HomeMy WebLinkAbout1991-1388.Smith.92-06-08 ONTARIO EMPLOYES DE LA COURONNE
CROWN EMPL OYEES DEL'ONTARIO
GRIEVANCE C,OMMISSlON DE
-SETTLEMENT REGLEMENT
BOARD DES GRIEFS
t$O DUNOAS STREET WEST SUITE 2~, ~RONTO, ONTAR~, MSG IZ8 TELEPHONE/TELEPHONE.
180, RUE DUNDAS OUEST, BUREAU 2;~, TORONTO (ONTARIO}, MSG 1Z8 ~CSi&~LE, TEL~COPiE .
1388/91
IN THE MATTER OF ~NARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAININ~ ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Smith)
Grievor
- a~d -
The Crown in Right of Ontario
(Ministry of Transportation).
Employer
BEFORE: M. Watters Vice-Chairperson
H. O'Regan Member
M. O'Toole Member
FOR THE M. McFadden
ORIEVOR Counsel
Koskie & Minsky
· . Barristers & Solicitors
FOR 'THE P. Young
EMPLOYER Counsel
Winkler, Filion,& wakely
Barristers & Solicitors
HE~RIN~ 'December 16, 1991
February 5, 17, 1992
The threshold issue in this case is whether tlae grievor,
Ronald G. Smith, was discharged without just cause from his
position as an ~nside Exam a~d Licenoe Zssuir~9 Cler~ at the
~ueen's Park Drivers and Vehicles Office. The Employer alleged
ir-, its letter of discharge dated August 28, !991 that the grievor
had engaged ~n th, eft of Ministry property, namely, a validation
~ticker bearing number 1033998j, May ~992. At the time of the
ir, cident, which resulted in these proceedings, the grie~or was
employed on a regular p~rt-,_.~me basis. He commenced work with
this Employer in March, ~990.
Constabl'e J. Oakes of the Metropolitan Toronto Police Force
testified that he pulled the grievor'over for speeding at about
2'00 a.m, on June 27, !991. The latter was the~ asked to produce
his drivers licence and ownership papers for identification
purposes. Constable Oakes observed that the validation sticker
on the 9rievor's vehicle was number 1033998J, May 1992. After
performing a computer check of Ministry records through C.P.I.C.,
the officer determined that the permit and validation sticker
issued for the grievor's vehicle was'to have expired on May 2,
1991. The record did not show that a new validation sticker had
been assigned to the grievor. This information led Constable
Oakes to suspect that the validationl sticker which he observed
should not have been on the plate. He, therefore, proceeded to
ask the grievor how he had obtained the sticker. Constable Oakes
testified the gr~evor ~formed him that he worked for the
1
Ministry at its Queen's Park Office and bhat. he had processed
early renewal" It was his evidence that bhe gr~evor stated he
had processed sdch a renewal because of t. he facb he had been
o¢ ~h~ cour, try for a per~od of' E'~me. Coasbab]e Oakes a?so s~abed
he was ad'.¢~sed by t, he gt~evor bha~ Ch, rs type o¢ ear-~y renewa~
wou~d nob show up on ~he computer, A's ~he officer was skepki-ca~
as uo u~,e accuracy of bhis information, he aske~"bhe
provide him with the names of his supervisors. This reques~
)'ielded ~'-~r~e 'names of kis. J. L~urenza an'd Ms' I March. Constable
Cakes t.t-,en informed' bhe grievor that he intended to contact one
or both of these i'ndividua~s in order to determine why the
computer had ,~o record'of the validation sticker ~ttached to the
~rievor's plate. He acknowledged that. he made this statement,
part, to see if it elicited "a reaction." from the griev6r.
Su.bsequent to this e,.change, the grievor was gi'~en three (3)
Offence taotices for the following Hiqhwav Traffic Act charges:
(i) speeding 6~ km./hr, in a ~0 km/hr, zone; (ii) fail to
surrender permit for"m6%or vehicle; and (iii) driving a motor
vehicle without a currently validated permit. ~He. was also issued
a "forty-eight hour report," More specifically, Constable Oakes
told the 9rievor to report to him'at the Police Station with
permit in hand at 10'00 p.m. on June 27, 1991. He advised the
Board that'the 9ri~vor failed to attend'at the Station.
Ms. I. March, at the time material to this proceeding,, was
conducting audits'at the Queen's Park Office. She has been
2
employed by the Ministry for some twent.v-one (21) years. Ns.
~farch stated that she rece~¥ed a telephone call from t. he gr-ievor
~.. approximately 0:30 a.m. ac June 27, 1391. The g~ievor advised
!;er therein that he had been stopped for' speedin9 ~r-~,fl ~h.at. there
~as "a problem" with the sticker on the plate as it. was not
~-egistered to him. ~ls. March test~f.ied the 9rievor stated he had
advised the police officer that he had processed an ea~-ly ~-e,~ewal
at~d that tt-,e transaction must not ha'~e registered on the s>stem.
She :--era!led that the grie~or asked rot her assistance as t. he
officer, ~ou~d be coming in to ~p~a~. .... with her and that i~e promised
"to straighten it all out" when he returned to work. o0 Friday',
June 28, I991. Me also requested that she not speak to .Ms. M.
Wear'er, the Administrator of the Queen's Park Office, about the
matter Ms lqarch informed the 9rievor that she would sp_a~ to
the police officer' but would not "volunteer" any information
until she was aware of all of the circumstances. Ns. March also
tala tt',a grievor that she was not prepared to lie for him and
that there had better be some early renewal documentation in the
office. Zt was Ns. March's impression that the grievor had
called her as he expected her 6o confirm hfs comments concerning
the proce88 of early renewals.
During the course of the telephone conversation, Ms. March
asked for, and received, the number of the validation sticker in
question. ~t was her evidence that. the 9rievor told her that he
had removed the sticker from the desk of Ms. Christi Enright,
3
another issuing clerk in the omfice. Ms. ,~!ai-ch further testified
that the grievor stated he had stamped his dri,~ers i icence wit. h a
r-linety (gO) day extension.
On ar,-iv-;n9 at work on June 27, 1991, Ms. ,~ar<;h spohe to Ms.
Weaver' about, her telephone conversatior~ witl~ the gr-ievor. Late,-
,~ha_. da~ .she aisc spoke with Hr B. Doher'ty the Di~,..r ic't
~lanageF, This latter ~ndividual as~<ed her to t~-ansc¢ibe the
Wlb}, t g ie'v'or for his revie'w These
notes of hen c. on'versation '~- he ~- . ' .
notes in typed ¢or'r~ were riled with this Board, ~4s. ~,laroh also
checked to see whether t.f]e 9¢fevor had actually processed an
earls renewal. She determined from her inv'est49ation that there
was no doo~mentatiom, recorded or unrecorded, to support, his
c. 1a:m. Additionally, Ms. March verified that tn_ validation
sticker found on the 9r-ievor's plate had earlier been reported as.
n',i.~siqg er'om the Queen's Park Office. Her f. indings were reported
bo .....
~¢, .t.o Ms. Weaver and Mr. Doherty
Ms. A.M, Rudolfo, at the material time, was the Supervisor
i,n 'the Plate/Validation area of the Vehicles and Licencin9 Branch
of the Queen's Park Office. Ms. R~dolfo, who is a member of the
bargaining unit, has been employed by the Ministry since 1975.
She advised that in Hay, 1991 the 9rievor as a Driver Issuing
'Clerk wa~ involved with the reoewal of both d~ivers licences and
plate permits. Ms. Rudolfo noted, however, that the §rievor was
mot permitted to "sign out" and 'take validation stickers. If he
Fequired such a sticker he .~as ~..p~.,_~,] to obt. al,a same From
199~, the grievor was not e>'pec'ted to sign for t. he sticker.
F,.,Ft.~",e. , a,-,v, ru,-,ds 9enerat. ed b~ the ........ ,.r ~ ~sdc,.,o,~ wc..uid 9,~ ir,~o" ' the
grievOr'S till at router, er number- eight. (S). ~1s. Ru,Jol-Fo advised
ou% bS 21$. E~,-/ght, a Vehicle Issuing Clerk, who worked at
COdll~Er number' seven ( 7 ) .
~s. Rudol'ro explained the process involved in a vehicle
licence i-enewat appllcatio~. The ~ssu~ng Clef& is requfred,
inter alia, to enter the following data 4nrc the computer at
tk, ei¢ work station: transaction num~ber; plate number to be
rene~ed; rele.ant changes in persona~ 4nformation; collection of
tt3e requisite fee; and the number of the vaIidation sticker being
issued to the applicator. Ms. Rudolfo stated that the transaction
could not be completed without the applicant tendering cash or a
cheque. Each day, Ms. Rudolfo was required to cross-reference
the Stock Report, showing all stock issued to customers, with the
sign-out sheets. This procedure led ~o the discovery that the
validation sticker in question went 'missing as of t.lay 1, 1991.
This witness acknowledged that stock 4s lost on occasion. She
was unwilling to describe this as a regular occurrence. She
seemed to suggest that instances of missing stock would on
average occur less than once per month.
t4s, Rudolf() also de~cr-ibed the process for early'
Th4s proce'dure is dt.~ized t.o accomodate t. hose persons who
nor be in ~he Province as oF ~he regular t.~me for renewal,
A;:,p}~cat.~o,~s For earty r'enewa: ~i be -r ..... ~ '--
f6~. rr, or,~.,,s pr'~or t.o _.,,e date o¢. expiry of ~.be p:ate. AIl o¢ ~he
F=}e'.¢ant .~nformat. ior} is manually entered inbo t. he :ompu't. er~. The
applicant is pr'ov"~de'd w~,~n a ~,ai:da%ion st~cPer, ~ssued for
app~.-opr~at.e mont.~, on pa?'men~, o¢ the $90.00 fee' by cash, oF
processed "on-li¢-~e" The Board was advised that the applicat;ons
can b.e done on-line' wlthin ¢oP~y-five (45) days of the expiry of
the plate perm:t. Once t. he early renewal ]s processed on-line,
~t-,e computer will conf4rm th, at such ~-enewal has, ~n fact, been
completed. Any renewa~ initiated wholly wit. hin't, hig forty-five
(:5).'day period is nob considered t.o be an early renewa~ as bP, e
application can be processed on-line ab initio wif~hout the need
for any manua~ entry. A daily record is kept. of all special
transactions, inc'luding early' renewals of validation st~ckers.
Documentation in respec~ of this category of transaction is
provided to Ms. Rudolfo. Ms. Rudolfo bestified that she never
received an early renewa~ appl'ication in respec't o¢ ~his grievor,
We were to~d thab in Nay, 1991 ~ll renewal documents were st. ored
in a folder a~ her desk. Ms.-~udol¢o conceded bhe p°ssibiti~y
that docum~nt, atioa could fall out of or be rem6ved from such
folder without her knowledge. She quaeried why anyone wou!d be
motivated to remove this &ype of documenbabion given ~hab the
6
information relating bo the early renewal would have previously
been entered into the computer through the mar;ual process
referred to above.
La$,t~y, Ms. Rudolfo described ,the proced~re For
drive~s licence. Application, s in re,peet of sa~e are sent. out to
drivers Approximately two (2) months prior' ~o expiry
curF~t 1¢cence The customer is theq required to
office to complete the re~}e~al form and have a new photograph
takers, ~f necessary. Again, information re~ating to ~he
application 'is entered into ~he computer by the Issuing Clerk.
The application cannot be processed without payment by cash or
cheque of the $30.00 fee. At the end of the process, the
cus~omer"s existing licence is stamped with a ninety-day (90)
extens4on. A ne~ drivers l$cence is subsequent.]y, forwarded to
~r,em through the mail.
Ms. Weaver testified that clerks such as the 9rievor were
expected to work on their own. She stated that they were
required to record their tramsactions on the computer system. It
was her evidence that the Ministry would not have discovered that
the missing sticker was on the grievor's p~ate had he r~ot been
.stopped by the police. Ms. Weaver described the gr~evor a~
having been "an average employee."
Mr. Doherty has beer] the Ois',%rict Manager oF the t~etro
Toronto and York Regfor', for e.ight (8) >.ears. He commenced
employment with the Ministry in 1960. ~4r-. Doherty was advised by
f..f3. 'Weaver' on the morning of June ~7, 1991 that the 9,-ievor had
been stqpped by the Pol4ce and that they disco~,ere'd ~,~ improper
,~,idation ~t. 4cker Ofl his plate. ~he ....... r inFnrrr, ed him t'
~ueen's ~ark OFfice. M~'. Doher-ty subsequentl,/ r-eoeived a
e~mo~ Gall From :,1~ ~t~r~,, ~ho detailed her e~rl~er telephor~e
e'~ana~,ge wit. t~ ~.h'_ ar Soker,ty s e'v~dence that
Hs ~.a c~, stated the ar]evor told her that he had processed an
early renewal in respect of both his permit and his i icence'and
that tr~:r'e must have been a ¢oul-up in the system, After
receiving this report M~ Doherty a~,,ed Ms. Marctq to check the
d,_¢,.,unlen,_,~uion at the Oueen's Park Office to see
record of an early renewal viC a vis the grievc, r. He w=~ _
subsequently advised that no such record could be i qca'ted.
Dohert'y then asked Ms. March to have the 9'rievor report'to his
office on.the mornio9 of Friday, June 28, 199t-,
Hr. Doherty met with the griev0r at'about 9'10 a,m. on June
2STP, in the presence of 'Mr. N, Harding, the District, Enforcement
Supervisor. ~his latter gentleman was the next most senior
supervisor at ~he Bufferin Street Office'. His rol~ at the
meeting was ~imited to that of a witness. He did not speak
directly to the 9Flavor with respect to the incident in question.
8
;4i-. Dohert¥ opened the meet~,~g b,v asking ,_.ne gr~evor ~o e,plain
ha~ happened whe,~ he ~a~ stopped F,",r' speed,ne ~,Ir Oohertx'
stated that the grievor' ,-espo,~ded by ..saying he had informed t.t~e
3ol;,:e z,r':q.e,' t. hat k,e had pFocess~o an ear ,y renewa~ yeP, ich
sonde.~er, s,')~-,_ had not been recorded fn t.h~ s,/st, em. ~,Ir-. Dr)r',er~y',.
· ;nteriected t.,;dt"- t.t-,~:~ ~aS not, ~ha;: the ~r~e,¢or had t(:,~d ,,,~"-.
on the preceding daz. it. ~ou~d see~', t. hat ~lr. Dohert~;¢
t.t-at the gr~evo~ 4n¢ormecl h~s superviso~ t. hat he had e,ecut, e,J an
' _ w ~at was
ear])' rene',,'al. ~s comment. ,-elating to ~ sa~d b~'
,-1.=r,.h was ctes~gned t.o discourage the griev'or from making fa]se
statements abou~ Che incident. Hr. Dohert. y testified t. hat.
grie¢o¢ then sa'id' "Okay, ]'q] te]] you Che truth. ~ book ~he
sticker Fr-,:,,'mi one of t.t~e clerks a'b Queen's Park working along side
,Tree aS ~ wa~ Short. 0¢ cash. Z irt. ended pay'in9 for it whenever
fqad the n~onex." The 9riev'or then presented Mr. Doherty ~tfh the
rr, issing sticker, tit. Doherty denied the grievor said that
must have accidentally brought the sticker home amongst his work
paper&. He war also u~able to recall that the 9rievor said he
had made a mistake or error by not paying for the sticker
immediately. At this juncture, Mr. Doherty advised the 9rievor
that he had no alternat~ive but to call the police. ~lr. Ooherty
5.tared that the 9rievor then put his,hands over h~s face and
broke down. He further indicated that the 9rievor asked whether
there was any other way to resol've the matter as he intended to
pay when he had t. he money. Mr. Doherty replied that this was not
possible as he believed the 9rievor had stolen Mi:~istry property.
~4e stated that the griever did not t"-'r~l~ say ?,e would pay for '-'~,.r,_
.~t. ifker an'ct "sign for its respo~sib'i~t.y" ~r. Doherty estimated
that this meeting wit. h the' gr'ievor, not count~g the time spent.
of '-- n .... , ,eu with the Board,
t.~e ,,:e,~ng were f~' 4
NF. ,3ok, ert. y asserted that t. here was no Ninist. ry procedure
unde,-.wl-,~cl-, employees could renew their permit or- drivers
wi~'.nuut ....~e pa~;ment of a fee at the time. of renewal, He
dismissed for theft of 'Nin4str'y property. In so doing, he
considehed the griever's shots period of service and the fact
that he was not t. ruth¢ul ~o his supervisor and to the poli~e.
did not consider a Performance mlanning and ~eview report daf. ed
February 27, 1991. Theb documenb referred, inter ali&, ~o
need ~o~ greater concentration on the part Of the gr~evor while
working on cash.
Mr, N. Hardin9 has been the Dis~ric~ Enforcement S~pervisor
rod the Toronto area for six '(6) years. He has been e~ployed by
the Ministry fei a total of eighteen (18) years. This genblemao
substantially confirmed Mr. Doherty?s recollection oF what was
and was~'~ said by bhe griever during the meeting. More
specif~cally, he also heard the inculpatory $tabemenb cited
above.
10
Constable R. Ch]sholm of the Net. ropolitao Toronto Police
Force test~¢~ed that he was called to the gJn~stry's DufFer~n
Street 0¢¢1ce on t,t~e p',OfO]n9 0¢ Friday, .June 28, 199~. On
a'.'-ri,a~, he was advrsed b~ ~4r. O(¢hert-z as to ~hat had
rn respect 0¢ the m~ss~n9 va~dat~or, st.~cker. ~e ~as a~so shown
the stqcker wt-,ich had been returned by the grie~or that morning.
~, ~er is c. onv. e/'sat~or~ with l, lr. DoY, er~ty, Constable Ch~sho n-,
issued the 9rievor with an Appearance Notice for the Criminal
Code o~¢ence o~ "possession under $!,000.00". it is to be noted
that the validation st~cker which is the subject of these
proceedings had a value of $90.00. Constable Chisholm stated that
it was his decision to proceed with the charge. Mr. Doherty,
his evidence, said that he instructed the officer to lay the
charge. Constable Chisholm, other than t. ak~ng personal
in¢ormatfion, did not interview the 9rievor. it was his further
evqdence that the grievor did not say anything during his
exchange w~th Mr. Doherty. Ultqmately, the charge against the
grievor was w4thdrawn by the Crown as the police officers
required for proof of the case could, not be in attendance. There
was also, a~parently, some concern on the part Of the Crown As to
whether the 9rievor's admission to Mr. Doherty would be
admissible given the latter's failure, as a person in authoEity,
to provide a caution.
The grievor confirmed that, at the material time, he was
involved with the issuance of both drivers l icences and vehio~e
11
permits. He ack. nowledg'ed that ,this role placed h~m lo a pos-:tio,~
o~ ,~rust as he routii~ely har~dled large amounts o¢ - ~' u~d
. ¢ ua~rfl er-
mi.~ima] supervis4on.. The 9r~ev'o¢ Cu,-ther acknowledged that he
w.as ~..d,ied over for- speedier9 ab abou~ 2'00 a.m. oF~ ~lu~e ~, I_-391
and ~!,d .... t,;e at.,~end~,~c~ =o~ice O¢¢~cer adv4sed him that.
.... ,e gr~evor"'s evfidence hhat. he t.o~d hhe Off~c. er &hat Y,- ~or~,ed at.
~.r,e ~linishrv's._. Queen's Park Off,ce and hO~t' - he had processed
rene~'a~ as an early re~qe~a]. He stated that he explained t.o the
OCficer that this was a form of advance renewal which was
frequentS>' ,_;~sdertakea by people who would be travelling outside
of the ..... ~ .
,~,,,n,.ry as of th~ expi¢;, of their permi-t The 9rCevor
testified that he did not offer a specific reason for his
completion o¢ ars early renewal. He agreed that he did r~ot r-aport
to the Po3i,se Station, as requested, as Constable Cakes had
advised him that he had the option o¢ either attending or paying.
the firaes noted on the t-ickets.
The 9rievor testified that he provided Constable Oakes with
the names of Ms. Laurenza and Ms, March and that the Officer.
i,]dicated he would speak to the latter supervisor later that day.
He stated that ~e was "very upset and in-shock" over the incident
and decided to telephone Ms. March in order to inform her of the
Officer"s intentions. The grievor estimated that'he placed the
call between 2:30 am. and 3:00 a.m. on June 2.7, 199'1. He
testified that he then told .her he had been stopped and that his
registration was not "show~g valqd" or, the co,,'~puter. It. was hqs
e'.~dence he informed ms. Narc;n, that he had told the Police
Officer he had completed ~n early renewal. The gr~evo~ ",nsiste,J
~.,,~, .... = .~Led~,s. ~ar-ci~ to cheo~ to defer'n',~ne_ w,,et.~,~r, in Fact
h~ had p ocessed a renewal, additionally, he ~..n provided
w'~tf-, ",~n~- number of the validation sticker in issue and e~plained
tx, a,- ,,e }-,~d ta~e,~ same ~r'om ~!s. Enrigh~'s w~cket. ~he gr-ievor
also told l,ls, ~larch thab he had extended his drivers l icence
a ,-,i~et.x ,[96) day stamp. Ne ~urther in~or,med her' that ,the
s:~uo,.,on was a mistake and that he wished to clear i~ up when
he returned to work on ~riday, June 28th. He asked that
,,lar~n not mention the matter to Ms, Weaver, The grievor did
recall Ms. March having told him "there had better be some early
renewals in t. he office."
The grievor confirmed that he attended at the Mini'stry's
B&th~rst Street Office on June 2T, 1991 and renewed both his
plate amd driver~ licence. He testified that by then he realized
the validation sticker could not remain on his vehicle ~s
unregistered and that he, therefore, took this action to
immediately correct the error. He further stated that prior to
that time, his drivers licence had not been formally renewed.
The grievor described his subsequent meeting with Mr,
Doherty. He stated he to~d Mr. Doherty he had advised Constable
Oakes that he had processed an early renewal. The grievor also
t3
.... ~, acknowledged he had telepho~-,ed Ms Ma,'ch and had -" ed
to determine ii' the renewal had bee~ properly registered. ~b was
t.!-,~ grievor's evide,-~oe he further '~nformed Hr. Ooherty that he
had n~ade a m~~,_.~r.e ..... . ~'lor'e ¢}art{ou~ar-ly, he co~ceded 'h'-_r~a~. ~ r,~ ......
,.r,¢ 9a!~,~at.~e¢ st~ch.e¢ From N~s Er~r~gh% s w~cket w4~h ~.r,e
fi~ ~,,,. .... : o'F processing a r'er'~ewal Unfort~Jnately he had fai~ed
~ '-.rooes~ same The gr~{evoF test{lied he informed Mr' Dohert..¢
,_¢ is '~fi ,li,~ness to pay fo~ the 'value 0f the sticke~- and tibet
app~-ised of the fac. t that the 9rie'¢or had extended his drivers
licence. The grlevor testified that he believed ~uch an
extensio~ was permissible in tr~e circdmstances. Afteh the afore-.
mentioned excha~ge, k~r. Doher'ty advised the grievor that he would
be charged. The 9¢ievor's'nobes of the meeting were filed with
the Board.
i~ cross-examination, the 9rievor' said that he intended t.o
renew the validation sticker. He then stated that if it was not
showing on the computer as a "straight renewal", it must have
been done as an early renewal. At. another point in his
testimony, %he grievor stated that he intended to effect' an early
~enewal. H'e conceded that, ultimately, he never did process such
a renewal. The grievor asserted, however, that he believed he'
had, in fact, renewed his plate permit when he first spoke with
Constable Oakes in the early mornin9 of June 27, 1991. In cross-
examination, the 9rievor conceded' that there was no reason
counbry. He a~so acknowledged that the validat4or~ s't;cker was
disc,beeFed as miss~n9 j,Jst two (2) days pr'io~ to his bi,-thday.
The g,'~=.o¢-- ¢~.~¢f~',er', . _ acknowledged ;.t~d,_ ..... a Cee must be pa{d ~t. the
t.:~,e the appllc, atio~ roe ear'l'S re~ewa~ is F.r"<',cessed. He ag,-eed
,~,,,~,.. ~qcJi':',~8~ ~y a c.~¢stornef- does ,*ct.
....... ~, r~avu pa~d ~e requ~site Cee. Z~ ~a5 +" '
ev-fcfer-~ce t,,~, a¢~e¢ ,~a~n9 the
wicket: ~t w~ i~dvertently c~rried home amongst his work
paoers.. He stated ,.r,t'-ab, whenever he put it ot~ his. plate, he
though that'he had p~id Cot it. The grievor testified that he
learaed this was nob in fact th~ case when he was pulled over by
¢--~f:kle~u ,~..:~ Oakes. He denied the suggestion that he never intended
to pay for the sticker, in cross-examination, the grievor was
confronted with a passage from his own notes which read-
"~ too~. the sticker but didn't put it on the
system. He asked me why
explained Z didn't have the money to renew a~ the
time and was going to renew it soon."
The grievor claimed that this comment Celated to the extension of
his drivers l icence rather than to the validation'sticker
notwithstanding the reference to "sticker" in the excel-pt.
It was the position of the Employer that it had established
on a balance of probabilities, through clear and compelling
evidence, that the grievor had engaged in an act of theft of
Ministry property, The Board was asked to reject the grievor's
~5
evidence. Counse~, argued that, i.'~ the c'ir't3umstar'~ce's o¢
case, such evidence '~as co~,p~et.e~:¢ u~be~ie,,ab~e. ;n thCs
~% ~as submib~ed bhab ~F~e-gr~e'v~:)r had ¢ai~ed t.o provide' ao
-~ ....... .p~ar, a .....
~sked to prefer.the e'vider~ce preser~ted b.y the w~'tness'es ,$al~~a,
~,=~,a,¢ o¢ the Employ'er. Counsel described ~he offer~ce
...... '*'- as ser'~o~Js and argued that i~ jusk'ir4ed a discharge.
8,,.F,,a,~;zed ...... ~ was COr,',r ~tted b~' a person i~ a posib'for, of
trust. ;~ ~as s~b~T,~,~.ked ~hab grou¢~ds did nob exist bo rnodlfy
pe¢~a~%y. Co'u~se~.emphasized ~ha~ the grievor was a shorb service
'
employee and that ~he misconduc~ did',~o~ amoun~ ~d a spur of
momen~ aberrat.~on. ~ ~as suggested ~ha~ the grievor had
suCf~cien% opportun~%y ~o change his mind. Additionally, i% ~as
s~ressed ~.,~t W~e grie~or e.~uended h~s drivers ~cence ab or
abou% ~he same %~me t~e ~o0k ~he va~'~da~ion s~icker. We ~ere a~so
asked %o consider ~he Cac~ ~ha~ ~he grievor ma~nt.a~ned his den~aq
o¢ 4n-,proper conducb throughout the hear~n9 in the fac~ of
evidence ~nSonsi"~'en'~ ~h h~s posibion, Lastly, ib ~as argued
~h~ ~he ¢ac~or o¢ ~enera~ de~r'rence was a re~'ev'an~
&~ns~dera~ion in ~h~s instance, The-Employer re~ied on bhe
¢o~1owing au~hori~iest 'Nenzies, 102,126/83'
Lunardo, 647/83 (Roberts); ~, 169/82 (Jo]~qi¢¢e); Re Polymer.
CorD. L%d. And O~1, Chemica] And A[om~c Workers, Locai 9-14
(1973), 4 L.A.C. (2d) 148 (Palmer); Re L~bby, NcNei~ And Libby O¢
Cat, ada Ltd. A~d Unfired Automobile Workers. Locaq 251 .(1974),
L.A.C. (2d) 69 (N4nnegan); Re Lanqle~ Memor4al Nospfitat And
Hospital Employees' Un{o¢~, Loca~ !80 (t985), 16 L.A.C. (Sd) 122
(Thompson); Re Te',;po¢~. Division 0¢ Ox¢or¢ 'N~rehousinq Ltd. And
Teamsb&¢S Un'on, Loca~ 938 .'~S0), 25 L.A.C.
Re ~eq~or, a~ ~lunic{pa]~t~ ~¢ Ottawa-Car*eton Arid Car~ad~an Ur~o,-,
' * ~ Local ~OS (~985~, ~ L.A.C (3(~) 292 'Burkett)
Et was the position of the Union that this Board should
accept t. he grievor'~ evidence that he mistakenly failed to
process the renewal transaction and bhat it was never his
4nue,t~on to s~ea~. Counsel submitted that the Employer had to
prove the allegation of theft, including the requisite intent.
He argued that mere possession of M~nistry property d~d not
establish that a theft occurred. In substance, the Union
asserted that the evidence did not demonstrate the intent
necessary to support a dismissal for.theft. We were
consequentl? asked to reinstate the grievo¢ effective as of the
date of his initia~ suspension. The Union relied on the
following authorities: ~e Ben's Ltd. And Bak. er¥. Confectionery
And Tobacco Workers International Union, Local 406 (1989), ?
L.A.C. (4th) 39! (Stanley); Irwin, 1277/86 (Slone); Tsialtas,
282/79 (Eberts); a_~_~, cited above; Lunardo, cited above.
T}~is Board finds that the griever told Constable Cakes he
had processed an early renewal given that he would be out of %he
country for a period of time. We do not accept the grievo¢'s
evidence that he did not of?er a speci?ic reaso~ why he had
completed 'the process. As indicated previously, the gr-ievor
testified that he simPlY e....plained why other persons might resort
,.o an early renewa~ Having o()ns~dered ail oF ~he circumstances,
re th~n~ i~ more ~ ,ke!x ~.r,~% bhe 9r'ievor ~ould c, ffer an
¢~p~nat.~on For hi:; aob~on~ in order bo persuade %he officer
Yhere w~s a'9ood reason ~h~ ~he validation s~icker fas no%
registered on the computer, The 8card was Rot given any re~son
%o doubb ~he veraciby o¢ Constable Cakes' evidence.
, Similar'ly, the Board accepts Ms. March's evidence that the
grievor said he told Constable Oakes that he had processed an
early renewal, .We have not been persuaded that there was any
ambivalence in his statement. More specifically,· we do not
accept that the grievor asked his supervisor to check if there
was, in fact, a processed renewal in the office. The 8card
believes that Ms. March ·would have recalled this uncertainty if
it had been articulated. Her reply to the effect that there had
better be an advance renewal form in the office is more
consistent with the grievor having made a definite assertion in
respect of his completion of an early renewal. Fu'rther, it is
unlikely that he would have renewed both his plate permit and bis
drivers licence on June 27, 1991 if he honestly believed he may
· have processed an earlier renewal. At that juncture, he would'
not have known the results of Ms, March's efforts to locate
supporting documentation. His actions suggest to us that the
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grievor knew he had qeve¢ completed ar] early re,aewal. The Board
also rejects the reason advanced by t. he 9rievor for his call to
Ms. March in the early hours o'f Jur'~e 27, 1991. We find that this
co,~tact ~as made ::so as t.o provide Ms. March wit. h the "early
re,-,e~a~ e,planat~o~" as quick, i~ as possible so that. it would be
relayed to the i,~vestigatir~g officer in support of what. had bee,-~
¢)¢e,,.-;o[,sl~ said .about eari~ renewals. The Board was not
~easo~] to d~sbelieve the v~va voce and docume~]tary evidence
pre,set, ted by t,~.s. ~;arch. We fouled her to be a credible and
forthright witness. She did not exhibit any hostile animus
towards the 9rie¢or. indeed, 'the fact that the grievor elected
to call her would negative any contrary suggestion. It is
apparent that Mr. Dohent. y may have misunderstood what he was told
by Ms. March. While the difference is slight, he thought that
the grie'vor t.o]d her he had processed an early renewal. This
belief ~ed him to interrupt the 9rievor during the meeting of
June 28, 1991. The Board has not been persuaded that anything
turns on this inconsistency.
It is apparent from the evidence that the grievor never
processed an early renewal. Nor did he pay the $90.00 fee for
the validation sticker. Ms. March and Ms. Rudolfo were both
unable to ~ocate any documentation in respect of same. The Board
is satisfied that there was no reason for the 9rievor to process
an early renewal. Firstly, he was not travelling out of the
Province so as to be away at the normal time for renewal.
t9
Se'tonally, as the sticker went. m45s~ng as o,¢ ,~t~y I, I~91,
~'as ~wo.(2) days prior ~o ~he g¢ie'v'o¢'s bir~hd~'y, Li~e t.¢ansac~on
ood~d"no~ have been processed ~s ar, early r-er, ew~ as ;t.
c.~.en l'.ave been done on-}ine _
d{d ~ot complete ~ reguqar reoewa~. . U~t]ma'teq,z, lt. wa~
ev]denr, e "-"
t,=,_, s ¢a+i]ure amounted to a m~s,._.~,_ ,..,~t he ha~J
in~.=~ded to renew the p]~.e permit ~r~d pay for' 'the st{cker,
'or about the ~,.ime he took the 1¢~,.er .... from Ms. Enr'ignt- ' ' s wicket .
We fi:~d t.h{s statement, to be inoo{~sistent ~ith 'what the 9rievor
said to Mr, Oohert. y on June 26th, As noted, Nr. Doherty
testified t. he 9rievor. told hin~ he took the sticker at a 'time when
he was short of cash and that he intended t.o pay for same when he
had the necessary funds. The 9rievor claimed that this comment
related solely to the e~tension of his drivers ~icence. Z~ our
judgment, this limitatioo makes little sense 9iven that the
o¢ licence renewal is substantially !ess than the cost of plate
rene~a~. Additionally, the 9rievor's assertion seems to be
inconsistent with his own notes o¢ his ~exchange with Mr. Doherty.
Ultimately the Board accepts the viva vo'ce and documentary
evidence of Mr. Doherty relating to what transpired at the
meeting. We found him to be a credible witness. We note, in
this regard, that his evidence was confirmed in all material
respects by Mr, Harding,
-. The Board' has not been persuaded that the 9rievor made a
mfstake and that he thought he had paid for the val~dat;on
2O
sticker. To the contr-ary, we ¢i,-~d that he took it. from
Enr~'ght's w~'cket and de~fber-ate}y at~ached ~t ~o h~s vehicle
~it. houb paying ~he required fee. We do not accep% for an
that the st.¢c~r ~nnocentt~ ¢o1 ,owed h~m ~,ome <r', h~s ~ork papers.
However ~% got ~k, ere, 4t. ~as subsequently at.~ack, ed to the vehicle
on or around 14a/ 3, 1991, ia al~ ~keq~i~ood. The Board
conv~ced bkat ~t. '~ou~d st~S be ~here ~oda? were it ,'~ob
inbercept~o~s oF ~he 9¢~e~'or by Constable Oakes on June 27, 1991.
Ra~her Cha,- be~*9 an error or mfs~ake, ~he Board finds bha~ ~he
%eking c¢ bb, e st.¢cker corisL~u~ed an ac~ o¢ tr-~e¢~ No~'e
par%icd~ari~, we are satisfied', from a]~ o¢ ~he evidence, 6ha~
~he grie'vot ¢raudu]en%!y and wi~hou~ co]our o¢ righ% ~ook ~he
s~cker from ~he ~ork. piece a~d conver~ed same ~o h~s own use
w~h the inten%~on o¢ depriving ~he N4niskry of its proper~y. ~e
consider ~ e.,~remely unlikely bha~ ~he 9rievor ~hough~ he had
paid for ~he s~ck. er when ~ ~as af¢¢xed to h~s pla~e. Further,
we canno~ accep~ h~s evidence ~ha~ he ~ntended ~o pay ~he
requisite fee. Th~s fee ~as no~ paid ~n bhe period ~ay 1%o June
27, 1991. The 8oard infers ~hat i~ wou~d never have been pa~d
bu~ for ~he inciden~ ~hich culminated in ~h~s case.
The Board considers ~t significant that the gr{evor engaged
s~milar conduct in respect of the:extension of his dr~vers
7~cence, It fs clear that he improperly extended h~s ~cence for
n~nety (90) days w~thout completing the other necessary steps
~nclud~ng the payment of the $30,00 fee. We regect the gr~evor's
2~
assertion that he belSeved his actions compl-led with N~inistFy
procedure, As an issuing clerk, he would know that a licence
e'~l~en$ion could not be granted 'without paymenL of the renewal
fee.
;t is clear to t. he Board that. the 9r~evoF occup{ed a
position of trust. He was responsible , ,n~er ali, a, for the
renewals of lice'noes and plates, and for the collection of ca~F,
or cheques rrna ,the consuming public. As stated earlier-, his
work was performed under minimal supervision. In this instance,
we have concquded that the griever misappropriated-a validation
sticker for his own use and abused the trust in'herent, and
necessary, in the posqtio'n. This same comment ap'plies to the
extens¢on of the drivers l icenoe, in both cases, the type of
conduct engaged in would be very' difficult to detect withoat the
sor't, of inter'raring event as occurred here. After reviewing all
of the evidence and ~rgument., 'it i-s our judgment that the
Employer has~'shown lust cause for the discharge. The Board has
not been persuaded that 9rounds exist for modifying the penalty.
The 9¢ievor is not a very senior employee. Additionally, he
persisted in advancing ~n ~ccount of events whSoh defied belief.
In all'of the circumstances, we see no reason to exercise
discretion in his favour.
· Evqdence was led as to the existence of certain problems
the Queen's Park Office in respect of the issuing of stock;
22
b'-~-row~ng of - ' · key ,~ sec ~r-, .
and absenteeism. ~urthe,-, the ~r'ie~o,- ,.e} ;,a,,~ e,0er{enaed Ge'Dm
-- ~r~ i th ~r~orta~es as a ao:~s-qge'~ce o~ ;,,.~ d
,,r~clems w' .... , =~{ ient
,s-5,~ce~':t~ati~n. The Board has .s,>t bee,, ~e~.s..a.Je~ that t~,ese
~ectc:~s ,e.~alted ;,~ the ?z.~s of st:..,c:. {r, t;'{: ...a.~e. We }.ave
bec. e.~e._ ,-:.=, .~ de,{h~r~.e_ ,Lee{sion on the ~r-ie,/oP. 8 pdrt ~ ',_.~ _a e
the st{c~e,~ an:J p~ace ib o~ h~s vehi,s]e ~ithout cecor'd{ng the
tra,~sactio,', or ~azin~ the ~e.
For all of the above reasons, the gr{e,ance
Cared atToron£o ,Ontario this 8th day of June ,t992.
M.V. Watters, Vice-Chairperso~
~ O'~egan, ~e~ber
N. O' Too
23