HomeMy WebLinkAbout1976-0069.Arsenault.77-03-2269/76
CROWN EMPLOYEES '416 964-6426 suite 405
CRII~ANCESETTLEMENT 77 BZoor Street WeSi
EOAR.0 TORONTO, Onturio~
M5S lM2
IN THE MATTER OF AN ARBITRATION
Under The
CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between: (Grievor)
(Employer)
Mr. Frank Arsenault
And
Ontario Housing Corporation
Before: 0. M. Beatty Chairman
E. J. Orsini Member
H. E. Weisbach Member
For the Grievor
Mr. GeraldMcPhee, National Representative
Canadian Union of Public Employees
For the Employer
Mr. A. P. Tarasuk, Central Ontario Industrial
Relations Institute, Toronto
Hearing
'. Suite 405, 77 Bloor Street West, Toronto
November 8, 1976
March 10, 1977
-
2.
In the grievance he has filed, pursuant to article 10
of the collective agreement with this Board, Mr. F. Arsenault
complains that he was, effective August 3, 1976, dismissed
without just cause. There being no dispute between the parties
as to the jurisdiction of this Board to hear and resolve this
matter, the parties adduced evidence and argument with respect
to the merits of the griever's complaint over the course of
two days of hearings. In so doing the parties were agreed
that this Board would, if the grievance were sustained, remain
seised of the matter of compensation and, should it prove
necessary to do so, reconvene to resolve any outstanding
differences between the parties on that question.
With respect to the circumstances giving rise to
the dispute itself, there was, with certain significant
exceptions, substantial agreement between the parties. Briefly
described it appears from the evidence that at approximately
3:00 p.m. on or about Friday July 2, 1976 a Mr. S who was
the resident tenant of unit #2201 in 30 Teesdale Place vacated
those premises. According to Mr. Arsenault, because Mr..S
was unable to locate anyone in the Maintenance Supervisor's
office or any other caretaker, he asked Mr. Arsenault if he
would be willing to accept the keysfor that unit. Mr. Arsenault
testified that he did so and that he immediately checked the
unit itself to ensure that it was secure. In making this
security check Mr. Arsenault discovered that Mr. S had left
behind a good deal of furniture and other household items which
he characterized as being essentially worthless. Specifically,
3.
and on this there would appear to be no dispute, amongst other
things, it appears Mr. S had left in his unit two maple beds
with mattresses, a portable black and white TV, a kitchen
table and four chairs, a carpet and a hair dryer. Believing
that all of these items were of novalue and had been abandoned,
Mr. Arsenault testified that he decided he would, as he had
in the past and, as he testified, Corporation policy allowed,
dispose of it by permitting the other tenants in 30 Teesdale
Place to come in and remove whatever they wanted. In the
result Mr. Arsenault simply left the door to the unit open and
advised various of the tenants of what he had done. Subsequently
Mr. Arsenault returned to the unit at approximately 7:00 p.m.
to close it up and again at IO:00 p.m. in order that he could
claim for himself what he described as a broken television set
and a headboard from one of the beds.
In disposing of the furniture and household effects that
had been left in apartment 2201 in the manner described, Mr.
Arsenault claimed that he was operating under a number of
assumptions and pursuing certain objectives. In the first
place and with'respect to the latter, Mr. Arsenault testified
that he had, some two weeks prior to the day in question, been
given a work order by his immediate superior, Mr. T. McKendrick,
the Maintenance Supervisor, to clean apartment 2201. Accordingly
he testified that in following the procedure described above
to dispose of what he took to be abandoned and worthless
household effects, he'felt he was furthering his function of
cleaning up the apartment in a manner that was not.only convenient
for him but as well in a way that would assist and benefit
the other tenants of the building. Moreover, it was his evidence
4.
that he had in fact disposed of household effects which had
been similarly abandoned and which were of no value in the
same manner in the past and that in fact it was an accepted
Corporation practice to do so. In short in disposing of
these goods in the manner described Mr. Arsenault claimed he
was in fact doing nothing that he had not done before, was
carrying out his assigned task to clean this particular unit,
and was conferring a benefit on other tenants who might well
be able to make use of these goods.
In fact however and apart from any other considerations,
Mr. Arsenault's assumptions proved to be in error. Specifically
and unknown to him, in fact the household effects that Mr. S
had left in the unit he had vacated were neither abandoned
nor valueless. To the contrary and as subsequently, on July 7,
Ms. C. McLaughlin, the Area Supervisor at Teesdale Place discovered,
Mr. S had in fact sold the items described above for $130.00
to Mrs. C the incoming tenant who had been assigned the unit
in question. According to Ms. McLaughlin she had first become
acquainted with the circumstances surrounding this incident
on July 6, when, together with and in response to a call
from Mr. McKendrick, she went to unit 2201 in order to inventory
and catalogue the remaining contents that Mr. McKendrick had
discovered when he first checked the unit earlier in the day.
According to the evidence of both these witnesses, which was
corroborated by Mr. P. Poirier, who was Mr. McKendrick's immediate
predecessor, it was standard practice for the Maintenance Supervisor
to first check a vacated unit before anything else was done and
.+
5.
to call in Ms. McLaughlin to take an inventory of any abandoned
household effects where it was necessary to do so. Accordingly
and having taken this inventory the day before, Ms. McLaughlin
was somewhat surprised when, on July 7, Mrs. C came to her to
advise of the purchases she had made from Mr. S. Indeed
and when, after confirming, by a further inspection that the
items Mrs. C claimed to have purchased from Mr. S were not in
the unit, Ms. McLaughlin called the police who advised Mrs. C
to attend at the offices of a Justice of the Peace and to swear
out a complaint against Mr. S for the conversion of her property.
Subsequently, and there is some difference between the
parties whether it was later in the same day or on July 9,
Mr. Arsenault overheard Mr. McKendrick discussing with another
of his employees what had been done with the remainder of the
goods that had been left in unit 2201. Accordingly Mr. Arsenault,
believing that the discussion concerned all of the househould
effects that had been left in the unit, advised Mr. McKendrick
of what he had done on the preceding Friday. So advised
Mr. McKendrick informed Ms. McLaughlin who, on the same day,
in turn reviewed the sequence of events described above with
Mr. Arsenault. In the course of that conversation it appears
that Mr. Arsenault offered to make full restitution to Mrs. C
and subsquently on July 12 actually wrote out a cheque to cash
in the full amount of $130.00. As well, during the course of
that conversation, Ms. McLaughlin advised the grievor that
disciplinary action could well be forthcoming after the matter
was considered by her superiors. In the result and as the
fact of this grievance makes manifest, after further consideration
6.
by more senior staff of the Corporation and against the
grievor's previous employment record, it was determined that
Mr. Arsenault would be dismissed.
After careful and close consideration of, this matter
we are of the conviction that such a determination was, in
the circumstances, and for the reasons that follow, a fair and
reasonable one. In the first place and most critically we
simply cannot accept in the face of the overwhelming evidence
to the contrary either the grievor's characterization ofor his
justification for his actions on July 2. To the contrary and
except for his own testimony, all of the evidence, of his
superiors and his fellow employees, attests to the fact and
supports the conclusion that not only did Mr. Arsenault improperly
dispose of the household effects which were left in unit 2201
but as well, and perhaps more critically, he did not even have
the requisite authority or permission to enter that apartment.
Put somewhat differently we are of the conviction that all of
the cogent and credible testimony before this Board refutes and
entirely contradicts his own assertions that the method he used
to dispose of the property left in unit 2201 was an accepted
and corranonly followed practice and that he had a work permit to
enter the unit on that occasion.
With respect to the former matters, the testimony.of.
Messrs. Dufour, Raso and Kameka, all caretakers at 30 Teesdale
Place, and all witnesses called by the grievor, entirely
supports the employer's assertion that when, on the odd occasion
that a caretaker would discover a vacated unit with such
7.
abandoned property as a chair or television, they would
take it to a moving or storage room and advise their
supervisor of what they had done. That evidence in turn was
corroborated by Mr. Poirier, the previous Maintenance Supervisor
and by Mr. McKendrick who testified that was the practice
they expected caretakers to adhere to in such circumstances.
Moreover all of those witnesses testified that normally it
was the labourer's classification and not the caretaker's
which was assigned by the Maintenance Supervisor the task of
removing any abandoned furniture or household effects that, he,
on his initial inspection of a vacated unit had discovered.
In addition Ms. McLaughlin's evidence to the effect that it
was her decision as to what should and should not be regarded
as valueless effects is confirmed and corroborated by the
evidence of all of the other witnesses, noted above, who claimed
that if they were in doubt on such an issue they would put
the item in storage and check with Mr. McKendrick or Ms. McLaughlin.
In the face of such entirely consistent and credible evidence
we simply cannot believe the grievor's claim that the manner
in which he disposed of the property on July 2 was either a
common, accepted or permitted practice. To the contrary both
from our collective common sense and from the evidence before
this Board we would regard the method by which the grievor
disposed of the property to be highly unusual, wholly unwarranted
and entirely improper.
In addition and as much the same reasoning we cannot
accept the grievor's statement that he had the necessary
authority to enter the unit and dispose of the property
by virtue of a work permit he had received from Mr. McKendrick
some two weeks prior to the date of the incident. In the
first place and before describing the evidence to the contrary
we would note the unanimous consensus of all of the witnesses
that except in unusual circumstances, and then only to perform
the specific tasks demanded by those circumstances, a caretaker
is not permitted to enter a unit, vacated or otherwise, without
the authority of his supervisor. Any practice to the contrary
is regarded by the Corporation, and quite properly in our view,
as a most grievous wrong. In any event the grievor's statement
that he had, by the work permit he had received from Mr.
McKendrick, the authority to enter unit 2201 stands flatly
contradicted by Mr. McKendrick's testimony and by the work order
itself, which satisfies us beyond any question, that no work order
was issued to anyone by Mr. McKendrick with respect to
that unit until after his inspection on July 6. Moreover that
evidence is consistent with the practice described earlier in
this award as to the manner in which the staff were directed
to make a vacant unit ready for the next tenant. That is, it
would only be after the intial inspection that Mr. McKendrick
would know if he would require his labourers to move any
abandoned goods which task in turn, one would generally
expect to be completed prior to the issuing of a work order
to the caretaker to clean the unit. In short and until
Mr. McKendrick returned to work on July 6, after the long
weekend he would not, if he were behaving rationally
9.
and consistently with the practice described earlier, have
issued a work permit to clean the unit. In the result we must
conclude that Mr. Arsenault simply had no authority to
enter unit 2201 on July 2, and but for his encounter with Mr. S
neither would he have had the ability to do so.
In the result we must conclude that the grievor did
in fact improperly enter the unit and dispose of the property
he discovered there. That such behaviour is, in the context
of a Public Housing Authority, of itself and standing alone,
to be considered as most serious and reprehensible conduct
and accordingly deserving of severe discipline sanctions, is
beyond question. Re Metro Toronto Housing Authority (1964)
14 L.A.C. 254 (Cross). Indeed, in making that determination
we recognize that such behaviour could, in the proper circumstances
give rise to criminal charges. However this incident, in
the circumstances of Mr. Arsenault's grievance, does not stand
alone. In addition and on the findings of fact that we have
made above, it must follow that the grievor has, before this
Board, compounded his errors. .Succinctly he has endeavoured,
by his testimony, to mislead this Board In such circumstances
as we have noted in the past, in the unusual CirCUmStanCeS,
this Board will regard such dishonesty as confirming the employer's
judgement as to the capability of such a person to rehabilitate
themselves to conform to the accepted and expected norms of
employee behaviour. See generally in this regard Re Rm?ris
7/75, Re Haight 23/75.
10.
Put somewhat differently persons who treat the proceedings of
this Board so cavalierly cannot reasonably expect us to
be anxious to invoke our discretionary powers under s.18(3)
of the Act. As well and in the circumstances before us,
where the grievor has in fact been disciplined on two
PreViOUS occasions within the preceding year, there is even
less basis on which one can quarrel with the reasonableness
of the employer's conclusions about his future employment
prospects. In short given, in the context of the service
provided by this employer,the particularly sensitive and
critical nature of the grievor's misconduct, his performance
before this Board and his activities in the recent past, we
are not of the conviction that our discretion under s.lB(3)
could be profitably exercised. Accordingly and for all of
those reasons, the dimissal of the grievor must stand. In the
result, Mr. Arsenault's grievance is dismissed.
Dated at Toronto this 22nd day of March 1977.
D.MB q L -- eatty
Chairman
IConcKr
E. J. Orsini
Member
I Concur
H. E. Weisbach
Member