Loading...
HomeMy WebLinkAbout1989-0390.Daniels.90-03-19 ONTARIO EMPLOYI~$ DE LA COURONNE ' CROWN EMPLOYEES DE L'ONTA RIO GRIEVANCE CQMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNOA$ ~TREET WEST, TORONTO. ONTARIO. M,'JQ 1Z8 - suITE 2100 TELEPHONE/T~L~PHONE 180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) MSG IZ8 - BUREAU2100 390/89 IN THE HATTER OF AN ARBITRATION Under THE CROWN EHPLOYEES COLLECTIVE BAR~ININ~ ACT Before THE GRIEVANCE SETTLEMENT BOARD Between= OPSEU {Daniels). Griev0~ - and - The Crown in Right of Ontario (Ministry of Revenue') Employer Before: A. Barrett Vice-Chairperson M. Lyons Member F. Collict .Member For the Grievor: M. Bevan Grievance Officer Ontario Public'Service Employees Union For the Employer= D. Danlels Labour Relations Officer Ministry of Revenue Bearings= September 26, 1989 January 1~, 1990 - 1 - The Grievor is an auditor with the Motor Fuels and Tobacco Tax Branch of the Ministry of Revenue, with about twelve and one-half years seniority. On April 14, 1989, he was given a' fifteen-day suspension without pay and docked for pay and expenses. on March 15, 1989. He is' accused of falsifying his Attendance Report, Premium Payments Report and Claim for Travel Expenses for March 15, 1989. Simply puG, it is alleged that he didn't work on March 15th but submitted reports certifying that he did. The auditors in this branch do most of their work.away from their head office) at the taxpayer company's place of business. The auditors work alone and unsupervised at the tax- payer's address. On the day in question the grievor was assigned to perform an audit at a business in Oakville. His supervisor, Mr. Gabriel, telephoned him there at about 3:15 p.m. to inform him of a departmental meeting the following day. Mr. Gabriel was advised that the grievor was not there and had not been in all day. Mr. Gabriel reported this fact to his supervisor, Mr. Sheehan, because in the past the grievor had been hard to"reach at audits, and Mr. Gabriel had been instructed to report further incidents. Mr. Sheehan made further inquiries at the taxpayer's place of business and decided to wait and see what the grievor would put on his time and expense sheets for March 15th. When Mr. Sheehan got the grievor's time and expense sheets for the week ending March 17th, he saw that the grievor claimed to have'been working a full day in Oakville on Wednesday, March 15th. Monday, March 13th had been taken as a~sick day and that was noted as such on the reports. On March 30th Mr. Sheehan told the grievor that there was a discrepancy between the grievor's time sheets and expense statements and Mr. Sheehan's records "for the month of March" He told him to attend a meeting with his union steward the next day at 2:00 p.m. to discuss the matter. At the meeting Mr. Daniels was asked if he had worked.on March 15th. The grievor responded "Yes." He' was then asked if he had worked~ at the named company in Oakvilte, and the grievor responded "Yes." The grievor was told that there were two people who would attest to the fact that he wasn't there. The grievor then replied "For now I was there." The grievor was told that his supervisor had. phoned him at the office that day and was told by the receptionist that he had not come in. The grievor responded that he did not return calls from the office because he knew that for the past year management had been checking up on him. The. grievor was asked again if he had been at the tax- payer company on March 15th, and he responded "Yes." The meeting concluded. A follow-up meeting was held on April 14, 1989, again with the union s~eward in attendance, and the grievor was questioned again about his attendance at the taxpayer's place of business on March 15th. The grievor .replied: "I was on the premises %hat day." There was further discussion, and at the end .of the meeting the grievor was handed his letter of suspension. A grievance was then filed. We heard further evidence of what was said by the griev0r at a second-step grievance meeting on May 19th. Normally this evidence, would not be admissible but it was admitted on the issue of cred~b.ility, because the grievor told an inconsistent story at the hearing. On the evidence of the Personnel Administrator, Mr. Fallis, ~he grievor said that he attended at the .taxpayer's place of business on March 14t~ and got all of the files and everything necessary to finish the audit. He said that on March 15th when he went to 'get into his car he had. a .recurrence of a diarrhoea condition which had been the cause of him being off work on March 13th. He drove to the taxpayer company, used a back entrance and went into the boardroom to pick up files, but didn't meet any 'employees on the way. ~e then went to a service station near the company to use the washroom. At the service station, he met a stranger named Chris Sears. The man invited the grievor to his · nearby home to give him an opportunity to clean himself up. The grievor said he cleaned himself up, then worked on the taxpayer's ~iles all day at Mr. Searm' home. He said that he stayed ~n Oakville instead of going home because he was scheduled to pick up his wife and daughter on the way home from Oakville later in the .day. The grievor als° stated that when he was on the company premises that day he would have been visible to the office staff, and added that Mr. Sears was on his day off that day, and that he not use the Company facilities because he did not want to tie up their washroom. ~ - AG .the hear.lng the employer called three witnesses from the taxpayer company to describe the lay-out of their offices, and their opportunities to observe whether or not the grievor was there on the day in question. Ail stated .categorically that if the grievor had been there they would have seen him, but he was not there. · The grievor testified at the hearing that in fact he never entered the taxpayer's premises on March 15th. He said that he had h~, ~ 611 ~{ph ~q=,wh~= ~, ~=..h 13th but was fine on the 14th and went to work at the taxpayer's premises. ~e put in a full day, then took some files home with him to work on at night to make up for lost time. He did not however do any work that night. On March 15th he felt fine when he left Oshawa at about 7:00 a.m. He dropped his d~ughter off at Seneca College anH his wife at 401 and Warden on his way to Oakville. He drove into the back parking lot at the taxpayer's premises between 8:30 and 8:40 a.m. 'As he was getting the'taxpayer's files out of his trunk, he had a sudden reoccurrence of diarrhoea and soiled himself. He didn't want ~o go into the taxpayer.'s premises because he was embarrassed and didn't want to tie up their washroom. Instead, he went to a nearby gas station to use its facilities. As he got out of his car, he saw another man there pumping gas into his own car. The grievor testified that he is black and the other person there was black, .so he felt comfortable approaching him about his problem. This man was heretofore unknown to him. The grievor "testified that when he told Chris Sears his problem Mr. Sears laughed and said: "You're lucky I happen to live nearby. Why not come to my place? I am on the night shift at Ford and you can use my home to get yourself in order." He drove to Mr. Sears' house which~was only about a minute away, where Mr. Sears gave him some clothes to wear and showed him how to use his washer and dryer in the basement. The grievor says he proceeded to wash and dry his trousers in the machines and brought his files in and worked on them in the basement. Mr. Sears came down to see him occasionally and at one point offered to prepare him lunch, but the grievor refused, apparently not wanting to impose on him furtherv His - $ - clothes w~re clean by 12 noon or shortly thereafter, but he decided ~o stay on and keep working.' At .about 1:00 p.m. he went out for lunch to a nearby plaza, then returned to Mr. Sears' home and carried on working. He left with Mr. Sears a little after 4:00 p.m. with Mr. Sears advising him that he.was late for'work. The grievor testified that he was aware of the employer policy that he was to phone in any change of'his work location but said he didn't do so because he was embarrassed about the incident. The grievor testified' that he didn't offer . this explanation in the first meetin~ of March 31st because the'meeting was. very i'ntimidating and reminded him of conditi6ns under a dictatorship 20 years ago. He said that until the meeting he did not know what' discrepancy in his records for March was being alluded tol Once the March 15th date was pointed out to him he did not give his explanation because he was still embarrassed and hadn't had enough time to gather his thoughts. The grievor admitted that he had twice re-iterated that he was at .the tax- payer's premises on that day. When asked if he had telephoned Mr. Sears just a few minutes before the 2:00 p.m. meeting was to commence, the grievor denied doing so. In reply evidence telephone records were introduced to show that a long distance uall was made to Mr. Sears' phone number from the telephone extension at the.desk Mr. Daniels was using that day, just a few minutes before 2:00 p.m. The grievor, conceded that he did not tell his story at the second meeting on April 14th either, but said he didn't do so becaus'e his union steward told him he didn't have to say anything. (The grievor is a union steward himself). When he was given the letter setting out his suspension, he.felt that he hadn't really had a chance to explain himself. The grievor admitted, that he didn't explain himself at all until the second stage grieuance meeting. Under cross-examination, the grievor testified that when he left the taxpayer's premises to go to the gas station he had' a firm intention to return to the work.site after cleaning himself up. He said that it was not true that he had said in the grievance meeting that he had to Dick up his wife and daughter that day; and that in fact, he did not have to do so. The grievor testified that he was born in Guyana but did not know where Mr. Sears' home of origin was, even though, they have similar accents. (Later Mr. Sears testified that he too wa~ from Guyana~. The grievor testified that he did not.contact Mr. Sears again until after his suspension on APril 14th and then only to advise him that someone would contact him about giving evidence at the hearing. The grievor insisted that the story he told at the hearing was consistent with the one he told at the second-step grievance meeting. He denied that the first time he had admitted that he had never entered the premises was at the hearing, He said he doesn't think he said at the second-step grievance meeting that he had entered the boardroom to get his files. The grievor also denied that he had said at the second-step meeting that his diarrhoea condition had reoccurred as he got into his car in' Oshawa. The'grievor conceded that he s~ould not remove files from a taxpayer's premises without permission but 'said it is commonly done. The grievor said his wife always washes his dress pants in the washing machine and he saw no~hing unusual about that. With respect to the first meeting on March 31st, the grievor said that the management witnesses'' evidence with respect to it was essentially correct although he did not say: "For now I was there". He said that when he went-to the secon~ ~eeting on April 14.th he. didn't tell his story because he still didn't know what the meeting was all about, and did not know that management was considering discipline. Therefore, he was never given a real opportunity to. tell his' side of the story. The grievor denied understanding that what he was being asked about in both meetings was his whereabouts on March 15th. The grievor admitted telephoning two of the tax- payer's representatives after his suspension but said the purpose of his calls was not to find out what evidence the Ministry~ had, but simply to find out if the Ministry was still checking on him. Mr. Sears was called to give evidence on behalf of the grievor. ' He basically corroborated the grievor's story about meeting him at the gas station and inviting him back to his house. He testified .that during the week commencing March 13th he was working the afternoon shift from 3:00 p,m. tO 11:30 p.m. He denied saying that he had just come off the night shift and in fact d~nied being on the night-shift that week. The employer subsequently introduced business records from the FordMotor Company indicating that the grievor was working the night shift that week from 11:00 .p.m. to 7:30 a.m. Mr. Sears said the records were wrong. He said that he was late for work that day about one and one-half hours and that he left his house shortly after 4:00 p.m. with Mr. Daniels. Mr. Sears testified that the grievor had telephoned him three or four times after March 15th; the first time to thank him for his hospitality; and the Second time to tell him he had a problem at work, but they didn't discuss what the problem was. Under cross-examination, Mr. Sears testified that he and ~4r. Daniels discovered after their meeting that they were both from Guyana, and that it was quite a coincidence they should meet as they did. Mr. Sears said that even though he was one and one-half ~ ?~ hours late for' work on March 14th he Was not docked pay. The Company records indicate that he was paid for 'a full eight hour shift every night that week. Mr. Sears said that he is only docked pay for being late if his supervisor finds out, but he doesn't always find out. We found the evidence of the grievor and his corroborating witness totally incredible. The grievor was an evasive witness giving testimony; his explanations lacked internal consistency; and the whole story is improbable in the extrem9. He provided no satisfactory explanation for not coming forward with his versio~ of events prior to discipline being imposed, or for the. changes in.his story, between the second step grievance meeting and the hearing. Obviously the employer would not have summonsed'three taxpayer witnesses to testify that the grievor was not on the premises on the day in question if the grievor had already conceded that he was not. It is improbable that someone faced with a diarrhoea attack would approach a 'stranger 'about it rather than trying to'clean up privately or going home; but 'it stretches the imagination to the breaking point to believe, that having accepted the stranger's hospitality .to clean up, he would then proceed to stay on and use the stranger's home as. a work place when his own work site was just a few minutes away. We ffnd on the evidence that the Grievor did not work on March i$, 1989, and therefore falsified his time and expense sheets for that day. There is no question of mitiGatinG the 15-day suspension imposed here, and union counsel did not suggest that we do so if we did not believe the grievor's explanation. AccordinGly, the Grievance is dismissed and the penalty .stands. DATED at Toronto, this ]gthday of March, , 1990. A. BARRETT, -Chairperson #!'d~ssent" (P~ssent attached) M. LYONS, Member F. COLLICT, Member attached G.S.B. 590/89- Daniels (OPSEU ~ Min, of Re~.) . Dissent of Michael Lyons Since this case involves a suspension, the onu~ is on the Employer to show, by a preponderance of the evidence, that the Griever warranted the penalty that was imposed. Of course, when there is contradictory or questionable evidence, the Employer can attack the credibility of the Griever and/or witnesses who support the Griever, in order to give added ~eight to the ~mplcyer's version of events. Once a~ain, the onus is on the Employer to show, by a preponderance of the evidence, that the Griever and/or a witness who supports the Griever is not credible. In this case, Counsel for the Employer argued that the Board ought to dismiss the grievance because ~he evidence of the Griever and Mr. Sears was not credible. While I admit that the'Griever's end ~r. Sears' description and explanation of the events is certainly unusual, I believe them because not to do so requires me to conclude that the Griever and.Mr. Sears colluded to create their version of the the'events. I find this unlikely because: l} Had the~ colluded, they could have concocted a story which probably would have been more believable and less embarrassing to the Griever. For example, the Griever could have said he got his clothes dirty and greasy when he had car trouble and tried to fix it. This would.certainly have'been a less embarrassing scenario for the ~rievor and still have gotten him to the service station where he met F~r. Bears. Also, if Mr. Sears had testified that he was,in fact, working on the night shift, as ~r. Jarvis from Ford Motor Co. test- ified, then Mr. Sears. would not have had to admit he was- late for work,~while still maintaining that he met the Griever at the service station early in the morning, Xnvited him home to clean up and been in the house until the ~rievor left for home. 2) While it may be unusual and unlikely for strangers who are raised in Canada (as well as the UBA and Europe) to act .as the Griever and M~. Sears did, it is my personal experience that this type of behavior is much more common and likely when the people involved are raised in other countries are ~orth Americans or Europeans living abroad). 5) There is no evidence whatsoever that the Griever knew Mr, Bears prior to March ~5, 1989. It seems to me very. unlikely that the Grieve.r, who lived in 0shews, Just happened to have a friend who lived in 0akville very close to where the Griever was scheduled to work and who was prepared to perjure himself to support an attempt by the Griever to defraud the government. - 2 - G.S.B. 390/89- Daniels ',.D£~sen~ of Michael Lyons Although the Employer introduced evidence that the Griever telephoned to Mr. Sears'residence on March 51, there is~ no evidence of any telephone calls to Mr. Sea. rs from the work- place prior to March 15. 4) The Griever was working as a Tax Auditor for 12~ years at the time of the grievance. AccOrding to Mr. Moxley~ A/Director of the Motor Fuels and Tobacco Tax Branch, the Griever was a highly trusted employee with an' excellent record. There is no evidence or suggestion that the Griever, prior to March ~5, was ever suspected of falsifying.attendance records or e_xpense claims. While it may have Dean inappropr~ate and unwise of the Griever not to tell the Employer the whole truth st t~Le meetin~ of March 3~ and April..14, or at the second stage grievance meet- ing, it is understandable, given the circumstances, why the Griever chose to be evasive. In any case, the Griever was not disciplined for~x~ at any meeting related to the events of March ~5,so this Board. must only determine what actually happened on March 15, and.whether or not the Griever was appropriately disciplined in the circumstances. Although the Griever is not without fault, I would find that ~ ~--~-~- ~ .... * '~ the ...... ~°"~ ..... ~ It is probable that the Grievor did drive to Oakville on and did work on the Employer's behalf at Mr. Sears' home. Accordingly, he did not falsify attendance records and expense claims for that day. The grievance of M~. Dantelm ought to be mllowed. Dated at Toronto this 2nd day .of March, 1990 M~hael Lyons Bdard Member / Comment re G.S.B. ~390/89 (J. Daniels) This Member is in. agreement with the award in this case. However, .in retrospect the following should be noted: .Mr. Daniels is a Tax Auditor with the Ministry of Revenue. His duties require that he must. enter the premises of selected organizations and audit their records to determine the accuracy and reasonableness of reporting associated with governmental tax requirements. In effect, . the grievor, Mr. Daniels, is in a position of trust; and he functions as the .agent of the Ontario government. Mr. Daniels alsof ·works independently. He travels, is often alone as he performs his responsibilities, and generally works with a minimum amount of supervision. He is a union representative for his area. As such, he represents other employees and is looked to 'for guidance and counsel by his fellow employees. Notwithstanding the above, Mr. Daniels falsified a claim fo~ lunch money, for travel expense, and for travel time. addition, he was not at work on March 15, ~989 as he' claimed. Moreover, he endeavoured to deceive, his managers when he was questioned concerning his expense claims and attendance for March 15, 1989. In fact, he denied any wrong-doing associated with his activities on this date and was not the least contrite with reference to his actions. Mr. Daniels was assigned a 15 day suspension for his fraudulent actions. In the opinion of this Member, and viewed against the perspective of substantial jurisprudence relative to matters of this nature, an appropriate response by Management would have been discharge. The actions of Mr. Daniels struck at the very heart o~ the employment relationship of trust between the parties. Given the circumstances of this case, a suspension of 15 days was, indeed, inordinately lenient.· · ~ -,