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HomeMy WebLinkAbout1984-0066.Vanamelsvoort.87-07-24IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT. Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Gary Vanamelsvoort) -and- The Crown in Right of Ontario (Ministry of Citizenship and Culture) BEFORE: K. Swan S. Schacter W.A. Lobraico For the Griever: P.A. Sheppard Counsel Barrister & Solicitor For the Employer: P. Mooney Staff Relations Officer Staff Relations Division Civil Service Commission Grievor Employer Vice-Chairman Member Member Hearing: July 16184 January 15185 AWARD This arbitration arises from a fact situation which can only be called puzzling. It is puzzling because, standing alone, the events which took place do not appear to have any rational explanation. It is even more puzzling, however, because of the identity of the person who admittedly engaged in the activities out of which the present grievance flows. The grievor, Mr. Gary Vanamel'svoort, is a 17 year employee at the Ontario Science Centre , where he is supervisor of the glass blowing area, in charge of.developing exhibits and specialized maintenance of blown glass items, which are used par- ticularly in chemistry exhibits. Re has never before been dis- ciplined, and his supervisors regard him as a good, hard working and reliable employee. He also has been extensively involved in community volunteer work, particularly with organizations promoting .the interests of disabled persons. Nevertheless, on October 30, 1983, very early in the morning, Mr. Vanamelsvoort engaged in a series of activities~which resulted in criminal charges for theft, and a seven day suspension from duty. As we have already observed, most of the activities from which these consequences arose are admitted by the grievor, and there is really very little conflict in the evidence of any significance for our purposes. Apart from the area of conflict, which we shall deal with specifically below, it is possible to deal with this case almost entirely on the basis of the grievor's own admissions to his conduct. October 30, 1983 was a Sunday. At approximately 6:30 - 2 - a.m. on that day the grievor arrived at work at the Science Centre, parking his car in the west parking lot and entering past a security position called "C Desk". This desk was manned by a security officer, Mr. William Laycock, who had just reported for duty himself. Mr. Laycock expressed surprise at the qrievor's arrival at the Science Centre at that hour, and the grievor explained that he had neglected to set his clock back to accom- modate the change from daylight saving time. Mr. Laycock testifies, but the grievor denies, that a conversation then took place in which'the grievor said certain things about a recent investigation of a series of thefts by another employee, and made certain comments that suggested that the grievor had himself stolen material from the Science Centre in the past. He stated that he had now.thrown out all such material from his home in order to avoid being caught during the course of the investigation, and that he intended not to take anything in the future in order to avoid prosecution. The grievor admits that he may have made a remark on some other occasion suggesting that he had gone through his house from top to bottom to throw out material taken from the Science Centre, but he says that this was a common joke among employees, who had been following the rather notorious investigation with some interest. He denies that he had ever taken anything, and also denies saying anything along these lines, even in jest, to Mr. Laycock on the morning of October 30, 1983. Shortly after, the grievor went to get a cup of coffee - 3 - for himself and for Mr. Laycock. After delivering Mr. Laycock's coffee, he proceeded himself to the glass shop, where he normally works. It appears that, at the time of the grievor's arrival, the door alarm system at the Science Centre was not operating, apparently for some technical reason. After the grievor's departure from C desk, however, Mr. Laycock reactivated the system. At 8:05 a.m., the alarm lights on his security panel flashed and an alarm sounded; the flashing light indicated that one of three doors in the Engineering area had been opened. Mr. Laycock shut off the audible alarm, and proceeded to one of the doors, which did not appear to be open. He opened it himself! and was able to observe that an overhead door at a loading ramp in the Hall~of Engineering was open. The qrievor was inside that open door, and was observed to push two bundles under the door before closing it again. Mr. Laycock watched unobserved until the grievor was back inside, and then returned to his post, where he reported to his supervisor, Mr. Jim McTeague. A few moments later, the grievor returned to the area of C desk, and Mr. Laycock took the opportunity to ask the qrievor to relieve him at the desk on the pretext of wishing to go to the washroom. while the grievor was thus occupied, Mr. Laycock went back outside and inspected the two bundles which the qrievor had pushed out. Each bundle contained a used electrical fixture, wooden strapping and boards, and each was secured with - 4 - masking tape'. Mr. Laycock formed the opinion that this material was surplus or scrap material, the property of the Ontario Science Centre. He marked each bundle by scratching his initial into the light fixtures. He then returned to his post and took over again from the grievor. He says that the grievor then initiated a conversation on the operation of the alarm system, but that conversation was cut off by a further telephone call from Mr. McTeague. At 8:20 a.m., the grievor left the premises and went to his car in the west parking lot. Mr; Laycock arranged to be relieved, and was able to observe the grievor leave in his car, a Honda Civic. Mr. Laycock then went through the building to the east parking lot area, and opened the door from which he had observed the grievor moving the bundles before. He saw the grievor arrive with his car and place the two bundles into the 5'. back of his car. As he drove off, Mr. Laycock opened the door wide with the intention of ensuring that the grievor saw him so that he would know that he was under observation. Mr. Laycock says that the grievor did see him; the yrievor denies having seen Mr. Laycock at all. It is the grievor's testimony, corroborated by the rest of the evidence, that he simply drove the two bundles in his car around the building to a "bulk lift", a large trash container which is brought to the site empty and removed full by truck by a disposal contractor. There the grievor dumped the two bundles into the bulk lift containing other scrap. - 5 - Close to 9:00 a.m., the grievor came back into the building through the C desk door. He then had another conversa- tion with Mr. Laycock, the details of which are disputed. Mr. Laycock says that the yrievor called him an insulting name, and said that he had been forced to discard the material into the bulk lift because of Mr. Laycock's intervention. The grievor denies this, and is supported in his denial by the evidence of Mr. R. Roseman, the senior security officer to whom Mr. Laycock reported on October 30, 1983, and who overheard and oversaw the contact between the grievor and Mr. Laycock just before 9:00 a.m. Simply put, Mr. Roseman's evidence is that he overheard the entire conversation, and that no comments like the incriminating ones attributed to the grievor by Mr. Laycock were in fact made by the grievor. Subsequently, Mr. Laycock, who certainly possessed the information of the whereabouts of the material, however he came into possession of it, went out to the bulk lift and retrieved the two bundles of scrap. He placed them for safe keeping in a locked room. ,They were subsequently removed from that room to another lock-up by Mr. McTeague, and Mr. Laycock inspected them to make a list of the contents later on. That was the last time he saw these items, and they were not produced in evidence either in the criminal trial or in the proceedings before us. The rest of the story may be told relatively briefly. Once Mr. Laycock's statement had been written up and submitted to his superiors, the police were notified, and two police officers i - 6 - investigated on November 3, 1983. The grievor was arrested and taken into custody, and was eventually questioned by the inves- tigating officers. The police decided not to lay charges themselves, but invited the grievor to make a statement, which he did. The statement simply sets out the griever's version of events as set out above, and is essentially exculpatory. The grievor gave the same explanation of his conduct to the police as he gave in testimony before us, to which we shall return below. Ultimately, apparently at.the instance of management of the Ontario Science Centre, charges were laid against the grievor. It appears that Mr. McTeague, acting under the written authorization of the Director General of the Science Centre, himself swore out the Information before a Justice of the Peace. The criminal charges came to trials on April 13, 1984, and the grievor was acquitted. The acquittal was entered after Mr. Laycock was examined in chief and on cross-examination, and Mr. McTeague was examined in chief. The evidence made available by the Science Centre for the prosecution appears to have been so inadequate that the Crown Attorney, very properly, permitted the charges to be dismissed without making any submissions. The grievor's own explanation of his extraordinary conduct on the occasion in question is that he intended to play a harmless prank which, in effect, blew up in his face. He says that upon his arrival at work he found the two bundles of material lying just inside the overhead door. He concluded that scmeone had removed them from a trash barrel, where he recalled - 7 - having seen them before, and had placed them near the doors for the purpose of stealing them. As we have already observed, there had been a notorious case of theft of materials from the Science Centre, which had resulted in criminal charges against a super- visor. Those charges involved, for the most part, the theft of surplus materials, and would thus have brought to the attention of everyone at the Science Centre that surplus materials were viewed as the property of the Centre, and that removing them from the Centre was theft. What~makes this context particularly important is the fact that the grievor was one of the persons who accused the supervisor of wrongdoing; having in fact gone over the heads of his superiors at the Science Centre to the Deputy Minister in order to do so. The grievor says that, when he concluded that these materials had been positioned so that they could be stolen, he decided to play a prank on the would-be perpetrator. He there- fore says that he decided to remove the materials from the building and put them in the bulk lift in order to foil whoever was trying to appropriate them. This explanation, in his assertion, justifies all of his conduct, and explains why the materials ended up where they did. As we have already observed, this is a very puzzling turn of events. The grievor's conduct on the morning of October 30, 1983 can only be explained as either an attempted theft or the strangest and most ill-advised form of prank. The decision as to which of these it is depends upon an analysis of the - 8 - contextual evidence available, and in particular that of Mr. Laycock. It will be observed that there were two conversations between the grievor and Mr. Laycock on October 30; the Employer argues that both are inculpatory. The first of these was at the time of the grievor's arrival at 6:30 a.m. There were no other witnesses to this conversation, so it simply becomes a matter of credibility between the grievor and Mr. Laycock. In respect of what Mr. Laycock alleges was said, however, it will be obvious that the most that can be made of what the grievor is supposed to have said is t-hat he was admitting thefts of material in the past, rather than suggesting any intention to steal on the particular occasion. Whether or not such evidence would be admissible .to demonstrate a proclivity for theft .in general terms, it would equally militate against the suggestion that the grievor, who was alleged to have said that he had cleaned his house from top to bottom of Science Centre property, would then promptly steal more Science Centre property for his own use. As to the second conversation, the Rmployer is in the difficult position of having Mr. Laycock's own supervisor contradict his testimony. That second statement attributed to the grievor is, if believed, much more damning, since it is in effect an admission of an attempted theft, thwarted only by Mr. Laycock's intervention. On the other hand, in the face of the direct contradiction between Mr. Laycock and Mr. Roseman, i,t is simply impossible to accept that the Employer has proved that - 9 - this conversation took place. One objective factor in favour of accepting the evidence is Mr. Laycock's knowledge of the location of the two bundles after the grievor had returned to the building. Nothing in the evidence suggests any other way in which he could have known where these bundles had been placed, if the grievor did not in fact tell him in a conversation at least somewhat like that which he alleges took place. In all the circumstances, however, we are simply not satisfied that the Employer has demonstrated that this conversation took place as alleged.~ Mr. Laycock also alleged that, on an earlier occasion, he had observed the grievor in what he thought was an attempt to steal fluorescent light tubes. In his version, the grievor carried these tubes toward the security desk, but returned to his work place when he saw that the security ~desk was manned. Mr. Laycock says that he took the bundle of tubes and secured them in a lock-up once the grievor had gone, so as to preserve them as evidence. The grievor says that he was carrying the tubes inside the Science Centre for entirely proper purposes. He says that he noticed the light tubes missing the next day and reported their loss, with no perceptible result. This evidence is, frankly, equivocal. It might demonstrate a predilection on the part of the grievor to steal, if we accepted Mr. Laycock's version of the event. On the other hand, it could equally stand for the proposition argued on behalf of the grievor, namely that Mr. Laycock, for some personal - 10 - reason, was out to try to get the grievor. The grievor's explanation, indeed, includes a sig- nificant allegation that management was attempting to get him, possibly because of his involvement in the earlier theft case. While, on the face of it, this allegation does not appear to have much cogency, it is unfortunately given some weight by the way in which the grievor's complaint of mistreatment was handled by the managerial personnel who dealt with it. For example, although the police had declined to lay charges and the Centre had .instructed Mr. McTeague to swear out the In,formation, manage- ment's replies to the grievances are simply misleading in suggesting that the charges were entirely the work of the police. We are at a loss to know what was gained by this lack of frank- ness, since it appears to have achieved nothing for the Employer and has given some weight to an otherwise implausible explanation of victimization1 On balance, therefore, we are left with a finding that the grievor engaged in his strange and ill-advised behaviour for reasons that were not dishonest in nature. His reasons are, however, very difficult to understand in all the circumstances of the case, and we must confess to a lingering uneasiness with this entire affair. The grievor's conduct, while not criminal, is neverthe- less culpable to a certain degree. It seems obvious that the grievor must have known that he was engaging in a breach of security of the institution in what he did on October 30, 1983. - 11 - While he denies specific knowledge of various memoranda making his conduct expressly forbidden, it seems to USA to be unbelie- vable that he would not have been very aware that, by movin.g the bundles outside the overhead door, he was carrying out precisely the same acts as the suspected thief would have to carry out, albeit with very different intentions. He was, in effect, circumventing the entire security system of the institution in order to carry out his prank. Whether or not he had read the specific memoranda forbidding the appropriation of surplus or' scrap material for personal use, the events‘of the other notorious case of theft, which had involved a number of things which had been declared surplus, could not have left the grievor completely bereft of any knowledge that what he was doing was against the rules. In our view, the grievor engaged in a breach of security which had the effect of putting in train a-police-investigation, his own abortive prosecution, and a great deal of trouble and difficulty for all concerned. This breach of security was therefore culpable, and would provide the Employer with grounds to dis- cipline the grievor. Since, as we have said, the grievor's past record is exemplary, we do not think that a seven day suspension would be an appropriate penalty. We do, however, think that some suspension is appropriate in order to bring home to the grievor the seriousness of his conduct on this occasion. There is another matter to consider. The grievor is asking for indemnification for his legal costs of his defence at - 12 - the criminal trial, on the basis that the Employer put him through that senseless exercise without just cause. We doubt that we have any jurisdiction to make such an award, but we do have a jurisdiction to substitute a penalty that is fair and reasonable in all of the circumstances. We have thus taken into - account the fact that the Employer pressed criminal charges when the police had declined to, and then failed to supply even the basic elements of a case against the grievor at the trial. Therefore, while we might otherwise have considered a longer suspension appropriate, having regard to all of the circumstances, we order that the griever's suspension be reduced to one day, and that he be compensated for all losses incurred beyond a suspension of that magnitude. To that extent, there- fore, the grievance is allowed. DATED AT TORONTO, Ontario.this. 2.+tB day of July, 1987. -K+neth P. Swan, Vice Chairman "S. Schachter" S. Schachter, Member "W.A. Lobraico" W.A. Lobraico. Member i,