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HomeMy WebLinkAbout1988-0763.Tanevsky.89-07-13~ ONTARIO EMPLOY~-S DE LA COURONNE CROWN EMPLOYEES OE L'ONTARIO GRIEVANCE C,OMMISSlON DE SETTLEMENT REGLEMENT 8OARD DES GRIEFS ?80 DUNDAS STREET WEST, TORONTO, ONTARIO. MSG ~Z8 - SUITE 2100 TELEPHONE/T~L~'PHONE TS0, RUE DUNDAS OUEST, TORONTO. (ONTARIO) MSG IZ8- guREAu 2100 I416) 598-0688 0763/88 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Liouba Tanevsky) Grievor - and - The Crown in Right of Ontario (Ministry of Consumer & Commercial Relations) Employer Before: N.Y. Dissanayake Vice-Chairperson J. McManus Member M. O'Toole Member For the Grievoz: R. Wells Counsel Gowling, Strathy & Henderson Barristers & Solicitors For the EmDlo~e~: L. Thomson Counsel Hicks Morley Hamilton Stewart Storie Barristers & Solicitors Hearin%s: January 3, 1989 March 21, 1989 DECISION This is a grievance wherein Ms. Liouba Tanevesky alleges that she was dismissed from employment without just cause. The grievor first commenced employment with the Ministry of Consumer and Commercial Relations on March 30, 1987 on a three month contract as Certificate/Service Clerk at the Office of the Registrar General. At the end of this contract her employment was renewed for a further two year term ending on July 6, 1989. However, she was discharged by letter dated August 4, 1988, which gave the reason for discharge as "the action you took on August 2, 1988, in destroying an application for a Birth Certificate." The Board heard evidence about the alleged incident. On August 2, 1988, the grievor was assigned to the function of opening mail. The mail addressed to the Registrar General's Office includes applications from members of the public for various certificates including birth, death and marriage. In short, the function of the employees is to open the mail and sort the different types of applications for processing. 3 Ms. D. Lopes, another employee who' was working nearby, testified that shortly before the lunch break she observed the grievor "wrinkle up an application and stuff it in the garbage can". She further testified that the grievor did that very quickly and that at the time her other hand was in her back PoCket. Ms. Lopes was shocked by what she saw. At the lunch break the grievor left for the day as pre-arranged with her supervisor. Prior to leaving she briefly spoke to Ms. Lopes, but the latter did not question the grievor about what she had seen. Ms. Lopes discussed what she had observed with another employee, Ms. Judy Benson. Ms. Benson went over to the garbage can, which was about 3/4 full, and found "a crumpled envelope with an application sticking 6ut." She testified that it was not right on top but under the first layer of paper. Ms. Benson and Ms. Lopes viewed the matter as serious and reported the incident to Ms. Barbara Cowell, the Supervisor of Revenue Services. Ms. Cowell testified that the application and envelope was crumpled into a ball shape when she received it. Ms. Cowell in turn reported the alleged incident to Mr. Graham Hall, the Manager of Customer Services. Mr. 'Hall called Mr. Tony Sharpe of Human Resources for advice. Mr. SharDe advised Mr. Hall that he should confront the grievor in the presence of a trade union representative and her supervisor, and give her an opportunity to explain. A meeting was scheduled for 9:00 a.m. the next day, August 3, 1988, for this purpose. Ms. Cowe11 was instructed by Mr. Hall to bring the ~rievor to the meeting on August 3. She was further instructed to advise the grievor that she may have a union representative ~ccompany her if she so wished, but she was specifically instructed not to discuss the allegations or the purpose of the meeting with the grievor. Ms. Cowell advised the grievor that a serious allegation had been made against her, that a meeting has been scheduled at 9:00 a.m. on August 3, and that the grievor can have a union representative at the meeting. The grievor inquired what the allegation was, but Ms. Cowell informed her that she cannot discuss that. The grievor indicated that she will attend the meeting, but that she did not feel a need for a union representative. The meeting was attended by Mr. Hall, Mr. Sharpe, Ms. Cowell, and the grievor. Ms. Cowell informed the grievor that she had been observed "crumpling up an application while touching her back pocket with the other hand." She showed the application form and noted that the application form in question indicated that the $5.00 5 fee had been enclosed. The grievor immediately responded that she did not steal anything and asked "do you think I would jeopardise my job for $5.00" According to Ms. CoweI1, when she asked what'she had to say about throwing out an application, the grievor said "something like if thats what they say they saw, then I must have done it." Ms. Cowell testifie4 that the grievor also stated that she did not know why she would have done it, that she was not focusing on her job that day and that she must have done it without thinking. Ms. Cowell's evidence set out above was confirmed by Mr. Hall and Mr. Sharpe in its essence, and the grievor does not dispute that either. However, the three management witnesses testified that subsequently, Mr. Hall again asked the grievor directly whether she threw out the application. According to Mr. Hall, she responded "yes, yes. I did it, but I don't know why I did it". Ms. Cowell and Mr. SharDe testified that the grievor's response was "yes I did it" or words to that effect. The grievor denies this aspect of the evidence. After the meeting, the three members of management discussed the seriousness of the alleged conduct. Mr. Sharpe spoke to the Director of Staff Relations, who advised that the employee should be discharged for cause. 6 After further consultation with his supervisor, Mr. Sharpe drafted the letter of discharge which was signed by the Director of the Human Resources Branch. As noted, the allegation by Ms. Lopes included an observation of the grievor "touching her back Docket" at the time she threw out the application. That aspect of the allegation was repeated at the August 3 meeting. Also, the management brought to the attention of the grievor that the application noted that $ 5.00 was enclosed. Despite this evidence, the Employer conceded that it is not uncommon for members of the public to check off the "fee enclosed" box without actually including any money. The Employer made it clear that it did not rely on any dishonesty on the part of the grievor in deciding to discharge her. As Mr. Hall put it "the $5.00 was a non-issue". Accordingly misappropriation of cash or dishonesty is not an issue in this proceeding either. The thrust of the Employer's case is that the grievor had deliberately thrown out an application for a birth certificate, with full knowledge of the seriousness with which the Employer viewed such conduct, and that she had admitted to having done so. In the circumstances, Counsel .for the Employee submits that 7 discharge was an appropriate penalty. Alternatively, Counsel submits that even if the Boar4 were to conclude that the action was not deliberate but inadvertent, still discharge is justified because the ~rievor was fully aware of the proper procedures and of the seriousness of destroying an application form. The grievor readily concedes that she was aware of the proper procedure relating to "no-fee" applications and that the procedure does not permit the discarding of an application form under any circumstances. She further concedes that she was fully aware of the seriousness of throwing out an application. She claims that she did not intentionally throw out an application, but concedes that she may have done so inadvertently. Counsel for the union submits that in the circumstances nothing more than a warning is justified. In addition, Counsel for the union made a legal argument that the discharge was rendered illegal because there was a lack of procedural fairness preceding the discharge. Specifically, the allegation is that the management, while purporting to extend the right to trade union representation to the grievor, conspired to deny her that very right by deliberately refusing to divulge to her the nature of the allegations and purpose of the meeting. Counsel submits that if the Board is inclined not to find that the discharge is illegal per se, at least it should ignore the evidence relating to the meeting of August 3, which was a product of the unfair process resorted to by management. The Regulations under the Public Service Act, contain certain provisions entitling employees in the public service to certain norms of procedural fairness. However this Board has held that as far as unionized government employees are concerned, those regulations are in conflict with the grievance procedure provisions in the collective agreement and that therefore pursuant to Section 29(3) of the Public Service Act [now section 30(3)] the grievance procedure prevailed over the regulations. (See, Harry S. Fercuso9, 35/76 (Beatty). Nevertheless counsel for the grievor relied on R_.~e Nicholson a~d Haldiman-Norfolk Regional Board of Commis$io~grs of Police, (1978) 88 D.L.R. (3d} 671 (S.C.C.) as standing for a general proposition that employers of public servants and persons holding public office are obliged to exercise their disciplinary powers fairly and in accordance with principles of natural justice. 9 We have concluded that the fairness argument must fail. The grievor has been unable to point to any legal right, under the collective agreement or any legislation, to union representation at a meeting as that held on August 3, 1988. .Mr. Sharpe who recommended the conduct of a meeting in the presence of a union representative testified that he did so not with any legal obligation in mind, but as a matter of common sense. In Nicholson, at pp. 682-683, the court set out the rationale for its finding as follows: In my opinion, the appellant should have been told why his services were no longer required and given an opportunity, whether orally or in writing as the Board might determine, to r~spond. The Board ~tself, I would think, would wish to be certain that it had not made a mistake in some fact or circumstance which - it deemed relevant to its determination. Once it had the appellant's response, it would be for the Board to decide on what action to take, without its decision being reviewable elsewhere, always premising good faith. Such a course provides fairness to the appellant, and it is fair as well to the Board's right, as a public authority to decide, once it had the apDellant's response, whether a person in his position should be allowed to continue in office to the point where his right to procedural protection was enlarged. Status in office deserves this minimal protection, however brief the period for which the office is held. The essence of the Court's criticism of the school board's conduct in that case was that it failed to hear 10 the employee's side of the story before deciding upon a course of action. In the present case prior to the meeting, the grievor was advised that there was a serious allegation against her, although Ms. Cowell refused to provide the details of such allegation. Furthermore, at the meeting itself, the complete details of the allegations were related to the grievor and she was given full opportunity to respond. Assuming that the rationale of Nicholson is otherwise applicable to the grievor, we cannot conclude that she was denied the fairness and natural justice contemplated by the court. Even if we accept the union's submission that the grievor was effectively denied the right to union representation by Ms. Cowell's failure to disclose the details as to the allegation and the purpose of the meeting (she knew that the meeting was to deal with a serious allegation against her), we cannot extend the Nicholson principle as including a right to union representation at a disciplinary meeting. In any event, as Arbitrator Brandt observed in Re Board of Education for the CitF of Londonj (1984) 14 L.A.C. (3d) 17 at p. 36, it does not appear that the fairness doctrine in Nicholson was intended by the court to apply to employees whose employment relationship was governed by provisions of a collective agreement. The arbitrator observed that the court's reasoning suggested "that 11 where there .is an employment relationship whose terms. and conditions are governed at least in part by a collective agreement which contains mechanisms by which decisions taken by the employer can be challenged, there is no need for the articulation of a general duty of fairness. The mechanism already exists within the grievance and arbitration process for ensuring a form of procedural protection." For all of the aforementioned reasons the grievor's submissions based on lack of procedural fairness are dismissed. Turning to the merits of the case, the parties are in dispute as to whether the grievor's discarding of the application was deliberate or inadvertent. The Employer relies on an "admission" of a deliberate act, and in the alternative submits that we should in any event find a deliberate act on the basis of the evidence. The only management witness who purported to quote the exact words used by the grievor in making the alteged "admission" was Mr. Hall. He testified that the grievor stated "yes, yes, I did it. But I don't know why I did it." Ms. Cowell and Mr. Sharpe could not recall what exact words were used. If Mr. Hall's testimony is accepted, and seen in isolation, it may appear that the grievor was making an admission to a .12 deliberate act. However, we get a completely different impression when that evidence is seen in the context of the rest of the grievor's responses during the meeting. All of the management witnesses agreed that the grievor, when first'confronted with the allegation, uttered words to the effect that "if thats what they say they saw, then I must have done it." It is clear from this response that the grievor at the time was unable to recall any act of destroying an application, but was accepting that she may have done it. That statement is totally inconsistent with an admission to a deliberate act. It is also in evidence that the grievor explained that she was not focusing on the job that day, and that she must have thrown the application out "without thinking" In our view, when seen in context, the later statement attributed to the grievor cannot be seen as an admission to a deliberate act. On the contrary since she had already accepted responsibility for the destruction of the application, by saying "yes I did it", she was simply confirming her acceptance of responsibility. The fact that she qualified her statement "I did it" by saying "but I don't know why I did it" gives further support to the conclusion that she was not admitting to an act that she was able to recall. The Board accepts the grievor's evidence that at the meeting, she did not recall anything about throwing out 13 an application, but was merely accepting that if LoDes had seen her do so, she must have done it. Does the evidence establish a deliberate act on the grievor's part. We think not. Ms. Lopes' evidence as to the act of throwing the ~pplication was very brief, She testified that the grievor wrinkled up an application and stuffed it in the garbage very quickly. The word "stuffed" is vague and does not necessarily connote an intentional act. If there was something in the grievor's actions indicative of an intentional act, we would have~ expected Ms. Lopes to have testified in detail about that. However, she did not. The fact that the crumpled application was not right on top of the garbage also does not lead to a conclusion that the grievor deliberately buried the application in the garbage as counsel for the Employer suggests. The evidence is that the garbage contained mostly carbon papers and a few empty envelopes. The application form was crumpled into a ball. it is quite conceivable that a paper ball thrown into a garbage bin full of carbon paper and envelopes will not sit right on top but will settle under the first layer of paper. From all of the evidence before us, we cannot conclude that the grievor's act was deliberate. Counsel 14 for the Employer agreed with the union counsel's suggestion that the grievor could not have had any motive to deliberately destroy an application. We find that she did deposit an application in the garbage, but that it was an inadvertent, as opposed to a deliberate, act. That brings us to the question of whether the inadvertent destruction of an application is culpable conduct, and if so, whether discharge is an appropriate remedy. The grievor conceded that she was fully aware of the proper procedure for handling no-fee applications and that the destruction of an application was not permitted under any circumstances. She also admitted that the destruction of an application can have serious - consequences to the applicant member of the public, and cause inconvenience and embarrassment to the Employer and its staff. We find that her lack of care in the circumstances is culpable. ~owever, is discharge an appropriate penalty? We think not. The grievor had been in a position of similar trust and responsibility for approximately 1 3/4 years at the Registrar General's office. She had proven to be a competent and trustworthy employee. The incident on August 3, 1988, was the first and only 15 occasion where the Employer has had cause to complain about her Work performance. In the circumstances, the Board cannot accept the Employer's position that a single act of inadvertence makes it impossible for the grievor to continue employment in the position. In our view, the culpable conduct we have found does not demonstrate a general attitude problem or general lack of responsibility on the part of the grievor. From her good employment record, it is more reasonable to conclude that it is an isolated aberration on the part of an otherwise competent and responsible employee. We have no reason to believe that the grievor will repeat her conduct in the future. In coming to this conclusion, we have considered the fact that the grievor readily accepted responsibility for her act during her meeting with the Employer on August 3, and at the hearing before this Board. She also 'acknowledged the importance of dealing with applications carefully. In all of the circumstances, discharge would be a grossly disproportionate penalty. A more appropriate penalty would be a three day suspension. Accordingly, the Employer is hereby directed to reinstate the gr~evor for the balance of her current contract with full compensation, subject to a three day suspension, and of 16 course subject also to the usual rules relating mitigation. The Board remains seized in the event the parties encounter difficulty in implementing this award. In fashioning the remedy, the Board has considered, but rejected, the submission of Counsel for the Employer that the trade union should be held responsible to pay the wages of the grievor between the first and second days of hearing. That submission was based on the fact that the trade union counsel raised a legal argument, {that the discharge was vitiated by the lack of procedural fairness) for the first time after the Employer had led evidence of five witnesses. This caused the Employer to seek an adjournment to consider its position, and necessitated a second day of hearing. In our view, a party is not prevented from changing its legal position or adducing new legal argument as the evidence unfolds. It was through the evidence of the Employer witnesses that it came to light that the management had decided intentionally not to disclose to the grievor prior to the August 3 meeting, the details of the allegations against her or the purpose of the meeting. When this evidence was presented, the union counsel immediately Gave notice that he would be making a legal argument which he then described as "a conspiracy th'eory", but which was later expounded as a 17 Drocedural fairness argument. Assuming that we have the jurisdiction to do so, we see no justification in the circumstances to make the direction against the trade union as requested. Dated this i3th day of July , 1989 at Hamilton, Ontario Nimal V. Dissanayake Vice-chairperson /, ,l , .,,,: . McManus ember M. O'Toole Member