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HomeMy WebLinkAbout1999-1222.Lewis.01-02-15 Decision o NTARI 0 EMPLOYES DE LA COL'RONNE CROWN EAIPLOYEES DE L 'ONTARIO -- GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONE/TELEPHONE, (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 128 FACSIMILE/TELECOPIE. (416) 326-1396 GSB#1222/99 OPSEU#99E119 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano Pubhc ServIce Employees Umon (LewIs) Gnevor - and - The Crown m RIght of Ontano (Mimsm of EducatIon and Trammg) Employer BEFORE RandI H. Abramsk.~ Vice Chair FOR THE George RIchards GRIEVOR Gnevance Officer OntarIO Pubhc ServIce Employees Umon FOR THE Ben Ratelband, Counsel EMPLOYER McC arth, Tetrault Barnsters and SohcItors HEARING Februan 17 2000 Ma, 12,2000 Ma, 23 2000 August 14 2000 September 26, 2000 December 22, 2000 AWARD On August 17, 1999, the gne\Or, Mr Earl LeWIS, was dIscharged by the Mimstry of EducatIOn and TramIng. He was dIscharged for sohcItmg donatIOns from pnvate companIes on behalf of the Mimstry and a chantable orgamzatIOn, the ChIldren sWish FoundatIOn, then expropnatmg the donatIOns for personal use At Issue IS whether the gnevor was dIscharged for cause, or whether another penalty should be substItuted as Just and reasonable m all of the CIrcumstances Facts On August 17, 1999, the gnevor was handed the follOWing termmatIOn letter August 17, 1999 Mr Earl LeWIS Dear Mr LeWIS It has come to my attentIOn that you have soh cIted pnvate compames for chantable donatIOns. The letters requestmg the donatIOns were wntten on the former Mimstry of EducatIOn and TramIng letterhead. These soh cItatIOns were for the purported benefit of a well-known chanty The Chanty has confirmed that you are not actmg on theIr behalf. You then expropnated the donatIOns for your own personal use Pursuant to SectIOn 22(3) cf the Public Sen1ice Act, thIS Will adVIse you that you are hereby dIsmIssed from your employment as a Leamer ServIces Officer With the Mimstry of EducatIOn, effectIve August I1h, 1999 The fact that you have mIsrepresented yourself, on behalf of the Mimstry and the Chanty, to these pnvate busmesses, for your personal finanCial gam, constItutes senous mIsconduct and IS a breach of the trust placed m you by the Employer Furthermore, your actIOns had the potential to cause senous damage to the re putatIOn of the Mimstry of EducatIOn. After 2 careful consIderatIOn, I have decIded to dIsmIss you for all of the above reasons Smcerely, Victona McArdle Actmg DIrector, Independent Learnmg Centre The eVIdence, most of whIch was not dIsputed, overwhelmmgly shows that dunng July 1999, Mr LeWIS sohcIted chantable donatIOns of passes or tIckets from pnvate compames - Niagara Hehcopters, Maid of the Mist and WhIrlpool Jets - on behalf of the Mimstry and the ChIldren s Wish FoundatIOn whIch he mtended to use dunng hIS famIly vacatIOn m Niagara Falls He would first call these companIes from work to SOhCIt donatIOns on behalf of the Mimstry and then would follow- up by letter, on Mimstry letterhead, usmg hIS tItle as "Leamer ServICes Officer", and fax them from the Mimstry s fax machme A typIcal letter IS the follOWing one to Whlflpool Jets July 20, 1999 Ms MamIe Klose WhIrlpool Jets Niagara-on-the-Lake Dear Ms Klose RE COMPLIMENT ARY TICKETS Further to our telephone conversatIOn of thIS afternoon, please accept thIS letter as a request for a FamIly Pass on your excItmg nde As I mentIOned to you, we have a fund-raiser each year With all left over proceeds gomg to the ChIldrens Wish FoundatIOn. 3 If you have any questIOns please call me at 416-325-4373 Would you please call to confirm receIpt of thIS request. The tIckets are raffled off and the lucky WInners venture on your nde I presume the WInners wIll be there eIther Monday July 26 or Tuesday, July 27, 1999 As per your InstructIOns, they Will phone In advance for reservatIOns Respectfully, Earl CLeWIS Leamer ServIces Officer Mr LeWIS acknowledged, on both examInatIOn-In-chief and cross-eXamInatIOn, that there was no "fund raIser each year With all proceeds gOIng to the ChIldren sWish FoundatIOn" and that no tIckets were to be "raffled off." The tIckets were to be used by hIS family whIle on vacatIOn. On July 21, 1999, a SImIlar letter requestIng a "Comphmentary FamIly Pass" was sent to Niagara Hehcopter statIng that "[e]very year at the Mimstry we have a fund raiSIng event With all momes collected gOIng to the ChIldrens Wish FoundatIOn." It was hoped "we can count on your firm s generous support." A SImIlar request was made to the Maid of the Mist Steamboat Company The Mimstry first became aware of these letters when Ms. Ana PIerce of Niagara Hehcopters called the Mimstry to InqUIre If Mr LeWIS was connected to the ChIldren s Wish FoundatIOn. She had found It SUSpICIOUS when Mr LeWIS called to pIck up the tIckets hImself, saYIng he had made a donatIOn to the ChIldren s Wish FoundatIOn for 4 them, when hIS letter had said that the tIckets were to be raffled off. Ms. PIerce was adVIsed that neIther the Mimstry nor Mr LeWIS had any connectIOn to the ChIldren s Wish FoundatIOn. The Mimstry s Fact-FmdIng Report, whIch the partIes agreed would be admItted mto eVIdence for the truth of the matters asserted, states that on July 26, 1999, Mr LeWIS called Niagara Hehcopter and spoke to Anna PIerce He told her that he was callmg from WhIrlpool Jets and asked If he could come over and pIck up the tIckets that had been donated. Ms. PIerce told hIm that the tIckets had already been mailed to hIm at the Independent Learnmg Centre (ILC), but that she would leave a set of tIckets at the hehport for pIck up later that day She then asked hIm whether there was someone at hIS office she could contact to get back the tIckets that had been mailed there He rephed, "No, they wouldn t know <bout thIS They were not mvolved m It. BesIdes, I have already bought the tIckets and sent the money to the ChIldren s Wish FoundatIOn." The tIckets to Niagara Hehcopter were mailed to the ILC and arnved after he had left on vacatIOn. Mr LeWIS never came to pIck up the tIckets at Niagara Hehcopter The value of the tIckets was $228 00 Dunng the mvestIgatIOn meetmg With the gnevor on August 17, 1999, the gnevor stated that" I felt sure that gIven the SItuatIOn at WhIrlpool Jets that I dIdn t even attempt to pIck up the tIckets." Later, at the same meetmg, he stated that he "asked my Wife If she wanted to go on the nde She SaId sure, but I dIdn t go because of the problem earher m the day at WhIrlpool Jets" 5 On July 26, 1999, Mr LeWIS had regIstered hImself for a nde on WhIrlpool Jets. Later that day, however, Ms. Klose receIved a telephone call from the Mimstry about Mr LeWIS request and when he, and hIS party of four, arnved Ms. Klose pulled hIm aSIde and told hIm that the tIckets were not for hIS use but were mtended for the Winner of the Mimstry s fund- raiser She told hIm that smce the tIckets were not bemg used for the fund-raiser they were not vahd and were beIng VOIded. Mr LeWIS rephed, "I bought them" to whIch she rephed, "no, you couldn t have" but she offered hIm dIscount tIckets available to the pubhc She told hIm, "you can eIther pay for them now or we 11 see that you don t get on the boat for the tour" Mr LeWIS paid for the dIscounted tIckets and hIS party went on the nde. The value of the comphmentary tIckets that Mr LeWIS had requested was $214 00 The eVIdence further shows that Mr LeWIS receIved a comphmentary famIly pass to the Maid of the Mist, whIch he and hIS family used on July 26, 1999 The value of these tIckets was $170 40 The eVIdence IS clear that m phone calls and letters to these companIes, the gnevor mtentIOnally mIsrepresented the purpose of the request for a donatIOn, mIsrepresented the Mimstry s mvolvement and that of the ChIldren s Wish FoundatIOn. He Improperly used hIS pOSItIOn as a Leamer ServIces Officer and the name of the Mimstry as well as that of the ChIldren s Wish FoundatIOn to obtam comphmentary passes to ndes and attractIOns for hIS own personal use 6 Throughout the InVestIgatIOn and at arbItratIOn, the gnevor mSIsted that what he dId was not wrong because he "would have sent money to the Children sWish FoundatIOn." Had he used or sold the tIckets he would have sent money - that was hIS Intent all along. He stated that It was never hIS mtent to cheat anyone He stated that m the past, when he had sold a donated Item, he would make a donatIOn to the ChIldren s Wish FoundatIOn. He made these donatIOns anonymously, through money orders, and had no records or receIpts to substantiate them. He could not recall dates or amounts When the Mimstry first learned about thIS SItuatIOn, It contacted the Duector of the ChIldren s Wish FoundatIOn, Kathy WismeskI. On August 6, 1999, she confirmed m wrItmg that "we have no record of receIvmg funds or confirmatIOn of a fundraIser bemg held by the Mimstry or Mr Earl LeWIS m support of the Children sWish FoundatIOn." At the arbItratIOn heanng, Ms WismeskI testIfied to the same effect. There was no record of any donatIOns made by the gnevor or record of an approved fundraIsmg event. She testIfied that the ChIldren s Wish FoundatIOn was very concerned about what had occurred because of the value of ItS good name and reputatIOn. In her VIew, donatIOns were made by these companIes because of the Mimstry s mvolvement and that of the ChIldren s Wish FoundatIOn. She was concerned that the people mvolved, havmg been mIsled once, would be wary of donatmg agam to theIr cause On August 17, 1999, the Mimstry held an InVestIgatIOn meetIng With the gnevor and hIS Umon representatIve At that meetmg, the allegatIOns concernmg Niagara 7 Hehcopter, WhIrlpool Jets and Maid of the Mist were conveyed to the gnevor, and he was provIded With an OppOrtunIty to respond and explaIn what occurred. At that meetmg, the gnevor was not fully candId or forthcommg. He was speCIfically asked whether he receIved passes to Maid of the Mist for 1999, and he responded. "No I never receIved or used the passes fIT 1999" In fact, the daily log for July 26, 1999, less than three weeks earher, showed that he and hIS famIly used four comphmentary passes on the Maid of the Mist. When confronted With thIS, he responded. "Yes. I dId use them - comphmentary passes. I Will send a donatIOn to the ChIldren s Wish FoundatIOn now" The gnevor was also asked. "Have you wntten any other letters to SOhCIt for chantIes at the ILC or elsewhere')" The gnevor responded. "Yes, probably at OT AB I'd have to go back and thmk about It. I can t thmk I know I got passes from Wild Water KIngdom and m 1999 I got tIckets from them agam, m May" He was also asked whether he sent out emaIls about these tIckets, to whIch he responded "no" Shortly thereafter he was asked whether he had anythIng to add, and he responded as follows I've worked for the government for thIrteen years I've always tned to help With federated health, social commIttees, Umted Way I've always been honest. I'm apologIzmg. I've never tned to cheat anyone I had a lack of Judgment. I'm a famIly man, marned With two chIldren. I'd never JeopardIze my career I'll cooperate m any way possible The unIon told me to cooperate and tell everythIng I know At the conclUSIOn of the mvestIgatIOn meetmg, the Mimstry dIscharged the gnevor Victona McArdle, then ActIng DIrector of the ILC, testIfied that the deCISIon to 8 termInate was based on a number of factors - the senousness of the gnevor s mIsconduct, the fact that It was repeated rather than Isolated, the fact that Mr LeWIS contmued sohcItmg m thIS manner even after bemg warned not to do so, the fact that he was not forthnght and hed dunng the mvestIgatIOn meetmg, the fact that he offered no explanatIOn for hIS actIOns nor de monstrated true remorse Based on all of thIS, she felt that the trust placed m hIm had been destroyed. In hght of the gnevor s comment about the Wild Water KIngdom, the Mimstry conducted a further mvestIgatIOn, whIch revealed several addItIOnal mCIdents of Improper soh cItatIOn of comphmentary tIckets on behalf of the Mimstry for a chanty event. ThIS "after-acqUIred" eVIdence was admItted mto eVIdence, pursuant to an earher rulmg, as relevant to the proceedmg, With the partIes to argue regardmg what weIght, If any, to gIve to It. 1 Wild Water Kmgdom The mvestIgatIOn revealed that Mr LeWIS had sought and receIved three comphmentary famIly day passes to Wild Water Kmgdom m Apn11999, valued at $22740, and receIved passes m 1998 as well. It was learned that ongmally one pass had been sent to hIm m 1999 and that he requested two addItIOnal passes to be used for "staff and volunteer mcentIves " It was also dIscovered that m May 1999, contrary to hIS assertIOn at the InVestIgatIOn rreetIng, he sent emaIls to staff members offenng to sell the passes at a dIscounted pnce The tIckets were not sold and on September 11, 1999 - after hIS dIscharge - the gnevor returned the tIckets to Wild Water KIngdom, statmg that "[y]ou 9 were kmd enough to donate these to the Mimstry of EducatIOn and Trammg but we were not able to use them." 2. Dresses for Humamty The mvestIgatIOn further found that on September 2, 1998, Mr LeWIS wrote to the Hudson Bay Company, on Mimstry letterhead, requestIDg five tIckets to the Dresses for HumanIty event. That letter states, In pertInent part, as follows September 2, 1998 Ms. L. Carter The Hudson Bay Company Dear Ms Carter RE DRESSES FOR HUMANITY I am wntmg to you at thIS tIme on behalf of the Mimstry of EducatIOn & Trammg, The Independent Learnmg Centre With a donatIOn request. Every summer we have a pIcmc and fund raIsmg for the "ChIldren sWish FoundatIOn" The employees of thIS branch are very eXCIted about Pnncess DIana s dresses and we are hopmg that you could count on your generous donatIOn of 5 tIckets to the above event. We would raffle the tIckets off to the hIghest bIdder and all momes raIsed would be sent to the "ChIldren s Wish FoundatIOn" and The Hudson Bay Company would be noted for sendmg us the tIckets In the past we have receIved tIckets from "The Ontano SCIence Centre", "Paramount Canada s Wonderland", "Manneland" and the "Maid of the Mist" m Niagara Falls If I can answer any questIOns you may have, please feel free to contact me at 416-325-4373 Respectfully, 10 Earl CLeWIS Leamer ServIces Officer Upon receIpt of the tIckets, the gnevor sent out e-maIls to staff, statmg that the Hudson Bay Company had donated some passes to the show of Pnncess Diana s dresses. He stated that the pnce for each pass IS $13 00 "but I would hke to raffle them off, With the proceeds gomg to the ChIldren s Wish FoundatIOn." When one employee responded that she would hke to buy a raffle tIcket, the gnevor responded as follows I shouldn t have used the word "Raffle" We Wish to sell the tIcket for the $13 00 whIch they are pnced at and I Will send the money to the "ChIldren s Wish FoundatIOn." If you are stIll mterested please Just bnng the money and I Will gIve you a tIcket. There was no annual pIcmc and no raffle nor was a raffle ever Intended. 3 Canada s Paramount Wonderland The InVestIgatIOn found that on Apnl 28, 1998, the gnevor requested a famIly season pass to Canada s Paramount Wonderland. On Mimstry letterhead, the gnevor wrote, m pertment part, as follows I was hopmg to obtam a FamIly s Season Pass for one of our student/students as an A wardIReward for some student or students who are deservmg of same I am sure you Will agree that sometIme a httle reward proVIdes great mcentIve and a pass as suggested above would do wonders for a student s ambItIOns. 11 Ongmally, Mr LeWIS requested two passes but later called Wonderland to request four passes Four passes were sent to Mr LeWIS at the Independent LearnIng Centre There IS no "Award/Reward" for deservmg students WIthm the ILC 4 SPIce GIrl Tickets. Also m Apnl 1998, Mr LeWIS requested three comphmentary tIckets to the SpIce GIrlS concert that was to be held at the Molson s AmphItheatre m July 1998, "to be used as an mcentIve or award to certaIn students." AccordIng to the Fact-Fmdmg Report, Mr LeWIS told Michelle Magder who was responsible for group tIcket sales With Umversal Concerts Canada, the company that operates tre Molson AmphItheatre, that he was requestmg the tIckets for a chantable cause to help out underpnvIleged school chIldren m the school system. She mformed hIm that the concert was sold out and she could not gIve hIm comphmentary tIckets, but she agreed to order hIm three tIckets and to Waive the normal admInIstratIve fee of $15 00 per tIcket due to the cause The nckets were paid for by Judy LeWIS, the gnevor s Wife The tIckets were used by the gnevor s chIldren. On June 17, 1998, the gnevor wrote to Ms. Magder, on Mimstry letterhead, that "[o]n behalf of the Mimstry of EducatIOn and Trammg, The Independent Learnmg Centre, I am wntIng to thank you very much for all your tIme and efforts m obtammg the SpIce GIrl TIckets." He contmued. "I am sure the chIldren who Will receIve these tIckets would hke to thank you personally but we thought It better If I dId." 12 There IS only one example of a donatIOn to the ChIldren s Wish FoundatIOn m relatIOn to a pass sold by the gnevor The gnevor had stated, dunng the InVestIgatIOn meetmg, that he sold one of the 1998 Maid of the Mist passes to a c(}worker, Sherry SmIth, at the face value of the pass. In January 1999, the ChIldren s Wish FoundatIOn receIved a cheque from Sherry SmIth for $35 00, an amount less than the face value of the pass. The gnevor had no recollectIOn of what happened to the other passes that he receIved m 1998, although he recalled that he dId not sell them. The gnevor testIfied that the Impact of hIS dIscharge has been devastatmg. He IS 56 years old and has a hIgh school educatIOn. He has been unable to find work, leaVIng hIS Wife as the sole support of hIS famIly He has one adult daughter and two mInor children, and hIS termmatIOn has caused a great deal of stress and dIfficultieS With the famIly At the tIme of hIS dIscharge, the gnevor had worked for 13 years With the government. He worked as a Leamer ServIces Officer With the Independent LearnIng Centre (ILC) The ILC pnmanly serves as a correspondence school for approxImately 30,000-40,000 adult students trymg to obtaIn a secondary school dIploma. Staff prOVIdes the pubhc With mformatIOn about ILC servIces and programs, process apphcatIOns for course enrolment and ensure course reqUIrements and prereqUISItes are met, and update student records Includmg lesson and test results as well as Inventory (course matenal) loans and returns 13 Accordmg to Ms. McArdle, the posItIOn of Leamer ServIces Officer, whIch IS not closely supervIsed, offers a number of opportumtIes for an employee who seeks financial gam. GIven the Importance of a secondary dIploma, ehgibIhty reqUIrements mIght be overlooked to gam enrollment, lost matenals mIght be "found", deadlmes mIght be extended and so forth. The gnevor s work record was dIscIplme-free, but m the Fall of 1998, Mr LeWIS was speCIfically warned by the DIrector of the ILC, Paul Raymond, not to SOhCIt chantable donatIOns on Mimstry letterhead. Mr Raymond testIfied that m the Fall of 1998, someone found at the fax machme a copy of a letter wntten by Mr LeWIS, on Mimstry letterhead, addressed to the Raptors sohcItmg basketballs to be auctIOned off at an ILC pIcmc With the proceeds to go to the ChIldren s Wish FoundatIOn. It was brought to hIm and he stated that he called Mr LeWIS mto hIS office He showed Mr LeWIS the letter and told Mr LeWIS not to use Mimstry letterhead to SOhCIt for chanty, that the tnlhon was sacred as It represented the Government, and that what he dId was not acceptable Mr Raymond testIfied that the gnevor responded that he dIdn t reahze that It was a problem. Mr Raymond told hIm It was a problem, that It was fraud, and that It must not happen agam. He Said that Mr LeWIS responded that m hIS pnor Job, It had not been a problem but agreed that he would not do It agam. Mr LeWIS s recollectIOn of thIS conversatIOn was a bIt dIfferent. At the arbItratIOn heanng, he testIfied that Mr Raymond approached hIm at the front counter, not hIS office, and told hIm that he found a fax that Mr LeWIS had sent to the Raptors requestmg 14 basketballs and that he asked hIm not to do that agam, to whIch he rephed "I won 1." In hIS vIew, It was not a "you are not to do thIS" type conversatIOn. What he took from It was that he was not to SOhCIt basketballs or approach the Raptors and he never dId that agam. It was hIS vIew, at the tIme, that Mr Raymond would not be upset If he got tIckets and sold them and donated the money to the ChIldren S Wish FoundatIOn. At the mvestIgatIOn meetmg, Mr LeWIS stated that Mr Raymond dId not mentIOn use of Mimstry letterhead. To the extent that the gnevor S verSIOn of thIS dIScussIon vanes from that of Mr Raymond, I prefer the testImony of Mr Raymond. Mr Raymond had qUIte a clear recollectIOn of thIS conversatIOn, and I find hIS verSIOn more plaUSIble than that of the gnevor s. It IS unhkely that such a conversanon took place at the front counter, and It was defimtely a "you are not to do thIS" type conversatIOn, as the gnevor acknowledged when he admItted that he agreed that he would not do It agam. Mr Raymond testIfied that he dId not formally dIscIplme the gnevor over the Raptors letter because he thought It mvolved one occurrence, the gnevor had not reahzed It was a problem and he had promIsed not to do It agam. It was "one case of mIsJudgment" and he felt that Mr LeWIS now understood the senousness of hIS actIOn. At the tIme, Mr Raymond was unaware of any other soh cItatIOns of thIS kmd by the gnevor Decision 1 Was there just cause for discharge? 15 Based on the facts set forth above, there IS no doubt that the Mimstry had Just cause to dIscharge the gnevor Based on the ImtIal findmgs of the mvestIgatIOn as of August 17, 1999, whIch were substantiated at the heanng, the gnevor engaged m three cases of senous mIsconduct. He Improperly used hIS posItIOn as a Leamer ServIces Officer, Improperly used Mimstry letterhead, and knowmgly mIsrepresented the sanctIOn and mvolvement of the Mimstry and the ChIldren s Wish FoundatIOn m order to obtam comphmentary passes and tIckets for hIS own personal use ThIS was not a case of lack of Judgement. It was fraud perpetrated on three pnvate busmesses. They provIded comphmentary passes because they beheved that he was actmg on behalf of the Mimstry and the proceeds would go to the ChIldren s Wish FoundatIOn, none of whIch was true The gnevor s mIsconduct, moreover, was dIrectly related to hIS employment, SInce he used hIS pOSItIOn and tItle, the Mimstry s fax, telephone, address and ItS name to perpetuate the fraud. The gnevor knew, or should have known, that hIS conduct was wrong. He was exphcItly told so m the Fall of 1998 by DIrector Raymond. He was told not to SOhCIt chantable donatIOns on Mimstry letterhead agam. The gnevor s claim that he understood DIrector Raymond s admomtIOn, as hmIted to the soh cItatIOn of basketballs cannot be credIted. TheIr conversatIOn cannot reasonably have been construed so narrowly In hmdsIght, It may have been better If the gnevor had receIved formal dIscIplme at the tIme But the DIrector made a deCISIon to proceed Informally based on the mformatIOn he had at the nme. That IS, that thIS was a one -tIme only occurrence that the 16 gnevor had not reahzed what he dId was a problem but now dId, and he had promIsed not to do It agaIn. So Mr Raymond dealt With It firmly, but mformally However, the message - do not do thIS agam - was very clear Although mformal, the plrpose of progressIve dIscIplme, to put the employee on notIce that hIS conduct IS not acceptable, was met by the DIrector S actIOn. Accordmgly, the gnevor knew, or should have known, that soh cItatIOns of thIS nature, on Mimstry letterhead, was wrong. Even If there had been no specIfic warnmg, the gnevor should have known what he dId was Improper It IS SImIlar to the SItuatIOn m Re Black Diamond Cheese (Division of Ault Foods Inc) and Black Diamond Cheese Employees Independent Union, Local 555 (1992), 27 L.A.C (4h) 428 (Jackson), m whIch an employee was dIscharged for forgIng company letters to secure a mortgage loan. The company s rule was clear that It was an offense to falSIfy records relatmg to work or employment, and the arbItrator concluded at p 439 that "It should be absolutely clear from thIS, If not from baSIC CIVIC values, that people should not submIt forged letters" In hIS VIew, as he stated at p 438, "knOWingly submIttmg forged letters can only be charactenzed as dIshonest behavIOur " The same IS true here The gnevor s actIOns were dIshonest and that should have been clear to hIm from Mr Raymond s admomtIOn, If not from baSIC CIVIC values DespIte bemg warned not to do thIS agam, the gnevor contmued to do so Th was gomg on vacatIOn to Niagara Falls m late July 1999 and sought comphmentary tIckets to ndes and attractIOns there He called Niagara Hehcopters, Whlflpool Jets and Maid of the Mist from work, IdentIfied hImself as a Mimstry employee responsible for organlZlng 17 the Mimstry s annual pIcmc and sought a comphmentary pass to be raffled off, With the proceeds gomg to the ChIldren s Wish FoundatIOn. He then followed-up With a letter, on Mimstry letterhead, and left hIS work number to call If there were any questIOns He then faxed the letter from work. He dId all thIS knOWing there was no annual pIcmc, knOWing there was no raffle, knOWing that the passes were for hIS own personal use whIle on vacatIOn. His actIOns were planned and premedItated. They were not Isolated. The Mimstry had Just cause to dIscharge hIm. The after-acqUIred eVIdence reveals further examples of the same type of mIsconduct and corroborates that hIS actIOns m July 1999 were not Isolated events, or an Isolated case of mIsJudgment, but an ongomg pattern of mIsconduct over a prolonged penod of tIme Although some of the soh CItatIOns mvolved other mIsrepresentatIOns - 1 e , seekmg donatIOns to prOVIde a fictItIOUS reward/incentIve to deservmg chIldren/students - the goal was the same to obtam free tIckets for hIS own use or to sell Time and tIme agaIn he Improperly used hIS pOSItIOn With the Mimstry, and the name of the Mimstry and that of the ChIldren s Wish FoundatIOn to fraudulently obtam free passes and tIckets. The gnevor s testImony that he sent money to the ChIldren s Wish FoundatIOn anonymously was not supported m any manner There were no records of the money orders he stated were sent. He could not recall dates or amounts. Dunng the mvestIgatIOn he stated that he would check at home for such Items, but none were presented at the arbItratIOn heanng. The ChIldren s Wish FoundatIOn had no record of 18 any donatIOns by Mr LeWIS, nor was he associated With them m any manner In contrast, there was substantial eVIdence that the tIckets and passes sohcIted were for hIS personal use and that he sold and attempted to sell many of donated Items I therefore conclude, on the balance of probabIhtIes, that the gnevor sought these donatIOns for hIS personal use and finanCial gam, not to benefit the ChIldren s Wish FoundatIOn. Based on the eVIdence, the Mimstry had Just cause to dIscharge the gnevor He abused hIS pOSItIOn of trust With the Mimstry His actIOns had the potential to harm the reputaTIon of the Mimstry as well as that of the ChIldren s Wish FoundatIOn. 2. Is it just and reasonable in all the circumstances to substitute a lesser penalty? ThIS questIOn presents the heart of the dIspute - whether there are mItIgatIng factors, whIch warrant substItutIOn of a lesser penalty ArbItrators have conSIdered a number of factors m assessmg whether a lesser penalty IS appropnate As set out m Re United SteelHorkers of America, Local 3257 and The Steel Equipment Co Ltd. (1964), 14 LAC 356 (Reville), they mclude the follOWing, at p 357-358 (CItatIOns omItted) 1. The preVIOUS good record of the gnevor 2. The long servIce of the gnevor 3 Whether or not the offence was an Isolated mCIdent m the employment hIStOry of the gnevor 4. ProvocaTIon. 5 Whether the offence was commItted on the spur of the moment as a result of a momentary aberratIOn, due to strong emotIOnal Impulses, or whether the offence was premedItated. 19 6. Whether the penalty Imposed has created a special economIC hardshIp for the gnevor m hght of hIS partIcular cIrcumstances. 7 EVIdence that the company rules of conduct, eIther unwrItten or posted, have not been unIformly enforced, thus constItutmg a form of dIscnmmatIOn. 8. CIrcumstances negatIvmg mtent, e g., the hkelihood that the gnevor mIsunderstood the nature or mtent of an order gIven to hIm, and as a result dIsobeyed It. 9 The senousness of the offence m terms of company pohcy and company obhgatIOns 10 Any other CIrcumstances whIch the board should properly take mto conSI deratIOn Other arbItrators have looked at whether there has been (I) a frank and prompt admIssIon of fault; (2) whether the mdIvIdual was m a posItIOn of trust or subject to mImmal supervIsIon, (3) whether the act was premedItated and deliberate or whether It was a spur of the moment; (4) whether there was a clear and consIstent pohcy whIch was known to the gnevor and to other employees, (5) the Importance of deterrence and the relatIOnshIp of the gnevor to other employees m thIS regard Re Lake Ontario Steel Co and United SteelHorkers Local 6571 (1990), 17 L.A.C (4th) 136 (Finley) at p 143-144 Re Air Canada and Canadian Auto Workers Local 2213 (1997), 62 L.A.C (4h) 151 (Stewart), at p 160 In thIS case, the mItIgatmg factors are the gIevor s length of servIce and pnor good record as well as the fact that termmatIOn has created a sIgmficant economIC hardshIp for hIS famIly because the gnevor has been unable to find work. On the other hand, the offence was not Isolated. It was part of an ongomg pattern of Improper 20 soh cItatIOn over a substantial penod tIme It was not a spur of the moment event, but was repeated and premedItated. The gnevor was clearly warned not to SOhCIt m thIS manner and there IS no reasonable hkelihood that the gnevor mIsunderstood that dIrectIOn. The mIsconduct engaged m was extremely senous. The Mimstry dId a full and thorough mvestIgatIOn and provIded the gnevor With a full OppOrtunIty to explam and respond. When confronted by the Mimstry on August 17, 1999, the gnevor was not forthcommg. There was no full and frank admIssIon of gUIlt, nor, With the exceptIOn of the Wild Water Kmgdom, an admIssIOn of hIS other soh cItatIOns Those were uncovered by the Mimstry m ItS mvestIgatIOn With no assIstance by the gnevor Even though the Umon had advIsed the gnevor to tell the Mimstry everythmg he knew, he dId not. LIkeWise, the gnevor s apology at the mvestIgatIOn meetmg was perfunctory and self-servmg. He stated he had "a lack of Judgment" and was "apologlZlng." He expressed a more smcere apology m the Fall, but he stIll dId not reveal the full extent of hIS Improper actIOns Indeed, there stIll does not appear to be a genume understandmg by the gnevor of the mIsconduct mvolved. Throughout the mvestIgatIOn and even at the heanng, the gnevor mSIsted that It was hIS mtent, all along, to donate to the ChIldren sWish FoundatIOn and that what he dId was okay as long as a donatIOn was made to the chanty He dId not seem to grasp that hIS actIOns were stIll fraudulent, even If the money had been sent to the chanty He dId not seem to understand that even If all of the money for the donated tIckets had been sent to the chantable organIzatIOn, a wrong was stIll done He lllisused hIS posItIOn, he mIsused of the name of the Mimstry and that of the 21 ChIldren s Wish FoundatIOn, and he made mIsrepresentatIOns to the companIes mvolved. The companIes whIch donated tIckets and passes were sohcIted under false pretenses. They were duped, by the gnevor, mto behevmg that they were donatmg to the Mimstry of EducatIOn, With the proceeds gomg to eIther "deservmg students" or the ChIldren s Wish FoundatIOn. Yet, all along, the gnevor mtended the donatIOns for hIS own personal use or financIal gam. The Umon argued that the gnevor s offense was not dIrected at the Mimstry, hIS employer, or ItS chents. It notes that there was no eVIdence that the gnevor made any effort to take advantage of hIS Job m hIS dealmgs With chents, or that hIS mIsconduct mterfered With the performance of hIS Job That IS true, but the fact remams that the gnevor abused hIS posItIOn and the trust placed m hIm by the Mimstry Although hIS offenses were not dIrected at the Mimstry or ItS chents, he repeatedly mIsused hIS posItIOn and the name of the Mimstry for personal gam, effectIvely destroymg the trust placed m hIm as a Learner ServIces Officer I find It sIgmficant that neIther at the mvestIgatIOn, nor dunng the heanng, was a reason or explanatIOn offered for the gnevor s actIOns. There was no eVIdence or assertIOn of a medIcal condItIOn or personal sItuatIOn, whIch led the gnevor to act m thIS manner Nor, as noted above, IS It clear to me that the gnevor truly understands the senous wrong m whIch he engaged. 22 I have no doubt that the gnevor IS now truly sorry for hIS actIOns. His termmatIOn has had a very sIgmficant Impact on hIS famIly As he stated dunng the mvestIgatIOn meetmg, he would "never JeopardIze my career" But, unfortunately, that IS exactly what he dId. After bemg told not to do thIS agam, he dId so, repeatedly Although I find myself sympathetIc to the gnevor s personal cIrcumstances, he alone IS responsible for the sItuatIOn m whIch he now finds hImself. Therefore, based on all of the relevant factors, I cannot conclude that the penalty of dIscharge should be mItIgated. Accordmgly, for all of the foregomg reasons, I conclude as follows 1 The Mimstry had Just cause to termmate the gnevor 2. There IS no basIs, consIdenng all of the relevant factors, to SubstItute a lesser penalty 3 The gnevance IS dIsmIssed. Dated at Toronto, thIS 15th day of February, 2001 ~.,-~) H I 1.1?ruJtE1~~ "."" l ,lI'iI" ". ~'" iUA . ,",'0", ',,. . 'v RandI Hammer Abramsky, Vice-ChaIr 23