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HomeMy WebLinkAbout1992-3814.Dain.94-12-13 r /.i. ONTARIO EMPLOYESDE LA COURONNE CROWN EMPLOYEES DE L'ON TA RIO 1111 GRIEVANCE CpMMISSION DE SETTLEMENT REGLEME\NT BOARD DES GRIEFS 180 DUND:; STREET WEST SUITE 2100, TORONTO, ONTARIO, MSG IZ8\ TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUReAU 2100, TORONTO (ONTARIO) MSG 1Z8 FACSIMILE /TELECOPIE (416) 326-1396 -- -' 3814/9-2 IN THE HATTER OF AN ARBITRATION I ) Under THE CROWN EKPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN v OPSEU (Dain) Grievor - and - The Crown in Right of ontario (Ministry of Education) Employer BEFORE M. Gorsky Vice-Chairperson ) FOR THE G. Richards GRIEVOR Grievance Officer ontario Public Service Employees Union FOR THE D. Costen EMPLOYER Counsel Legal Services Branch \ Management Board Secretariat HEARING August 30 & 31, 1994 ( October 18, 1994 December 1, 1994 " I ( ( D E CIS ION -- On January 4, 1993 the Grievor, Margaret Dain, was appointed (effective January 11, 1993) to the posItion of Industrial Trainlng Consultant ("ITC") by the Ministry of Skills Development, her appointment to the position being with the Apprenticeship & client I services Branch, Belleville office. The a.mended advertisement ) position 2) , for the (Exhiblt "- indicated that it was a restricted competition with the area of search being within 40 km. of the Belleville office. The Grievor, although she was aware of the area of search restriction, applied '"" Kingston, for the position while living ln which is beyond the \ search area. In the notatlon of change to the posting, the following statement appeared "Due to the current external staffing ) restrictions, these competitions [which included the one before the Board] have now been design~ted as . restricted. " (Emphasis in original) -, In her resume (Exhibit 5 ) which was enclosed with her application (Exhibit 4), the Grievor showed her address to be P.O Box 1239, Picton, Ontario, which lS within 40 kilometres of the Belleville office. I \ The only reason given by the Grievor for misrepresenting her place of residence was that 'she had been told by fellow employees in the Kingston office of the Human Rights Commission, where she ) . . ( ( 2 had been employed from September of 1986 to the time of her .- appointment to the position with which I am concerned, that they were aware of examples of individuals who had applied for positions in restricted area of search competitions who actually lived J outside of the area of search, where the restrictions appeared to have been overlooked. She was also led to believe by her fellow employees ~t the office of the Human Rights Commission in Kingston that the Employer did not regard area of search restrictions as .J being too important. She also stated that she had an intense desire to advance her career, and the posslbil1.ty of doing so by obtaining a position as an ITC was so attractive to her that it overcame any ,misgi vings she might normally have about misrepresenting the true facts. As matters transpired, the Grievor was the only applicant who appeared to reside within the restricted area of search, and she was ultimately appointed to the position. ( On February 24, 1993, the Grievor was lnterviewed at Belleville by Lionel Sauve, District Manager, Eastern District and Philip McDonell, Assistant Manager, Eastern District, with a view to having her provide the Employer with proof of her res~dence when she applied for the competition which led to her appolntment. At that time, Messrs Sauve and McDonell had received information from the Human Resources Department about the Grievor's actual place of I . ( ( .j , 3 I residence at the t1me she applied for the pos1tlon and these - allegations led to the decision to conduct the interview. -- --- ,.,-, Mr. Sauve prepared a report of the interview, on the day it was held, which he sent, on the same day, to Helmut Zlsser, Director, -' Apprenticesh1p Branch. I am satisfied that the report is accurate, there being no significant difference taken by the Grievor to its contents when she testified The report 1S as follows (Exhibit 12) REPORT ON INTERVIEW WITH MARGARET DAIN, INDUSTRIAL ~ TRAINING CONSULTANT, BELLEVILLE, ONTARIO Interview held at Bellev11le, Ontario Februar~ 24, 1993, conducted by Lionel Sauve, District Manager and Philip McDonell, Assistant Manager Eastern District. Ms. Dain was informed that the purpose of the interview was to inform her of allegations that had been received regarding her place of resident at the time she applied for compet1tion #SD-71-93 which was restricted to a radius of 40km. of the Belleville field office. Ms Dain was informed that if she felt she needed an OPSEU representative present with her she was free to ask for one, to whic}:l she replied she d~d not feel it was _ necessary. Mr Sa"uve asked Ms Dain what was her address when she applied for the position and what is her present place of ~ residence, to which she replied Picton She was then asked about the allegations that she 1S a resident of Kingston, to which she replied that she used to live in Kingston but moved to Picton. Mr. McDonell then asked her for her driver's license, when asked how come her license had a Kingston address, she responded that she had not yet completed a change of address She was then asked to explain the following discrepancies - her C.V when applying for the position had a Picton P.O. Box number and a Picton telephone yet when she filled out her Employment Status form she gave a Picton address but a'Kingston telephone number, to which she replied "I don't know" I . ( ( 4 - her January travel claim had a Picton address and '- attached to her claim her Hotel invoice had 234 Chelsea Rd Kingston, to which she replied "I don't know" . - -.~ - Ministry mail sent to Picton lS returned no such address [sic] she replied that she was receiving some mail so she cannot explain why mall 1S being returned. Ms Da1n was again asked if her place of resident [sic] is Picton to which she again replied yes [ sic] . She was then asked if she could provide us with documentation to support this, like a copy of her lease, cancelled cheques or if we could verify if the Picton Box number and telephone number are in her name, to which she responded that her rental arrangements are kind of informal and that she never had the P.o. Box or Telephone Number changed to her name When asked who these numbers belong to, s~e repl1ed that the P.o. Box belongs to Tanis Crowe whom she used to work with at Human Rights and the telephone number to Desmond McGarry Crown Attorney Wh1Ch 1S [sic] Ms. Crowe's partner Mr Sauve then suggested that a letter from Mr McGarry and Ms Crowe attest1ng that she was renting their house ln Picton would be suff1clent proof. She was not sure she could get such a letter because as she said before their arrangement is quite informal. Mr. McDonell then asked Ms. Dain to describe her Picton home and gl.ve us the address, she then described the property but did not know the address as it was located on a little side road. Mr Sauve then suggested that we should drive over to her Picton house and this at least would give us some proof that she ;is living in Picton. Ms Da'in then requested the presence of her OPSEU representative To [sic] which Mr. Sauve agreed. Ms. Dain then contacted Mr. Martin A Sarra, OPSEU Staff representative for ~egion 4. Mr Sarra was briefed by Ms. Oain and met with us to review the situation. Mr. Sarra started by explaining that times are difficult and opportunities scarce so possibly Ms Dain was a little "bit creative" when applying for the position and if this was our only concern, her place of residency ~hen she applied for the job and not where she is now living, possibly we could resolve this misunderstanding Mr. Sauve then mentioned that it his [sic] crucial that her lmmediate address also be identified, since he had Ms. Dain's February expense claim, which [sic] she is charging travelling expenses \ . ( ( 5 (kilometres) from Picton to the Kingston field office. -- Mr. Sarra then asked if this was the only expense clalm that she had submitted Mr. Sauve informed Mr. Sarra that tW9 other claims had been submitted and approved in January also indicating travel expenses from Picton Slnce thlS was new information that he was not aware of J he wanted to meet privately with Ms Oain. Mr. Sarra and Ms. Dain then joined us to contlnue our meeting and suggested that the travel claim should not be approved and that Ms. Dain would resubmit a new claim and that her other claims submitted were done so to substantiate her place of residence and for no other reasons. He also suggested that in my report I should indicate that Ms Dain is a young person and that we all make mistakes and that she ha.s been a faithful public servant with the Ontario Human Rights Commission since 1986". Ms. Oain was informed that Mr. Sauve would report to the Director, Apprentlceship Branch and determine what disciplinary action would be taken and that until this is determined she should not report to work to the Bellevice office and she then admitted that if we wanted to reach her she would be at her home in Kingston After the meeting of February 24, 1993, Ms. Dain sent Mr. Sauve Exhibit 14, which is in the form of an undated lease between a Leo Labelle, referred to as the "Lessor" and the Grievor, referred to as the "Lessee." The lease is with respect to premises at 316 Bleecker Avenue, Bellevllle ontario and is stated to be for a one year period from October 1, 1992 to October 31, 1993. The rent payable is shown to be $500 a year and the lease bears a I i signature "Leo Labelle." It also bears the Grievor's signature in I the space for the tenant's acknowledgement of receiving an original copy of the lease, although the date of receipt was not filled in Ms. Dain stated that the lease was prepared after the February 24th meeting and backdated. This was done on the advice of her father . \ \- ~ 6 1 who was informed by her of what had transpired as a result of the - above noted meeting. The lease was/ said to have been arranged by her father, the "lessor" being a fr["end-oT his. -...=-~ ,- She testified'that, if necessaary, she could have moved into the II leased" prem1ses in Bellville, which 1S comprised of a separate building proximate to that occupied by Mr. Labelle. She did not explain to Mr Sauve or to Mr. McDonell that the lease was backdated, nor did she glve any indication that she was not then living in the leased prem1ses \ At the same time as she furnished the lease with Mr. Labelle, Ms. Dain also provided Mr. Sauve with a driver's licence (Exhibit 12) showing her address to be 316 Bleecker Av~nue, Belleville Ontario. Her explanation for doing this was that she had, 1n the past, changed her address on her driver's licence prior to actually effecting a move. The lease and driver's 11cence were submitted in an attempt to ) persuade the Employer to permit her to continue in her employment. Mr Sauve testified that the position of Industrial Training ( \ Consultant required an incumbent to work alone ahd without supervision for about 90 per cent of the time. He emphasized that an ITC could have access to Ministry exams to be administered to such persons as apprentices and that it was of the utmost / . . ..r - -- \ \ J ( 7 importance that an lTC's supervisor have complete trust in him or her. He also descr1bed a number of other matters associated with the position that reinforced the high degree of trust that-was expected of an incumbent In his letter of February 24, 1993 to Mr. Zisser, Mrr Sauve indicated that in h1S opinion the Grievor could not "hold the trust of her supervisor" and he recommended "that the competition for wh1ch she was the successful candidate be cancelled" that it be re-advertised and "that [Ms. Dainl not be allowed to compete II I On March 3, 1993, J.B. Hansen, Executive Director Finance and , \ Administration, Ministry of Skills Development, wrote to the Grievor as follows It has been brought to my attention, following an investigation by senior management; that you have falsified your application for competit1on SO 71/93 - Industr1al Tra1ning Consultant 1n which you were the successful candidate. The area of search was restricted to within 40 km. of the Belleville office. The results of the investigation uncovered the information that your principal res1dence 1S in Kingston, Ontario, which 1S beyond the 40 km. restriction. Therefore, you were ineligible for cons1derat1on 1n this compet1t1on The 1nvestigation also revealed that you had submitted false travel expense claims. Under the circumstances, I concur with the Director's decision, that your behaviour warrants d1smissal. In accordance with the authority 'delegated to me under the Public Service Act, Section 22 (3), I dismiss you from emplo~ment, effective March 5, 1993. As of this date, you will cease to be an employee of the Ministry of Education & Training - Skills Development Department. You are requ1red to repay monies received as a result of falsified expenses claimed during your period of . ( ( J . 8 employment with the ministry. Any monies OW1.ng to you - will be forwarded to you at the above address. Please be advised that you haY_e_ the right to file a grievance at the second stage 1.n accordance with the Collective Agreement, Art1.cle 27 8 2 \ The Grievor filed a grievance (Exhibit l) on March 5, 1993, 1.n wh1.ch he asked to be reinstated to her former pos1.tion w1.th full redress. " As counsel for the Un1.on acknowledged, this is not a case where aiscipl1.ne is unwarranted; the only quest1.on being whether, in all the circumstances, the penalty ought to be ameliorated. i Counsel for the Grievor, while acknowledging that the ITC , position was one that imposed a great deal of trust 1.n an 1.ncumbent, submitted that all positions within the Public Service were positions of trust Although, I agree with counsel that that 1.S the case, the ITC posit1.on requires an incumbent to display a particularly high degree of trustworthiness. This is especially true where an ITC operates without immediate supervision, as was the case for the Grievor ( This is an especially sad case because the Grievor, prior to the incidents that led to her dismissal, appears to have been an exemplary employee when she worked with the Human Rights Commission r 1.n Kingston The evidence also disclosed that she is a person with . \ \ 9 a highly developed social conscience who has devoted considerable - . time to public service i - .- The eVldence also disclosed that the Grievor was very highly regarded by those persons she worked wlth in her previous positlon with the Human Rights Commission, where she had demonstrated a willingness to take on lncreasingly more responsible work which she apparently carried out to the stisfaction of her superiors. r- The Grievor has contlnued her formal educatlon and has \ successfully completed a numnber of university courses In addition, she quickly took steps to repay the money improperly received by her for invalld travel claims when requested to do so. Counsel for the Grievor persuasively argued that I should view her actions ln the context of her total career and regard the incldents that led to her termination as representing an aberration that was totally out of character with her past and present behaviour He characterized the Grievor's actions as being mlstakes that could, in part, be attributed to her understandable desire to improve her vocational position and to a certain momentary loss of judgement based on her youth (the Grievor is now ln her early 30's) In all of the circumstances, I was asked to . -- c C I 10 reduce the penalty and find some means of return1ng her to some -- employment with the Emplqyer, not necessarily as an lTC. - Counsel for the Grievor asked me to view the fals1ficat1on of ( claims r dilemma faced by the travel expense 1n the context of the ) Gr1evor~ She had represented herself as living in Picton and not - 1n Kingston It was subm1tted that she ,was concerned that any failure on her part to submit travel cla1ms that would be expected of her as a "res1dent" of Picton would arouse suspicion. Her filing the claims was said to be not for the purpose of obta1ning money she was not entitled to but to avoid, detection of her original subterfuge. \ Although I have a great deal of sympathy for tne Grievor, it 1S very difficult for me to overlook certain facts that mil1tate against any reduction of the penalty. I cannot regard the Grievor's actions as mere youthful folly based on inexperience. She had had cons1derable experience working as a public servant while employed by the Human Rights Commiss1on in Kingston. It 1S unfortunate that she was swayed by suggest10ns made to her that there was nothing very wrong 1n misrepresenting her place of residence. I' believe that she knew it was very wrong but was willing to take a chance ln order to achleve advancement ln her career. The matter being a subject of agreement between the Union and the Employer, I cannot overlook the serlousness of misrepresenting a place of residence in order to further one's \ . I ( \. j "- 11 ) " ( justifiable ambition Although Mr. Richard's presented' an -- attractive argument that the submission of the travel claims should not be regarded as a separate incident of misrepresentation but merely a continuation of the f1rst one, I must conclude otherwise Before returning the Gr1evor to an ITC position, I would have I to be convinced that her behaviour was truly an aberration, and I would have to have great confidence that she would not breach a trust in the future In look1ng at the evidence that is~germane to the issue of whether the penalty should be atnel iorate1d, I have taken into consideration the past good record of the Grievor, includ1ng her record of public service. Although this past record 1S a good one, I must view it along side of the Grievor's continu1ng actions that I can only regard as being part of an ~ effort to mislead the Employer. I realize the present desperation of the Gr1evor who now no longer has her position with the Human R1ghts Commiss1on nor her position as an lTC, and who is without full-time work. I believe thatlshe genuinely is of the view that she can be trusted and that she has learned from h~r mistakes. I must, however, consider her subsequent acts of prepar1ng a backdated lease which was submitted in a manner which was, at best, equivocal It could be regarded as an attempt to persuade the Employer that she always had a residence within 40 kilometres of; Belleville I am also not persuaded that her changing the address on her driver's licence was as innocent an action as she represented. . ~ C"''' \~;~:~i- ., ,;'''~'..d. ";,'""':r. I I 12 In reviewing factors that bear on the amelioration of a I "- penalty, it is possible to look at matters which could not serve as a basis for discipline There was placed ln evidence before me the fact that the Grievor had indicated that she had travelled to Cobourg to attend a meeting and did attend a meeting \ on February 10, 1993 In evidence she acknowledged that she had not attended the meeting She explained the recording of attendance at the meeting as being ln error, arising out of the fact that she had a practice of making entries based on what she expected to do and when she came to si9n the record some time later, did not observe the incorrect entry. I have some difficulty in accepting the Grievor's explanation. Unfortunately, the series of actions which inculpate the Grievor ~re of such magnitude that I am unable to \ \ come to a more benign conclusion. If there were some less sens1tive position to wh1ch the Grievor could be assigned, I would give serious consideration to reducing the penalty by ordering that she be assigned to such position. I am informed that no such position exists and I am also unable to accept the submissions of Mr Richards that I should : I resort to and adapt the provisions of s 24 of the collective agreement to fit the circumstances of the Grievor. I have examined the provisions of that article and am unable to find a basis for utilizing it in the circumstances of this case. , . !" ('- ~t;~ ,0, - 13 As I have previously stated, this 1S a very sad case and I ~- wish that I could find a basis for arrivipg at a different result th~ - because I believe that Grievor has a good deal of potential I which will now be lost to the Employer. Accordingly, and for all of the above reasons, the grievance is denied. I would note that by agreement of the parties this matter was heard before me as a s1ngle arbitrator. :~, ~ Dated at Toronto this J3th day of December, 1994. l ) M ~";JI.- ""~. R. Go~sky - Vice C 1rperson I . ~-"'1