HomeMy WebLinkAbout1976-0048.Cranley and Staunton.76-11-15,‘...
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CROWN EMPLOYEES 416/964 6426 suite 405,
GRIEVANCE SETTLEMENT 77 Bloor Street West
6OARD
TORONTO, Ontario.
M5.5 lM2
IN THE MATTER OF AN ARBITRATION
Under The
CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between: Messrs. D. M. Cranley and B. W. Staunton (The Grievers)
And
The Ministry of Revenue '(The, Empljoyer)
Before: D. M. Beatty - Chairman
Mr. E. J. Orsini - Member
Ms. P. A. Sigurdson - Member
For the Grievor:
Mr. Garry G. Rishor - Howell, Fleming, Bark, Crook, ~.. Murphy, Bark & Rishor
Peterborough, Ontario
For the Employer:
Mr. R. J. Drmaj - Hicks, Morley, Hamilton
Toronto, Ontario
Hearinq:
Suite 405, 77Bloor St. W., Toronto,-Ontario, October 26, 19’
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The grievances of Mr. 0. M. Cranley and B. W. Staunton,
both employed in the classification of Assessor 3 in the Ministry's
Assessment Division for the Peterborough area, raise the rather
narrow issue of whether, for certain improprieties committed by-
them, the penalty of discharge rather than some lesser sanction
is just and reasonable in the circumstances.
In putting this issue before this Board the parties submitted
an agreed statement of ~facts describing the circumstances which
precipitated the dismissal of Messrs. Cranley and Staunton. The
material portions of that statement provide that:
1.
.' 2;
3.
4.
5.
6.
The incident took place in Emily Township.
On date in q&stion April 2/?6:
Mr. Cranley.re~ested Mr. Staunton to accompany him
to Village of Lakefield to aid in the assessment of
additions to two schols. Neither obtained per-
mission for this.
Mr. Cranley was responsible for Gov't vehide, in
question here.
Both grievers went to location in question in
Emily Township some 20 miles from Village of
Lakefield.
They drove onto land later identified as property
of Cecil O'Neill and loaded Birch firewood into
the station wagon.
While there Mr. O'Neill drove up and questioned
the qrievors with regards their presence there,
and the fact that his mod was in the vehicle.
The two qriwors offered.to buy the wood and
when MF~. O'Neill suggested $25.00, the qrievors
unloaded the vehicle.
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7. Mr. O'Neill asked the qrievors to identify themselves
and they gave the names of Bavid MacMillan and Mike
Radke, (clearly false names).
8. Grievors drove off
9. There was a "Trespassers will be prosecuted" sign
near the road.
10. Mr. O'Neill phoned and complained to OPP with
regards this incident. It was investigated.
11. Both qriewrs admitted to their supervisor
Mr. McBain all of the above facts and agree
that Exhibit "3" hereto attached represents
accurately their discussion with him.
12. Both qrievors also admitted to all. these facts
in a meeting with Mr. V., M. Hewson on Tues.
April 6th, 1976 following which he relieved the
qrievors of their duties.
As well, and as referred to in paragraph 11 of the agreed statement
of facts in Exhibit 3, the parties have ,stipulated that:
4. Cranley returned to the office at 4 p.m. and admitted
to the veracity of the report from the police.
Staunton also returned to the office and con.firmed
his involvement. I then phoned Constable Erskine
with this information and he asked that the assessors
arrange to see him at police Headquarters as he
wished to admonish them.
5. Cranley and Staunton have, I believe, beeti completely
open in admitting their impropriety and have tendered
their personal apologies and regrets to me. They
reported to me~this morning that they had reported
on, Sunday April 4 to Constable Erskine and had also
visited Cecil O'Neill and apologized to him.
Finally and with respect to the specific issue referred to this Board
evidence was tendered by Messrs. Cranley and Staunton to establish
that except for the incident of April 2, their employment record,
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dating back to August 1966 and March 1969 respectively, is otherwise
unblemished, and to affirm, given the nature of the assessors' job
and their particular family circumstances, that the penalty of
dismissal would expose them to particularly 'severe economic
hardship. As well, it was their evidence, which was not challenged . .
by the employer, that until Mr:~ O'Neill, the owner of the property,
confronted them with the fact that they were removing his wood
from his property, they were under the impression that the land ,.
in question was owned by the township and that the wood, which
was left lying where it had been cut, was available for public
removal. That is to say, and while in retrospect they conceded
the impropriety of their conduct, it was the grievors' contention
that at the time, from the layout and general contour of the area
in question it never struck them that they were removing the
wood from private property.
In resolving the issue raised by these grievances, it is
beyond dispute that this Board has, by virtue of s. 18(3) of
The Crown Employees Collective Bargaining Act S.O. 1974 c. 135
the unqualified authority, where we determine that the penalty
imposed is excessive, to substitute such other penalty as we
determine is just and reasonable. Moreover, this Board has, .'~
in at least two previous awards, set out the principles by which
and the criteria on which that mandate will be exercised. Specifically
and in the first place in Re Maw l/75 this Board has indicated
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its agreement with the reasoning of the board of arbitration in
Re Steel Equipment Co. Ltd. (1964), 14 L.A.C. 356 (Reville) as
to the specific criteria against which the.reasonableness of a
particular disciplinary sanction may be assessed. In that latter
award, the board stated:
It has been held, lpwever, that where an arbitration
bard has the power to mitigate the penalty imposed
on a qriewr, the board should take into consideration
in arriving at its decision the following factors:
1.
3.
4.
5.
6.
The previous, gcod record of the griever - s
United Steelworkers of America, Local 5297,
and Frontenac Floor & Wall Tile Ltd. (1957),
8 L.A.C. 105.
The long service of the yrievor - Re U.A.W.,
Local 28, and C.C.M. Co. (1954), 5'L.A.C.
1883.
Whether or not the offence was an isolated
incident in the emulovment historu of the
qrievor - Re Amalgama;ed Ass'n of-street,
Electric Railway and Mot&- Coach Employees
of America and Sandwich,,Windsor &
Amherstburg Railway Co. (1951)‘ 2 L.A.C.. 684
Provocation - Re United Brotherhood of -,:.^I-
'Carpenters, ~Local'2537, and KKP Co. Ltd.
(19621, 12 L.A.C. 386.
Whether the offence was committed on the
spur of the moment as a result of a
momentary aberration, due to strong emotional
imrxlses. or‘ whether the offence was rxe-
mediated -ore U.A.W., Local 112, and-&
~iiavilland Aircraft of Canada Ltd., being
an award of Professor Bora La&in dated
March 13, 1959 (unreported).
Whether the penalty impsed has created a
special economic hardship for the qrievor
in the light of his particular c$rtim-
stances - .Re U.A.W., Local 127, and
Ontario Steel Products Ltd. (1962),
13 L.A.C. 197.
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7. Evidence that the company rules of conduct,
either unwritten or posted, have not been
uniformly enforced, thus constituting a
form of discrimination - Re Retail, -
Wholesale ti Department Store union,
Local 414, and &minion Stores Ltd.
(1961), 12 L.A.C. 164.
8. Circumstances negativing intent, e.g.,
likelihood that the qrievor misunderstood
the nature or intent of an order qiven to
him, and as a result disobeyed it - Re
United Electrical Workexs:Local 524Tand
Canadian General Electric Co. (1957),
8 L.A.C. 132.
9. The seriousness of the offence in terms
of company policy and company oblica~tions -
Re Mine, Mill and SmeltermWo;kers,~
Local 598, and Falconbridge Nickel Mines
Ltd. (1956), 7 L.A.C. 130.
10. Any other circumstances which the board
should properly take into consideration, e.g.,
(a) failure of the griever to apologize and
settle the matter after being given an oppor-
tunity to do so - Re U.A.W., Local 456, and
Mueller Ltd. (1958), 8 L.A.C. 144; (b) where
a qrievor was discharged for improper driving
of coiapany equipment and the company, for the
first time, issued rules governing the conduct
of drivers after the discharge, this was held
to be a mitigating circumstance - Re Int'l
Brotherhod of Teamsters and Riverside
Construction Co. (19611, 12 L.A.C! 145;
(c) failure of the company to permi$ the
griewr to explain or deny the alleged
offence - Re Int'l Brotherhood of Teamsters,
Local 979, and Leaminqton Transport (Western)
Ltd. (19611, 12 L.A.C. 147.
,Applied to the facts of the present case, it is evident that the
previous good{record of the grievors, their long service, the isolated
and uncharacteristic nature of this incident,in their employment
history, the severe economic hardship that would befall'these persons
if the discharge were sustained, the circumstances negativing an
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intent to steal or trespass upon Mr. O'Neill's property, all would
stand in the grievors' favour and would, all other circumstances
.being equal, induce this Board to mitigate the penalty imposed.
As well, in the Re Maw l/75 award this Board has
accepted the reasoning of the board of arbitration in Re Galco
Food Products Ltd. (1974), 7 L.A.C. (Zd) 350, (Beatty) as ar-
ticulating what we believe to be the generally accepted purpose
of and rational for a system of industrial discipline.
In the
Galco award, that board wrote (pp. 356-357):
The second reason for our modifying the
disciplinary action taken by~the company in this
case stems from our view as to the fundamental
purposes which support the iiivocation of dis-
cipline in the industridl environment. It is
we think now generally accepted that the pre-
vailing themes of modern punishment are re-
hebilitation, correction and individualization.
Kadish, S. "The Criminal Law and Industrial
Discipline as Sanctioning Systems: Some
Comparative Observations" Proceedings 17th
National Academy of Arbitrators (19641, 125,
137. No longer do we invoke criminal or
industrial sanctions as a matter of re-
tribution, retaliation or es an instrument
of terror. 'It is said therefore that for
punishment to serve its ends, it must
induce persons to observe the accepted
norms of society and it must do so at a
cost to the individual which is not excessive.
Of these three themes it is said by some
.that the corrective aspect is the paramount
one. Ross, A.M. "The Arbitration of Discharge
cases . . . "Proceedings 10th National Academy
of Arbitrators (19571, 21, 26. It is also
said (Kadish S., "Criminal Law and Indus-
trial Discipline", supra), that the re-
habilitation theme, that is involving an
affirmative programme of therapy, which is
en essential component of many modern
criminal correctional theories, has no place
in industrial discipline. However recent
.’
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joint'management-labour efforts to deal with
the rising phenomenon of alcoholism in the
work force would attest to the fact that
even here, close parallels can be drawn
between such correctional themes and in-
dustrial discipline.
Be that as it may, there is obviously
much in such modern correctional theory
which is directly applicable to the in-
dustrial setting. The thrust of the cor-
rectional end individualization themes is
an attempt to acknowledge the existence of
and “retain the usefulness of the person in
the community after punishment has been im-
posed" Kadish, S. "The Criminal Law and
Industrial Discipline", supra. That is the
punishment is designed to bring home to the
offender, and the rest of his or her community,
the reprobation with which society views such
conduct (the deterrent function) while et the
same time securfny for 'the benefit of that
community the useful services that such person
would, as deterred, have to offer.
.-The applicability of such modern cor-
rectional themes can be seen in a variety of ':
' now widely recognized rules of arbitral
jurisprudence, as for example in the theory
of progressive discipline, Re North York
~General Hospital and~C.U.G.E. (1973) 5 L.A.C.
(2d) 45~(Shime) or in the application of the
concept of mens rea to an analysis of al-
leqedlu insubordinate conduct by an employee. _ Re'Int'l Woodworkers of ?.merica, Local 2-500,
and'Stancor.~Central Ltd. (Pepoler Division)
11970). 22 L.A.C. 184 (Weiler). We believe
these~illustration& should be.extended and
that the employers should invoke disciplinary
sanctions with these twin concepts of cur-
rection end individualization uppermost in
their minds. Thus it hvuld be appropriate to
discharge employees as a last resort and only
when it became apparent that corrective
meastires would not succeed. Or, to put the
matter in the jargon of the older arbitration
awards, discharge is appropriate when the
employee has demonstrated his incompatibility
to~ontinue the relationship of employer and :
employee. Such a~ conclusion might well be
proper for example, should an employee
.
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demonstrate his failure to respond to correctional
disciplinary sanctions by a repetition of the of-
fensive conduct.
We might add that such en application of
industrial discipline though obviously in the
interests of the employee, mey also serve to ad-
vance the employer's ends as well. If as we
have said the primary purpose of industrial
discipline is corrective rather then retributive,
then "any value of reformed behsviour is lost to
the company when the men is discharged". See
porter, J.M. "The Arbitration of Industrial
Disputes Arising from Disciplinary Action",
Proceedings I.R.R.A. (1950), 262, 269.
RE GAZCO FCCD,PRODVCTS LTD. AND AMALGAMATED MEAT
CUTTERS S BUTCHERS WORKMEL'? 'OF NORTH AMERICA, LOCAL
P-1105 (1974), 7 L.A.C: (2d) 350, 356-7 (aeatty)
Indeed, applying those themes of correction and individualization
to a case which closely parallels the one before us, another panel
of this Board, in Re 23/75, has accepted the reasoning of
the board of arbitration in Re Toronto East General Hospital Inc.
(1975) 9 L.A.C. (Zd) 311 (Beatty) in which‘the reasonableness of
discharging an employee who had corranitted an isolated act of theft
was analysed in these terms:
Having reviewed aXof the cases wherein
arbitrators have considered whether aggravated
acts of disimnesty and untrustworthiness by an
employee justifies the termination of such an
employee, end recognizing that the overwhelming
weiqht of the arbitral opinion would respond to
that question in the affirmative, we cannot,
for the reasons that follow, subscribe to the
principle that es en immutable~axiom, discharge
is en 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 ins one of the
corner stones necessary to support a viable
and healthu emvloument relationshiD. we would
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also subscribe to the view that misconduct such
as theft must be viewed in the most serious
terms. Nevertheless if as the Galco Food.
Products Ltd., supra, case suggests the operative
theme in industrial as well as 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 demonstrated 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 qiven that this is his first act of misconduct,
that he has otherwise been a qood 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 com-
mitted one act of dishonesty, however grave, it
simply cannot be said that the qrievor 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. Hogan has.
shown himself to be so untrustworthy that the
employer can never again rely on or have confidence
in him. From one isolated act we simply cannot
characterize the qrievor as being so untrustworthy.
We are unaware of any context in law where owing
to a single act of misconduct a person is forever
to be judqed by that solitary transgression. In
short, to so characterize the qrievor for a single
act of dishonesty as being incapa'ble of earning
the trust of his employer has no basis in law,
loqic~ or equity.
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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, re-
flecting 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 con-
ditional discharge. It is true as we have noted
that the context in which the qriewr'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 ultimtely imposed by the Courts in.
cases of theft of property havinq,nominal value
may be taken as reflecting the degree of social
concern perceived by our legislators for such
transqressions. Although not condoning the
transgression of the accepted norms of society,
the criminal law, properly we believe, recoqnizes
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 work 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 may be had
to: N. J&span "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 conduct 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 asbeing 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 -t'hey do society's mores, we cannot
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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, qiven the age of the qrievor and the
prevailing conditions of the employment nnrket,
would be simply out of all 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 are described
in Polymer Corp. Ltd. and Spruce Falls Power
and Paper Co. Ltd. noted above.
See Re' Toronto East General Hospital (1975) 9 Z.A.C. (2d) 311,
321-323.
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Applied to the circumstances of the grievances before us, such
reasoning would also strongly induce this Board to ameliorate the
penalty imposed. Very simply and against the employment record of
these grievors, we simply do not believe.it reasonable or proper
to assume that by a single act of indiscretion these two persons
are incapable of responding to some lesser form of discipline
and of rehabilitating themselves so as to conform to the accepted
norms of the employment relationship. Such an assumption has, as
noted above, no basis in law, logic or equity. Indeed, such a
characterization of these grievors would offend against and not
permit of any correctional purpose to the system of industrial
discipline. Moreover it is our belief, when one considers their
behaviour imnediately following the incident in question, in which .~.,
they cooperated with the,police, and apologized to both Mr. O'Neill
and their employer, that it is manifest that both employees do
recognize the~.impropriety and serious deficiency of their behaviour.
.:
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Indeed it is precisely in such circumstances, where employees have
immediately tendered their apologies for their misconduct, that
arbitrators have generally assumed that by recognizing the im-
propriety of their behaviour'such persons are, by definition,
more likely to be capable of responding to corrective disciplinary
sanctions and of regaining the trust and confidence of their
employer, their fellow employees and the public. Re Libby, McNeil
& Libby of Canada Ltd. (1974) 7 L.A.C. (2d) 69(Hinnegan);-
Rep Canadian Carborundum (1973.) 5 L.A.C. (2d) 29 (Arthurs); Re Ford
Motor Co. of Canada Ltd.(1973), 3 L.A.C. (2d) 166 (Weatherill);
Re Steel Equipment Co. Ltd. (supra); See also Re Welmet Industries
Ltd. (1974), 8 L.A.C. (2d) 219 (O'Shea). -
For its part, and while it did not seriously dispute the
presence of the mitigating factors described above, the employer
argued that by their actions, these employees had so misconducted
themselves that it would be injurious to the interests of the
Ministry to retain them, that they had acted in a manner which was
incompatible with the due ,and faithful discharge of their duty, and
that their conduct was entirely prejudical to the interest and
reputation of the employer. Re Beatty Brothers Ltd.(1953) 4 L.A.C.
1477 (Fuller). Indeed it was the Ministry's position that especially
in the case of a public employer whose image, reputation and integrity
with the public must be scrupulously safeguarded, employees must be
particularly vigilant in ensuring that interest is not undermined..
Re Metro Toronto Housing Authority (1964) 14 L.A.C. 254 (Cross);
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Re Chatham~ Memorial Community Centre Coronission (1962) 13 L.A.C.
166 (Cross); Re Public Utilities Conmission, Sandwich East (1962)
13 L.A.C. 18 (Lane); See also Re Canadian Broadcasting Corp.
(1973) 4 L.A.C. (2d ) 263 (Shime). Essentially it was the Ministry's
position. that by their conduct they had so fundamentally breached
the delicate balance of mutual trust and responsibility that is
integral to the employment relationship, had so undermined and
jeopardized .the public confidence in the integrity and reputation
of the employer, that they had demonstrated, in the language of
the earlier awards, their incompatibility to continue the relation-
ship of employer and employee. Put succinctly, it was the
employer's position ~that in such circumstances the rehabilitation
and correction of the employee must give way to the more compelling
and overriding interest of the employer to maintain its integrity
and reputation with the public. .I
In assessing and attempting to balance the competing interests
of the employer and employee we would begin by referring the parties
to the remarks of this Board in Re Haight 23/75 where another panel
of'this Board.wrote: (pp.8-9),-
Against th3se considerations ixzwever one can not
but be impressed with the real and legitimete concerns
of the employer in ensuring that its employees, par-
ticularly those such as the grievor.wbo 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 griever cuts at the
roots of the employm@nt relationship. Without a
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mutual feeling of trust and confidence between
employer,and employee it would simply 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 church.
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 Ltd. (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 en-
suring that its employees understand that such
grave misconduct can not and will not be tolerated.
This it can do only by meting out the mDst
serious sanctions available to it whenever such
bebaviour manifests itself. Thus by and even
conceding the principles enunciated in the
Re: Toronto East General Hospital Inc. (supra)
award and the mitigating factors that are present
in Mr. Raight's case, we are of the viewthat his
conduct in the spring of 1975 must be treated in
the most serious and profound terms.
Moreover we concur in the employer's remarks that the reasoning that
is set out in the Re Maw l/75, & Re Haight 23/75 awards does not and
can not support the proposition that every employee is entitled to
commit a first offence without fear of dismissal. To the contrary
and again as the employer properly argued,one must weigh and assess,
on the particular facts of each case, the prejudice and harm that
has been occasioned to the employer's business, reputation, integrity
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and other legitimate interests against the claims of the employee
that on the criteria and principles described above, he is
capable of reforming his behaviour, of fully and satisfactorily
discharging his employment responsibilities in the future, and of
regaining the trust and confidence of his employer, his fellow
employees and the public.
However in the application of that analysis to the
circumstances of this case, we differ with the employer that the
discharge of these grievors is the only appropriate sanction.
To the contrary and while we share its perceptionof the gravity
of the grievor's behaviour, for the reasons we noted earlier in
our award we are of the view that these two employees are cognizant
of the gravity of their misconduct, are capable of responding to
some lesser sanction, of reforming their behaviour, and of regaining
the trust of the employer and the public. In short, and on the
evidence described we are satisfied that they are anxious and capable
of becoming once agAin the producti~ve and responsible employees.
that, but for this incident, they have always been. Nor do we.believe
that in substituting some lesser penalty that the legitimate interests
of the employer will be materially prejudiced. To the public
and the other employees then employer has unequivocally
and forcefully brought home its message that it will
not tolerate such behavibur. As well, this Board has both in
this award and in the Re Haight 22/75 decision indicated that i
shares that perception and supports, as a general proposition,
t
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that such misconduct must be treated in the most serious and
profound terms. Indeed it is only because, as described in the
Re Toronto East General Hospital award (supra) we believe, on the
basis of the particular criteria noted in the Re Steel Equipment
award (supra), that the grievors can respond to corrective
discipline and rehabilitate and reform themselves, that we have
determined to substitute some lesser penalty. Moreover if we are
wrong in our prognostication as to the future prospects of these
employees, neither they nor this Board can have any doubt or
illusion as to the likely or appropriate response that would be
forthcoming from the employer. In short, and against the eouivocal
nature of the incident of April 2, 1976, their employment record,
.and their genuine contrition for that incident we do not believe
that there is any rationale for or fairness in upholding the
termination of these two employees.
In assessing what penalty is, in the particular circumstances
of this case, most just and reasonable, we are guided by the
principles of correction and individualization described above.
Put somewhat differently we believe that the system of industrial
discipline has as its primary functions the reformation of the
offender and the deterrence,of similar misconduct in the future.
As to the former, it is manifest that discharge of the grievors
can not in any way serve the ~goal of reformation or rehabilitation.,
As noted by one board of arbitration, a dismissed employee "So far
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as the Company is concerned...has ceased to exist". Re Canadian
Carborundum (1974) 5 L.A.C. (Zd) 29 (Arthurs). As well, we are
of the view that a period of lengthy supervision, involving a
loss of compensation far in excess of any sanction that would be
imposed by a' criminal court in similar circumstances, will adequately
serve the deterrent function. Quite apart from our belief that
these two grievors genuinely want to prove themselves to be then
productive and valuable employees their record reveals them to
have been, we are satisfied that, with the foreknowledge of what
their fate will likely~be in the event that there was~ever a recurrence
of the type of behaviour which precipitated this grievance, they will
be deterred from ever allowing that eventuality to transpire. As well
. and with respect to other employees who might contemplate similar
activities in the future, we believe that a prolonged suspension,
in the face of the compelling mitigating circumstances of this
particular case, should forewarn them of the approbation with which
this Board perceives dishonest behaviour. Put somewhat differently,
and as we noted earlier in, this award, it is only because of the
unequivocal nature of the mitigating circumstances surrounding this
case that .the dismissal of these employees was not sustained. Put
succinctly, such persons would, at their peril, construe this
award~as sanctioning every initial act of dishonesty.
In the result to impress upon the grievors the seriousness
with which this Board regards their behaviour even in the presence
of the mitigating factors noted above and as importantly in order
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to deter others from contemplating the coarnission of similar
activities in the future, we would order the grievors to be
suspended for a period of four months without pay and without
the accumulation of any service or other credits. In the
result the grievors are to be reinstated to theirposition in
the classification of Assessor 3 as of August 6, 1976 with
compensation and service credits to accrue as of that date.
Necessarily and from that compensation must be deducted any
monies they received since that date which, but for their
dismissal, they would not have received. :In the unlikely
event the parties should encounter any difficulties in the
implementation of this award we shall remain seised of this
matter for thirty days following upon the release of this
award.
Dated at Toronto this 16th day of November 1976.
D. M:Beatty,
Chairman
I concur
E. J. Orsini,
Member
I ConcuT
P. A. Sigurdson
Member
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