HomeMy WebLinkAbout2000-0092.Timmerman.04-05-25 Decision
Crown Employees Commission de ~~
Grievance Settlement reglement des griefs
Board des employes de la
Couronne
~-,...
Suite 600 Bureau 600 Ontario
180 Dundas Sl. West 180 rue Dundas Ouest
Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8
Tel. (416) 326-1388 Tel. (416) 326-1388
Fax (416) 326-1396 Telec. (416) 326-1396
GSB# 2000-0092
UNION# 00D240
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontano PublIc ServIce Employees Umon
(Timmerman) Grievor
- and -
The Crown In RIght of Ontano
(Mimstry of Natural Resources) Employer
BEFORE Dan Hams Vice-Chair
FOR THE UNION Nelson Roland
Bamster and SOlICItor
FOR THE EMPLOYER Kelly Burke
Semor Counsel
Management Board Secretanat
HEARING May 18 2004
2
DeCISIon
The gnevor Charlene Timmerman, was employed by the Mimstry of Natural Resources She
was a seasonal parks clerk who collected fees at vanous provIncial parks She was dIscharged
from her employment by letter dated February 4 2000 for mlsappropnatIng over $16 000 from
the funds she had collected at Sharbot Lake ProvIncIal Park In the summer of 1998 The umon
gneves the dIscharge as unjust.
ThIS matter came on for heanng In BellevIlle on May 18 2004 at WhICh tIme the employer
sought a rulIng that just cause for dIscIplIne had been establIshed by vIrtue of the gnevor's
cnmInal convIctIOn on January 13 2003 The employer entered a certIficate of convIctIOn and a
court transcnpt of the gnevor's guIlty plea and sentencIng In the Ontano Supenor Court of
JustIce SIttIng at KIngston, Ontano that day before the Honorable Madam JustIce H. MacLeod.
The transcnpt sets out the agreed facts upon WhICh Ms Timmerman entered her plea, was found
gUIlty and was convIcted. A portIOn of the story IS as follows
At page 2
Ms Timmerman stole $16 424 45 from Sharbot Lake ProvIncIal Park. These were gate
receI pts She was employed as a seasonal semor park clerk and was responsIble for
documentIng gate receIpts and makIng deposIts After money was counted and recorded
In the presence of a second person - so usually there would be the actual gate attendant
who would collect the money wnte It down on a blotter and then would count the money
wIth Ms Timmerman who was theIr supervIsor After that process had occurred and the
amount had been recorded, she would alter the records and the deposIt slIp to cover for
money that she was pocketIng. The penod of 1998 she was skimmIng between $100 00
and$750 00 per day It amounted to about $2,00000 per month
3
At page 4
With regard to Sharbot Lake In partIcular 1998 and that IS the amount that IS just under
$17 000 there were 234 dally ShIft summanes recorded on 23 cash blotters Of the 115
cash dIscrepancIes found, three were consIdered mInor clencal errors The remaInIng
112 were classIfied as due to mlsappropnatIOn of funds Also added to that was one
IncIdent where momes were never deposIted. Throughout the tIme penod In questIOn, the
accused Charlene Timmerman held the posItIOn of semor park clerk and had control of
the momes In questIOn. The amounts, as I have already IndIcated, Your Honour the
thefts occurred on a regular basIs and vaned from as low as twenty or thIrty dollars to as
hIgh as seven hundred and fifty dollars for any partIcular day
Your Honour I can IndIcate as well that her husband, Dale Lloyd, receIved most,
If not all of these momes when she returned home and It financed a lIfestyle beyond theIr
means, IncludIng financIng of theIr honeymoon. Those are the facts, Your Honour
THE COURT Are those facts admItted as beIng substantIally correct?
Mr GRIFFIN I can IndIcate thIS, Your Honour that Ms Timmerman doesn't wIsh to
quarrel wIth those facts I have attempted from tIme to tIme, over the last two years, to
reVIew those facts wIth Ms Timmerman. Her health, both physIcal and mental health are
such that she's not In a posItIOn to challenge those facts and as such she IS not quarrellIng
wIth those facts that you've heard.
THE COURT Thank you. The facts then are deemed to be admItted as read. Based on
that the accused IS found gUIlty as charged. You can have a seat. I wIll have your
submIssIOns
Defense counsel made submIssIOns on the gnevor's behalf that touched on her personal
cIrcumstances, IncludIng her mental and physIcal health. She was convIcted of the theft and
gIven a condItIOnal sentence of twelve months Also a free standIng restItutIOn order was made
In the amount of$16 44525
At the heanng before thIS Board, the Umon said that the gnevor demes havIng taken any money
The employer then relIed upon the Crown Employees Collective Bargaining Act, 1993 s 48(1)
and the Public Service Act R.S 0 1990 as amended, s 33(1) WhICh read as follows
s 48( 1) Criminal conviction or discharge considered conclusive evidence - If a
Crown employee IS convIcted or dIscharged of an offence under the
Criminal Code (Canada) In respect of an act or omISSIOn that results In
dIscIplIne or dIsmIssal and the dIscIplIne or dIsmIssal becomes the subject-
matter of a gnevance before the Gnevance Settlement Board, proof of the
4
employee's convIctIOn or dIscharge, shall, after the tIme for an appeal has
expIred or If an appeal was taken, It was dIsmIssed and nor further appeal
IS avaIlable, be taken by the Gnevance Settlement Board as conclusIve
eVIdence that the employee commItted the act or omISSIOn.
s 33(1) If a publIc servant IS convIcted or dIscharged of an offence under the
Criminal Code (Canada) In respect of an act or omISSIOn that results In
dIscIplIne or dIsmIssal and the dIscIplIne or dIsmIssal becomes the subject-
matter of a gnevance before the PublIc ServIce Gnevance Board, proof of
the convIctIOn or dIscharge shall, after the tIme for an appeal has expIred,
or If an appeal was taken, It was dIsmIssed and no further appeal IS
avaIlable, be taken as conclusIve eVIdence that the publIc servant
commItted the act or omISSIOn.
The Employer also relIes on Toronto (City) v C UP.E. Local 79 [2003] 3 S C.R. 77 In
partIcular at paragraph 58 In part, as follows
In short, there IS nothIng In a case lIke the present one that mIlItates agaInst the
applIcatIOn of the doctnne of abuse of process to bar the relItlgatIOn of the gnevor's
cnmInal convIctIOn. The arbItrator was reqUIred as a matter of law to gIve full effect of
the convIctIOn. As a result of that error oflaw the arbItrator reached a patently
unreasonable conclusIOn. Properly understood In the lIght of correct legal pnnclples, the
eVIdence before the arbItrator could only lead hIm to conclude that the CIty of Toronto
had establIshed just cause for OlIver's dIsmIssal
The Umon conceded that the Board IS constraIned by the law as set out above However It
submItted that the Board may stIll enqUIre Into whether dIscharge from her employment was the
appropnate penalty to Impose upon the gnevor It said that there were many mItIgatIng factors
to put before the Board.
There can be no doubt that stealIng $16 445.25 ISjUSt cause for dIscIplIne nor can there be any
doubt, as a matter of law that the fact of the theft IS proven by the gnevor's gUIlty plea and
convIctIOn. However the umon may lead eVIdence and make submIssIOns wIth respect to
mItIgatIOn of the penalty as dId the gnevor's defence counsel at the cnmInal proceedIngs
5
The umon was unable to proceed on May 18 2004 due to the gnevor's state of mental health. A
letter dated May 4 2004 from one of her physIcIans reads In part as follows
I have not seen Ms Timmerman In a number of months, but she has been a patIent of
mIne for a number of years She IS currently on a great deal of medIcatIOn, and suffers
from a major mental Illness Both of these factors would certaInly Interfere wIth her
abIlIty to Interact In thIS gnevance arbItratIOn.
The employer dId not oppose the umon's request for an adjournment, but was properly
concerned that there be no InordInate delay In dealIng wIth thIS matter the central facts of WhICh
accrued throughout the summer of 1998
In VIew of the submISSIOns made by the partIes, I ordered that the matter be adjourned, not be put
down agaIn for heanng before August 31 2004 Pnor to that date the umon shall provIde to the
employer clanficatIOn of the gnevor's capacIty "to Interact In thIS gnevance arbItratIOn,"
IncludIng a date by WhICh she IS expected to be able to do so The umon shall also provIde full
partIculars to the employer of the facts It says ought to lead to mItIgatIOn of the penalty and the
relIef It wIll seek.
ThIS matter may be scheduled, at the request of eIther party to be heard on any date after August
31 2004
thIS 25th day of May 2004
f'i