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HomeMy WebLinkAbout1975-0023.Haight.76-04-23Ontario 23/75 CROWN EMPLOYEES GRIEVANCE SETTLEMENT BOARD 416/965/1410 Queen’s Park Taronlo. Ontario M7A 125 IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between Mr. R. E. Haight (The Grievor) And The Ministry of Government Services (The Employer) Before: 0. M. Beatty - Chairman Mr. E. J. Orsini - Member Mr. Harry Simon - Member For the Grievor Mr. George Richards - Representative Ontario Public Service Employees Union For the Employer Mr. Tom Graham - Legal Officer Ministry of Government Services Hearing Westbury Hotel, Toronto, Ontario, April 23, 1976 2. The single issue that has been submitted to this Board, arising out of the grievance of Mr. R. E. Haight, concerns the appropriate or reasonable degree of discipline that ought to be imposed for his involvement in the misappropriation of certain government property. That is, while there is no material dispute between the parties about the circumstances giving rise to the grievance before us, nor as to the culpability of the grievor's behaviour, the parties are divided as to the appropriate sanction that should properly have been meted out on the occurrence of Mr.Haight's transgression. Specifically it was the position of the Ministry that, for reasons described below, the dismissal of the grievor was the only reasonable response available to it in the circumstances while the union claimed that only some lesser sanction such as a disciplinary suspension was warranted. Very briefly the issue between the parties arises out of the grievor's involvement in the spring of 1975 in the theft of certain scrap copper wire from one of the government's abandoned radar stations at which he was working. From the agreed statement of facts as well as from the grievor's own evidence it would appear that at least three persons were involved in the misappropriation of this property wh,ich was valued at some $700.00. These were in addition to the griever, a Mr. J. Rimmer who was the grievor's supervisor and a Mr. W. Phillips who was a probationary employee and who was apprenticing under the grievor's guidance. Of the three it appears that Mr. Phillips was the initiator and primary force behind the decision to remove the copper wire from the work site while Messrs. Rimmer and Haight played somewhat more subsidiary roles. However from the evidence and on the grievor's 3. . . own admission it is beyond dispute that he did become involved in assisting Mr. Phillips in the removal of this property and ultimately did share in the proceeds resulting from its sale. For the Ministry, Mr. Graham argued that while there were certain mitigating factors in Mr. Haight's case, in the final analysis the Ministry had no other option but to dismiss him once it was established that he had participated in the theft of government property. While conceding that rehabilitation and correction were two of the primary premises supporting the invocation of employment discipline, he argued that the Ministry was obliged to consider the effect its decision would have on other employees in their Ministry who might be tempted to become involved in similar activities. Noting that in the type of job in which Mr. Haight and other of the Ministry's employees were involved there was little direct super- vision that could be exercised, Mr. Graham argued that the employer was obliged to rely heavily on the honesty and trust of its employees. In such circumstances he argued that the deterrent effect that is implicit in a scheme of employment discipline justified the severe discipline that was imposed in this case. Mr. Richards, for the grievor, did not take serious issue with any of the propositions advanced by the employer other than to argue that the deterrent function could be satisfied by some serious disciplinary sanction other than dismissal. Rather he concentrated his efforts in describing and emphasizing certain mitigating factors which he claimed supported his position that some lesser form of sanction was more reasonable in the circumstances. Specifically and with reference to the decision of Judge Reville in Re: Steel - __. c i Equipment Co. Ltd. (1964/, 14 L.A.C. 356, which is cited more fully in our own earlier award of Re: Maw l/75, Mr. Richards aroued that because Mr. Haight had a previously long and un- blemished record of service with the Government, that this transgression was an isolated incident in that employment history and that in the circumstances of this case the dismissal would inflict serious economic hardship on the grievor, we should substitute some lesser form of sanction for the dismissal that was imposed. As well Mr. Richards noted that Mr. t!aiqht had admitted to his transgression, had co-operated with the Ministry and the authorities in their investigation of this matter and as well had made full restitution of the monies he received from the conversion of this property. Against that evidence it was Mr. Richard's conclusion that on the criteria outlined in R~Z - Toronto East General Hospital Inc. (1975)‘ 9 L.A.C. (2d) 311 (Beatty), the dismissal of Mr. Haight was unreasonable and unjust. In resolving this issue it is beyond dispute that this Board has the unqualified authority, where it determines that a disciplinary penalty is excessive, to substitute such other penalty as we determine just and reasonable. crown Employees Collective Bargaining Act 50 1972 c. 67 as amended 5.0. 1974 c. 135 s. 18(3). That the legislature bestowed upon this Board such a wide sweeoino and unfettered power is perhaps, in part, a reflection of the fact that under The Public Service Act R.S.O. 1970 c.386 as amended and its regulations,the responsible 5. officers of each Ministry have much less discretion in the type of penalty that they may impose. Indeed when one pursues that legislation and its regulations it could appear that a Deputy Minister is limited in his discretion to either invokinq a suspension for a period of up to thirty days or dismissing an employee for any disciplinary offence. Such a limitation on the employer's disciplinary authority we believe is both unwise- and unfortunate not only because it denies the Deputy Ministe,r the flexibility to tailor particular sanctions to each offence but also because, as in the case before us, it may in fact cause Ihim to discharoe an employee who he believes could profitably, be retained in the Ministry's employ. Moreover if as may comndnly happen, the Deputy Minister elects to dismiss an employee only because he believes that a thirty day suspension is not a sufficient sanction in the circumstances, the parties will be put to the expense and the employee to a considerable amount of personal inconvenience to have the matter brought before this Board for its assessment of what penalty is just and reasonable in the circumstances. In fact, it is our assessment,in the circumstances before us, that Mr. Haight's grievance is a classic example of that phenomena. While not in'any way deprecating the seriousness with which we view his behaviour, we do not believe that the sanction of dismissal was either just or reasonable. In reaching this conclusion we would subscribe to the analysis invoked by the Board of arbitration in the me: Toronto East General Hospital - rnc. (supra) case noted above. In that award the Board, after D adopting the qeneral principles that were said to underlie industrial discipline in the me: Gelco Food Products Ltci. (2,074) 7 L.A.C. (2d) 350 IBeatty) award, (which have been adopted b:/ this Board in me: Maw l/75) stated Ipp 321-323) i Having reviewed all of the cases wherein arbitrators have considered whether aggravated acts of dishonesty and untrustworth- iness by an employee justifies the termination of such an employee, and recognizing that the overwhelming weight of the arbitral opinion would respond to that question in the affirmative, we cannot, for the reasons that follow, subscribe to the principle that as an immutable axiom, discharge is an appropriate sanction in such cases which should, except in extreme cases, be affirmed by boards of arbitration. It is true, as we have noted above, that the trust and respect between employer and employee is one of the cosne~ stones necessary to support a viable and healthy employment relationship. We would also subscribe to the view that misconduct such as theft must he viewed in the mst serious terms. Nevertheless if as the Galco Food Products Ltd., supra, case suggests the operative theme in industrial as well a.s criminal sanctions is corrective and rehabilitative rather than retributive, we simply cannot subscribe to the notion that an employee, such as Mr. Hogan, who may have stolen six tins of baby's strained apple juice on one occasion, and who has no other blemishes on his employment record of almost one year and who the employer conceded had otherwise shown himself to be a good employee, has by that one act alone demonstrat-d that he is beyond correction and rehabilitation. It is simply unrealistic to assume that by some lesser form of sanction he cannot be induced to conform to the accepted norms of society. AS noted in the Galco Food products Ltd. award, supra: "There is simply no correlation between the gravity of the misconduct and the potential for correction that the offender possesses." Very simply we believe that given that this is his first act of misconduct, that he has otherwise been a good employee and that although only 19 years of age he has the responsibility to care for a wife and a young child, he will in fact respond to some lesser form of sanction. Having committed one act of dishonesty, however grave, it simply cannot be said that the griever cannot be induced to act in honest, trustworthy manner. In addition, and again without depreciating the gravity of his misconduct, we simply are unable to subscribe to the notion, implicit in the vast majority of awards which affirm the discharge of employees for similar offences, that by this act alone Mr. Hoqan has shown himself to be so untrustworthy that the employer can never again rely on OI have confidence in him. From ant? isolated act we simply cannot characterize the griever as being so untrustworthy. We are unaware of any cOntext in law where owing to a single act of misconduct a person is forever tt ix judged by that solitary transgression. In short, to so characterize the qrievor for a single act of dishonesty as being incapable of earning the trust of his employer has no basis in law, lcgic or equity. Finally we would note that in a case such as this, even if on the evidence before us a Criminal Court would be satisfied beyond a reasonable doubt that Mr. Hogan was guilty of theft, the sanction it would likely impose, reflecting again a rehabilitative theme would be in the nature of a fine of no more than $100 and indeed in Mr. Hogan's case quite probably a conditional discharge. It is true as we have noted that the context in which the qrievor's misconduct arises before us differs from that obtaining in a criminal Court. Nevertheless, we believe that both the substantive provisions of the Criminal Code, R.S.C. 1970, c.C-34, itself as well as the sanctions ultimately imposed by the Courts in cases of theft of property having nominal value may be taken as reflecting the degree of social concern perceived by our legislators for such transgressions. Although not condoning the transgression of the accepted norms of society, the criminal law, properly we believe, recognizes the relatively minor societal concern with such offences. In part this may be attributed to the nominal value of the property stolen and in part it may reflect the Legislature's recognition of the frequency and almost universality that such petty pilfering is practised at all levels on the employment ladder by employees who misappropriate for their own use incidental office and employment supplies they daily require in their wcjrk functions. (FOr a discussion of the extent to which employees at all levels engage in such petty theft, and the reasons for this phenomenon, reference nny be had to: N. Jaspan "White Collar Crime Increasing", C.C.M. Canadian Ltd., Canadian Industrial Relations and Personnel Development pp.503-4 (January, 1975); see also Bureau of National Affairs, Bulletin to Management August 15, 1974, and April 18, 1974.) Although we do not condone such misconduct, nor would we argue that such condwt , has assumed the status of an expected and,tolerated norm, never- theless in the face of the criminal law response to such misconduct we would find it hypocritical for us to conclude that for such an offence this employee must be characterized as being so untrust- worthy that his employer is justified in terminating his employment. In sum, when viewed against the criminal sanctions for the same misconduct, reflecting as they do society's mores, we cannot subscribe to the jargon of axiom and uphold the discharge of an employee who on-one occasion misappropriates some property of nominal value to his own use. Such a sanction in a case such as this, given the age of the griever and the prevailing conditions of the employment market, would be simply out of ail proportion to and fly in the face of the consequences generally recognized as appropriate by society at large. In short, we cannot subscribe either to the reasoning or conclusions that arc? described in Polymer Corp. Ltd. and Spruce Falls Power and Paper Co. Ltd. noted above. Against those principles it is to this Board manifest that the dismissal of Mr. Haight is excessive and unjust. Apart from the relevant criteria enunciated in the IS: steel Equipment CO. Ltd. (supra) case, we believe that the grievor has shown, by his conduct subsequent to the offence, that he has recognized the seriousness of his misconduct and that he is not likely to allow himself to again become involved in such activities. Specifically the fact that he has admitted to his misconduct, cooperated with his Ministry and made retribution to his employer, we believe reflects an attitude and an appreciation that is consistent with his ability to respond to corrective discipline. Re: Libby, h'cA%il & Libby of Canada Ltd. (1974) 7 L.A.C. (2d) 69 (Hinnegan). Put Simply, and against that evidence, we believe that the grievor has demonstrated that he appreciates the gravity of his misconduct and is anxious and willing to work at regaining the trust and confidence of his employer. In short we are of the view that against that evidence it is simply unreasonable and improper for the employer to conclude that for this single act of dishonesty, the grievor is so untrustworthy that it can never again rely on or repose confidence in him again. Against those considerations however one can not but be impressed with the real and legitimate concerns of the employer in ensuring that its employees, particularly those such as the grievor who work,with a minimal amount of supervision, do .not assume that such behaviour will be tolerated. To the contrary the type of misconduct engaged in by the grievor cuts at the roots of the employment relationship. Without a mutual feeling of trust and 0 2. confidence between employer and employee it would simp!y be impossible ever to construct a healthy and viable employment relationship. It is for that reason we believe that arbitrators have uniformly castigated such dishonest conduct. In the words of one board: Arbitrators are not equating the role of a plant to that of a chtzch. Rather, they are insuring that the role of the plant will not evolve into a role resembling that of a penal institution. Re: Phillips Cable Lid, (1974) 6 L.A.C. (2d) 38~(Adams) Necessarily then we believe that the employer has a real and legitimate interest, when considering the appropriate sanction to be imposed for the type of serious misconduct engaged in by Mr. Haight, to weigh the deterrent effect its action will have on other members of the work force. As we have noted it is not only proper but we believe imperative that the employer be constantly vigilant in ensuring that its employees understand that such grave misconduct can not and will not be tolerated. This it can do only by meting out the most serious sanctions available to it whenever such behaviour manifests itself. Thus by and even conceding the principles enunciated in.the me: Toronto East General Hospital rnc. (supra) award and the mitigating factors that are present in - Mr. Haight's case, we are of the view that his conduct in the spring of 1975 must be treated in the most serious and profound terms. Accordingly we would order that the grievor be suspended from his employ without compensation or the accumulation of service credits from November 10, 1975 until the date of this award. In the result, we would order that the grievor be reinstated immediately but without any compensation as of the date of this t 10. award. To that extent it is our determination that this grievance must succeed. Dated at Toronto this 23rd day of April 1976. C. M. Reatty Chairman E. J. Orsini Member H. Simon Member