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HomeMy WebLinkAboutLaframboise 01-12-10 Duc-13-l001 02:26pm From-RWBD , 4163409250 T-057 P.006/030 F-318 IN THE MA TIER OF AN ARBITRATION BETWEEN: ONTARIO PUBLIC SERVICE EMPLOYEES UNION. LOCAL 361 (hereinafter called the Union) - and - KENNEDY HOUSE YOUTH SERVICES (hereinafter called the Employer) - and - MR. MICHEL LAFRAMBOISE (hereinafter called the Grievor) BOARD OF ARBITR4.. TION Professor Ian A. Hunter, Chairman Ms. Pamela Mundt-Madill, Union Nominee Mr. Patrick Gannon, Employer Nominee APPEARANCES~ FOR THE UNION: Mr. Alick R. Ryder, a.c., Counsel FOR THE EMPLOYER: Mr. Robert 8. Budd I Counsel ARBITRATION I~IEARINGS WERE HELD IN TORONTO, ONTARIO ON JULY 19 AND IN LONDON, ONTARIO ON OCTOBER 3, 2001 D~c~13-2001 02:26pm From-RWBD 4163409250 T~057 P.007/030 F~318 2 AWARD (1) Introduction The grievance of Michel Laframboise alleges termination without just cause (Exhibit 2). The grievance was processed through the prescribed steps and referred to arbitration. Arbitration hearings were held in Toronto, Ontario on July 19 and in London, Ontario on october 3, 2001. (2) The Collective Agreement (Exhibit 1) Article 4.01 (b) of the Collective Agreement acknowledges the exclusive right and function of the Employer inter alia, to discharge any employee "... provided that a claim by an employee who has been discharged without just cause may be the subject of a . " gnevance ,.. . Article 9.10 provides that in a discharge case, an arbitration board may confirm the discharge; reinstate the employee with full, partial or no compensation; or make any other order "just and equitable in the circumstances". (3) The Termination Letter (Exhibit 3) On November 8, 2000 Mr. Mark Prazoff, Superintendent of Kennedy House Youth Services, wrote to the Grievor as follows (Exhibit 3): Doc-13-2001 02:26pm from-RWBD 4163409250 T-05T P.008/030 F-318 3 "On october 26, 2000 you and another staff were sent out to transport a youth to the local hospital. When asked why we were sending two staff, you were clearly informed that the youth had been assessed as high risk. You subsequently submitted a receipt for coffee and donuts. When questioned initially you were not truthful about how they were obtained. You eventually admitted that you had left the youth alone with the other staff in violation of our direction I and proceeded, on your own, in the agency vehicle to a donut shop. It subsequently came to our attention that there might be an irregularity with your drivers license. . Only when asked to produce a copy of your license, did you admit that it had expired on February 21, 1998. When asked about the same rumour a month ago, you had told Program Supervisor Dave Thomas that you did have a valid license. Michel this represents a very serious breach of the expectations of your employment. You failed to be truthful on three occasions. You placed the community at risk by not providing the directed level of supervision to a youth in our custody. By driving our vehicle without a valid license you exposed us to an unacceptable level of potential liability. As well your actions were in violation of the law. As a result we have no option but to terminate your employment, effective immediately." (4) The Policies and Procedures Kennedy House youth Services is a Young Offenders facility. It is licensed to hold, in secure custody, up to eighty (80) young offenders whose crimes range from property offences to assaults to attempted murder, There is a total staff complement of approximately sixty (60) employees. Prior to the year 2000 the facility was known as St. John's Training School for Boy$ and it waS operated by the Christian Brothers. In July, 2000 it was privatized and became Kennedy House. There are a number of SL John's Policies and Procedu res that have been continued in effect by Kennedy House, The following have particular relevance to this case: Dee-IS-2001 02:26pm From~RW8D 4163409250 T-057 P.OD9/030 Fw318 4 (a) E:scorting Policy (Exhibit 4) DEFINITION The purpose of escorting is to maintain security of deten~ion and custody [of] residents when outside the facility. ! pOLICY Escorting is performed only by custody and detention staff. Probation Officers, volunteers, teachers and other staff may not escort, though they may accompany a resident, who is on a Temporary Release, or who is being escorted by another staff- PROCEDURE Prior to escorting a resident, the following factors have to be considered: Resident's classification i.e. detention, custody (maximum or medium) and risk assessment. Staff to be aware of history of aggressive or running behaviour. Level of maturity and attitude of the resident. Nature of offence. Resident's current emotional staie. Purpose of the trip (i.e. medical, court, temporary release, compassionate), Resident status (Le. Is he just starting his custody disposition? etc.) STAFFING The number of staff utilized to escort one or more residents should be determined through the following considerations: Number of residents to be escorted Level of supervision Reason for escort Length of trip Mode of transportation Safety and security ~UIDELlNES Oe~-13-2001 02:26pm From-RWBO 4163409250 T-057 P.OIO/030 F-3IB 5 If two staff are required for escorting, both staff must escort the boy at all timeS. (b) OReration of Motor Vehicles (Exhibil8l PROCEDURE A school vehicle may be driven by a staff member whose driving licence is valid for that class of vehicle. (Highway Traffic Act. RAO.19aO, Reg. 461). (c) :Transportation Safety and Security (Exhibit 9) DEFINITION When transporting residents In our care. staff must always remember safety and security. POLICY Only staff that have the appropriate licence will be able to drive a St. John's vehicle. (5) Ihe Grievorfs Prior Disciplinary Record Article 25.01 (c) is a sunset clause on discipline. For "written or verbal action" contained in an employee's file, the sunset period is one year. For disciplinary action that resulted in a suspension the sunset period is two years. The Griovor W3S first employed by St. John's school on May 11. 1987. Oec-13-2001 02:27pm From-RWBD 4163409250 T-057 P.011/030 F-318 6 The prior disciplinary record alleged and proved is: (a) September 6. 2000 (Exhibit 5 - Disciplina!)l Letter) On September 5th at 8:50 AM you were observed by your immediate supervisor, to have the odour of alcohol on your breath. As a result you were sent to see me. You declined to have a union representative present at our meeting. You did accept responsibilityforthe situation and admitted you had been drinking during the holiday weekend. As a result you were suspended with pay for the remainder of the day. Michel, this is a very serious violation of the expectations of your position. These expectations are clearly documented in section 0505-0110 of the policy and procedure manual. As a counsellor your behaviour must serve as a role model to the youth in our care. As we discussed today if there were ever a need to seek out help there are a number of community resources available. Please feel free to contact me at anytime for assistance. We will make sure this is done on a strictly confidentIal basis. It is my hope that there will be no reoccurrence of this type of problem. However, should there be any reoccurrence of this type of problem I further disciplinary action will be taken up to and including dismissal. (b) October 25.2000 (Exhibit 6 - Disciplinary Letter) On October 22, 2000 you were smoking in the Main Foyer washroom. Whenasked by Mr. Bill Scott whether you realized you couldn't smoke there, you. stated that you didn't realize it was a non-smoking area. All smoking areas in the building are clearly marked. During my interview with you on October 23, 2000 Mr. Dave Thomas informed you that in fact he had spoken to you about smoking in this same washroom. I am therefore placing this written reprimand on your file in accordance with our policy 0505-05A, Standards of Conduct #14. Any similar incidents of this nature will result in further disciplinary action. P~c-13.2001 02:27pm From-RWBO 4163409250 1-057 P.012/030 F-318 7 (6) The Issues (1) Has the Employer's evidence proved, on a balance of probabilities standard, that there was just cause to discipline the Grievor? (2) If so, was the discipline imposed in this case (i.e. discharge) excessive in all of the circumstances? (3) If so, what would be a I'just and equitable" penalty? (7) The Emplo~er's Evidence (1) Mr. Michael Carr Mr. Carr is the Unit Shift Supervisor (and in October 2000 the Grievor's immediate supervisor) at Kennedy House Youth Centre. Mr. Carr has been employed at the facility for seventeen (17) years. Mr. Carr testified that staff at Kennedy House have three primary responsioilities: (1) safety and security of residents and the community; (2) acting as role models to residents; and (3) providing programming. Mr. Carr testified that on October 26, 2000 he directed the Grievor and another employee, Mr. AI Santio, to escort a young offender first to Uxbr[dge Hospital for an appointment, then to another appointment in downtown Toronto. Both men Pec~13-2QOI 02:27pm From-RWBD 4163409250 T-057 P.013/030 F-318 8 questioned the need for a two (2) person escort. Either the Grievor or Santio (Mr. Carr was not sure which) said: "Joe's a good kid. Why two staff?". Mr. Carr then obtained, and reviewed, the young offender's file for "Joe" (a pseudonym). The plan of care indicated that 'IJoe" was "high risk" because of a history of impulsive behaviour and running. Mr. Carr read that part out to the Grievor and Santlo who both said that they understood. The escort party then left the facility. The escort party arrived back at Kennedy House between 5 and 6 p.m. and reported to Mr. Carr. They said they had been delayed at the Uxbridge Hospital but still managed to get to both appointments. Mr. Carr considered it an uneventful escort. However, laterthatday (October26, 2000) another supervisor, John Scott, told Carr that the Grievor had presented a receipt seeking reimbursement for coffee. Mr. Carr had told the Grievor that it was not Company policy to pay for coffee. The following day Mr. Carr obtained the receipt from Mr. Scott; it was from Tim Horton's in uxbridge. He confronted the Grlevor and asked if all three of them had gone to Tim Horton's. The Grievor said: 'Yes. We all went to Tim's for coffee", Mr. Carr then went to the Shop Building to speak to Al Santio. En route, he heard on his two-way radio a request from the Grievor asking Santio to call him (i.e. the Gri8vor)" But Mr. Carr reached Santio before Santio had an opportunity to call the Grievor. Mr. Carr asked Santio if all three had gone for coffee on the previous day Oec-13-2001 02:2Tpm From-R'llBD 4163409250 T-051 P.014/030 F-318 9 escort? Santio said: "No. Just the Grievor. I stayed in the waiting room with "Joe"." Santio said he didn't know where the Grievor had gone for the coffee. Carr told Santio that he had now received two different stories about obtaining the coffee; Santio said: "I don't lie". Mr. Carr went back to the main building and conferred with two other supervisors, John Scott and Dave Thomas. As he was doing so, the Gri~vor called him on his two-way radio and said he wanted to see him. Mr. Carr told him to come to the office. The Grievor arrived a few minutes later, "looking sullen and quiet", and said; "llied to you earlier'f, The Grievor then explained that he alone had gone for the coffee leaving Santlo alone with the young offender at the Hospital. The Grievor then said that he lied earlier because Santio had said that if anyone ever asked about the escort, he (i.e. the Grievor) should say that all three had gone for coffee, Mr. Carr asked the Grievor if he had anything else to say? The Grievor replied: "I'm sorry". The three supervisors then requested Mr. Santio to come to the office. Santlo confirmed what had happened the previous day; that he (Santio) had remained with "Joe" while the Grievor went alone for coffee. He denied, and "got quite angry" at the Grievor's suggestion that Santio had proposed that, if questioned, they should say that all three went for coffee. Mr. Carr confirmed that both the Grlevor and Santio were aware of the req ulrements of the Escort Policy (Exhibit 4. quoted supra). Mr, Carr considered their failure to adhere to the policy "a serious breach, bordering on insubordination". He 0,c-13-2001 02:27pm From-RWBO 4163409250 Tp057 P.015/030 F-318 10 considered that the Grievor's leaving for coffee could have threatened the safety of the community. On the driver's license issue, Mr. Carr testified that the Grievor returned from an 1 extended sick leave on August 30, 2000. Shortly after that, Mr. Carr heard "rumours~ that the Grievor did not have a driver's license. . He noticed that the I Grievor was driven to work by someone each day and dropped off. He confronted the Grievor and asked him directly if he had a driver's license? The Grievor said that he did, showed him a license, and said that his son dropped him off every day because his son needed the car. Mr. Carr was not part of the management decision to terminate the Grievor's employment. In cross-examination, Mr. Carr indicated that performance appraisals were made of staff annually. Mr. Carr conceded that on the October 26, 2000 escort Mr. Santio, who had about a year more seniority than the Grievor, was "in charge" (the Grievor's seniority was twelve years, seven months; Mr. Santio's seniority was thirteen years, nine months; see Exhibit 11). However, Mr. Carr did not consider that Mr. Santio's conduct was equally culpable because "Mr. Santio stayed with the young offenderll. Mr. Carr was not involved in disciplining Santio but he believed that there was a disciplinary letter placed in Mr. Santio's file (which indeed there was; ct. ExhibIt 10). Dec~13-2001 02:28pm From-RWBD 4163409250 T-057 P.016/030 F-318 11 (2) Mr. Dave Thomas Mr. Thomas is Program Supervisor at Kennedy House. Mr. Carr reports to him. Mr. Thomas has been at Kennedy House (or its predecessor, St. John's school) since 1973. Mr. Thomas testified that Mr. Carr told him in August or early September about "rumours" that the Grievor did not have a driver's license. In early October Mr. Thomas asked the Grievor about these rumours. The Grievor "assured me that he had a driver's license", After the October 26, 2000 escort incident, Mr. Thomas continued to hear the license rumours and he decided to check them out. He obtained a manifest from the Ministry of Transport which revealed that the Grievor's driver's license was suspended for impaired driving from October 24, 1999 until April 13, 2001. The Grievor was then caught driving while under suspension and the suspension was extended until October 13, 2001 (Exhibit 7), Mr. Thomas identified the two prior disciplinary incidents (September 6, 2000, Exhibit 5; and October 25,2000, Exhibit 6; supra) on the Grievor's record. Mr. Thomas made the decision to terminate the Grievor's employment. He based his decision on (a) the Grievor's discipline record; (b) the Grievor's conduct on October 26, 2000 which jeopardized the safety and security of a resident and the community; (c) the fact that the Grievor lied about the October 26 incident, and "on a couple of previous situations he lied to me"; and (d) the Grievor did not follow the ,D8c~13-l001 OZ:Z8pm From-RWBO 4163409Z50 T-057 P,017/030 F~318 12 direction of his supervisor or the Kennedy House policies. "It was a matter of disrespect" . In cross~exami nation, Mr. Thomas conceded that throughout,the Grievor's thirteen (13) year employment career he had been [lcommitted, and us.efuln. and that hewas "respected" by at least some of his peers. In re-examination, Mr. Thomas said that he was "unaware" of any previous discipline record of AI Santio. He also said that, during the grievance procedure, he " (i.e. Thomas) became aware that the Grievor also went to a' bank on October 26. 2000, apparently to make a mortgage payment. The Board of Arbitration considered both Mr. Carr and Mr. Thomas to be credible witnesses. We accept their evidence. (8) The Union's Evidence (1) Mr. Charles Bryans Mr. Bryans is President of O.P.S.E.U" Local 361 ; he has been a Guard at Kennedy House since 1977. Mr. Bryans was called to give evidence about a prior disciplinary incident involving Al Santio, However. it turned out that this incident occurred sometime in 1994, well beyond the sunset clause (Article 25.01 (c) cited supra) in this Collective Agreement. That incident could not properly have been considered by the Dsc-13-2CDl 02:28PM From-RWBO 4163409250 1-057 P.018/D30 F-318 13 Employer in imposing discipline on Mr. Santlo forthe October 26.2000 escort; when the date of the incident came to light, Mr. Ryder did not pursue it further. In cross-examination, Mr. Bryans acknowledged that it was "irresponsible" and "unsafe" for Mr. Laframboise to have left the escort on October 26. 2000 to get coffee. He acknowledged that it was wrong for Mr. Laframboise to have lied to Mr. Carr about it. He acknowledged that it was "unsafe" for Mr. Laframboise to be driving a company vehicle without a license. He acknowledged that it was inconsistent with staffs duty to act as a "role model" for the Grievor to be driving while unlicensed contrary to the Criminal Code. (2) Mr. Michel Laframboise The Grievor is fifty-nine (59) years old. He began working at St. John's Training School for Boys in 1987, when it was run by the Christian Brothers. The Grievor acknowledged that acting as a "role model" for the young offenders in custody at the facility was an Important part of his responsibilities. The Grievor was convicted of impaired driving on October 24, 1999. At that time, the Grievor testified that he was having family and related problems and I while he was drinking ['I did not think I had a problem with alcohol". (More recently (i.e. following hospitalization for a bleeding ulcer in February, 2001) the Grievor has concluded that he "may have" a problem with alcohol; he testified that he has reduced his consumption and taken some counselling.) De~-13-2001 02:28pm From-RWBD 4163409250 T~057 P.019/030 F-318 , ' 14 In cross-examination-in-chief, the Grievor was asked if he had driven after his license was suspended (Le. In November, 1999); after a very long pause, the Grievor replied: "Gee whiz. I don't think so". This exchange typified the unsatisfactory nature of the G,ievor's evidence: (1) We know that he was driving while under suspension because he was convicted of that offense and his license suspension was extended until October 13,2001 (cf. Exhibit 7); and (2) We know, and the Grievor admitted in cross-examination, that he drove the Kennedy House vehicle to Tim Horton's on the October 26, 2000 escort to obtain coffee. The Grievor's evidence throughout was evasive and self-serving, When Dave Thomas specifically asked him whether he had a driver's license (i.e. in October 2000), the Grievor lied to hIm. Yeti In his examinatlon-in-chief, the Grievor initially tried to defend his lie by saying: "Technically, I had a license". What he meant by this, he explained, was that he was able to produce from his.wallet a (suspended) driver's license. In examination~in-chief he would concede ,only that he "misled" Dave Thomas; in cross-examination, he was constrained to admit that he lied. In examination-In-chief the Grievor continued to maintain the same position he originally asserted on the morning of October 26, 2000; namely, that "Joe" was "a good kid", that a two (2) person escort was unnecessary, that AI Santio was "a big guy" who could supervise "Joe" alone just fine while he (i.e. the Grievor) went for coffee, that his failure to abide by the Employer's rules on escorts was 'lno big deal", The Grievor testified that he had told Mike Carr on the morning of October 26 that neither he nor AI Santio had any money and that they would have to stop at the bank. According to the Grievor, Mr. Carr said: "Oh, well...It and then left. Mr. Carr ~6c~13-2nOl 02:29pm From-RWBO 4163409250 T-057 P.020/030 F-318 15 has no recollection of such a conversation. Even assuming that it took place, Mr. Laframboise would have us infer from that comment "Oh, well ..." that Mr. Carr not only gave tacit consent to a stop at the bank, but also to leaving "Joe" with only one (1) escort while the Griever went alone to the bank or for':coffee. We are not prepared to draw that inference. Once the escort party was at Uxbridge Hospital, the Griever would have us believe that when the subject of coffee came up, it was AI Santio's idea that the Grievor leave the escort and go alone. The Grievor testified: riAl, salp: 'Why don't you go. I'll stay.' We bickered back and forth, Then AI threw the car keys at me, and said: 'You go,.n Mr. Santio did not testify. Since the Grievor's evidence about what happened at the Hospital was uncontradicted, we accept it, but it does not alter that fact that Mr. Santio did his duty (Le. to stay with "Joe") and the Grievor dId not. When the escort was over and they returned to Kennedy House, the Grievor admitted that he initially lied to Michael Carr (by telling him that all three went for coffee); in examination-in-chief the Grievor testified that he felt "bad, upsetrt about this lie and that a few minutes later he went to the supervisor's office and told the truth (i.e. that he went alone). But in cross-examination, the Grievor was driven to acknowledge that, in the interval, he talked to Al Sanllo and learned that Santio had "blown your story": the Grievor replied: "That may have been it", As with the driver's license lies, the Grievor tells the truth only when there is no other way out. ,Dec;-I,3-2001 02: 29pm F rom-R~O 4163409250 1-057 P,021/030 F-318 16 In examination-in-chief the Grievor testified that he wants his job b;;lCk. He finds a high level of personal satisfaction in working with young offenders. We accept that. Mr. Ryder filed with us performance appraisals ranging from 1988 to February 1, 2000. On a seven (7) point overall evaluation summary, these appraisals consistently rate the Grlevor as an Uaverage" employee. The narrative descriptions of his work would suggest an employee whose performance has generally improved over time. It Is probably fair to say that the Grievor's strong point is his ability to work with residents; his weakness is an inability, or unwillingness, to take direction from his supervisors. Following his termination on November 8, 2000 the Grievor applied for, and W;;lS denied1 employment insurance. He appealed that denial to the Board of Referees which, in a unanimous decision dated 18 January, 2001, held (Exhibit 13): STATEMENT OF FACTS: The issue under appeal is to determine jf the Appellant lost his employment by reason of his own misconduct. The facts on tile are as follows: The Appellant was employed with Kennedy House Youth Services Inc. until his dismissal on November 13,2000. He applied for a renewal claim and his claim was established effective November 19, 2000. The Employer advised the Commission that the Appellant was dismissed because he failed to follow the Employer's orders and he was driving while his license was under suspension. The Appellant stated he lied to his supervisor and told him he still had his license. He was afraid to tell his Employer in case he lost his job. The Appellant also stated he required his license to do his job, It was in his job description. The Appellant advised while he was on an escort run to the hospital, he was delayed, so he left and drove to a doughnut shop for a coffee. He did this while his license was under suspension and while he was supposed to be on duty. The Appellant said this was a bAd decision. gec-la-2001 02:29pm From-RWBD 4163409250 T-057 P.022/030 F-3IB 17 The Commission determined that the facts supported a finding of misconduct and imposed an indefinite disqualification pursuant to subsection 30(1) of the Act. The Appellant was present and the hearing was taped. The Appellant advised when they arrived at the hospital, police and emergency creWS were present because there had been a serious accident. They were delayed and he was directed by the senior employee to go for coffee. They were familiar with the young offender and did not believe there was any risk involved in him leaving for coffee. . CONCLUSION: It is the unanimous opinion of the Board of Referees that the Appellant did lose his employment because of misconduct pursuant to Section 29 and 30 of the Employment Insurance Act. The Appellant admitted what he did was wrong. He was aware of his responsibilities to remain at the hospital with the young offender during the hospital visit. He admits to lying to his Employer regarding his loss of . license and to driving while his license was under suspension. The Board finds that the Appellant created a serious risk to his Employer by driving a vehicle while his license was under suspension. The Board agrees that the policies set by the Employer were not unreasonable and these directions were not adhered to by the Appellant, constituting misconduct. DECISION: The decision of the CommissIon is upheld and the appeal is dismissed. (9) The Submissions of The Parties Mr. Budd submitted that the Grievor's "pattern of dishonesty" had irreparably severed the bond of trust essential to the employment relationship. Both (a) the failure to provide a two (2) man escort! and (b) driving a Kennedy House vehicle while his driver's license was under suspension, were the actions of a man contemptuous both of a supervisor's instructions (two man escort) and the law of the land. Such conduct is impossible to tolerate in an institution whose raison d'etre is to teach young offenders rc:;;peot for authority and ~he law, and whose s1aff must serve as role models. When Dec-l3;2001 02:29PM From-RWBD 4163409250 T-057 P.023/030 F-3IB 18 confronted about his misconduct, the Grievor offered only lies and evasions; ria pattern of misconduct _ the Grievor is someone who tells the truth only when he IS backed into a comer" were Mr. Budd's words. For the Union, Mr. Ryder submitted that the allegations of ~isconduct could be divided into four: (1) failure to provide a two man escort on October 26, 2000; and (2) the Grievor lied about it during Mr. Carr's investigation. On these two points, Mr. Ryder submits that the Grievor1s culpability was no greater than Mr. santio's, who received only a written warning. On the two additional categories (3) lying about having a driver's license; and (4) driving the Kennedy House vehicle on October 26, 2000 while his license was under suspension, Mr. Ryder submits that additional discipline is warranted, but not the "capital punishment" of discharge. Consequently, he urges us to mitigate the penalty. (10) Decision We start with the termination letter (Exhibit 3. quoted in full, supra). Every allegation in that letter was proved by the Employer. The Grievor's proven misconduct consisted of (a) violating the Kennedy House polley on Escorting (Exhibit 4, supra) by leaving the young offender on October 26, 200 alone with Mr. Santio in order to go and get coffee; (b) lying to his supervisor, Mr. Carr, during the subsequent investigation: (c) lying to Mr. Dave Thomas about whether he had a driver'S license; and (4) driving the Kennedy House vehicle on October 26, 2000 when his driver's license was under suspension. Dec~~3-2001 02:30pm From-RWBO 4163409250 1-057 P.024/030 F-3IB 19 We reject Mr. Ryder's submission that the Grievor's culpability was no greater than Mr. Santio's. The crucial difference is that Mr. Santio stayed with the escort at all times on October 26,2000; the Grievor did not. By leaving to go and get coffee, the Grievor not only endangered the safety of the escort and Mr. Santio, but the safety.of the community as well. It is for reasons of security that the policy (Exhibit 4) requires that "... both staff must escort the boy at all fimeslJ. Mr. Santio fulfilled the polley. Mr. Laframboise did not. The Grievor compounded his initial misconduct by lying to Mr. Carr about it. Santio, too, may have lied (although there was no direct evidence on this point, we agree with Mr. Ryder that this is a reasonable inference based on Exhibit 10), but that does not exonerate the Grievor. Nor, given Mr. Santio's lack of disciplinary record and the Grievor's two (2) written warnings (Exhibits 5 and 6 less than six (6) weeks prior to the discharge incident), could it be suggested that the discipline imposed on Santio would have been enough for the Grievor. rhe Grievor's culpability Is further compounded by (a) lying about his lack of a driver's license when the question was put to him directly by Mr. Thomas; and (b) driving the Kennedy House vehicle on October 26, 2000 when the Grievor knew his driver's license was suspended. By his unlawful conduct, the Grievor exposed his Employer to serious potential liability. The remaining questions are: Was discharge too harsh a penalty? Is discharge ('just and equitable" in these circumstances? 08c~1~-2001 02:30pm From-RWBO 4163409250 1-057 P.026/030 F-318 21 safety of his co-worker, the escort and the community. He drove a Kennedy House vehicle without a driver's license. All this he did knowingly - and for what? A cup of coffee. He compounded his offence by lying about it. He then lied about having a driver's license. At arbitration, he attempted to minimIze his wrongdoing, to blame others, and to see himself not as the wrongdoer but, somehow, the victim. Nothing in the evidence before us provides a basis on which we could conclude that the Employer's decision was unjust. putting the point another way. nothing in the evidence persuades us that there is some reasonable basis on which to conclude that the Employer's decision to discharge was unsustainable, or that there Is some lesser penalty that we eQuid substitute which would allow for a productive, trustworthy continuation of this employment relationship. Accordingly, and for the reasons given, the discharge is upheld and the grievance of Michel Laframboise (Exhibit 2) is dismissed. Oec-13-2001 02:30pm From-RWBD 4163409250 T-057 P.027/030 F-319 .. A 22 Dated at the City Qf London this (e /kJay of :0 ~Ii{pi::<" ,2001. I dissent (attached) "Pamela Mundt-Madll1" Ms. Pamela Mundt-Madill Union Nominee I conCur "Patrick Gannon" Mr. Patrick Gannon Employer Nominee Pec~11~2P91 02:31pm From-R~~O 4163409250 1-057 P,028/030 F-318 ;. f. ~~ DISSENT I disagree with the Majority's decision to dismiss the grievance of Mr. LaframbOise. The Majority begins its Decision section noting that all of the allegations in the dismissal letter have been proven. I agree with that assessment. I also agree with the Majority's conclusion that the allegations justify discipline. Moreover, both of these points were acknowledged by the UnIon and the Grievor at the hearing. I do not agree, however, that the penalty of discharge was appropriate in the circumstances. The Majority's decision to dismiss Mr. Laframboise's grievance is based In large pari on their assessment of the testimony gIVen by Mr. Laframboise, I fundamentallY disagree with the Majority's interpretation of the Grlevor's evidence. ln fact, I waS Impressed with the careful and exacting manner in which Mr. Laframboise answered the questIons as put to him. It is true that the Grievor provided an explanation for his conduct during his evidence. The provision of that explanation was not, however, an attempt to ex.cuse or justify it. The Grlevor made it clear on numerous occasions during his testimony that he understood he had made a number of incorrect workplace decisions within the three to four months preceding his dismissal. Similar admissions and recognitions of his mistaken judgement had been made to the Referees in his Employment Insurance APpear as entered before the Board. I am deeply concerned by the Majority's suggestion on page 20 of its decision that the Grievor needed to be contrite at the Arbitration to engage ollr sympathies. Our role as a Board is not to asses contriteness but rather to assess, on the evidence before us, -the justness of a specific disciplinary penalty. Had the Grlevor simply come t9 the Arbitration with a blanket admission of his wrongdoing and not provided an explanation. there would be no basis on which the Board could make a decision on the Grievor's ability to productively return to the workplace. It was essential for the Board to hear the Grievor's explanation of his actions in order to come to a reasoned decision. I believe the Grievor's evidence should be viewed in this light rather than set against a standard of contriteneSS. The Grievor gave a list of factors he considered in coming to the erroneous decision to leave the escort These considerations included his knowledge of the student being transported, his trust in the ability and physical capacity of Mr. Santio to handle any situation which may arise, and the physical location Mr. Santlo was in at the time he left. The Grievor showed a recognition that the decision he came to after these considerations was wrong. In fact, he admitted that this was not a decision that was his to make. The consideration he gave to the situation, however. indicates he understood the relevant factors and could In the future choose the correct option. OB~-13-Z001 02:31pm From-RWBD ~, 4163409250 T-057 P.029/030 F-318 I' .. The question then becomes how should we understand a number of faulty judgement~ ~ithin a short period of time from a long-term employee? Mr. Laframboise testified that In and around the time of the dismissal he was having a number of severe personal ~roblems. It. is clear that Mr. Laframboise did not handle these personal problems In a constructive way. Rather, he began to drink in an attempt to cope. That unfortunate, but all too common choice of a coping strategy resulted in Mr. L~framboise's being found driving under the influence of alcohol and thereby losing his dnver's licence. These problems in his personal life quickly.spilled over into his professional life by his initial refusal to admit to his employer that he had lost his driver's licence. I believe Mr. Laframboise when he testified that he feared his employment could be put in jeopardy by the loss of this licence. That does not condone his misrepresentations to the employer; but It does explain an understandable reluctance to be forthcoming with this infonnation. The Majority was very critical of Mr. Laframboise's evidence regarding whether he drove while his licence was under suspension. When asked the question whether he had driven while his licence was under suspension the Grievor did answer that he did not believe so. That answer must be taken In context. Mr. Laframboise was clearly aware the Board knew he had driven on two occasions without his licence. It is reasonable to assume that his answer excluded these two events which he knew to be within the Board's knowledge. Furthermore, long pauses in a Grievors answering of questions under cross examination does not necessarily Indicate evasiveness. Rather, they may evidence a sincere attempt on a witness's part to answer a question correctly within the context it has been framed. rhere still remains the question of why someone with Mr. Laframboise's long work record with acceptable performance appraisals and a show of confidence on the part of the employer by appointing him as Night supervisor would, within a period of a few months, make a number of serious judgement errors in the workplace. This should concern a Board of Arbitration and place an obligation on that Board to ensure an outcome which respects all the parties hicluding the students at the school and the public at large and the Grievor. The Board has chosen to understand that Mr. Laframboise's several errors in judgement render him unsuitable for continued employment. I disagree. It must be remembered that Mr. Santio was also involved in the escort incident. I do not agree with the Board's assessment that Mr. Santio, by staying with the student, followed the employer's policy and therefore Is substantially less culpable than Mr. Laframboise. The evidence before the Board, Including that o! management's witnesses. was that Mr. Santio took at least an equal part In the deCision to have the Grievor go for coffee. There certainly was absolutely no evidence that Mr. Santio at any time attempted to dissuade the Grievor from this course of actl?n. To the extent then that the change of the escort compliment threatened public safety,. both of the individuals involved played a role In that. I do not believe tho fact that It was actually Mr, Laframboise wl10 went for coffee creates a salient difference in culpability and this distinotlon Is not supportsd by any of rJ1anag~m0nt's witnesses. D8qn'3n~OOl 02:31pm From-RWBD 4163409250 T-057 P,030/030 F-31B f I , ;(. Evidence at the hearing showed that thB employer's assessment of Mr. Santio's actions warranted only a disciplinary letter. This demonstrates that the employer did not place a large significance on the act of failure to maintain the escort compliment. The Board should not impose an artificial significance to this incident which the employer did not. I think a more objective view of the circumstances of this case indicates that a long-term employee upon whom trust and authority had been gr,anted in the past entered a very difficult and erroneous period in both his personal and professional life. Once Mr. Laframboise attempted to solve his personal difficulties with alcohol, he set into motion a chain of events which spilled into his professional life. His judgement became faulty and his employment behaviour unacceptable. It would be wrong, however, to judge a 13 year employee and find him totally untrustworthy based on the events of such a relatively short period of his work career. The Board was persuaded by the employer's submIssion that workers at the school must provide a role model for the students. I was Impressed throughout Mr. Laframboise's testimony by the compassion, interest, and obvious pride he took in the students at the school and his work with them. His Appraisals Indicate he waS both polite and effective in this aspect of his work, It was also not shown that any of the actIons of Mr. Laframboise at any time brought him Into disrepute or a position of disrespect with regard to the students he supervised and taught. This aspect of his role model performance over the long term must be balanced against a series of faulty short-term decisions. In conclusion, I believe that Mr. Laframboise was for a long period an effective employee at Kennedy House Youth Services. I believe it will be a loss to the Institution, and particularly to the students, to dismiss an employee of long-term service with obvious compassion and sympathy based on this series of events. It is certainly possible for the Board to fashion a remedy which would send a clear message to Mr. L.aframbolse that his actions were unacceptable and must be immediately remedied fn order to continue employment at Kennedy House. Such a remedy would have satisfied t.he safety and administrative concerns of the school and the public. It would ~Iso have preserved for the school an effective employee and permitted a worker, later in life with a long service record, to complete his employment with productivity and with dignity. I would have so ordered.