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HomeMy WebLinkAbout1976-0123.Levere.77-03-22CROWN EKPLOYEES 416/X4 6426 G~I~~NCESETTLE~~~T COAWJ , 1?3/76 Suite 405 77 BYLoop Street :.%st TOROiiTO, LhtcriO K5.9 1142 IN THE M4TTER OF AN ARBITRATION Under The j CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Mr. S. Cl. Levere (Grievor) And The Ministry of Transportation and Communications (Employer) Before: K. P. Swan Chairman Mary Gibb Member William Walsh Member For the Grievor Grant Bruce - Ontario Public Service Employees Union For the Employer tl. H. Pettifor - Ministry of Transportation and Communications Hearinq Suite 405, 77 Bloor St. W., Toronto, Ontario February 1, 1977 2. After conferring in executive session following the hearing in this matter, the Board advised the parties by telegram of its decision that the grievor, Mr. S. D. Levere, who had been discharged with,effect from September 6, 1976, was to be reinstated in his former employment with the Ministry of Transportation and Connnunications without loss of salary, benefits or seniority. Reasons for this decision of the Board are set out hereinafter. At the material time, the grievor was employed as an Inspector II, specifically as Area Vehicle Inspector in the Hamilton Area. A Vehicle Inspector performs a variety of functions, as set out in the job description supplied.to us as. Exhibit 6, but those relevant to the present grievance are as follows: 2. (bl IC) Cdl Conducts in accordance with prescribed standards the inspection heavy duty rmtor vehicles end trailers and multi-vehicle units by such tasks es: Inspecting vehicles on a random or spot check basis at either roadside truck inspection stations or motor carriers' premises. Completing comprehensive examination of air and hydraulic brakes, coupling devices including secondary attachments, suspension systems (air bag and spring types) self-steering axles, security of loads, etc. After considering level of hazard present in a defect, destination, nature of load, proximity of repair facilities, traffic and weather conditions and availability of escort, deciding whether to permit continued operation of such vehicles, to allow roadside repairs, to remove licence plates or otherwise detain vehicles. Recommending laying of charges where the Act or Regulations have been contravened. Compiling all information necessary for court action and appears a.5 an expert witness for the Crown. 3. The parties were able to agree on the facts on which the present grievance was to be decided, and that agreement was of considerable assistance to the Board. In essence, the grievor was discharged because of certain events which occurred during the suraners of 1975 and 1976, and which related to the inspection of commercial vehicles at roadside weigh-scale inspection stations at Fruitlands, Winona and Bismarck, Ontario. According to his own evidence, which was neither contested nor contradicted, the grievor purchased a number of automotive light bulbs of three types comnonly used for the running and signal lights of comnercial vehicles. He kept these in his brief case while per- forming his duties as a vehicle inspector and, on several occasions during the two-year period of his employment,offered them to truck drivers who were, because light bulbs on their vehicles were burned out and because they had no spares available, in violation of the law. In the ordinary course of events, according to the grievor's uncon- tradicted evidence, it would otherwise have been necessary for the driver to call to a service station and ask them to deliver a light bulb to the inspection station; this process might take more than an hour, and would cost at least $20.00. The grievor usually accepted $1.00 for each bulb; they had cost him, at the wholesale price, $0.55 each, and their usual retail value was $0.95 to $1.25. The evidence before us indicates that the grievor parted with a totallof eleven bulbs in two years, and that he gave some of them away without charge because the truck driver had no cash. I \ a . In mid-August, 1976, a truck driver entered the Hamilton office of the Ministry's Vehicle Inspection Branch to make a routine inquiry. In the course of conducting this business, he made a complaint about the conduct of a Vehicle Inspector with whom he had come in contact at Bismarck who, having pointed out a faulty light bulb, had sold him a replacement. The Inspector in question, it is clear, was the grievor. The evidence reveals that the complaint was mentioned only in passing, that it was stale (the actual incident having occurred nearly a year before) and that the driver did not register any par- ticular emotion in respect of the event. The complaint was delivered to the grievor's supervisor, Mr. S. J. Clay, District Inspector, who subsequently discussed the issue with Mr. D. F. Calderone, the Hamilton District Manager. The two supervisors then began an investigation into the event, and then into the grievor's conduct. They were eventually, able to amass a total of three statements from truck drivers and three from fellow staff members which identified sales of light bulbs by the grievor. The grievor has never denied the facts unearthed by the investigation, and indeed was prepared to identify all of the incidents on which he had sold or given away light bulbs to truck drivers. The investigation was conducted,for the most part, during the grievor's absence'on vacation. On his return on September 7, 1976 he was called into Mr. Calderone's office by Mr. Clay. After some discussion, he was formally "suspended from duty without pay, pending an investigation of his conduct", by a letter from the Central IIT Region Manager. A disciplinary hearing was subsequently convened on September 16, 1976 by Mr. C. R. Robertson, District Engineer, on 5. behalf of the Deputy Minister. Following that hearing, the Deputy Minister, by letter dated October 4, 1976, discharged the grievor. The reasons given for the discharge are set out by the Deputy Minister in that letter: I am satisfied that your action was in direct contravention of Regulations 31-(2) and 31 -(4) made under The Public Service Act, R.S.O. 1970, Chapter 386, which had been published in. Minis try. Circular No. 73-108, which is still .in effect. I consider it to be a very serious matter, which reflects in an extremely adverse manner on the public image of the Ministry, that one of its employees, who was in a position to adversely affect the pursuit of their occupation by commercial vehicle drivers, should engage in a private enterprise for profit.in an.area directly related to his employment in con- travention of established public service wide regulations on the subject. You have denwnstrated a complete disregard for your responsibility In this area and it is obvious that you cannot be permitted to continue to perform duties which require you to represent the Ministry to the public. In addition, you have rendered yourself liable to action in accordance with Regulation 31-(4) under The Public Service Act, R.S.O. 1970, Chapter 386. It appears that the Deputy Minister's reference to S. 31 of the Regulations was intended to refer to s-33 thereof, which provides: 33.--(l) A public servant shall not engage in any outside work or business undertaking, (a) that interferes with the performance of his duties es a,public servant; (b) in which he has an advantage derived from his employment as a public servant; (c) in which his work would otherwise constitute full time employment for anothei person; or I ..- I 6. (d) in a professional capacity that will, or is Jikely to, influence or .affect the carrying out of his duties as a public servant. (2) Whenever a public servant considers that he could be involved in a conflict of interest in that he might derive personal benefit from a matter which in the course of his duties as a public servant he is in a position to influence, he shall disclose the situation to his deputy minister, agency head or ~minister, es the case may be, end shall abide by the advice given. (3) Whenever a public servant considers that he could be in a position of conflict with the interests of the Crown arising from any of his outside activities, he shall disclose the situation to his deputy minister, agency head or minister, as the case may be, and shall abide by the advice given. (4) Contravention of any of the provisions of subsection 1 of disregard of the provisions of sub-section 2 or 3 may be considered es cause for ,dismissal. 0. Reg. 605/73, s.2. In short, then, the Ministry viewed the grievor's conduct as amounting to a conflict of interest, as defined in R.R.O. 1970, Reg. 749, as amended by 0. Reg. 605/73, s. 33(l), (Z), and (3), and accordingly imposed the maximum penalty, discharge, provided'under s. 33(4). We are of the view that this characterization'of the griever's conduct is, at best, questionable, and that the penalty imposed. is in any event excessive by any standard which we could approve in good conscience. We do not consider that this is the time or place for a ( definitive discussion of the nature of conflict of interest. Conduct amounting to conflict of interest is a serious breach of the obligations of the employment relationship, and we have no desire to define its ambit in a case to which, in our view, the principle simply does not apply. There have been authoritative discussions of the matter by other arbitral bodies at other times, and we are convinced . ..’ 7. that the circumstances of the present case simply do not fall within the definitions S&C out in these cases: see Re United Brotherhood of Carpenters, Local 18 (i9661, 17 L.A.C. 417 (Arthurs); Re Prince Albert Co-operative dssociation Ltd. (1970), 22 L.A.C. 199 (Norman): E Consumers' Gas Co. (1972),1 L.A.C. I2d) 304. The factors which lead us to this conclusion are several. First, it is only by the most extravagant exaggeration that the grievor's conduct can be called "a private enterprise for profit". Over two years, the grievor "profited" on "stock" sold to an amount less than 45.00; when the "stock" left in inventory is taken into account, he lost heavily on his !!enterprise". We,do not mean to conclude that a losing venture cannot amount to a conflict of interest; we merely point out that the scale of the grievor's "enterprise" was such as to negate any suggestion of a profit motive. Secondly, there is affirmative evidence that the grievor could not have had any guilty intent. He offered his light bulbs freely and openly, to the extent that the investigation turned up three co-workers who were aware of his activities. His own avowed motive of wishing to spare truck drivers exorbitant charges for service calls while ensuring the safety of their vehicles is uncontradicted, and is perfectly credible in the context of the evidence available to us. We do not deny that the grievor's conduct can properly be fit within the words of Reg. 749, s.33; we are, however, of the view that such a characterization requires the most arid and mechanistic view possible of the regulation. The grievor's conduct was, in a technical . . a. sense,wrong. He made a "profit", however small, which was connected with his duties as a public servant. We consider his conduct, with our privileged resource of hindsight, to have been foolish, and to have required isnnediate action on the part of his superiors to sup- press it and to prevent its repetition. We are unable to conclude, however, that any more than a simple explanation to the grievor of the dangers of his conduct would have been necessary to effect these results. Unfortunately, the Ministry's response can only be described as an over-reaction. When the grievur was first notified of the charge against him, it is a reasonable inference from the evidence that his letter of suspension had already been prepared and that no account would have been taken of any explanation he might have offered. Yet it is at that stage, in our view, that the entire matter might properly have ended. We are satisfied that, at this stage, the reprimand and the corrective advice which might have been given to the grievor at a much earlier time have now been brought home to him. So that our own position in respect of conflict of interest is not misunderstood, however, we consider it essential to observe that the grievor's conduct carried with it the danger of a public perception of improprietv, and thus put in some jeopardy the reputation of the Ministry in respect of its fair administration of the law. We do not wish this award to be seen as a condonation of conduct amounting to a conflict of interest. We do not consider, however, that the invocation of the 9. maximum penalty of discharge in a case as.petty, and as devoid of guilty intent, as this one can advance either good employment relationships within the Ministry or the considerable public interest in an honest public service with a clear sense of‘its own responsibility and integrity. , The grievance was accordingly allowed and, as we have already indicated, the grievor is to be reinstated in his employment without loss of salary, benefits or seniority. Dated at Toronto this End day of March, 1977 K. P. Swan Chairman .i+ Chk?ur Mary Gibb Member r Concur William Walsh Member