chance
arrangement" is in order - including conditions to reduce the likelihood that that grievor's
family difficulties will ever again, impinge upon her work.
The Union is also content to waive the "sunset clause" in the collective
agreement, in order to permit such "last chance order" to be constructed - a rather graphic
recognition, in itself, of both the special circumstances of this case, and the Union's
acknowledgement that this sort ofmisbehaviour is not acceptable.
In Counsel's submission, a remedy along those lines would fairly balance
the Employer's legitimate need for "general deterrence", against the grievor's interest in
job security - and it would be "just and equitable in all the circumstances".
21
VI - Discussion and Disposition
I do not think that it is necessary to burden these reasons with extensive
references to the cases (including my own), because it is evident that each of these cases
turns upon its own particular facts; and, as a matter of law, none of them is actually
"binding" upon me (see: Laurent Isabelle et. al v. The Ontario Public Employees Union
(1981) 81 CLLC p. 259 (S.C.C)). These decisions are merely illustrative ofa developing
arbitral consensus on the appropriate approach to situations of this kind - which is to say:
how arbitrators exercise the statutory discretion found in section 48 (17) of the Labour
Relations Act, and what individual arbitrators have concluded on the mix of facts before
them.
The current state of the law is fairly summarized in Brown and Beatty,
Canadian Labour Arbitration, 3rd edition at paragraph 7:3310 - where the authors note
that "honesty is a touchstone to viable employer-employee relationships", then go on to
say:
Against that admonition, it is not surprising that arbitrators have,
from the earliest awards, both expressly and by implication,
characterized theft and related forms of dishonesty as among the
gravest, if not the gravest, charges of misconduct in an employment
relationship. Traditionally, although cases involving theft of a fellow
employee's property, or property belonging to some third person, or
which is unconnected to a person's employment have often been
treated more leniently, theft of an employer's or customer's property
was usually, and still is, regarded by many arbitrators as justifying
the discharge of the grievor. For these arbitrators, because such
misconduct demonstrates that the employee is so untrustworthy as to
be no longer suitable for continued employment, discharge may be
appropriate not only where the employer alleged and proved an act
of theft, but also where the misconduct involved was attempted
22
theft, or unauthorized possession of the company's property.
However, in the vast majority of the more recent awards, after
examining the particulars of the circumstances surrounding the
grievance, arbitrators have come to the conclusion that the
competing interests of the employer and the grievor could be
reconciled in a way, and with the penalty, less severe than
discharge, and that this balancing exercise should take place even
regarding temporary reinstatement pending adjudication. [emphasis
added]
Dishonesty is undoubtedly a serious "employment offence" which often
(and rightly) leads to the termination of a worker's employment. However that outcome
is neither so common, nor so automatic as it once was. Nor is this more nuanced
approach confined to the world of labour arbitration; because one sees the same
sentiment endorsed in cases such as McKinley v. B. C. Telephone [2001] S.c.R. 161 -
where the Supreme Court of Canada held that each case must be considered on its own
facts; and that there was no "rule of law" to the effect that theft or dishonesty will
automatically supply "just cause" for ternlination.
The point is: it is necessary to carefully weigh the facts of each case -
including the business context, the seriousness of the employee's dishonesty and the
employer's need for general or specific deterrence - in order to see whether the situation
is reconcilable with sustaining the employment relationship. It is also necessary to
consider whether an employee has "learned his lesson", and whether a penalty short of
discharge, will reflect - and effect - an appropriate balance of the competing interests
involved. Because there is a spectrum of responses available to the employer and to the
arbitrator; and before selecting "discharge" - "industrial capital punishment" as it were -
it is necessary to consider the context and the utility of any alternative penalty.
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***
So what are the circumstance in the instant case?
***
On the one hand, the grievor's misconduct was serious, and involved a
number of separate incidents - not a single, spur of the moment, event. Nor did it help
the grievor's case, that she failed to acknowledge her misbehaviour, on the first available
opportunity - the meeting on January 2. Moreover, there is no doubt that the Employer
has a legitimate interest in both general and specific deterrence (as reflected in its
employment policy document); for while the employees do not have access to large sums
of money, and are not employed in the kind of "position of trust" that a bank employee
would be (for example), the Employer has an entirely legitimate expectation that
employees will behave properly, and that they will not abuse the "honour system" which
pertains to the use of petty cash, gasoline cards, and grocery store arrangements.
On the other hand, Ms. Watson has 10 years oflargely satisfactory service
(at least with respect to disciplinary matters); she admitted her misconduct and sought to
make restitution, without prompting, within a day of the fateful meeting of January 2; she
was under significant personal pressure, at home, at the time of the misuse of the credit
card; and she is truly and genuinely remorseful for what she did. Indeed, I think it is fair
to say that I have seldom seen remorse so openly and sincerely and credibly expressed.
Moreover, as a result of her termination, she and her family have been "put through" a
gruelling period of uncertainty and deprivation; and whatever else might be said about
the Employer's determination to persist in pressing criminal charges in order to extract a
24
resignation from the gnevor, this strategy resulted in another layer of negative
consequences for the grievor and her family, which, I think, I can fairly take into account.
The grievor foolishly and improperly misused the gasoline credit card - on
several occasions. That was not a neutral event; nor one that is "justified" by the personal
circumstances in which the grievor found herself in the fall of 2006. But by the same
token, the grievor and her family have already paid a heavy penalty for her lack of
judgment - a penalty which, in my view, is all that is necessary to accomplish the goal of
general and specific deterrence. For in my view, a strong "corrective" disciplinary
response, is more appropriate, in the circumstances of this case.
*
I recognize that despite the views expressed in "Brown & Beatty" (above)
there may be some scepticism in the labour relations community, about the ultimate
wisdom (or utility) of reinstating an individual, whom an employer has discharged for
serious misconduct. Because it might be said that he will go back as "a marked man",
"with a target on his back"; and that a disgruntled employer will simply look for other
reasons to fire him, or will create a hostile work environment, so that he will eventually
be forced out. However, it is interesting to note that in a study of post-discharge
reinstatement experience done for Queens University, the author found that this was not
necessarily the case - and, in fact, that employees fired for dishonesty, often had the most
positive post-reinstatement experience (see: G. W. Adams, Grievance Arbitration of
Discharge Cases, A Study of the Concepts of Industrial Discipline and Their Results,
25
Queens University Industrial Relations Center, 1978). Which is to say: that corrective
discipline may well work; and is at least worth trying.
***
In any event, having carefully considered the circumstance of this case,
and having regard to the remedial authority found in section 48(17) of the Labour
Relations Act, I am satisfied that the grievor's discharge should be set aside, and that, she
should be reinstated in employment, without compensation. In my opinion, that
disposition is the one that is "just and reasonable in all circumstances".
******
For the foregoing reasons, I direct that the grievor be reinstated in active
employment forthwith, but in any event, no later than August 10,2007.
Such reinstatement shall be without compensation, but without loss of
seniority from the date of her termination, to the date of her reinstatement (which is
essentially, amounts to a seven month suspension without pay).
I further direct that the grievor make restitution to the Employer in the
amount of$200.00. She shall have until the end of the current calendar year to do that.
!-
I have considered the Union's offer to "waive" the application of the
"sunset clause"; however, in my view, there is no need to do so in the circumstances of
this case. There is no need for additional "specific deterrence".
26
..
However, I do direct that the grievor meet with the Union, for the purpose
of developing a strategy to ensure that, upon her return to work, the grievor "gets back on
track", and can meet Ongwanada's reasonable employment expectations, with respect to
attendance or otherwise. I accept that the grievor should be given "another chance"; but
it is also important that she make the most of it.
I will remain seized in the event that there is any difficulty implementing
these orders.
Dated at Toronto, Ontario, this 29th day of July, 2007.
R.O. MacDowell, Sole Arbitrator
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