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HomeMy WebLinkAbout1992-1904.Holmes.93-05-06 ONTARIO ( ( I EMPLOYES DE LA COURONNE CROWN EMPLvfEES DE L'ONTARIO !~, 1111 GRIEVANCE COMMISSION DE , SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100 TORONTO, ONTARro, M5G lZ8 TELEPHONE/TELEPHONE (416) 326-/388 180 RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) M5G lZ8 FACSIMILE /TELECOPIE (416) 326-1396 1904/92 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Holmes) Grievor - and - The Crown in Right of ontario (Ministry of Transportation) Empl.oyer BEFORE: W. Kaplan vice-Chairperson S. Urbain Member F. Collict Member FOR THE M. MacKinnon UNION Counsel Ryder, Whitaker, wright & Chapman Barristers & Solicitors FOR THE D. Jarvis EMPLOYER Counsel Winkler, Filion & wakely Barristers & Solicitors HEARING April 22, 1993 ,I , ( ( 2 " Introduction By a grievance dated August 13, 1992, Steven Holmes, formerly a Patrol Foreman in the Owen Sound District with the Ministry of Transportation, grieves that he has been unjust dismissed The grievance proceeded to a hearing in Toronto, at which time evidence and argument were heard In brief, the employer took the position that the grievor had been justly dismissed insofar as he had engaged in a systematIc and premeditated series of thefts over the course of two years and, in the result, defrauded the government of approximately $2700 00 The union did not dispute the thefts or the amount involved, but argued that this was an appropriate case for the Board to mitigate the discharge penalty The Evidence Sometime in the spring of 1992 the Ministry of Transportation received an anonymous letter dated March 24, 1992 It read as follows TO WHOM IT MAY CONCERN I feel I should bring this to your attention I live and work on the Bruce Peninsula and frequent Whispering Pines Esso Station in Tobermoryat least 3-4 days a week As a tax-payer I was won.dering if all government employees are allowed to put cigarettes on their government credit cards? \ I have witnesses one of your MTO drivers make gas and cigarettes purchases seven times now and its always the same driver I know theres is probably a reasonable explanation for this, but! If my tax money is paying for some ones smoking habit and the rest of us are paYing t.6 00 to t.7 00 for a pack I think we have a problem. I first notices this one day last November, we were both pumping gas at the same time, we were paying in the ( ( 3 store together and his credit card receipt was substantially more that what the pump read! He left with 3 packs of cigarettes I have seen this over and over this winter Today the receipt was for t: 51 00 gas pump read 3'2 25 cigarettes 18.75 51 00 This looks fishy to me I hope I, m wrong but I doubt it. A concerned citizen that makes half the wage a government employee makes and pays for his own cigarettes PS Thge reason I am not disclosing my identity is that it is an extremely small community and I don,t want to be black-balled [The letter is reproduced as it was received] After receiving this letter, the Ministry conducted an investigation and readily identified the grievor as the person who purchased gasoline in the amount of $51 00 on the day in question. As a result of Its investigation, the Ministry found that beginning in early to mid-1 990, the gfievor developed a scheme that enabled him to use his Ministry credit card to purchase cigarettes tor himself at the same time as he bought gasoline for his Ministry vehicle The grievor, like approximately 3,000 other Ministry employees, was given a credIt card to purchase gasoline When he was given that card, he was instructed to use It only for Ministry purposes, and the card itself clearly states that it is "solely for the purchase of fuel, supplies and services for Ministry equipment where these are not available from Ontario Government outlets" The grievor was also instructed to spread his gasoline purchases among the various gas stations in the District. ( ( 4 The system the grievor devised was relatively simple He would go to the Whispering Pines Esso Station to buy gas Normally a gasoline receipt indicates both the total amount as well as the number of litres purchased The grievor would increase the number of litres purchased shown on his receipt so as to include the cost of up to three packages of cigarettes As a result, the receipt appeared normal, and certainly did not indicate any unauthorized expenditure The grievor always perpetrated these frauds at the Whispering Pines Esso Station, and the conclusion is inescapable that he did so with the knowledge and complicity of at least one person at that station The Whispering Pines Esso Station was close to the Patrol Yard where the grievor worked, but not as close as two other gasoline stations The investigation also revealed that the' grievor, contrary to policy, made most of his gasoline purchases at the Whispering Pines Esso Station, and also indicated that the grievor's vehicle averaged 1 3 7 miles per gallon This was the lowest miles per gallon figure for any of the Ministry's Patrol Yard vehicles, which ranged from 1 5 1 miles per gallon to 1 7 2 miles per gallon After considering these results, Ministry officials contacted the Ontario Provincial Police On June 17, 1992, the grievor was questioned by the police and he immediately confessed The next day, he was summoned to a meeting with the employer, and was accompanied by a union representatIve The grievor admitted the allegations Minutes of this meeting were prepared and state, among other things, that the grievor indicated that this had been going on for about two years and that he could not offer any explanation He did not know why he did it. He had sat down last night and could not come / ( ( \ 5 up with a reason why It had only involved the purchase of cigarettes with the MTO credit card and no other establishment was Involved HIS co-workers were not involved and did not know about it. He has no problems outside of work -- his homelife and family are good He had adjusted the litre volume on the gas bill He indicated these purchases would take place once per week, when he needed gas, not all the time When someone was with him, he wouldn't do it or when the other guys were with him they wouldn't know The vehicle is shared sometimes in the winter He dealt with the same people every time - Brad or his mother He responded "yes" that he knew what he was doing, and "yes" to a timeframe of about 2 5 years. Stephen indicated that he had been at work yesterday and had spent approximately 2 hours with the OPP Rick Kennedy invited Stephen to explain his side of the story and offer a rationale for his actions? Stephen responded that if he knew why, he would say He didn't know It started when he had just asked one time If he could get a pack of cigarettes with his gas -- they said yes. It was stupid Upon resuming the meeting, Rick Kennedy asked Stephen Holmes who doctored the billings Stephen responded that he would He would take the total amount of the bill, calculate the number of litres, tell her, and she would write it out. In parting, Stephen stated that he was very sorry, he knew it was stupid and that he had to suffer After this meeting the grievor was given a twenty-day suspension with pay i ( (' 6 The employer continued its investigation, and it calculated, with the assistance of the OPP, that the grievor defrauded the government of approximately $2700 00 This figure was arrived at by multiplying by three the number of purchases made by the grievor at the Whispering Pines Esso Station based on the grievor's admission that he would include three packages of cigarettes in the amount purchased on each visit. The union did not dispute this amount or any of the facts set out above On June 25, 1992, the grievor was charged with fraud over $1000 00 He was subsequently convicted and fined $5000 He also began to make restitution to the employer, and by the date of hearing had paid back approximately $800 00 through weekly payments of $25 00 On July 6, 1992, the grievor was notified of a hearing, as required by the Public Service Act and Regulation 18, to discuss the investigation and his future status with the Ministry That hearing was held on July 14, 1992, and the grievor attended with union representation The grievor again admitted his fraud, apologized and promised to make restitution. He also indicated that he was addicted to cigarettes, had been for many years,and smoked up to three packs a day He further. indicated that he was seeing a doctor about his addiction, and was looking into counselling His union representative argued that the thefts were totally out of character for the grievor, who was a family man with two small sons After this meeting, the grievor's suspension from employment was continued for a further twenty days. On August 4, 1992, the grievor was dismissed, and a grievance was subsequently filed ( ( 7 D R. Hodgson testified He has worked with the Ministry in successively more senior positions for more than twenty-five years, and he conducted the investigation into the fraud allegations As already noted, none of those facts were in dispute Mr Hodgson testified that the grievor held a position of trust. He worked alone and he also supervised others Mr Hodgson testified that the grievor knew that the credit card was for authorized Ministry purchases only He testified that if the grievor were returned to work it would be difficult to trust him again, and noted that, in any event, the Patrol Yard where the grievor used to work has now been closed He also testified that there was no way that the employer's internal audit system could have discovered the thefts because only vehicles that had average miles per gallon varying from average Ministry amounts by 25% were identified and subject to scrutiny The grievor's average miles per gallon never fell below the designated amount. Mr Hodgson also testified that approximately one third of all Ministry employees are given government credit cards. The grievor also testified He told the Board that he joined the Ministry In January 1 980 He became acting Patrol Supervisor in 1989, has served as second in command and in July 1990 was -apPointed Highway General Foreman. In that latter capacity, the grievor was responsible for the supervision of a number of employees, and for the completion of a considerable amount of paperwork associated with the patrol The grievor has a grade 1 2 education, and among other jobs, has been a truck driver, gas station attendant, carpenter and plumber ( ( 8 The grievor told the Board that one night about two years before his discharge he ran out of cigarettes and had no money So he asked the attendant on duty at the Whispering Pines Esso Station If he could add his cigarettes to the gasoline bill. The attendant agreed, and soon the grievor was adding cigarettes in the manner described three or four times a week He did this more often in the winter than in the summer The grievor testified that he was told when he was given the card to only use it only for Ministry gasoline, and he always knew that It was wrong to use it for the purchase of cigarettes He recounted some of the events leading to his discharge He indicated that he immediately confessed and apologized, and that he has been making restitution. He told the Board that these events made him realize that he had a serious smoking problem, and that he has not smoked since the summer of 1992 He continues to receive treatment for his smoking problem ( Since his discharge, the grievor has done some part-time work for a company that held a snow-plowing contract with the Ministry His main source of income is unemployment insurance benefits, which are scheduled to run out in August 1 993 He told the Board that his other attempts to find work in his area have failed, and that he has contacted approximately twenty-five people In a thirty-five mile radiUS of Tobermory looking for employment. He testified that most jobs in Tobermory are seasonal, and that the job market is very bleak. He testified that his wife is currently not working, although she does obtain employment in the summer The grievor testified that if reinstated, he would never do anything like this again, and that he has learned his lesson He also told the Board that If ( 9 ( .' he does not find work soon he will have to declare bankruptcy and go on welfare In cross-examination, the grievor agreed that he knew the owners of the Whispering Pines Esso Station, a husband, wife and adult son He testified that the son was a friend of his, and had been for many years The grievor testified that he was very careful about when he entered into one of his phony transactions If he thought anyone else was present, he would not do so If someone else was there he would wait until they left to fix the receipt and obtain his cigarettes The grievor testified that he would calculate the additional litres to be charged to cover the cost of his cigarettes. The grievor agreed that he knew it was wrong when he started doing it. He agreed with employer counsel that it was always his expectation that if he was caught he would be fired. The grievor testified that if he had not been caught he might have continued the thefts indefinitely, although he also saio that he might have stopped The gnevor was asked if there was anything about his smoking hc;lbit that made him steal He agreed that in 1 990 he smoked but did not steal, and further agreed that he did not steal because of his smoking addiction but to save money The grievor testified that his smoking addiction did not affect his judgement because he always knew that what he was doing was wrong The grievor was also asked some questions about his mitigation efforts He testified that he did not look for work in Owen Sound because it was seventy-five miles away He indicated that he was aware of some jobs there that he was potentially qualified for ( 10 ( In re-examination, the grievor testified that he also knew the owners of the other gas stations in town He explained that he did not look for jobs in Owen Sound because he had only one car, which his wife required, and he could not afford the cost of the commute While there were a few jobs that he was potentially qualified for, they did not pay very well The grievor testified that he does not know anyone in Tobermory who commutes to work in Owen Sound The evidence having been completed, the case proceeded to argument. Employer Argument In counsel's submission, the grievor's conduct in this case was such that he had irreparably damaged the employer-employee relationship, vitiating any possibility of reinstatement. Moreover, counsel argued, that discharge In this case was more than justified Counsel submitted a number of authorities to the Board including Re MacMillan Bloedel Ltd.. Powell River Division and Canadian Paperworkers Union. Local 76 14 L.A.C. (4th) 343 (Vickers), Re Kensington Private Hospital and Hospital Employees' Union. Local 180 29 L.A.C. (3d) 390 (McPhillips), Re Corporation of Township of Langley and CUPE. Local 403 20 L.A C. (4th) 256 (McPhillips), Re Treasury Board (Revenue Canada. Customs & Excise) and Laplante 7 L.A.C (4th) 327 (Galipeault), Re New Dominion Stores (Division of Great Atlantic & Pacific Co. of Canada Ltd.) and RWDSU. Local 414 28 L.A.C. (4th) 53 (Grant), Re Great Atlantic & Pacific Co. of Canada Ltd. and RWDSU. Local 414 23 L.A C (4th) 269 (Thorne), Canadian Railway Office of Arbitration. Case No. 2195 (unreported decision of M Picher, October 11, 1991), Canadian Railway Office of Arbitration. Case No. 2194 (unreported decision of M Picher, October 11, 1991), Canada Post and CUPW (unreported decision of Norman, ( ( \ 11 December 28, 1990), Canada Post and CUPW (unreported decision of P Picher, October 28, 1985), Boise Cascade Canada Ltd. and lAM. Local 771 (unreported decision of McLaren, June 26, 1987), Peel Board of Education and CUPE. Local 2544 (unreported decision of Brent, August 2, 1988), Canada Post and CUPW (unreported decision of Shime, December 9, 1987), Canada Post and CUPW (unreported decision of Lauzon, September 21, 1983), Bell Canada CWC. Local 26 (unreported decision of Kennedy, January 9, 1992), Rice 754/85 (Samuels), Smith 138/91 (Watters) and Elliot 10/84 (Springate) Counsel argued that these cases stood for a number of principles directly applicable to the instant case, which he reviewed with the Board First, counsel argued, the cases stood for the proposition that public employees should be put to a higher standard of ethical conduct than other employees because they occupy a position of public trust Second, even thefts of nominal amounts are regularly found to constitute a breach of trust of such significant magnitude as to warrant discharge Third, where the conduct is premeditated and of an ongoing nature, then discharge should prevail over long seniority Fourth, where the theft is the result of premeditated conduct carried on over an ex.tended period of time, the mitigating circumstances of post-discharge hardship, a prior clean record, and full remorse should- not be given any weight. Fifth, where employees in positions of trust steal, the necessity of deterrence should and must be considered by arbitration boards in reviewing the employer's disciplinary response Counsel argued that each of these principles applied in the instant case, and he illustrated all of them by making reference to the facts of the instant ( ( I 12 case as well as to the various authorities he supplied to the Board Many of these cases concerned employees discharged for theft who possessed significant seniority, good work records and various other mitigating factors Counsel pointed out that the grievor showed no evidence of any remorse to the public which had been defrauded by his conduct, and that his remorse was only expressed after he had been caught. Counsel noted that the grievor supervised other employees, and suggested that deterrence was extremely important in this case, given the fact that some 3000 employees of the Ministry possessed government credit cards Counsel requested that the grievance be dismissed Union Argument Union counsel began her submissions by noting that the union did not take issue with the facts in this case The grievor did steal, and he did so in the manner described by the employer However, counsel argued that this was an appropriate case for the Board to exercise its jurisdiction and discretion under section 19(3) of the Crown Employees Collective Bargaining Act to determine that discharge was ,excessive and to substitute some other penalty Counsel suggested that a lengthy suspension would be an appropriate penalty in this case, and she ~ited a number of cases in support of her argument including' Re Carling O'Keefe Breweries of Canada Ltd. and Western Union Brewery. Beverage. Winery & Distillery Workers. Local 287 3 L.A.C (4th) 222 (Ponak), Gutierrez 419/80 (Roberts); Haight 23/75 (Beatty), Penner 307/80 (Barton), Houle 771/83 (Brent), McWilliams 860/87 (Fisher), Heath 467/82 (Draper), Vigneux 40/81 (Draper), Intine 337/84 (Draper), Re Seneca College of Applied Arts and Technology and OPSEU 13 L.A C. (3d) 315 (Brown), Re Corporation of the County of Kent and OPSEU.) Local 132 10 L.A C (3d) 203 (Brent), Re Prince George Regional Hospital and Hospital ( 13 ( Employees' Union. Local 180 29 L.A.C (3d) 38 (Greyell), Wells 2/82 (Venty), Briscoe 491/84 (Verity), Re Ontario Produce Co.. Oshawa Foods Division of Oshawa Group Ltd. and Teamsters Union. Local 419 19 L.A C (4th) 169 (Haefling), Re Magic Pantry Foods and Bakery. Confectionary & Tobacco Workers. Local 264 10 L.A.C (4th) 327 (O'Shea), Re General Tire Canada Ltd. and United Rubber Workers. Local 536 14 L.A.C (4th) 331 (Marcotte), Re Goodyear Tire Inc. and United Rubber Workers. Local 232 18 L.A C (3d) 65 (Burkett) and Re Canada Post and Canadian Union of Postal Workers 11 L.A.C. (3d) 368 (Arthurs) In counsel's submission, this was an appropriate case to mitigate the discharge penalty for a number of reasons First, the grievor immediately admitted his theft and apologized for it. Second, he has, on his own volition and in difficult personal financial circumstances, been making restitution to the employer Third, the grievor is unemployed, and other than some seasonal work, has been unemployed since his discharge Fourth, the grievor is the main breadwinner in his family, and is responsible for the support of himself, his wife and their two children Fifth, he has been penalized sufficiently by the criminal court, by the damage to his reputation and by the lengthy period in which he has been out of work. Sixth, his addiction was in some measure responsible for his actions, and he immediately sought medical assistance and has, in fact, stopped smoking Counsel also argued that the grievor did not violate a specific trust for he was in the same situation as thousands of other employees In the alternative, counsel argued that even if he did violate a specific trust, there was case law supporting mitigation and reinstatement in such circumstances \ 14 I All of these factors, counsel argued, Indicated not only that the grievor has the potential to rehabilitate himself, but that he has in fact begun to do so Counsel argued that as a matter of law, the fact that a theft was premeditated was not reason, in itself, to rule out reinstatement, and that the interests of both parties had to be balanced in the consideration of a case of this kind Counsel argued that the employer's interests could be accommodated by a lengthy suspension, particularly since the grievor had demonstrated his willingness to change and to face up to certain circumstances and problems This willingness should, counsel suggested, be taken into account, for it demonstrates that the grievor has the ability to regain the confidence and trust of his employer In counsel's submission, this employment relationship could be repaired, and the presence of strong mitigating factors made it one where the Board should exercise its jurisdiction to assist in that process Counsel asked that the grievor be reinstated, and requested the Board to remain seized with respect to the implementation of this award Employer Reply In reply, employer counsel reviewed some of the mitigating factors relied on by the employer, and suggested that they were not as strong as union counsel had suggested For Instance, counsel noted that the grievor only confessed only when he was caught, and argued that just because an employee confessed to wrong-doing when the proof was set before him or her was not a reason, by itself, to merit mitigation of a discharge penalty Counsel referred to the anonymous letter that led to the grievor's discharge, and argued that the public has the right to expect government \ employees not to abuse their positions of trust. The grievor had, counsel argued, abused his position of trust, and none of the mitigating factors In 15 ( . this case were sufficiently strong so as to justify reinstatement Decision Having carefully considered the evidence and arguments of the parties, we have come to the conclusion that the grievance should be dismissed ( In discharge cases, boards of arbitration generally ask three questions First, was there just cause for discipline? Two, was the discharge decision an excessive response in all the circumstances of the case? And three, if dismissal was excessive, what alternative remedy should be substituted in its place? In our view, there was just cause in this case, and we have concluded that the discharge decision was not an excessive employer response Very simply, we find that the grievor committed a serious offence and we are not satisfied that this is an appropriate case to exercise our discretion to substitute some lesser penalty Before turning to the evidence and arguments in this case, it is worth noting in passing that while the authorities are often useful for the illustration of general principles, cases of this- kind will invariably be decided witr reference to their own peculiar facts Clearly, there are a number of mitigating factors present In this case When confronted with the allegations against him, the gnevor admitted them and apologized. He has been making restitution. The grievor possesses significant seniority, and his good work record was introduced into evidence The other important mitigating factor in this case is his personal financial hardship, although his post-discharge mitigation efforts ( 16 ~ "- did not strike us as significant as they might have been In addition, the grievor lives in a small community with limited employment opportunities He is the father of two young children, and was the main source of support for his family There is probably little .Iikelihood that the gnevor will repeat this offence, and we have no doubt, to cite his own eVidence, that he has learned his lesson His efforts to deal with his smoking problem are worthy of note However, this case does not involve a single aberrant act of theft explainable by some mitigating factor present at the time of the thefts Indeed, this is not a case involving a totally uncharacteristic one-time, never repeated incident. It does not even involve a pattern of conduct that can be characterized as aberrant behaviour attributable to some mitigating factor like alcoholism, substance abuse or mental distress Rather, the evidence in this case reveals a pattern of conduct carried out over an extended period of time, involving at least one other person, deliberately I engaged in to save the grievor money and defraud the people of Ontario. The grievor knew at all times that what he was doing was wrong, but he continued to do it. He stopped only because a member of the pubHc witnessed his thefts and brought them to ~he attention of the authorities The mitigating factors in this case must be weighed against his offence and his own evidence that he knew throughout the time he was committing thiS offense that he was doing something wrong, and that if caught, discharge was the likely result. He was caught, and we can see no compelling reason, on the facts of this case, to interfere with the result given the amount involved, the extended period in which the thefts took place, the breach of his position of trust, and the need for deterrence While we have 17 ~) I~ compassion for the circumstances that the grievor now finds himself in, we cannot conclude that the penalty was excessive and that thIs is an appropriate case for us to exercise our jurisdiction under the Crown Employees Collective Bargainmg Act to substitute some lesser disciplinary sanction Accordingly, and for the foregoing reasons, the grievance is dismissed DATED at Toronto this 6th day of May 1993 J!J I~ - ~-------------- William Kaplan Vice-Chairperson I dissent, without written reasons. ----------------- S Urbain Member q q fEA~ --------------- F Collict Member - -