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HomeMy WebLinkAbout1989-0164.Lenehan.90-04-03 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARtO GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT 180 DUNDAS STREET WEST, TORONTO, ONTARtO. USG 1Z8- SUITE 2100 TELEPHONE/T~L~:PHONE 180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) M5G 1ZS-EJUREAU 2100 (4;6) 5~8,0688 164/89 IN THE HATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN: OPS~U (Lenehan) Grievor - and - The Crown in Right of Ontario (Ministry of Health) Employer BEFORE: B.B. Fisher Vice-Chairperson P. K1ym Member E. Orsini Member FOR THE H. Law GRIEVOR: Grievance Officer Ontario Public Service Employees Union FOR THE C. Slater EMPLOYER: Senior Counsel Human Resources Secretariat Management Board of Cabinet HKARINGS: August 3, 1989 November 2, 3, 6, 1989 DECISION This is a discipline case involving the imposition of a three day suspension. The grievor is an Attendant at the Oak Ridge Facility of the Mental Health Centre at Penetanguishene, which is a maximum security facility. The letter imposing the discipline stated as follows: In its opening, counsel for the Employer indicated that the case involved, in effect two charges; one of improper removal of a document, the other improper possession of the same document. The. Union objected to this saying that the Employer had originally only charged the grievor with~ improper removal and they were now seeking to expand the grounds of the grievance by adding the offence of improper possession. After hearing argument on the motion, the Board gave an oral ruling that it was not an expansion of the Employer's case as the letter of discipline itself speaks both of possession and removal. In the first ~entence it states "you were in possession of Mr. M. Perrault's performance appraisal and showed it to one other member of the nursing department" (emphasis added). In the second sentence it states "you came into possession of this confidential record by entering the office of the Assistant Director of Nursing on the off hours and removed it from his desk" (emphasis added) We intend to deal with the evidence of the two charges separately. Improper Possession: The only direct evidence of the Employer regarding this incident was from Ms. Jane MacVittie, a Nurse at Oak Ridge. She had been at Oak Ridge for the last five years. She worked permanent night shifts, from 7:00 p.m. to 7:00 a.m. She was the only nurse on the night shift. -2- She doesn't recall the actual date of the incident but does recall the incident clearly. While doing her rounds one night she saw a letter on the bulletin board from Dr. Meniuk to Dr. Tennant, which was generally uncomplimentary towards the nursing staff. There was a sign near this letter which said "read and sign". When she was at Ward 04, she read the letter, signed it and then sat down near the dispensary. This iocation was about twenty feet from the desk used by the attendants. As she sat down the Grievor came over to her and took a piece of paper out of his pocket and showed it to her. She didn't really read it but she did notice that it was a performance appraisal of Mr. Perrault, as it had his name on it. She also recalls that it had Mr. Mike St. Amand's name on it, although she is not sure whether she saw both the typed name and the signature or just the typed name. She also recalled that it indicated that the performance review said that Mr. Perrault had taken 68 hours' sick time.. When asked to identify Exhibit #3 (the completed performance appraisal of M. Perrault) she was unabte to positively identify it but she thought it was the same document which the gr/evor had shown to her. As the grievor was showing her the performance appraisal to her, she said to him, "You shouldn't have this, where did you get it, it is confidential." The grievor responded "You didn't see this". He then put it back in his pocket. She said to him "You shouldn't have it and I'm not going to lie for you". Some days after this incident, Mr. Burns, the Assistant Director of Nursing, came to her and asked her questions regarding the matter of the Dr. Meniuk letter. In the course of this discussion with Mr. Burns, Ms. MacVittie indicated that she had seen a performance appraisal. According to Mr. Burns' testimony, he then asked her if it was the performance appraisal of Mr. Perrault to which Ms. MacVittie responded that it was. Ms. MacVittie then told Mr. Bums that the grievor had shown her the performance appraisal. At this meeting Ms. MacVittie said that she sought an assurance from Mr. Burns that the information she was conveying to him was to be treated as confidential between the two of them. She testified that Mr. Burns agreed to this. Following this initial reporting of the incident, both Mr. Burns and Ms. Finney, the Associate Administrator, were insistent that she testify at the arbitration hearing. Ms. Bradley, the Director of Nursing, told her that she had a duty to report such incidents or the College of Nurses would be contacted. Mr. MacVittie found that comment quite intimidating. She was asked to tell her story at a predisciplinary hearing into this matter in February. At that time she mentioned that she had not had a performance review in three years and was thus unfamiliar with the form used. Shortly after this meeting, she had a performance review. In this February meeting she did not mention the fact that she recalled seeing Mr. St. Amand's name nor the hours of sick time on the performance appraisal. Ms. MacVittie admitted that there was ongoing problems between the nurses and the attendants. She was aware of the fact that the grievor was the President of the OPSEU Local wgich represented the attendants. She denied any particular animosity towards the grievor. Ms. MacVittie said that she didn't want to testify against the grievor because it had taken a long time for her to have good relations with the attendants and since the grievor was the president of the union local for the attendants, he wielded alot of influence with the other attendants with which she worked and relied upon. She felt that if she testified against the grievor the other attendants would harass her. She also said she feared him because of some of the stories she had heard about him, but declined to elaborate on the stories saying "I don't think it is appropriate for me to say, I believe some of it, some of it is exaggerated". Ms. MacVittie testified that the reason she told Mr. Burns about this matter was because she didn't think it was right that the grievor had access to confidential information regarding other people. The first witness for the union was Rick Lemieux, an Inventory Control Clerk at the Centre, presently on leave of absence and serving with OPSEU. Ms. MacVittie is a good friend of Mr. Lemieux's wife and as such they often meet socially. He related how Ms. MacVittie had said on a number of occasions that she was reluctant to testify at the -4- arbitration hearing and that she felt threatened and intimidated by the employer. She also said to him on numerous occasions that she believes "the attendants are nothing but a bunch of radicals and that the grievor is a radical." The grievor has been employed at Oak Ridge Since .1971 as an Attendant, His last six years he has been a Security Attendant III. He was President of OPSEU Local 307 from 1979 to 1984 and again from 1986 to present. His local consists entirely of the attendants and is 85% male. With respect to the incident in question, the grievor denies that he ever showed Ms. / MacVittie the performance appraisal of Mr. Perrault. He doesn't even recall talking to her that night, as he usually doesn't talk to nurses. The grievor testified that the first time he saw the Perrault performance appraisal was on November 17, 1988, on Ward 041 He is not sure if anyone had signed the document at that point He saw the performance appraisal on top of a filing cabinet, underneath the Dr. Meniuk letter. He said that when he saw it, he didn't read it, he didn't know it was a performance appraisal, he only knew it had something to do with Mr. Perrault. The grievor stated that his relationship with Ms. MacVittie and all the nurses was poor in November of 1988 because of the stand he took as President of the attendant's local. He feels that the nurses are taking away the attendants' job and therefore he opposes the expansion of the nurses' role to the detriment of the attendants. He believes Management believes he is a "radical". As is common, these cases come down to creditability. For the reasons stated below, we find that the evidence of Ms. MacVittie is to be preferred over that of the grievor: 1. Ms. MacVittie was the one who initially brought up the subject of the missing performance appraisal to Mr. Burns. She was extremely reluctant both to tell Mr. Burns of the incident and to testify about it before this Board. We got the distinct impression that Ms. MacVittie both feared the consequences from Management's actions if she didn't -5- testify and the attendants' actions if she did. Her reluctance to testify only reinforces our belief that she is telling the truth, as the simple, thing to do would have been to remain silent. Why would someone like Ms. MacVittie voluntarily put themselves through the agony of these proceedings unless it was true? The Union would have us believe that Ms. MacVittie did all this because all nurses hate the grievor because of his "radical position" vis a vis attendants and nurses and she therefore simply concocted this story to get the grievor in trouble. There is simply no foundation for this proposition nor is there a factual basis upon which one could conclude that Ms. MacVittie's story is a bald faced lie. Certainly one's biases may cause one to have selective memory or to see a situation through "rose-coloured glasses", however to simply invent a story like this is not plausible. It seems to be the Union's position that the hatred of the nurses towards the grievor was so intense that anyone of them would lie to get him in trouble, and in this case it just happened to be Ms. MacVittie's mm. The Board does not believe this to be the true situation, although it has no doubt that the grievor truly believes that any nurse would lie to get him in trouble. It must be remembered that the grievor totally denied the incident even occurred, so therefore, there can be no question of Ms. MacVittie's ability to perceive the event or her ability to recall the event; rather in order for the Union's position to be upheld, we must find that Ms. MacVittie simply concocted the whole story. 2. The grievor's testimony did not make sense on a number of occasions. In examination in chief he dearly identified Exhibit #3 (the performance appraisal of Mr. Perrault) as the document he saw on November 17, 1988, on Ward 04. However, in cross- examination, he says he didn't read it and he didn't even know it was a performance appraisal. -6- He also said that he found the Perrault performance appraisal underneath the Dr. Meniuk letter, which was his main interest. This was on the 17th of November. He has first read the Meniuk letter on the 16th, but he claims that he only read a little bit of it at that time. This is surprising itself in that Dr. Meniuk's letter was critical of the nursing staff and this would presumably have interested the grievor enough to read it in its' entirety. In any event, the grievor said that he did read the entire document on the 17th, before he saw it on the filing cabinet in Ward 04. If this is so, then why would he be so interested in re-reading a letter he had already read only a short time ago? The Board got the distinct impression that the grievor created the story of performance appraisal being on top of the filing cabinet simply to provide an alibi for how he knew of its existence without implicating himself in ~ the removal of the document. We therefore find that, on the balance of probabilities, that the Employer has proven that the grievor was in wrongful possession of a confidential document and that he showed it to an unauthorized person. The appropriateness of the penalty shall be considered at the end of this decision. Unauthorized Removal: The Employer admitted that its entire case in respect to this matter was totally circumstantial. The test for circumstantial evidence is set forth by Vice Chairperson Swan in Khan (1610) 84 at pages 46-48: ".The fact tha.t the only evidence here being considered is. circumstantial evidence aoes not make it impossible for the Employer to meet tlais standard of proof. There are no special rules m relation to circumstantial evidence in civil cases, as there are in criminal cases, and we are entitled to draw such inferences from the evidence as appear to us to be reasonable.and appropriate, and to act upon the balance of possibilities based upon all of tl~e circumstances. On the other hand, when circumstantial evidence is tested against the 'clear and convincing' standard, it will be obvious that, like all other ewdence, it will be tested more carefully than might be the case where less serious allegations are at ssue. In Erwin, 1377/86, the Grievance Settlement Board dealt with the issue as follows, eginning at page 9: We were referred to several cases which deal with circumstantial evidence. In the case of Sunnybrook Hospital and Sunnybrook Hospital Employees Union, Local 777 (Gastis), 27th of June, 1986, an unreported award of arbitrator Michel Picher, he writes at page 17: "In the Arbitrator's view, where the evidence is principally circumstantial, it must be determined whether, ~n balancing the probabilities, there are other reasonable explanations e.qua-lly probable or more prob.able, than the proposition which is advanced by the party mat t~ears the burden of proof. If there are no reasbnable alternative possibilities of equal or greater probability, it may be concluded, as a matter of evidence, that'the allegation advanced is established on the balance of probabilities." While we agree with the statement of Mr. Picher in the above case, we would add the caveat that in a case involving an allegation of dishonesty we must, in the final analysis, still be convinced by a degree of proof that meets the high standard commensurate with the grhvity of the allegation. We are, in general, in agreement with these propositions, although we think it is important to observe that the statement of the proper approach in the Sunnybrook Hospital case is susceptible of rmsunderstanding. In our view, it would not be correct to decide a case based on circumstantial evidence on the basis merely that the alleg~ation sgught to be proved is the most attractive among a number of possxble alternatives. -It may be that the evidence suggests so many possibilities that no single one of them, even the most appealing, can i'ise to the standard of clear and convincing proof of tlie allegation. tPhUt in the terrr~, of the present case, it is not enough simply to find that e gfievor is me most probably suspect among all'of th.e people who had access to these funds. What is reamred is that we find mat it ts more probable than not, on the basis ofclear and convincing proof, that the grievor did what she was alleged to have done, and stole the money here at issue." -8- Although the employer led extensive evidence as to the opportunity for the grievor to remove the document, the location of other personnel at the relevant time and the physical set up of the site, it has not, in our opinion, presented sufficient evidence to satisfy the test outlined above. Specifically, the evidence is deficient for the following reasons: 1. Mr. Burns, from whose office the document went missing, was unsure during which week the removal occurred, let along which day. Therefore, it is unable to determine even whether or not the grievor was working at the time of the incident. 2. The testimony of Dave Venner, and Brenda Garratt, both housecleaners at Oak Ridge, make it clear that any number of unidentified housecleaners had access to Mr. Burns' office at night time. Part time staff is often used for this ' job and the staff if constantly changing. Therefore, anyone of these people would have the same access and opportunity as the grievor to obtain this document. The employer therefore has not proven the aspect of the improper removal of a confidential document. Appropriateness of Penalty: The Employer did not call Ms. Finney to give evidence. She was the one who determined the appropriate penalty. The grievor was disciplined for two separate offenses. We found that he only committed one of these offenses. It is reasonable to infer that a three day suspension was imposed because the decision maker believed that the grievor had committed two offenses, and if she had only believed him to have committed one offence, she would have likely imposed a somewhat lesser penalty. -9- Improper possession of a confidential document is a serious offence, and is deserving in itseIf of a suspension, even for a first occurrence for a long service employee with a clean record. The grievance is therefore allowed, however, the penalty of a three day suspension is to be replaced with a two day suspension. The record is to be amended to confirm that only the offence of unauthorized possession of a confidential document is to remain on the grievor's file and all references to the improper removal of the document are to be removed from his file. The grievor is to be compensated for one day's pay, however, without the payment of any interest. This Board will remain seized of any matters arising from the implementation of this decision. DATED this 3rd day of Apri 1 ,1990. B~ it I{. FISHER- Vice Chairperson "I partially dissent" (Partial dissent attached) P. Klym- Member E. Orsini - Membe PARTIAL DIS S~NT 164/89 OPSEU (Lenehan) and The Crown in Right of Ontario (N/nistry of Health) I find that I must dissent from the Chair's decision on the appropriate penalty. There were two separate charges for which the decision maker, Ms. rinney, imposed a three day suspension. For reasons which only the employer knows, Ms. Finney was not called as a witness to advise the Board how she arrived at the penalty she imposed or what weight she gave to each of the two charges. Therefore the Board is left with the task of objectively assessing the weight to give to each of the two charges. We have found the grievor culpable on the charge of improper possession of an unauthorized document and deserving of some discipline. We have not found that he committed the second offence of improper removal of a confidential document. In my opinion the charge of removing a confidential document is much more serious than possession of a confidential document and deserving of a heavier penalty. Yet the Chair has in fact decided that removing a confidential document deserves a two day suspension. With respect, I can not see the logic or fairness in this. If the grievor only committed the one offence of improper possession of a confidential document, the minimum reduction in the penalty should have been two days. P. Klym, Member 2