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HomeMy WebLinkAbout1989-1795.Black.90-11-14 ONTARIO EMPL OY~'S DE LA COUROIV~E ~ CROWN EMPLOYEES DE L'ON TA RIO GRIfiVANCE C~OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUND'AS STREET WEST, TORONTO, ONTARIO. MSG 1Z8- SUITE 2100 '~, TELEPHONE/T~I.~'PHONE 180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) M5G 1Z8 - BUREAU 2100 (416) 598-0.~8 1795/89 In the Matter of an Arbit~atlon The Crown Employees'Bargaining Act BefoTe The Grievance Settlement Boar~ Between= OPSEU (Black) '' Grievor Sand- The Crown in Right of'Ontario (Ministry of Revenue) Employer Before: S. Stewart Vice-ChairPerson J.C. Laniel Member G. J. Milley Member For the Grievor= P. Lukasiewicz Counsel Gowling, Strathy and Henderson Barristers and SoliCitors For the Employer= D. Costen Counsel Human Resources Secretariat The Management Board of cabinet Hearings: May 22, 1990 August 21, 1990 August 23, 1990 September 28, 1990 DECISION The grievor, Mr. C. Black, is employed by the Ministry of Revenue as a senior auditor and is classified as a Financial Officer 4. He has been.employed by the Ministry since October 18, 1965. In a grievance dated October 11, 1989 Mr. Black grieves three separate suspensions. He alleges that he was suspended by managers who were without authority to impose discipline and further that he has been "harassed by management through improper and unjust suspensions". In the course of the hearing Mr. Lukasiewicz advised the Board that the Union was not pursuing the issue of whether the persons imposing discipline on the grievor had authority to do so. Accordingly, we will not address the evidence which deals with this issue. The most recent suspension referred to in the October 11, 1989 grievance is a three day suspension which was imposed on the grievor on August 22, 1989. The two earlier suspensions were a two day suspension imposed on June 18, 1987 and a suspension for three-quarters of a day which was imposed on July 8, 1988. It was the position of the Employer that the grievance as it relates to the two earlier suspensions should be dismissed by the Board. While it was acknowledged by the Employer that the time 2 limits in the Collective Agreement with respect to th~ filing of a grievance dealing With th~se suspensions'~o no~ apply, given the decfsion in Keeling 45/78 (Prichard), it was the Employer's position that the grievances should be dismissed on th~basis 0f the application of the doctrine. of laches due tO the' delay in the filing of the'grievance. It was the position of the Union that this aspect of th~ grievance should not be dismissed on this b~sis.- Mr. Lukasiewicz submitte~ that even if we ~re to find that the grievances relating to the ~wo eariier suspensions should be dismissed because of undue delay it was still nec'eSsary for the Board to hear the evidence relating to these grievances as, it was argued, the evidence would establish the grievor's allegation of a pattern of harassment~ against him. Given' the Union's position with respect to the necessity of adducing this evidence in order to establish its case, the Board ruled that it would hear the evidence and reserveTits decision with respect %o Mr. Costen's submission. As previously noted, the discipline that Mr. Black now wishes to challenge was imposed on June 18, 1987 and July 8, 1988. On June 22, 1987 Mr. Black wrote a memorandum to Mr. A. Williams, Director of the Retail Sales Branch, who was his supervisor's superior, requesting that he "regiew the validity of the two day Suspension". Mr. Williams replied to this memorandum on July 22, 1987 and 3 advised Mr. Black that the circumstances surrounding the suspension had been reviewed and that he concurred with the decision to suspend him. The evidence did not disclose any further action taken by Mr. Black with respect to these disciplinary matters until the grievance of October 11, 1989 was filed. Accordingly, there was a lapse of some twenty-six months from the time of JuneI 18, 1987 suspension and fifteen months from the time the July 8, 1988 suspension until a grievance was filed in connection with these matters. Mr. Black provided no eXPlanation for the delay in challenging the discipline that was imposed on him. After a careful consideration of the circumstances it is our view that Mr. Costen is correct in his submission that there has been undue delay in the filing of the grievance as it relates to whether there was just cause for the imposition of the suspensions of June 18, 1987 and July 8, 1988. While, as noted in Keeling, supra, the time limits contained in the Collective Agreement do not apply to matters such as discipline, which'the grievor has a statutory right to challenge, this does not mean that such matters must not be challenged within a reasonable period of time. To allow such matters to be challenged so long after the facts giving rise to the grievance have taken place is contrary to a fundamental premise of the system of 4 gri~vanc~ arbitration which is' designed to provide ~he prompt definition of dispUt~es as well as ~eir prompt resolution2 While, as Mr. Lukasi~icz poihted out, 't~e Employer did not establish any sighifieant prejudice such as the unavailability of a witness, the absence of this kind of prejUdic~ does not meah that a g'rievor is entitled to leave a disciplinary'matter un0hallengea for an ~x~'nd~ period of'time and, Providing no explaaat'ion'for-th~ delay, be allowed to proceed to challenge the discipline. As Mr. Costen pointed out, if the Employer is to apply the principle of progressive discipline it ~st be'in a position to know what the griegor's disciplin~ re~o~d consists of. Moreover, in this'case, particularly wi~h respect to the 1987 suspension, there were ~ertain de~ails~ that Ms. Baran was unable to recollect. In OPSEU (Clements) & The Liquor ContrOl Board 1'12/80 this Board dismissed a grievance where there had been a delay of ~fourteen months in the filing of the grievance. At p. 7 of this decision the Board states: The absence of notice of the grievance for fourteen months is so completely at odds with the type of procedures developed throughout labour relations for the timely identification of grievances that we do not believe it would be possible to hold a fair hearing in this case at this stage. No amount of evidence which we might hear at this stage could eliminate or outweigh the inherent prejudice done to the employer's position by virtue of the delay. In considering such a matter.the individual circumstances of each case must be considered carefully. In this case, 5 where the discipline complained of consists of relatively brief suspensions, where there has been a period of fourteen months in one instance and twenty-six months in the other between the time of the discipline and the filing of the grievance and where the grievor has provided no explanation for the delay in filing a grievance with respect to these matters, it is our view that it would be unfair and inappropriate to consider the merits of these suspensions. There remains, however, the issue~ of whether the circumstances surrounding the June 18, 1987 and July 8, 1988 suspensions support the grievor'siallegation of harassment. We agree with Mr. Costen's submission that the Collective Agreement does not address the issue of harassment (except for sexual harassment) and that the question of whether there was harassment of the grievor is properly subsumed in the issue of whether there was just cause for the discipline of August 22, 1989. The suspensions that were imposed on the grievor in 1987 and 1988 were imposed by Ms. M. Baran, who was Mr. Black's supervisor at the time. The August 22,1 1989 suspension was imposed by Mr. M. Ratansi, who became Mr. Black's supervisor in September, 1988. The suspensions that were imposed on Mr. Black relate to three different matters. In our view, there is simply no support inI the evidence for the allegation.that' the circumstances surrounding the two previous disciplinary matters in any way coloured Mr. Ratansi's approach to the suspension that he was involved in (other.-than reviewing the matters as part of Mr. Black's disciplinary ~ec0rd) or more specifically,~ that the August 22, 1989 susp~Dsion can be viewed, as part of a pattern, of harassment against Mr. Black. We turn now. to the specifics of the .August 22~- 19.89 ._ suspension. As previously +noted, Mr. Bla'ck is employed, as a senior auditor with the Ministry of Revenue. In that position he is responsible for~'conducting audits to ensure compliance with the. Retail Sales Tax Act. The reasons for the suspension are set out in a memorandum dated August 22, 1989 signed by .Mr..M. Ratansi, the griever's' supervis0r, which states as' follows: On July 18, you handed me the audit file'of [firm name deleted]. In our discussions earlier regarding this assignment, you informed me that all areas had been audited and. that you were awaiting further information in the area of catalogues and promotional giveaways so you could' raj'se an assessment. I asked you if you had enough infor- mation to estimate an assessment in these areas and complete the audit since the vendor had been very unco-operative and this audit had been out- standing since'February 1989. You told me that you had the information to do that. I reviewed the file and discussed with you a couple of areas, namely the basis of estimations and an abnormally low month (tax remittance), I returned the file and asked you to go back out to the taxpayer to adaress the above issues. You visited the taxpayer on August 2, 1989. I had asked the Group Leader to visit you and had.briefed 7 him on what I wanted you to do there. When the Group Leader asked for the file (at the taxpayers), you told him that you had forgotten the file. He then noticed you were listing fixed assets, and asked why you were doing that because he thought the file was completed and that you were there just to address the two areas that I had instructed you to do. You replied by saying that the file was not complete as you did not have the necessary information to examine fixed assets and that you had handed it to me because I asked for it. I asked, you to come back to the office with the file. You gave me the file and it was exactly the same as it was when you handed it to me earlier. I asked you to explain the contradiction between what you had documented on your schedule for fixed assets and what you were doing in that area at the taxpayers place of business that day. Your documentation, in summary, states that you examined invoices for all asset additions over $9-000.00 and that no errors were found. You explained that you did not have the information necessary to. examine the fixed assets until that day and the file was handed to me because I had asked for it, but was not a completed file. As well, you indicated that your actions were a pressure tactic to get the vendor to produce information. The file was submitted to me like any other completed file you submit, i.e. with all the necessary forms, all schedules numbered and the index completed. Furthermore, you drafted a letter to the taxpayer indicating that the audit was complete and that there were deficiencies only in the area of catalogues and promotional giveaways for which theY had been unable to provide all the necessary information, and as such, you were concluding the audit based on available information. If the audit was not complete, why would you .draft such a letter? There was no indication anywhere for me to know that this letter was not meant to be sent to the taxpayer. The'schedule in question for fixed assets was numbered by you in accordance with the guidel'ines for indexing the audit report. And this tells me that you must have known that the schedule existed and what was documented on it. t have reviewed the facts and consider this to be a very serious matter. I have concluded that you did not conduct required audit tests yet documented that 8 the work was ~one. Aside~fr°m the' fact that this ~aY have resulted in revenue loss, it is.conduct uDbecoming of an employee occupying the position of a tax.auditbr, ' ' a positio9 of trust. Considering thD iD~ident.,~ your e.xpla~ation and yoqr disciplinary record including your suspension in August 1988, for failure to perform required audit procedures, i am imposing a three day suspension without pay commencing August 23, 1989. Any future incidents of this. nature will result in further disciplinary action up to and includihg dismissal. A number of the relevant facts were not in dispute. It. was common ground that while Mr. Black.was under no deadline in completing the audit in question the completion of the audit was prolonged,, The unchallenged explanation provided by Mr. Black for the delay is that he had difficulty in obtaining all of the relevant information from the taxpayer. In particular, the taxpayer had changed its accountants and, as a result, Mr. Black did not have access to all of the information required to complete a standard audit. Both Mr Ratansi and Mr. Black ~estified that a review of fixed assets is a neceesary feature of a standard audit. Mr. Ratansi estimated that he spoke with Mr. Black about the delay in the completion of the audit on three occasions and that at those times Mr. Black advised him that he had been unable to obtain information with respect to catalogue printing and promotions. In these 9 conversations Mr. Black made no reference to the fact that he had been unable to examine the records relating to fixed assets. Mr. Ratansi stated that he spoke to Mr. Black on the telephone on one occasion when Mr. '~Black was at the taxpayer's premises and that Mr. Black advised him that he was carrying out the fixed asset audit 'at that time, Mr. Black acknowledged that he raised only .'the two matters of catalogue printing and promotions with Mr. Ratansi and that he did not refer to the fact that he did not have the information regarding fixed assets that he required in · order to complete the audit. Mr. Ratansi stated that on July 18,' 1989 he spoke with Mr. Black and that he asked Mr. Black if he had received the information in the two areas they had previously discussed. Mr. Black replied that he had not. Mr. Rat&nsi stated that he then asked Mr. Black whether he had sufficient information upon which to base an estimated audit and that Mr, Black replied that he did. Mr. Ratansi testified that he instructed Mr. Black to establish an estimated audit in the two areas that were outstanding and to complete the audit. Again, Mr. Black made no reference to the fact that the audit of fixed assets had not been carried out. Mr. Black's recollection Of the conversation was somewhat different. Mr. Black stated that Mr. Ratansi "came up behind him" and instructed him: to "complete the 10 file as it is". According to Mr. Black's version of the events Mr. Ratansi made no inquiry .as to whether it. would be possible to complete the audit on the information that he had available to him.~ Mr. Black had not completed the audit of fixed assets at this point. However, the audit file' that he forwarded to Mr. Ratansi on Jul~y 18, 1989 contains a rep6rt on fixed assets Which indicates that the relevant records of the taxpayer had been examined, that no errors Were found, and that no further tests were required.' Th~ i~dex to the file, which was Prepared by Mr. Black, indicates that the'' file contains workihg papers dealing with fixed assets. As · well, a form entitled "Investigation Transaction" contained in the file and'compietedby Mr. Black, indicates that the final investigation completion date was July 18, 1989. As. well, Mr.'Black drafted a' letter-tO the taxpayer for Mr. Ratansi's signature, the text of which states as follows: We have completed the audit of your company'§'- compliance with the Retail Sales Tax Act covering the period April 1, 1986 to December 31, 1988. There are two areas with tax deficiencies, catalogues and promotional goods. We delayed completing the audit in order to allow you sufficient time to locate all the records pertaining to these areas. As you were unable to provide us with the records necessary to complete a satisfactory audit we must now conclude the audit and prepare an assessment based on the available records and information. If you locate the records at some future date please advise us so that we can make any necess'ary adjustment to the assessment. Should you require any further information please contact this office. Mr. Black testified that the reasOn that the documents indicating that the matter of fixed assets had been addressed were included in the audit file was that they had been included in error. He explained that since the format of the documents used in the various audits that he performs are the same he has a practice of copying the relevant documents from one file in his computer and inserting them in another file. Mr. Black stated that he changed the identifying information contained in the earlier fixed assets report but that as he had not yet carried out the tests for fixed assets on the new audit the substantive information contained in the fixed asset report was the information relevant to the old file. Mr. Black explained that he was in a hurry to prepare the file to give to Mr. Ratansi and that the inclusion of the information in the file relating to fixed assets was simply an oversight on his part. Mr. Ratansi testified that he reviewed the file and that he had two concerns that he felt required further investigation. These concerns were the basis upon which 12 the tax due for catalogue printing was' Calculated and the fact that in one month tax remittances'were low in'relation' tO retail sal~s.- Mr.-Ratansi stated that if he had 'not had" these conc'erns the letter drafted by Mr. Black would have' "- been forwarded to the taxpayer', the tax' paYabl~ Would have been assessed on the basis set out by Mr~ .Black and {he file would have been closed. Mr. Ratansi met with Mr. Black and advised him of these two areas of concern. Mr. Ratansi instructed Mr..Black to attend at the taxpayer's premises to review the taxpayer's records in order"t0 address, these matters. Mr.-.Black made-' no reference to the fact that the audit relating-to fixed a~sets had not been completed in his discussion wi~h Mr~- Ratansi. .Mr. Ratansi instructed Mr. Schoeps, a group'-- leader, to attend with Mr. Black. As set out in Mr. Ratansi's memorandum imposing the suspensi6n,'it was~not disputed that on August 2, 1989 Mr. Black engaged in listing fixed assets while at the taxpayer's premises and that he so advised Mr. Schoeps when Mr. Schoeps asked what he was doing. Mr. Black explained to Mr. Schoeps that the information he needed relating to fixed assets had not previously been made available to him. Mr. Schopes telephoned Mr. Ratansi and advised him of what had transpired. Mr. Ratansi then telephoned Mr. Black and asked him to return to the office. When Mr. Ratansi asked 13 Mr. Black why he had indicated that the fixed asset audit had been carried out Mr. Black advised him that the file was not complete and that he gave the.file to Mr. Ratansi because Mr. Ratansi had asked for it.. Mr. Black did not advise Mr. Ratansi that the information relating to fixed assets which was contained in the file that was forwarded to Mr. Ratansi was copied from anothe~ file and was inadvertently included. There was a conflict in the evidence as to whether Mr. Ratansi returned the file to Mr. Black prior to August 2, 1989 or whether the file was retained by Mr. Ratansi. The resolution of this conflict is not of any real assistance in dealing with the issue before us. Where the conflict in the evidence is significant, particularly with respect to the instructions given by Mr. Ratansi to Mr. Black with respect to the completion of the file, we prefer the evidence of Mr. Ratansi. Mr. Ratansi gave his evidence in a forthright and credible manner while we found Mr. Black to be evasive in his responses~ Moreover, with respect to the issue of what instructions were given to Mr. Black regarding the completion of the file, it is our view that it defies common sense for Mr. Black to have believed that Mr. Ratansi wished him to prepare an estimated assessment even though the file was not complete in a significant area. The letter drafted by Mr. Black which was provided to Mr. Ratansi on July 18, 1989 and is reproduced above states: "We have completed the audit..." which supports the view that Mr. Black understood that Mr. Ratansi had asked. for and was expecting a completed file. There was some suggestion that on the basis of other information contained in the audit file Mr. Ratansi should have recognized that the fixed asset audit could not have been completed on the information that was available to Mr. Black. We cannot agree with this suggestion given the clear representation that the audit of fixed assets had been carried out which is contained in the document purporting to deal specifically with fixed assets. Mr. Black asks this Board to accept that his representation that the audit of fixed assets had been carried out was. included in the file in error. We do not find this explanation to be credible. Th~ representation that the fixed asset audit was complete is consistent with the representation that Mr. Black had been makiqg implicitly for some time to Mr. Ratansi. That is, that the only two areas where he was lacking information were promotions and catalogues. The fact that the explanation with respect to the transfer of information from another file was not provided at the time Mr. Ratansi confronted Mr. Black about this matter also causes us to question the 15 reliability of Mr. Black's explanation. Mr. Lukasiewicz argues that no motive has been established for Mr. Black to represent that the work carried out on fixed assets was completed while in fact it had not been. Mr. Lukasiewicz also referred to the fact that Mr. Black was openly engaged in eXamining fixed assets and immediately ackowledged what he was doing when questioned by Mr. Schoeps about his actions in support of the position that Mr. Black had no intention of misrepresenting the work that had been.Carried out on the file. Notwithstanding Mr. Lukasiewicz's able argument, after a careful consideration of all of! the evidence, it is our conclusion that Mr. Black knowingly misrepresented the work that had been completed on this particular file. While, as M?. Lukasiewicz emphasized, there was no specific deadline with respect to the completion of the audit, the grievor had beeh representing to Mr. Ratansi that there were problems in only two areas of the ~udit for some time. Only Mr. Black could explain why he did'not advise Mr. Ratansi that the part of the audit relating to fixed assets remained outstanding as well. He did not provide a credible explanation with respect to this matter. The fact that Mr. Black was openly engaged in examining the documents relating to fixed assets and acknowledged 16 this to Mr. Schoeps is not inconsistent' with .the fac~ that he had misrepresented the work that he had performed in connection with the audit. The' documents r~lating to fixed assets would never have been examined and the file would have been closed had it not been for M~. Ratansi's' decision that it was necessary to deal with other matters. .This was an opportunity for Mr. Black to complet'e the work that he had previously represented to be complete. Mr. Schoeps is a member of the bargaining unit and Mr. Black may not have contemplated that Mr. Schoeps would speak with Mr. Ratansi about what had transpired. In summary, it is our conclusion that there is just cause for the imposition of discipline on Mr. Black. Turning to the matter of penalty, we have considered Mr. Lukasiewicz's alternative submission with respect to the suitability of a fine rather than an unpaid Suspension. We did not hear extensive argument on this issue but we do not find the Union's submission on this point to be compelling. We agree with Mr. Ratansi's assessment that Mr. Black engaged in conduct unbecoming a person in a position of trust. Considering the nature of Mr. Black's actions as well as his disciplinary record it is our conclusion that the three day suspension which was imposed is a just and reasonable penalty in all the circumstances. 17 For these reasons, the grievance is dismissed. Dated at Toronto thi~4thday of November 1990~ ~'_~l-3~Vice_Chairperson J. Laniel - Member G. Milley - Member