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HomeMy WebLinkAbout1979-0020.Tamoglia.81-01-08. Between: Before: For the Grievor: For the Employer: Hearing: IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before : THE GRIEVANCE SETTLEMENT BOARD Miss Carolina Tamoglia And Ministry of Health Mrs. M. Saltman Vice-Chairman Mrs. M. Gibb Member' Mr. G. Beaulieu Member Mrs. L. Stevens, Grievance Officer Ontario Public Service Employees Union Mr. I. ireedman, Counsel Legal Branch, Ministry of Health October 23, 1980 Suite 21001 180 Uundas St. West Toronto, Ontario - 2 - The Grievor in this case, Carolina Tamoglia, an employee of 0 Kingston Psychiatric Hospital, grieves against her dismissal on December 4, 1978. The Grievor requests that she be reinstated in employment without loss of compensation and other benefits. The Grievor became employed with the Hospital shortly after she arrived in Canada from Italy in 1956. There was considerable dispute as to the facts which led to the Grievor's dismissal. However, the Board found the Grievor's version to be totally unacceptable. Accordingly, the Board makes the following findings of fact. At the time of her dis- missal, the Grievor was employed as a Cleaner 2. On the day in question, December 2, 1978, the Grievor worked the day shift, 7:00 a.m. to 3:00 p.m. Because of the shortage of cleaning staff that day, she was assigned to work alone on Wards 21 and 22 on the second floor and Wards 11 and 12 on the third floor. As a general practice, cleaners assigned to these wards usually started their duties on the third floor and worked their way down to the wards on the second floor. However, on this particular day, the Grievor began her work on the second floor and finished up on the third floor. At about 3:20 p.m., the Lead Cleaner, Bonnie Boyce, came upon the Grievor as she was working on the third floor. Mrs. Boyce offered the Grievor some assistance in finishing up. But the Grievor insisted that she did not need any help. She said that she was almost finished up and, in fact, had already returned her supplies to the basement. Mrs. Boyce apparently found something strange in the Grievor's behaviour. Mrs. Boyce had already been suspicious of the Grievor because for some time she had been leaving the Hospital by the amphitheatre - 3 - entrance, which is inconvenient to the bus transportation the Grievor uses and is also a different entrance from the one she uses to come in in the morning. Accordingly, Mrs. Boyce decided to check the area around the amphitheatre. In the process of checking, she came upon a brown paper bag in an ash urn at the entrance to the amphitheatre. Mrs. Boyce removed the bag and examined its contents, which included a pair of pink and white knitted slippers, some hand lotion and soap and something wrapped in a paper towel. Mrs. Boyce replaced the bag in the urn and went to the office to telephone to the Assistant House- keeper, Bill Eldridge, for advice. Mr. Eldridge suggested that she contact the Director of Housekeeping, Olive Shaver, for instructions. Several minutes later, as she was leaving the office, Mrs. Boyce came upon the Grievor emerging from a dimly lit stairwell in the direction of the amphitheatre. According to Mrs. Boyce, the staff rarely used this stairwell and her suspicions were further aroused and so she returned to the amphitheatre to check the brown paper bag. When she looked in the ash urn, she found that the bag had been removed. She searched for the bag around the area, including the women's washroom across from the amphitheatre, where she discovered the bag under a pile of used paper towels at the bottom of a waste can. Mrs. Boyce left the bag in the waste can, while she went to call Mrs. Shaver again. Apparently, Mrs. Shaver had called Mr. Eldridge and asked him to look after the situation. Mr. Eldridge who was on a day off, arrived at the Hospital at about 3:05 p.m. and waited outside the amphitheatre exit for the Grievor About fifteen minutes later, the Grievor came out carrying a brown paper bag. Mr. Eldridge went up to her and asked her to accompany him back - 4 - into the Hospital. The Grievor objected at first, but finally agreed to go back inside. Once inside, the Grievor asked to use the washroom opposite the amphitheatre. Mr. Eldridge told her that she would have to wait. The Grievor asked if Mr. Eldridge was "going to get her into trouble again" and insisted on using the washroom. Mr. Eldridge repeated that she would have to wait, but the Grievor pushed her way into the washroom. Mr. Eldrige summoned Mrs. Boyce for assistance. When Mrs. Boyce arrived on the scene, Mr. Eldridge was standing outside the washroom door trying to coax the Grievor to come out. The Grievor did not respond and so Mr. Eldridge went to opt the Commissionaire, Mr. Peattie while Mrs. Boyce stayed with the Grievor. When Mrs. Boyce entered the washroom, she found the Grievor holding the brown paper bag in her hand. The Grievor inisisted that she had not taken anything and, even if she had, "they" could not do anything while she was inside the Hospital. Several times the Grievor moved toward the toilet, but Mrs. Boyce blocked her way. While she was moving about, four or five blue and white packets of alcoswabs fell from the Grievor's pocket. The Grievor denied that they were hers, but nonetheless promptly picked them up and threw them into the waste can. A few minutes later, the Grievor threw the brown paper bag into the waste can, but retrieved it when she remembered that her money was in the bag. After she removed the money, she discarded the bag in the sink next to the radiator. The Grievor repeated that, if she stayed in the washroom, "they could not do anything". By this time Mr. Eldridge had returned with the Commissionair?. They knocked on the door and urged the Grievor to come out. She refused. - 5 - Messrs. Eldridge and Peattie entered the Washroom and asked the Grievor to remove the contents from the bag, which the Grievor refused to do, claiming that the bag was not hers. When the Grievor refused to reveal the contents of the bag or to leave the washroom, Mr. Peattie said that she left him no choice but to call the Police, whereupon the Grievor agreed to come out of the washroom and accompanied Mr. Eldridge, Mr. Peattie and Mrs. Boyce into Mr. Eldridge's office. But the Grievor still persisted in her refusal to open the bag. After further coaxing, including another reference to calling the Police, the Grievor emptied the contents of the bag on to Mr. Eldridge's desk. The contents revealed were one bar of hand soap, one empty coffee jar and one green plastic garbage bag. Mr. Eldridge asked the Grievor then to empty her pockets, which were bulging. The Grievor refused and made a move to leave the office and return to the washroom. Mr. Eldridge stopped her and repeatedly ordered her to empty her pockets. Finally, after further mention of the Police, the Grievor complied and removed one bar of soap, one pair of gloves, one bottle of hand lotion, and one pair of knitted slippers (she said that she wanted to see how they were made). Mr. Eldridge then asked her to remove the package she had tucked in the waistband of her slacks. The Grievor denied that she had anything there, although the package was clearly visible between her sweater and her slacks. Mr. Eldridge said that he had no alternative but to call the Police and Mr. Peattie advised that she could be searched by a policeman. Mr. Eldridge reached for the telephone but he called Mrs. Shaver who advised him to call the Assistant Hospital Administrator, Mr. Allardyce. - 6 - When the circumstances were explained to Mr. Allardyce, he recom- mended calling the police. As Mr. Eldridge was talking with Mr. Allardyce, the Grievor agreed to hand over the package which contained two blue toothbrushes and two tubes of Colgate toothpaste. At that point, Mr. Eldridge told the Grievor that she was suspended until 9:00 a.m. Monday, December 5th and that she was not to report for work the next day. The Grievor said that she would not leave and,' in fact, did not go until the Commissionaire told her that he had the authority to make her leave. Mrs. Boyce escorted her out of the Hospital and the Conmrissionaire took charge of the articles found on the Grievor. Subsequently, the Grievor was dismissed for theft of the articles found in her possession on December 2, 1978. The issue before the Board is whether the Grievor was discharged for just cause. In our view, the Employer has established that the Grievor removed the items found in her possession from the Hospital without permission. Although the Grievor alleged that most of these items belonged to her personally, the Board finds that they were in fact Hospi- tal property. Indeed, the evidence with respect to these items is that they were made for institutional use and were in sizes which are not sold commercially. On the face of it, therefore, the Employer had just cause for dismissing the Grievor for theft. However, the Union asks the Board to invoke its jurisdiction under Subsection 18(3) of the CZOWR employees Collective Bargaining Act S.O. 1972, c.67, and substitute a lesser penalty. - 7 - Subsection 18(3) reads as follows: Where the Grievance settlement Board determines that a disciplinary penalty or dismissal of an employee is excessive, it may substitute such other penalty ,for the discipline or dismissal as it considers just and reasonable in all the circumstances. Accordingly, it must be determined whether it is just and reasonable in all of the circumstances of this case to reduce the penalty of dismissal. In our view, it is. In the opinion of the Board, the Grievor did not fully appreciate the nature and seriousness of her offence. The Grievor was asked in cross-examination what she understood to be stealing. Her answer was that if she used some hand soap and then took the rest home, it would not be stealing. Indeed, it seems that the Grievor did not appreciate the distinction between using Hospital supplies, such as soap, in the Hospital and taking them home. At several points in the evidence, the Grievor said that she would not take anything from the Hospital. To the contrary, she said she brings things to the Hospital; the Hospital is like her home. With respect to her record, the Grievor said that although her superiors told her that she had stolen previously, she did not think that she had stolen anything. Nevertheless, she signed the letters of discipline, imposing a five-day suspension and a nine-week suspension, because the Hospital "has the right to tell (her) what to do". Furthermore, she said that she would "get in trouble" if she did not sign. Throughout the Grievor's testimony, the Board was of the view that she did not appreciate the extent of her wrongdoing, perhaps because of her limited knowledge of English, which is her second language. Although we find that the Grievor intended to take the items in question, it is not clear that she understood that she was not entitled to take them. Because the evidence on this point was inconclusive, the Board has reached - 8 - the conclusion that the,Grievor conanitted theft of Hospital property. However, the Board feels that, in view of the Grievor's apparent confusion and lack of understanding, the penalty of discharge should be reduced. In making this finding, the Board recognizes that the Grievor has not been truthful about her misconduct. In our view, however, this is not a case of a deliberate intention to deceive. Rather, we find that her lack of candour was due to a failure to appreciate the distinction between the use of Hospital property and the conversion to one's own use of Hospital property and the conversion to one's own use of Hospital property. 'In light of these circumstances, the Board feels that there are grounds 'for mitigating the penalty of dismissal and for reinstating the Grievor on condition that the seriousness of her actions can be brought home to her. Accordingly, under its power to "substitute such other penalty for the . . ..dismissal as it considers just and reasonable in all circumstances" (crown Employees Collective Bargaining Act, s.5. H(3)), the Board orders that the Grievor be reinstated subject to the following conditions: 1. 2. 3. 4. that she attend at an interview with a professional person in the coannunity who will explain the award to her in her own language and, in particular, the conditions of her reinstatement and the seriousness of a recurrence of the misconduct; The Grievor will be reinstated as soon as the Board is satisfied that this interview has taken place. The Association is directed to report to the Board in writing when this interview has taken place; the Grievor's dismissal shall be reduced to a suspension from December 4, 1978 to the date of her reinstatement; in the event that the Grievor is caught stealing from the Hospital within six months of the date of her reinstatement, she may be forthwith dismissed. - 9 - In the event that there is difficulty in implementing this award, the Board will remain seized of the matter. Dated at Toronto this 8th day Of January 1981. “M. SALTMAN" Mrs. M. Saltman Vice-Chairman I concur Mrs. M. Gibb Member I concur Mr. G. Beaulieu Member