HomeMy WebLinkAbout1980-0289.Sarabura.80-12-15IN THE MATTER OF AN ARBITRATION
Under The
CROWN EMPLOYEES COLLECTIVE BARGAINING ACT .
Before
Between:
THE GRiEVANCE SETTLEMENT BOARD \
Juliet Sarabura I
- And -
The Crown in Right of Ontario
Ministry of the Attorney General
Before: E. B. Jsl!iffe, Q.C.
E. A. McLean
S. R. Hennessy
c;ic;Cphairman
Member
For the Grievoc
L. Stevens, Grievance Officer
Ontario Public Service Employees Union
For the Emp?oyer:
J. Miner. Counsel
Legal Branch, Ministry of the Attorney General .
Hearing-:
October 8, 1980
i x? -2-
Miss Juliet Sarabura has grieved that she.was unjustly dismissed
in April, 1980; and asks that she be reinstated with full pay and benefits.
In this case there is no dispute about the facts, which were fully
and clearly established by the testimony of the grievor herself as well as
that of Staff Sergeant Michael O'Neill of the Metropolitan Toronto Police,
Messrs. Ronald Campbell,, Oavid Avery and 8. W. kbughlin, administrative
officials in the Ministry of the Attorney General, and also by'a number
of documentary exhibits filed on consent. Further evidence tending to
explain the grievor's behaviour was given by,Dr. J. 0. Atcheson, who
teaches at the University of Toronto, is senior forensic psychiatrist at
the Clarke Institute of Psychiatry, and is. unquestionably an expert.
witness.
The issue here is whether dismissal is the appropriate penalty
for grave misconduct on the part of the grievor.
Since the facts are uncontested, it becomes possible to outline
in chronological order the history of the grievor including the series
of events which led to her suspension in 1979 and dismissal a few months
later.
Now 42 years of age, the grievor grew up in Thornhill, Ont\ario,
where she still'lives with her sister, who is also unmarried. Throughout
childhood life was difficult, their father being a chronic invalid on total
disability compensation for silicosis contracted while a miner. To this
unhappy background Dr. Atcheson attributes the grievor's failure to form
normal relationships with her contemporaries and also an inferiority
complex, loneliness and zeal for hard work which havecharacterized all
,e -3-
her adult years.
After graduating with honours from the Central High School of
Commerce, the grievor began work at the age of 18, first with the City
Police, then the Metropolitan Toronto force and from 1967 with the
Province, which had taken over administration of the courts. Thus she,
carried seniority from November 12, 1956, to her dismissal on April 2,
1980, a period of more than 23 years. Her service record reveals steady
progress in promotions and salary increases. From 1974 she was classified
Clerk General 4. As such she had supervisory responsibility over eight
others in what is known as the "Fines and Warrant" sub-section, part
of the system maintained to process and record charges and convictions
related to thousands of:minor offences which occur in Metropolitan
Toronto every day. The volume is enormous, although most of it involves
"parking tags". It is an important element in the system that certain
' convictions for traffic offences must be not only recorded at the Old
City Hall but also forwarded to the Ministry of Transportation and
Communications, where demerit points are stored - - -and accumulated.
The grievor was highly regarded by administrators. Mr. Campbell
described her as a "good and hard worker". When there had been trouble I
about "missing papers" she was given the job of "cleaning up", and*
she did a great deal of overtime. She was such a "work-horse" that when
her salary in 1978 reached about $15,000 her gross pay was closer to '$20,000.
Mr. Campbell said that when he was her immediate supervisor from 1971 to
1976 he "never had any complaint or problem". There was "restricted
access" to much of the material for which she had responsibility. Due
-4-
to her long experience and.thorough familiarity with the system, she
possessed or could obtain information not generally available.
Notwithstanding success in her work the grievor suffered from
serious emotional problems. She felt that her personal life was a
failure, devoid of normal relationships. She considered herself an
object of derision among the clerks in her office because she was a
"loner", lacking friends or admirers. She had always thought herself
to be overweight and unattractive, and sought to'compensate, as Dr.
Atcheson said, by being "careful about her wardrobe" and by taking
an interest in horses and a rare breed of dogs. But even after an
eight-week vacation in 1976, she returned to the office "very depressed".
At‘ this vulnerable stage in her life, nearing 40, the grievor
encountered a man who was her undoing. He was introduced to her by a
Justice of the Peace whom she respected. At the time she did not understand
why her new acquaintance, one Joseph Tardiff,spent so much time at the ~.
old City Hall and seemed to know many people there - - - or why he took
an interestin her.
At first the Tardiffqueries seemed innocent enough; "they were
normal questions at that time", according to the grievor. In 1977 he began
to ask for more sensitive information, although she says it was mostly to
,
verify information he already had. Among other things, he would try
to find out which J. P. was to sit on a case in which he was interested,
or when a certain police officer would be on vacation. The grievor became
aware that this kind of information would be,used by Tardiffto his own
advantage, and she states "I fel t at the time i t was wrong." Eventually,
il .~ -5-
he implied that he wanted the record of a certain conviction destroyed.
She destroyed it and the result was that the result never reached the
Ministry cf Transportation and Communications. That inexcusable act
appears to have been her most serious offence. But her conscience was
troubled and at some point early in 1979 she began to reject his inquiries
and to terminate the relationship, such as it was;she'"finally managed
to tell him to go to hell."
The grievor's vulnerability had been such that she had become
completely bemused by an unprecedented event; a man was paying some
attention to her. His attentions were casual and superficial; they had
lunch together occasionally and exchanged telephone calls. She was too
intelligent not to know that "ticket-fixing" was in the wind, but it
dawned on her rather slowly that he had been using her merely as a source.
of information. This was.no romance at all; it seems that their only
evening "date" was when she unsuccessfully attempted to take him to dinner
at the Royal York.
The grievor did know that Tardiffhad a taxicab and employed at least
.one other driver. She knew little else about him, except that he seemed to
have a wide ci~rcle of friends and acquaintances at.the Old City Hall and \
indeed told her that'he obtained information from other employees.
LJhat the grievor did not know was that about 90 of her telephone
conversations with Tardiffwere intercepted by the Metropolitan Toronto
Police, who had obtained judicial approval to wire-tap certain lines, and
particularly calls made by Tardiff.
-6-
Staff Sergeant O'Neill has served with the Metro Police since
1961 and in recent years has been concerned with what are known as "internal
affairs"; a euphemism for misconduct or suspected misconduct related to
law enforcement. He took part in an investigation begun in 1977 and
expanded in January, 1978, when he was joined.by another officer. .The
investigation was fruitful: early in 1979, he initiated charges against
Tardif and nine others (including the griever) alleging that between
January 1, 1976, and March 21, 1979, they "unlawfully did conspire
together and with another person or persons unknown to wilfully attempt
to obstruct, pervert or defeat the course of justice by interfering with
the lawful disposition of infonations and summonses". This particular
charge (Exhibit 3) was ultimately withdrawn as against the grievor,
apparently because she co-operated with.the~ police, and another similar
charge naming her and nine others, was laid separately so that on March 5,
1980, she came to trial alone.
Staff Sergeant O'Neill explained that in all 14 persons were
charged. Of these two were justices of the peace, three were clerks or
supervisors and the others were members of the general public. Another
investigation resulted in charges against a police sergeant, a constable
and a member of the Bar, but the last was ultimately dismissed. Generally
speaking, the scheme involved arrangements for "ticket fixing" for cab-
drivers and owners, which was important to them because it affected their
insurance rates.
By means of the wire-tap, the police learned of the griever's,
involvement in Tardiff'sillicit enterprise. On May 9, 1978, she was
heard to tell Tardiffshe had torn up,an information; On June 1 she was
heard to tell him about the absence of an officer on vacation. On
,
I
,;
-7-
September 28 she disclosed the name of a J. P. ass.igned to hear a case
in night court; Tardiffthen approached the J. P. and arranged to have
the charge dismissed. On November 28 it was revealed. that she.had
destroyed the report of a certain conviction. As to this incident,
Staff Sergeant O'Neill said "it looked as though she did it on her
own initiative --- totcurry favour --- although I think she knew it
was wrong. At one point she said she was warning one of the others
he should stop."
Nevertheless, the Staff Sergeant said "we consider she was
one of the lowest members of this conspiracy.' He was not aware of
her receiving any benefit other than an imaginary romantic involvement.
Based on certain conversations, "some of which she may not be aware of,"
he thought that "she was being used" by Tardiff, the leader of the
conspiracy. There was no evidence she had been forced to do anything.
She seemed to know she could get into trouble, but she called him "to.
get attention."
In the later stages "she seemed to'turn him down," there
were less frequent calls and the relationship was cooling.
The witness added: "We have strong evidence that other persons
were rewarded - - - double the amount of the fine specified on the
summons. I doubt that she was aware this was, going on."
On the day he testified before this Board, October 8, 1980,
the Staff Sergeant said four of the accused had pleaded guilty, one was
to be tried "next week" and five on November 10. These trials were to
be before provincial court judges. The provincial court level was of
course, not involved in the allegations against J. P.'s, who are at
‘I
-8-
the lowest level in the judicial hierarchy.
Resulting from the charges laid by the police, the grievor was
suspended with pay on March 23, 1979. and suspended without pay as and
from NoEmber 14, 1979. On March 5, 1980, her guilty plea was received
by Provincial Court Judge Mercer, who suspended sentence and placed her
on probation for one year. By letter from the Deputy Attorney-General
dated April 2, she received notice of dismissal. The reason given was
clearly stated in the third paragraph.:
You have participated in a scheme to allow
persons to avoid prosecution and payment of fines
by removal of court documents' from the court
system. This criminal activity was committed in
abuse of your duties within the court office and
constituted a direct negation of your position
of trust.
It is worthy of note that the grievor's trial in March, 1980.
had taken a rather unusual course. The facts were explained by
Crown Counsel and confirmed by the defence. A conviction was recorded.
Defence counsel then spoke to the matter of sentence at considerable
lengthy and was followed by Crown Counsel, who agreed in substance with
what defence counsel had said. Both counsel recommended a suspended
sentence and probation, having regard to all the circumstances.
According to the transcript of that proceeding, which is
Exhibit 2 before this Board, Crown counsel (after describing the
offence itself as a very serious one) used the following words:
I discussed the matter at great length with
the police officers and we have reviewed the
transcripts of the intercepted conversations
-9-
i
and I’ve heard Mr. Stortini’s submissions to
YOUI- ~onour this afternoon with respect to
sentence, and I can’t disagree with anything
he has said to Your Honour with respect to
sentence. I have also had the advantage of
reading a rather extensive report that has
been submitted to Your Ronour, prepared by
Dr. Atcheson. I note in that report that
he indicates that Miss Sarabum has a
history, a long history of emotional
problems. She suffers from depression. Re
has taken a rather unu.suaZ step for a mm
in his position at the Clarke Institute of
taking her on as a patient on a continuing
basis because of his concern for her weZfare.
I u7der8tmd that she suffers from depression
as a result of all this. I have no quarreZ
with the subntission that in relation to the
part pluyed in this conspiracy by other persons,
some who pleaded guilty and some whose charges
are ~stitt outstanding, Miss Sarabum’s part
was very smtt, indeed, and she gained nothing
from it. She was led into the matter and has
been duped because of her. apprehended emotional
involvement of Mr. Tardiff, ‘and there is no
dispute, M quarrel, about that. It’s my.
respectfit submission then to Your Honour that
the interests of justice wouZd not be served,
given the background of this Zady who is before
Your Eonour end who has pleaded guilty and co-
opemted with the police, that it wouZd not be.
in theintzrests of justice to sentence her to a
ten of imarceration despite the fact that I
very strongly feel that the background we heard
had not been presented that the Crown wouZd be
.asking for a lengthy sentence.
The Court concluded as follows:
Miss Sarabura, I have listened tom the
representations of Mr. Stortini, your counsel;
and Mr. Wiley, who appeared for the Crown, and
I have also read the report of Dr. Atcheson rmd
I am in agreement with the submissions made by
counsel.
I am quite satisfied that yo'h were led into
this scheme and that your involvement was of a
very minor ncture, and I am satisfied that
you haue suffered enough atready, that you have
Zost a very good job, and I also note that you
are taking and wilt continue to take treatment
at the CZarke Institute.
- 10 -
Therefore, I am registering a conviction, suspending
the passing of sentence and I place you on probation for a
period of one ye&. The terms of probation are that you
will keep the peace and be of good behaviour and attend
in Court when required to do so. You realize that if
'you breach the conditions of your probation you may be
charged with a breach of probation and you may be brought
back before me for sentencing. I am not making any
condition that you attend the Clarke Institute. I am
sure that you intend to do that, anyway. There is no
point in me making that order. I hope that the treatment
is a success and that you are able to find yourself
employment in the reasonably close future and are in a
position to put this matter behind you.
The other charge against the grievor was then withdrawn by
leave of the Court.
Incidentally, the same judge. had already presided at the
the trial of Tardiffand others, so that he was not unfamiliar
with the material facts.
As already explained, this Board heard testimony from.
several Witnesses. The grievor's account of the conspiracy and
her unhappy role in it corresponded very closely with the evidence
of Staff Sergeant O'Neill. She makes no attempt to excuse her
misconduct, except to suggest that her judgment was impaired by
. an Illusory romance. Not until the end of their relationship
did she realize that TardfFfwas - ~- - in her words - - ' a con
man'!.
Dr. At,cheson's lengthy letter of May 30, 1979, giving his
explanation of the grievor's lapse, after 23 years of exemplary
conduct and zealous service, is the letter read 10 months later
by the Provincial Court Judge. The psychiatrist's testimony
before this Board reiterated the explanation given in 1979, but he
also added his estimate of her progress from March, 1979, to October,
1980. He had said in his letter:
‘I
-ll-
It would be my opinion that whatever poor
ju,dgement she has demonstrated in being
involved in the present charges are a
product of her personality disorder.
The type of personality problem that she
demonstrates is classified as a personality
disorder inadequate type. She is not
basically an antisocial person and in areas
of moral judgement would set herself very
high standards. It was my opinion that she
had engaged in extreme fantasy concerning
her relationship with the co-defendant. .
She now appreciates that this was fantasy
and had no basis in reality and, in fact,
she sees herself as being used by this person.
The degree of embarrassment that she experiences
in sharing this feeling with the examiner tends to
reinforce her .s!elf-iqage of inadequacy.
Testifyi~ng before this Board, Dr. Atcheson said
'. that in his opimon the grievor's judgement had been impaired
during her association with Tardiff,for the reasons set out in
his 1979 letter. He had seen her twice a week for two or three
months and then about once a week. At first she was suffering
from deep depression or remorse, and her, grief seemed uncontrollable
but she responded to treatment: "Once she had a support system,
her tears, diminished and she achieved some painful recognition
of realities . . ..Very keen on self-improvement....1 found she has
the attributes'of an intelligent, articulate and competent woman.
She is much more stable now. She's had much stress in the last
year but her insight now would not permit her to repeat the experience....
She's not anti-social. I see her as a very honest lady;
The Board cannot refrain from commenting that it seems
clear Dr. Atcheson was most helpful in enabling the grievor to
c J’ - 12 -
recover from her downfall - - - and also perhaps from some of the root
causes thereof. His testimony was very impressive, and,if the grievor
is a better and wiser person today, she owes much to his compassionate
understanding and~professional expertise.
Illustrating her urge for self-improvement, it
appears that the grievor has taken several courses at Seneca College
and Ryerson in such subjects as 'Management techniques and the analysis
of financial statements, and also courses in Management and con9nunications
at Sheridan College. Recently she has gained employment with a "placement
service", earning $159 a week, or about half of what she earned before
being suspended.
On being asked'whether she~really desired to returnto
her former post at the Old City Hall she.said "I could handle it but
maybe they couldn't," an obvious reference to other employees in the
same office.
It has been argued that the only question to be decided
here is whether there was just cause for dismissal. That is somewhat
over-simplified. In the Provincial Court all agreed that a serious
crime had been committed: the real problem was what should be done about
it in the circumstances of the case. Similarly, the issue to be decided
here in the context of the employer-employee relationship is not one
of determining whether there was grave misconduct: there undoubtedly
was misconduct so grave as to call for disciplinary action. Again, the
real problem is what should be done about it, i.e. whether the appropriate
penalty is dismissal.
- 13 -
In her argument on behalf of the employer, Ms. Minor referred to
the following passage at page 320 in Brown and Beatty's "Canadian
Labour Arbitration:"
It i.s now generally accepted that an
employee kho is convicted of a criminal
offence committed during the course of
his employment, which jeopardizes the
employer's property and security, or its
public reputation or the interests of the
other employees, may be discharged.
Similarly, an employee who is convicted of a
criminal offence during his off-duty hotis,
which prejudices any one of those interests,
may also be terminated by his employer.
Applying the tests used in many of the decided cases,
Ms. Minor contended they give overwhelming support to the penalty
of dismissal. The grievor had unlawfully used a position charged
with the administration of justice... She had,destroyed documents
and intercepted at least one on its way to the Ministry. She
had some authority and much knowledge at her comnand. The'matter
is clearly one of public concern. The motive was not financial
gain but the.acts in themselves were grossly improper. It was not
relevant that the public may sometimes regard parking tags or
minor traffic offences as trivialities. The processes of justice had
been tampered with, If not this offence, Ms. Minor asked, then,what
would justify dismissal?
On behalf of the grievor, Ms. Stevens said the "unblemished
\
work record” of the grievor could not be ignored. The reasons for
her misconduct had been fully explained. She had been caught in the
net of mtrch more serious involvement by others, but she herself derived
no benefit whatever. On being approached by the police she accepted
her guilt and was fully co-operative. Penalties should be rehabilitative
rather than punitive, as the Court had recognized. In this case it
iuas clear that no repetition of misconduct ro~ld be expected.
- 14 -
Mrs. Stevens also drew attention to 10 cases decided earlier
by this Board, in all but one of which dismissal had been set aside.
The Board's jurisdiction to decide the issue in a case such
as this is found in sections 17 and 18 of The crown hp~oyees
Collective Bargaining Act, 1972 ch.67 as amended in 1974, Ch. 135.
Subsection (2) of Section 17 provides as follows:
(2) h addition to any other rights of grievance
under a collective agreement, an employee claiming,
. . . . . . . . . . . . . . . . .
i’
.=
(c) that he has been disciplined or
dismissed or suspended from his employment
without Just cause,
may process such matter in accordance with the
grievance procedure provided in the collective
agreement and failing final determination under
such procedure,.the matter may be processed in
accordance with the procedure for final deter-
mination applicable under section 18.
Subsection (3) of section 18 provides as follows: .
(3) Where the Grievance Settlement Board determines
thaf 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.
The grievor in this case exercised her right to grieve
against dismissal under Article 27 of the applicable collective
agreement and section 17(Z) above, and processed the matter for
final determination by this Board under Section 18 above.
In a number of previous cases the Board has exercised the
power vested in it by section 18(3), usually with important
conditions or qualifications. For example, in Haight 23/75.
;. - 15 -
a grievor who had been involved in the misappropriation of government
property [from an abandoned radar site) valued at $700 was reinstated,
but without compensation to the date of the award, so that in effect
he received a long-term suspension. Again, in Cranley a&Staunton
48 & 49/76, where the grievors had made improper use of a government
vehicle and misappropriated firewood on private property, the grievors'
unblemished records were taken into account and they were reinstated
without compensation. In'pilon 151/78, a grievor in very poor health
had tampered with the attendance records of herself, her supervisors
and others over a considerable period of time; for dismissal the Board
substituted a one-year suspension without pay"& other benefits,
required restitution and directed probatjon for another year. In
Nicholls 199/78 and 14/7g, an O.H.C. Caretaker (who had been
acquitted on a charge of assaulting a tenant's child) failed to
convince the Board of~his innocence, but was reinstated with what.
amounted to a lo-month suspension, the Board holding he had been
guilty of "bad judgment and foolishness" rather than "wickedness".
In uriviere 65/79, the grievor had been dismissed for failing to
carry out certain required du,ties and other minor offences; the
penalty was-reduced to.a~two-week-suspension.-. In Travers. 79/79
and 213/78, a majority of the panel found that the grievor had used
excessi.ve force against an inmate of a correctional institution,
but reinstated him to "another substantially equivalent position"
with a very lengthy period of suspension.
On the other hand, in Bernardi lo.?/79, the majority upheld
the dismissal of a Liquor Control Board store manager who had altered
or falsified cash register tapes and reporting forms, not with a vie\+
to financial gain but for the purpose of justifying a la~rger staff.
The difficulty about resorting to the results in previous cases
is of course that there are no two exactly alike; ‘each-turns on
.its' own unique set of facts.
The Board has given anxious thought to the facts in this case
because, as Ms. Minor very properly emphasized, the offence was
.
not only "job-related" but affected the administration of justice,
its efficiency, its credibility and its integrity. The grievor's
position was a sensitive one. The public most certainly has a right
to demand that the court system from the highest to the lowest level
be untainted by corruption of any kind. These are very serious
considerations which are not underestimated by this Board.
There are, however, other considerations as well which must
be taken into account. The grievor, as Staff Sergeant O'Neill said,
"was one of the'lowest members of this conspiracy." She sought no
financial, gain (the usual motive for corruption) but sought only the
friendship of the leading conspirator. The Staff Sergeant doubted
she was aware of the financial rewards being received by others. In
other words, she was on the periphery of a conspiracy and her involvement
was personal. Although she knew that it was wrong to give sensitive
'~ information to Tardiff her judgment, in the opinion of the psychiatrist,
was impaired by her fantasies and an illusory romance. She had
probably been confused at the outset by the relatively "normal" inquiries
made by Tardiff; there is evidence, for example, that the schedules of
i ,iz’
- 17 -
J. P.'s assignments were (at that time) plainly visible on the wall
of an office to which many people had access. She was not a J.P. or
an officer of the court; her duties were those of a supervising clerk.
In short, one must not be carried away by the notion that she was a
conscious or active member of an elaborate conspiracy to pervert the
course of justice. Realistically speaking, she was a victim of the
conspiracy (or of the leading conspirator) rather than herself a
conspirator.
As already mentioned, the grievor's most serious offence was
: the destruction of the record of a conviction destined for the
Ministry of Transportation and Communications. That example of
misconduct appears to have been the worst that emerged from 90
telephone conversations intercepted by the police, and the grievor
knew it was wrong, even though done for purely personal reasons.
A counterbalancing factor, obviously recognized by the police and
Crown counsel, was that she co-operated with them and made clear
she would plead guilty. There was no attempt whatever to conceal
or justify her behaviour.
Another important consideration is that the grievor had an
excellent record of service over a period of more than 23 years.
Clearly she was an employee highly valued by administrators who
knew her work in theMinistry of the AttorneyGeneral.
Tffere seems to be no doubt that the griev~or can continue to
play a normal productive and law-abiding rcle in society, as she,has
done since her suspension in March, 1979,and as indeed was recognized
. r,. h
- 18 -
in the remarks of the provincial judge when he suspended sentence and
placed,her on probation for one year. The remaining question is whether
it would be proper to return her to a position as an Ontario public
servant. In other words, is dismissal the only appropriate penalty for
the mistakes she made arising out of a superficial and very personal
relationship with Tardiff?
If the grievor, after building a record of misconduct on
previous occasions had deliberately entered into a conspiracy with
Tardiffto corrupt and pervert the course of justice with a view to
receiving financial rewards for the assistance given, or if she had
rejected subseqdent opportunities for redemption and rehabilitation,thus
proving that she would be unworthy to hold any office of trust - - -
:if these were the ,facts of the case the answer to the problem would
become obvious.. Those, however, are not the facts in this case; the
evidence, including the evidence of the police, is to the contrary effect.
To us it does not seem,logicai that the griever should.suffer
exactly the same penalty, dismissal , as if the facts in the hypothesis
above were applicable to her.
Arbitrators have often been troubled by a phenomenon characteristic
of modern society; that of the employee found guilty of wrongdoing who
-receives the minimum or very lenient punishment from the court having
jurisdiction - - - and then suffers the extreme penalty, dismissal by the
employer in respect of the same offence. A solution to this problem appears
to have been contemplated by the Legislature when it provided in section
18(3) of The Crown ~nployees Collective Bargaining Act that a lesser
penalty could be fixed by this Board iF it considered the original penalty
The first test mentioned above ---- a "previous good record," ---
must be resolved in favour of the grievor. The same is true of the
second, "long service."
As to the third test, it can not be said that the grievor's
relationship with Tardiff over a period of many months was "isolated."
On the other hand, it was all in a legal sense part of one transaction
and there is no evidence of misconduct by the grievor apart from the
- 19’-
excessive. Similar provisions appear in the Ontario Labour Relations
Act and other federal and provincial legislation; e.g. Section 61.5(9)(c)
of the Canada Labour Code and Section 128 of the Quebec Labour Code.
InUnited Steelworkers Local 3257 and The Steel Equipment Co.
a. (1964) 14.C.A.C. 356,.Judge Reville authored an exhaustive decision
in which he cited numerous previous cases, on the basis of which he I .
'formulated.10 factors to be taken into consideration by a Board.having
power to mitigate the penalty imposed on a grievor. Of these, three
seem irrelevant in .this case, e.g. "provocation." The other seven. all
of which must be taken into account by this Board, are certainly relevant:
i
1. The previous good record of the griever.
2. The long service of the grievor.
3. Whether or not the offence was an isolated incident.
5. Whether the offence was comitted on the spur of the moment,,
as a result of a momentary aberration, due to strong emo-
tional impuls,eses,-or whether the offence was premeditated.
6. Whether the penalty imposed has created a special economic
hardship for the grievor in the light of his particular
circumstances.
9. The seriousness of the offence in terms of the employer's
policy and the employer's obligations.
10. Any other circumstances which the Board should properly
take into consideration . . . . . . .
- 20 -
information she gave Tardif and the documents destroyed by her to please
him.
On considering the fifth test, it appears that the offence was
not comnitted "on the spur of the moment" but rather in a gradual series
of errors and improprieties into which she was led by "strong emotional
impulses." The improprieties were in part "premeditated" but were due.to
thoughtlessness, imprudence and emotionalism rather than evil motives.
As for the sixth test, the dismissal has caused much economic
hardship although the grievor's ability is such that she is not likely
to become unemployed. It seems clear from the psychiatrist's evidence
that the grievor suffered a breakdown over a long period before her
trial in March, 19801 so that she washandicapped in earning a .livelihood.
The ninth test specified by Judge Reville relates to "the serious-
ness of the offence" in terms of the employer's policy and obligations.
It is here that the most difficult problem arises in this case. As it
was properly emphasized in argument by the employer's representative, it
is.of great importance that the administration of justice in all its
aspects be free from any taint of corruption.
After the grievor had pleaded guilty and been convicted of a
criminal offence. the Deputy Attorney-General wrote her (in the dismissal
letter) that "this criminal activity was comnitted in abuse of your duties
within the Court Office and constituted a direct negation of your position
of trust." That statement is manifestly correct, and it justifies a
severe. penalty.
The question still retrains, however, whether a severe penalty ---
which is justified --- must be the extreme and ultimate penalty of dis-
- 21 -
missal, having regard to all those circumstances..which the provincial
judge as well as Crown counsel found should be taken into account, and
must also be taken into account by this Board. In other words, the
"other circumstances" to which Judge Reville was referring in his 10th
test.
The grievor has already suffered no small penalty. Her original
suspension on March 23, 1979, was with pay, but as and from November 14,
1979. she was suspended without pay, so that for more than one year she
has.lost the salary and other benefits previously received. This Board,
it must be said, is of the opinion that the employer was fully justified
in imposing the suspension without pay after ft had become clear that
the grievor would plead guilty to the'charge against her.
On the other hand, it is to the grievor's credit that she co-
operated fully with the police when they were concluding their investi-
gation and made no attempt to hide or obscure from them her role in a
conspiracy in which others occupying more responsible positions had
participated much more actively. Her motivation became obvious to the
police, even when they intercepted her telephone calls, and it is con-
sidered that -- unlike others --- she received no monetary rewards.
She was, asStaff Sergeant O'Neill put it, "one of the lowest members
of this conspiracy;"
We are,not unmindful of the perfectly valid argument that law
enforcement is vulnerable to the slightest intrusion of unlawful acts.
and that the grievor occupied a position of trust in the Court System.
The Ministry of the Attorney-General, however, is not the only branch
of government where the public is entitled to expect integrity of the
highest order. The same is expected of the Ministry of Revenue and
others, where many public servants also occupy positions of trust.
Having~ regard to the grievor's long service and excellent
record, and having regard also to her motivation and all the esta-
blished facts surrounding her misconduct, we have reached the conclu-
sion that dismissal from the public service was excessive and that a
different penalty should be substituted upon terms just and reason-
able in all the circumstances.
We are not prepared to say that the grievor should be re-
instated in her former position at the Old City Hall. Too many diffi-
culties could arise if she were 60 return to that milieu, for herself
and for other employees.
The decision of this Board is' that the grievor shall be re-
instated not later than February 15, lSGl,.in another position at a level
not less than that of a Clerk General 3, and at a location within the
County of York or the Municipality of Metropolitan Toronto other than
the Old City Hall. The reinstatement is to be without pay or other
benefits in respect of the period since November, 1979, except that
there shall be no loss of seniority accumulated before and after her
: suspension. In former years, the grievor demonstrated that she was
capable of filling satisfactorily a position at the level of a Clerk
General 4, and we direct that if such .a position becomes open at any
time after this date, she is to be given by the employer an opportunity
to fill it on the same footing as'any other eligible candidate. The
grievor must inform the employer within 30 days from the date of this
decision whether she elects to return to work on these tetms.
In our view, the penalty specified above is sufficiently
severe ~to correspond with the gravity of the matter, and at the sxc
a ;?r?,>
- 23 -
time it wili enable the employer and the employee to resume a relation-
ship which was of mutual advantage in,former years.
Dated at Toronto this 15th day of December 1?80.'
I concur
E. A. McLean Fiember
I concur
S. R. Hennessy Member