HomeMy WebLinkAbout1975-0023.Haight.76-04-23Ontario 23/75
CROWN EMPLOYEES
GRIEVANCE SETTLEMENT
BOARD
416/965/1410 Queen’s Park
Taronlo. Ontario
M7A 125
IN THE MATTER OF AN ARBITRATION
Under The
CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between Mr. R. E. Haight (The Grievor)
And
The Ministry of Government Services
(The Employer)
Before: 0. M. Beatty - Chairman
Mr. E. J. Orsini - Member
Mr. Harry Simon - Member
For the Grievor
Mr. George Richards - Representative
Ontario Public Service
Employees Union
For the Employer
Mr. Tom Graham - Legal Officer
Ministry of Government Services
Hearing
Westbury Hotel, Toronto, Ontario, April 23, 1976
2.
The single issue that has been submitted to this Board, arising
out of the grievance of Mr. R. E. Haight, concerns the appropriate
or reasonable degree of discipline that ought to be imposed for his
involvement in the misappropriation of certain government property.
That is, while there is no material dispute between the parties about
the circumstances giving rise to the grievance before us, nor as to
the culpability of the grievor's behaviour, the parties are divided
as to the appropriate sanction that should properly have been meted
out on the occurrence of Mr.Haight's transgression. Specifically
it was the position of the Ministry that, for reasons described
below, the dismissal of the grievor was the only reasonable response
available to it in the circumstances while the union claimed that
only some lesser sanction such as a disciplinary suspension was
warranted.
Very briefly the issue between the parties arises out of the
grievor's involvement in the spring of 1975 in the theft of certain
scrap copper wire from one of the government's abandoned radar
stations at which he was working. From the agreed statement of
facts as well as from the grievor's own evidence it would appear
that at least three persons were involved in the misappropriation
of this property wh,ich was valued at some $700.00. These were
in addition to the griever, a Mr. J. Rimmer who was the grievor's
supervisor and a Mr. W. Phillips who was a probationary employee
and who was apprenticing under the grievor's guidance. Of the
three it appears that Mr. Phillips was the initiator and primary
force behind the decision to remove the copper wire from the
work site while Messrs. Rimmer and Haight played somewhat more
subsidiary roles. However from the evidence and on the grievor's
3.
. .
own admission it is beyond dispute that he did become involved in
assisting Mr. Phillips in the removal of this property and ultimately
did share in the proceeds resulting from its sale.
For the Ministry, Mr. Graham argued that while there were
certain mitigating factors in Mr. Haight's case, in the final
analysis the Ministry had no other option but to dismiss him once
it was established that he had participated in the theft of government
property. While conceding that rehabilitation and correction were
two of the primary premises supporting the invocation of employment
discipline, he argued that the Ministry was obliged to consider
the effect its decision would have on other employees in their
Ministry who might be tempted to become involved in similar activities.
Noting that in the type of job in which Mr. Haight and other of the
Ministry's employees were involved there was little direct super-
vision that could be exercised, Mr. Graham argued that the employer
was obliged to rely heavily on the honesty and trust of its employees.
In such circumstances he argued that the deterrent effect that is
implicit in a scheme of employment discipline justified the severe
discipline that was imposed in this case.
Mr. Richards, for the grievor, did not take serious issue with
any of the propositions advanced by the employer other than to
argue that the deterrent function could be satisfied by some serious
disciplinary sanction other than dismissal. Rather he concentrated
his efforts in describing and emphasizing certain mitigating factors
which he claimed supported his position that some lesser form of
sanction was more reasonable in the circumstances. Specifically
and with reference to the decision of Judge Reville in Re: Steel - __.
c
i
Equipment Co. Ltd. (1964/, 14 L.A.C. 356, which is cited more
fully in our own earlier award of Re: Maw l/75, Mr. Richards
aroued that because Mr. Haight had a previously long and un-
blemished record of service with the Government, that this
transgression was an isolated incident in that employment history
and that in the circumstances of this case the dismissal would
inflict serious economic hardship on the grievor, we should
substitute some lesser form of sanction for the dismissal that
was imposed. As well Mr. Richards noted that Mr. t!aiqht had
admitted to his transgression, had co-operated with the Ministry
and the authorities in their investigation of this matter and
as well had made full restitution of the monies he received from
the conversion of this property. Against that evidence it was
Mr. Richard's conclusion that on the criteria outlined in R~Z -
Toronto East General Hospital Inc. (1975)‘ 9 L.A.C. (2d) 311
(Beatty), the dismissal of Mr. Haight was unreasonable and
unjust.
In resolving this issue it is beyond dispute that this
Board has the unqualified authority, where it determines that a
disciplinary penalty is excessive, to substitute such other
penalty as we determine just and reasonable. crown Employees
Collective Bargaining Act 50 1972 c. 67 as amended 5.0. 1974
c. 135 s. 18(3). That the legislature bestowed upon this Board
such a wide sweeoino and unfettered power is perhaps, in part, a
reflection of the fact that under The Public Service Act R.S.O.
1970 c.386 as amended and its regulations,the responsible
5.
officers of each Ministry have much less discretion in the type
of penalty that they may impose. Indeed when one pursues that
legislation and its regulations it could appear that a Deputy
Minister is limited in his discretion to either invokinq a
suspension for a period of up to thirty days or dismissing an
employee for any disciplinary offence.
Such a limitation on the employer's disciplinary authority
we believe is both unwise- and unfortunate not only because it
denies the Deputy Ministe,r the flexibility to tailor particular
sanctions to each offence but also because, as in the case before
us, it may in fact cause Ihim to discharoe an employee who he
believes could profitably, be retained in the Ministry's employ.
Moreover if as may comndnly happen, the Deputy Minister elects
to dismiss an employee only because he believes that a thirty day
suspension is not a sufficient sanction in the circumstances, the
parties will be put to the expense and the employee to a considerable
amount of personal inconvenience to have the matter brought before
this Board for its assessment of what penalty is just and reasonable
in the circumstances.
In fact, it is our assessment,in the circumstances before
us, that Mr. Haight's grievance is a classic example of that
phenomena. While not in'any way deprecating the seriousness with
which we view his behaviour, we do not believe that the sanction
of dismissal was either just or reasonable. In reaching this
conclusion we would subscribe to the analysis invoked by the
Board of arbitration in the me: Toronto East General Hospital -
rnc. (supra) case noted above. In that award the Board, after
D
adopting the qeneral principles that were said to underlie
industrial discipline in the me: Gelco Food Products Ltci. (2,074)
7 L.A.C. (2d) 350 IBeatty) award, (which have been adopted b:/ this
Board in me: Maw l/75) stated Ipp 321-323)
i
Having reviewed all of the cases wherein arbitrators have
considered whether aggravated acts of dishonesty and untrustworth-
iness by an employee justifies the termination of such an employee,
and recognizing that the overwhelming weight of the arbitral
opinion would respond to that question in the affirmative, we
cannot, for the reasons that follow, subscribe to the principle
that as an immutable axiom, discharge is an appropriate sanction
in such cases which should, except in extreme cases, be affirmed
by boards of arbitration. It is true, as we have noted above,
that the trust and respect between employer and employee is one
of the cosne~ stones necessary to support a viable and healthy
employment relationship. We would also subscribe to the view
that misconduct such as theft must he viewed in the mst serious
terms. Nevertheless if as the Galco Food Products Ltd., supra,
case suggests the operative theme in industrial as well a.s
criminal sanctions is corrective and rehabilitative rather than
retributive, we simply cannot subscribe to the notion that an
employee, such as Mr. Hogan, who may have stolen six tins of
baby's strained apple juice on one occasion, and who has no other
blemishes on his employment record of almost one year and who
the employer conceded had otherwise shown himself to be a good
employee, has by that one act alone demonstrat-d that he is
beyond correction and rehabilitation. It is simply unrealistic
to assume that by some lesser form of sanction he cannot be
induced to conform to the accepted norms of society. AS noted
in the Galco Food products Ltd. award, supra: "There is simply
no correlation between the gravity of the misconduct and the
potential for correction that the offender possesses." Very
simply we believe that given that this is his first act of
misconduct, that he has otherwise been a good employee and that
although only 19 years of age he has the responsibility to care
for a wife and a young child, he will in fact respond to some
lesser form of sanction. Having committed one act of dishonesty,
however grave, it simply cannot be said that the griever cannot
be induced to act in honest, trustworthy manner.
In addition, and again without depreciating the gravity of his
misconduct, we simply are unable to subscribe to the notion,
implicit in the vast majority of awards which affirm the discharge
of employees for similar offences, that by this act alone Mr.
Hoqan has shown himself to be so untrustworthy that the employer
can never again rely on OI have confidence in him. From ant?
isolated act we simply cannot characterize the griever as being
so untrustworthy. We are unaware of any cOntext in law where
owing to a single act of misconduct a person is forever tt ix
judged by that solitary transgression. In short, to so characterize
the qrievor for a single act of dishonesty as being incapable of
earning the trust of his employer has no basis in law, lcgic or
equity.
Finally we would note that in a case such as this, even if on
the evidence before us a Criminal Court would be satisfied beyond
a reasonable doubt that Mr. Hogan was guilty of theft, the sanction
it would likely impose, reflecting again a rehabilitative theme
would be in the nature of a fine of no more than $100 and indeed
in Mr. Hogan's case quite probably a conditional discharge. It
is true as we have noted that the context in which the qrievor's
misconduct arises before us differs from that obtaining in a
criminal Court. Nevertheless, we believe that both the substantive
provisions of the Criminal Code, R.S.C. 1970, c.C-34, itself as
well as the sanctions ultimately imposed by the Courts in cases
of theft of property having nominal value may be taken as reflecting
the degree of social concern perceived by our legislators for such
transgressions. Although not condoning the transgression of the
accepted norms of society, the criminal law, properly we believe,
recognizes the relatively minor societal concern with such offences.
In part this may be attributed to the nominal value of the property
stolen and in part it may reflect the Legislature's recognition
of the frequency and almost universality that such petty pilfering
is practised at all levels on the employment ladder by employees
who misappropriate for their own use incidental office and employment
supplies they daily require in their wcjrk functions. (FOr a discussion
of the extent to which employees at all levels engage in such petty
theft, and the reasons for this phenomenon, reference nny be had to:
N. Jaspan "White Collar Crime Increasing", C.C.M. Canadian Ltd.,
Canadian Industrial Relations and Personnel Development pp.503-4
(January, 1975); see also Bureau of National Affairs, Bulletin to
Management August 15, 1974, and April 18, 1974.) Although we do
not condone such misconduct, nor would we argue that such condwt ,
has assumed the status of an expected and,tolerated norm, never-
theless in the face of the criminal law response to such misconduct
we would find it hypocritical for us to conclude that for such an
offence this employee must be characterized as being so untrust-
worthy that his employer is justified in terminating his employment.
In sum, when viewed against the criminal sanctions for the same
misconduct, reflecting as they do society's mores, we cannot
subscribe to the jargon of axiom and uphold the discharge of an
employee who on-one occasion misappropriates some property of
nominal value to his own use. Such a sanction in a case such
as this, given the age of the griever and the prevailing
conditions of the employment market, would be simply out of ail
proportion to and fly in the face of the consequences generally
recognized as appropriate by society at large. In short, we
cannot subscribe either to the reasoning or conclusions that arc?
described in Polymer Corp. Ltd. and Spruce Falls Power and Paper
Co. Ltd. noted above.
Against those principles it is to this Board manifest that
the dismissal of Mr. Haight is excessive and unjust. Apart from
the relevant criteria enunciated in the IS: steel Equipment
CO. Ltd. (supra) case, we believe that the grievor has shown, by
his conduct subsequent to the offence, that he has recognized the
seriousness of his misconduct and that he is not likely to allow
himself to again become involved in such activities. Specifically
the fact that he has admitted to his misconduct, cooperated with his
Ministry and made retribution to his employer, we believe reflects
an attitude and an appreciation that is consistent with his ability
to respond to corrective discipline.
Re: Libby, h'cA%il & Libby
of Canada Ltd. (1974) 7 L.A.C. (2d) 69 (Hinnegan). Put Simply,
and against that evidence, we believe that the grievor has demonstrated
that he appreciates the gravity of his misconduct and is anxious and
willing to work at regaining the trust and confidence of his employer.
In short we are of the view that against that evidence it is simply
unreasonable and improper for the employer to conclude that for this
single act of dishonesty, the grievor is so untrustworthy that it can
never again rely on or repose confidence in him again.
Against those considerations however one can not but be
impressed with the real and legitimate concerns of the employer
in ensuring that its employees, particularly those such as the
grievor who work,with a minimal amount of supervision, do .not assume
that such behaviour will be tolerated. To the contrary the type
of misconduct engaged in by the grievor cuts at the roots of the
employment relationship. Without a mutual feeling of trust and
0 2.
confidence between employer and employee it would simp!y be impossible
ever to construct a healthy and viable employment relationship. It
is for that reason we believe that arbitrators have uniformly
castigated such dishonest conduct. In the words of one board:
Arbitrators are not equating the role of a plant to that of a chtzch.
Rather, they are insuring that the role of the plant will not evolve
into a role resembling that of a penal institution.
Re: Phillips Cable Lid, (1974) 6 L.A.C. (2d) 38~(Adams)
Necessarily then we believe that the employer has a real
and legitimate interest, when considering the appropriate sanction
to be imposed for the type of serious misconduct engaged in by
Mr. Haight, to weigh the deterrent effect its action will have
on other members of the work force. As we have noted it is not only
proper but we believe imperative that the employer be constantly
vigilant in ensuring that its employees understand that such grave
misconduct can not and will not be tolerated. This it can do only
by meting out the most serious sanctions available to it whenever
such behaviour manifests itself. Thus by and even conceding
the principles enunciated in.the me: Toronto East General Hospital
rnc. (supra) award and the mitigating factors that are present in -
Mr. Haight's case, we are of the view that his conduct in the spring
of 1975 must be treated in the most serious and profound terms.
Accordingly we would order that the grievor be suspended from his
employ without compensation or the accumulation of service credits
from November 10, 1975 until the date of this award.
In the result, we would order that the grievor be reinstated
immediately but without any compensation as of the date of this
t
10.
award. To that extent it is our determination that this grievance
must succeed.
Dated at Toronto this 23rd day of April 1976.
C. M. Reatty
Chairman
E. J. Orsini
Member
H. Simon
Member