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HomeMy WebLinkAbout1977-0147.LaRiviere.78-03-07147/77 CROWN EKPLOYEES GRIEVANCE SETTLEMENT .4!6/964 6426 BOAR0 Suite 405 79 Bloor Street West TORONTO, Ontario MS lM2 Between: Before: For the Grievor IN THE MATTER OF ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Mr. Francis LaRiviere (The Grievor) And The Ontario Housing Corporation (The Employer) K. P. Swan - Vice-Chairman Mr. G. Griffin - Member Mr. H. Simon - Member Mr. P. O'Keefe. - Assistant Director Canadian Union of Public Employees For the Employer Mr. A. P. Tarasuk - Central Ontario Industrial Relations Institute Hearin Suite 405, 77 Bloor St. West, Toronto, Ontario December 6th, 1977 . LARIVIERE AND MINISTRY OF HOUSING 147/77 The grievor is employed as a Heating Serviceman for the Ontario Housing Corporation and was, at the material time, working at the "Baymills Project", a housing project in the Metropolitan Toronto area. Although the grievor had handled heating service at the project for some time while based at a different location, he was assigned directly to the project in June, 1977. At that time he took over a room for use as a workshop, and the contents of a stock room, including some furnace parts and related material estimated by the grievor to be worth $2500, were moved into the workshop. There is no real dispute that until the grievor's arrival there had been no real effort to account for or control this stock, and the records were apparently unreliable. It also appears that access to the workshop room was available to a large number of people, and as a result the locks were changed soon after the griever took it over. Although there is evidence that the grievor had no direct responsibility to account for this stock, it is also clear that he felt that he;was accountable for it. It is from these circumstances that the present grievance arises. In his evidence, the grievor made it clear that he was angry. that access to his workshop was available to other people, both before and.after the key change; after the change, access was available to the grievor; to the Maintenance Supervisor, Mr. Carr, to the Project Manager, Mr. Irwin, and to emergency staff who had access through a key cabinet kept in Mr. Carr's office. When, therefore, on his return from vacation on September 6, 1977, he found that a row of floor dif- fusers was missing from his stock bins, he reacted in a way which eventually led to his suspensi0.n. -2- The stock item which was missinp is a floor diffuser, the louvre which fits over hot air heatino ducts in the floor of housing units; the value of this item, we were told, is about 90 cents each. There is some dispute about the details of the discovery of the loss, but we do not think that much turns on the dispute. What is important is that the orievor brought the matter to the attention of Mr. Carr and, either at this time or on some earlier occasion, looked at the "bin card” on which trans- actions relating to this stock item were recorded and discussed certain aspects of this card with the griever. This card soon assumed a critical importance, mostly because of what the prievor felt it demonstrated. The card shows an initial stock balance of 30 diffusers, 11 of which were issued on three separate occasions, leaving a new balance of 19. Each of the issues is recorded by date and'address of the unit to which they were consigned. The last two issues are recorded in Mr. Carr's handwriting. The orievor's interpretation of the card is that it shows an issue of two diffusers to at? address where hot water heat- ing is~used, and where there would be no need for any diffusers to be installed. The grievor took this as evidence of impropriety, or at least as raising a suspicion of impropriety. We hasten to note, however, that there was a perfectly plausible explanation for the issue, and that there is no suspicion whatsoever attaching to Mr. Carr's conduct in this regard. The apparent significance of the bin card was sufficient - 3 - for the grievor to raise it with Mr. Sean Convery, the Recording Secretary of the Union, who was assisting the prievor in reoard to another unrelated grievance then being pursued. Mr. Convery, in turn, raised the issue of the card in passing at a grievance meeting on October 5, 1977. Precisely what was said is still not clear, but it appears that the matter of missing stock came up at that meeting, and Mr. Convery alluded to the card asps possible evidence of what mipht have happened to some stock, at least. Following the meeting, Mr. Carr approached the prievor in the workshop, and asked to see the bin card. The orievor refused and, according to Mr. Carr, said that he had given the card to Mr. Convery for safekeeping. The qrievor denies having said this, and it is clear that the card was never actually given to Mr. Convery, but in any event the management appears to have acted on the basis that Mr. Convery had the card. Mr. Carr reported the refusal to produce the card (and its alleged delivery to Mr. Convery) to the Project Manager, Mr. Irwin. Mr. Irwin passed the information on to the District Manager, Mr. Buckley. Mr. Buckley then called Mr. Convery and demanded the card; he was told that Mr. Convery did not have it. The following morning, October 6, Mr. Buckley went to the Bay-mills Project and confronted the grievor. He demanded the card twice, and was refused twice by the grievor. Mr. Buckley then SUS- pended the grievor indefinitely, which suspension was subseouently -A- determined as three days (two full days, and a partial day amount- ing to the remainder of the shift on October 6). During the -; grievance procedure, this discipline was reduced by the Employer to a suspension for the partial shift of October 6 only. Further testimony relating to the incident on October 6 was also given to us, alleging much more serious conduct by the grievor, which he denies. In all the circumstances, and parti- cularly given the short suspension imposed, it is clear that the Employer could not have taken this allegation into account in disciplining the grievor. We shall therefore not make any findinp as to what more happened on October 6; no such finding would be material to the grievance now before us. On October 11, 1977, the grievor returned to work follow- ing his supension and was again asked for the card. He went to his workshop, removed it from a book!: where he had hidden it, and photo- graphed it with his camera. He then returned the card to his super- visors and resumed his duties. The present grievance alleges that there was no just cause for the suspension awarded to the griever, and asks for full compensation for all pay lost. The Employer characterizes this rather strange turn of events as a refusal to obey direct orders of two of his supervisors to produce a document which was the property of the Employer, and as a deliberate concealment of that document. The Union, on the other hand, submits that the griever was acting properly at all times, and ought not to be disciplined. The Union submis,sion characterizes the grievor as an employee who discovers what he thinks -5- is evidence of wrongdoing, and merely attempts to preserve that evidence until it can be placed before the proper authorities. The Union argues that discipline in such a case undermines the posi- tion of any employee who finds himself in the position of suspecting wrongdoing by his supervisors. L We agree, in principle, that the Union has a valid point. If an employee were to discover evidence of impropriety on the part of his supervisors, then he might well be justified in some conduct which might otherwise occasion discipline in order to preserve that evidence and ensure that it could not be destroyed. 'We have dif- ficulty, however, in fitting the grievor's conduct into the character- ization which the Union proposes. First, the card by itself is evidence of nothing; it does not demonstrate misappropriation of corporation property, nor did such misappropriation take place. Second, the impropriety which the grievor purported to find on the card is a petty and insignifi- cant incident, which pales in comparison even with the loss of a row of diffusers (ten units) which occurred during the prievor's' vacation. Third, this card is apparently the only 'impropriety" which the grievor discovered during the period of his "control" over the stock - a fact which emphasizes the pettiness of the grievor's complaint. Finally, the grievor's suspicion was clearly directed at Mr. Carr, but the grievor also refused to deliver the document to Mr. Buckley, who would have been the ideal person to investigate any allegations of wrongdoing. The grievor's own evidence would have minimized this final point, since he claims not to have refused the document to Mr. Buckley, but only to have asked to consult Mr. Convery first. On this issue, -6- the question is clearly one of credibility, and we regret to say that, having heard both Mr. Buckley and the orievor oive evidence, we are unable to accept the prievor's evidence where it contra- dicts Mr. Buckley's. The distinction between Mr. Buckley's evi- dence of a flat refusal to produce the document and the grievor's evidence of a plea to consult his Union representative is the distinction.in our view, which makes the difference between con- duct which is reprehensible in that it offends against the standard expected of employees in dealino with their Employer, and conduct which is justified because of the special circumstances of the case. Here the grievor was prepared to engage in innuendo, if not accusations, of dishonesty on the part of his supervisors, and to do so on flimsy evidence of, at worst, the misappropriation of $1.80 worth of material, He did not actually report his suspicions to any member of management, and indeed refused to provide the card when asked for it by the member of management best placed to investi- gate his suspicions. In our view, the prievor's conduct was petty and officious, and could not be justified on any reasonable view of the facts available to him. While we would not wish to reach any result which would deter any employee from properly and conscien- tiously pursuing any suspicion of impropriety, we cannot countenance conduct which at the same time casts suspicion on another person and hampers the investigation which would be necessary to resolve that suspicion. The grievor's conduct clearly falls into the latter category. -7- In 'the result, therefore, we are of the view that the grievor's conduct did constitute grounds for discipline. We must finally consider whether the discipline actually imposed was proper in all the circumstances. Ordinarily, we wou1.d be unlikely to interfere with the imposition of a short suspension unless it was clearly excessive in all the circumstances; there is little real difference between a short suspension and a warninq, and manape- ment is usually better placed than is this board to assess and impose a penalty suited to the offence. Here, however, we are concerned about the possibility that an award upholding the suspen- sion might be seen as a precedent for the imposition of a financial penalty on any employee who makes allegations of impropriety against a supervisor and is subsequentl-y shown to be wrong. That is not, however,' the essence of the present case; Here it is not the, allegation of impropriety but the manner of raising it and pursuing it which is blameworthy. In all the circumstances, however, we think that a financial penalty is not the proper response to a matter such as this one, where the prievor may, if a charitable view is taken of his conduct, have acted on a auestion of principle, at least as he saw things. We therefore direct that the suspension be rescinded, that the grievor be compensated for all pay lost, and that a warning be substituted as the appropriate discipline. In doing so, we wish to make it clear that it is the principle that employees must be free to raise reasonable suspicions of wrongdoing which we are striving to protect, and not this particular grievor. In any event, the -8- warning will stay on the grievor's disciplinary record, and may affect the outcome of any disciplinary action which may arise in the future. Dated at Toronto this 7th day of March 1978 K. P. Swan Vice-Chairman I concur G; Griffin Member I concur H Simon Member