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HomeMy WebLinkAbout1983-0664.Denomme.85-02-08‘. r ;~ : .,. 664/83 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: For the Grievor: For the Employer: Hearings: OPSEU (Nelson Denomme) Grievor - and - The'Crown in Right.of Ontario'~ (Ministry of Transportation and Communications) Employer R. L. Verity, Q.C. Vice Chairman F. D. CollOm Member L. R. Turtle Member I. Freedman Legal Director, Grievance Section Ontario Public Service Employees Union D. W. Brown, Q.C. Crown Law Office Civil Ministry of the Attorney General January 26, 1984 June 22, 1984 - 2 - DECISION In this matter, N. R. Denomme was discharged for alleged breach of trust following a Ministry investigation. In the termination letter from Harold Gilbert, Deputy Minister of Transportation and Communications dated October 3, 1983, the reasons for discharge were stated as follows: 0 . . . a recently concluded investigation has revealed that you had failed to deposit substantial amounts of Hinistry.funds over a prolonged period of time in direct violation of policy and procedures. 1t was also disclosed that you had failed to report an alleged theft of funds. As it has been shown that you have abused your position of trust with the Ministry by the continuing nature of your mishandling of funds and your failure to report an alleged theft of funds, 1 have no choice but to inform you that, in accordance with ihe provisions of Section 22.-(3) of The: Public Service Act, R.S.O. 1980, Chapter 418, you are hereby dismissed from employment for cause, with effect from October 14, 1983...." Mr. Denomme filed a grievance alleging unjust dismissal and requested reinstatement with full compensation for lost wages and benefits. - 3 - At th.e conclusion of the second day of Hearing on 3une 22, 1984, the Parties advised the Board tha,t they wished to canvass alternate employment possibilities for the grievor and, if necessary, to submit written argument, The Parties were unsuccessful in finding alternate employment, and accordingly writ,ten briefs were presented for the Board's consideration. Union Counsel submitted written argument on October 23, 1984 and Counsel for ,the Employer submitted a factum on January 16, 1985. ~' The material facts~ in the instant grievance are bizarre. At the time of discharge, the grievor was employed as a Driver~Examination Supervisor at the Ministry’s New Liskeard office. In that position his primary. du.ties included: 1. Responsibility for administrative duties and the operation of the examination centre at New Liskeard, and designated travel points., 2. The performance of driver examinat?ons and the processing of Licences and permits. 3. Accountability for collection of fees an.d banking of monies received. 4. Preparation of reports or receipts for appointments, permits, O/O permits, temporary registration licences, issuance, listing amounts, balancing and depositing fees in a Ministry bank account. - 4 - The New Liskeard Driver Examination Centre is a two person operation in which Mrs. Darlene benoit performs certain clerical functions. The evidence established that it mas the griever’s responsibility to deposit monies received from the general public into a Ministry bank account at the local New Liskeard branch of the Canadian Imperial Bank of Commerce. Copies of all bank deposits and relevant accompanying documentation were then forwarded to the Ministry’s Downsview office for further processing. Ministry policy and procedures required that examination centres deposit monies into a Ministry bank account on a daily basis. A memorandum to that effect was issued on July 31, 1978 by District Manager Robert Ducharme. That memorandum read: “Apparently banking in some Centres is not being done on a daily basis. There is no reason for this. We are paying mileage for banking and shortly will be comparing expense accounts against bank reports as an auditing function. We ilso supply night deposit bags. The Centre Supervisor is responsible for any money ‘over the float that is left in Centres overnight.’ lf he does not use his 5 i - 5 - night deposit bag he could be held responsible. Supervisor~s will ensure that banking and reports where possible be a daily function of each Centre.” \ A subsequent memorandum ent i tled "Banking Reminder" was issued by Mr. Ducharme on March 22, 1982 as follows: "All issuers are hereby reminded that once the sum of $50.00 has'been reached in issuing O/O Permits, the funds must be banked, daily if necessary. TF the sum of $50.00 has'not been accumulated then it is permitted to bank on a weekly basis." For a period of some 3-I/2 months subsequent to December 14, 1982, the grievor made no bank deposits. Numerous complaints were made to Mrs. Elenoit by applicants who had made applications and paid fees for licences or permits, and had not received the completed documentation. Mrs. Benoit brought these complaints to the griever’s attention on numerous . . occasions, but to no ,avail. Subsequently on March 28, 1983, Mrs. Benoit, on her own initiative, ascertained that the Ministry's Downsview office had received no documentation and no funds from the New ‘~Liskeard office since December 14, 19821 Mrs. Benoit advised . - 6 - the grievor of that fact and was assured by him that he would attend to the problem later that week. On the morning of March 29, Mrs. Renoit telephoned Ministry District Manager Robert Ducharme and advised him of the situation. Mr. Ducharme immediately instructed Mrs. Benoit to make arrangements for a meeting with the griever, at the Ministry's New Liskeard office at 1:00 that afternoon. Prior to the meeting, Mr. Ducharme attended at the Canadian Imperial Bank of Commerce,'Ner Liskeard branch, and ascertained that the most recent deposit of monLes into the Ministry account was in fact dated December 14, 1982. District Manager Ducharme confronted the grievor with the situation at the meeting on March 29, 1983, at the Ministry's New Liskeard office. According to Mr. Ducharme's testimony, the griever alleged that monies in the sum of $1,204.00 relating to cash reports numbers 28 and 29 had been stolen from his personal motor vehicle the day before Christmas, 1982. He stated that cash reports numbers 28, 29, 30 and 31 in the amount of S2,630.00 had been deposfted by a night deposit on March 28, and that "he would borrow money, if necessary, from his father to make up the balance". . - 7 - There is no dispute that on March 29 Andy 30, all monies outstanding were paid by the grievor into the Ministry account. In fact, in excess of Sk,OOO.OO was deposited by the grievor into the Ministry account during that two day period. Mr. Ducharme initiated a Ministry investigation which took place in the form of an audit on March 31, 1983. At the Hearing, Ministry Senior Auditors, David Hodgson and Richard Green testified at length as to procedures followed and information revealed by the audit. i The auditors report dated July 29, 19~83 contained the following information:. 1. Fees collected by the.Driver Examination Centre between December 14, 1982 and March 29, 1983 totalled S6,520.00. None of these funds were deposited until March 29 and 30~;1983. 2. The $6,520;00 was composed of: ( .; j $5,155.00 for vari’ous driver documents ,350.OO for Oversize/Overweight Permits 1,,215.00 for Ten Day Trip Permits $6,520.00 Total The audit also revealed that in an.interview with the grievor, the following information was obtained: 1. N. R. Denomme advised that $1,204.00 related to cash reports f/26 and #29 were stolen from his personal vehicle prior to Christmas of 1982. He did not notify any - 8 - Ministry officials or the police. 2. He had applled for a personal loan to replace the above S1,204.00 in missing funds. 3. He stated that banking should be done when funds collected exceed S50.00. In addition, he stated that during slower periods funds should be deposited three or four times per week. 4. N. R. Denomme stated that the funds not deposited were kept in a locked security cabinet nithln the office. At an interview with Mrs. Renoit, the auditors obtained the following information: 1. Mrs. Benoit stated that there were no large sums of money kept in the locked security cabinet in the office. 2. She stated that it was N. R. Denomme’s customary practice to remove all large denomination bills dally. He put the large bills In his pocket and left the small bills Ss, 2s and 1s in the office overnight. Under the heading of “Other Findings”, the following information is relevant: “1. Deposit frequency during fiscal year 1982/83 was irregular. Deposits did not - 9 - include all funds collected to the date of deposit. 2. Personal cheques were cashed at this centre by various employees. N. R. Denomme cashed 5 personal’cheques, totalling $1,670.00, during the month of July, 1982. 3. Written policy from the Timmins District Office and written Ministry Guidelines stipulate that accounting and banking are to be done daily. Mr. Denomme has not acknowledged, in writing, an awareness of these policies. 4. An analysis of depos,its, by. N. R. Denomme, while assigned to Kirkland Lake and New Liskeard,~was completed. The analysis shows a deterioration in’the frequency of depositing., 5. From 3anuary ‘to March,, 1983, Mr. Denomme was assigned to Highway Carrier trainin,g on a part-time b~asis. There is, no documentation that releases him from any responsibility of,centre operations.” Tn his testimony, the grievdr admitted that he had > “mishandled t,he situation” and that Mrs. Benoit had received numerous complaints from the public pertaining to del,ay in the issuance of driver’s licences and permits. He tkstified that he assumed that he had “roughly $5 ,OOO.OO in his attache .case In the locked .office cabinet”. The griever als’o admitted that I - 10 - he obtained a bank loan In mid-February, 1983 in the amount of some $3,600 .OO. Tn her evidence, Mrs. Renoit testified that no large bills had been left in the New Liskeard Ministry office locked cabinet during the periods in question. On May 28, 1984, the griever was convicted in the District of Timiskaming Judge’s Criminal Court under S. 290(l) of the Criminal Code of Canada for the offence entitled “theft by person required to account”. As a result of that conviction, the griever received a suspended sentence and was placed on a six month probation. ln written argument the Employer’s Counsel, Dennis Brown, contended that the griever had converted Ministry funds for his own use during extended periods in 1982 and 1983 and that he had offered no reasonable explanation for failure to deposit the monies. Mr. Brown argued that in view of the grievor’s criminal conviction, and the fact that the griever was not a credible witness, the Roard should not exercise its discretion under Section 19(3) of The Crown Employees Collective Bargaining Act to substitute a lesser penalty. . . . ‘.‘.. - 11 - In his written brief, Union Counsel Freedman argued that the grievor's conviction under Section 290(l) of the Criminal Code of Canada has no.evidentiary role. Further, he contended that the excessive delay on the part of the Employer in dismissing the grievor some six months after the Ministry investigation justified the upholding of the grievance. However, the thrust of the Union's argument was to the effect that there were sufficient mitigating circumstances to justify subsitution of a lesser penalty. Numerous arbitral precedents were cited by Mr. Freedman in support of mitigation of penalty. Having carefully considered all of the evidence, there~ can be no d,oubt that the gr~ievor was familiar with the Ministry policy requiring daily deposit of public monies, and his failure to make bank.deposits,for a period of some 3-l/2 months constituted a serious breach o.f trust in the employer/employee relationship. In this matter the griever, over an extended period of time has deliberately 'and fraudulently withheld monies which are the property of the has seriously Government of'ontario and by so doing inconvenienced members of the general his employer. No financial loss was i as reimbursement in full was made ,by t public, and embarrassed ncurred by the Ministry, he Grievor. The sole is'sue for determination is, of course, whether discharge is the appropriate disciplinary response. - 12- , On the evidence, it is difficult to accept the griever’s explanation of the alleged theft of 51,204.OO of Ministry monies prior to Christmas of 1982, in the absence of any notification to either the police or Ministry officials. In addition, it is difficult to understand why the griever failed to rectify the situation in mid-February of 1983, when according to his own evidence, he obtained the proceeds of a personal loan. Similarly, it is difficult to accept the griever’s testimony that all large bills acquired during the period were deposited in the, New Liskedrd office cabinet in light of Mrs. eenoit’s evidence to the contrary. Further, the Aoard does not believe the griever’s uncorroborated evidence as to the purpose of his personal withdrawal of funds on March 29 and March 30, 1983. At the hearing, the griever claimed that his personal withdrawal of funds was made to purchase home furnishings, and to retire a personal debt. At the criminal trial, he alleged that the withdrawal was f@r the p!~r?ose elf purchasing furnishings for approximately $700 and that he retained the rema inder of the funds. However , the evidence before this Board established that the griever made large deposits on the dates in question to reimburse the ministry’s account. is no doubt that Mrs. Renoit, in her testimony , was a credible witness. However, we find’ did not testify with a frankness and candor that the Board is entitled to expect in a matter of thls There before the Roard that the grlevor - T3- ,' nature. Quite simply; we do not believe the griever's testimony. Ii7 recent cases, ‘Boards of Arbitration have identified certain mitigating factors which, in appropriate factual situations, tend to justify the substitution of lesser penalties. Arbitrator Arthurs considered that issue in & Canadian Broadcasting Corp. and Canadian Union of Public Employees 1979 23 L.A.C. (Zd) 227 at pp 230 and 231: "The older cases generally (but not inevi tablly) treated theft ,or dishonesty as an of fence wh~ich warranted au,tomaJic discharge; more rec,ent cases,, especially those decided by arbitrators subscribing to the theory of ‘corrective discipline', do not treat dishonesty as per se'grounds for discharge; and.variq,us mitigating factors have been identified as jus'cifylng the substitution of a lesser penalty.for discharge in such cases. Such f acto.rs include: 1. Bona fid.es confusion or mistake by the griever as to whether he was entitled to do the act complained of; 2. The griever’s inability, due to dru.nkeness or emotional problems, to - appreciate the wrongfulness of his act; 3. The impulsive, or non-premeditated nature of the act;. 4. The relatively trivial nature of the harm done; 5. The frank acknowledgement of his misconduct by the griever; - 14 - 6. The existence of a sympathetic, personal motive for dishonesty, such as family need, rather than hardened criminality; 7. The past record of the grievor; a. The grievor's future prospects for likely good behaviour, and 9. The economic impact of discharge in view of the grievor's age, personal circumstances, etc. But these factors, while helpful, are not components of a mathematioal equation whose composition will yield an easy solution. Rather, they are but special circumstances of general considerations which bear upon the employee's future prospects for acceptable behaviour, which is the essence of the whole~corrective approach to discipline. How well or badly the grievor has behaved in then past is some indication of his likely future behaviour. How aggravated or trivial was the offence is some clue to the risks the employer is being asked to run if the grievor is reinstated in employment. And how seriously the damage will affect the grievor is at least one (but not the only) measure of whether a reasonable balance is struck between the other two considerations." Having considered these factors, and having considered the arbitral precedents submitted by Union Counsel. this Board must conclude that the instant grievance is not the appropriate case to exercise our discretion under Section lg(3) of The Crown Employees Collective Bargaining Act in the substitution of a lesser~penalty. - 15 - It is difficult to substitute a lesser penalty in circumstances where the Board finds that the grievor has presented evidence which is not credible. On the evidence, the Board is not satisfied that the griever's conduct was an isolated incident or a’momentary aberration which would not be repeated in the future. Tn the result, this grievance is dismissed. DATED at Brantford, .Ontario, this .8th day of February, A.D.,,1985. R. L. Veritv. Q.C. - Vice Chairman v F. D. Collom - Member I L. R. Turtle - Member