HomeMy WebLinkAbout1978-0151.Pilon.79-08-31Between:
Before:
for the Grievor:
For the Employer:
IN THE MATTER OF AN ARBITRATION
Under The
CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before.
THE GRIEVANCE SETTLEMENT BOARD
Mrs. Eileen Pilon
And
The Crown in Right of Ontario
Mjnistry of Health
Professor M.~Eberts Vice-Chairman
Mr. V. Harris Member
Mr. H. Simon Member
Mr. George Richards, Grievance Officer
Ontario Public Service Employees Union
I901 Yonge Street
Toronto, Ontario.
Mr. I. Freedman, Counsel
Legal Branch, Ministry of Health
10th Floor Hepburn Block
Queen's Park, Toronto~
Date of Hearing:
December 14th, 1978
April ZOth, 1979
Suite 2100. 180 Dundas St. W.
Toronto, Ontario
,>i,, .,:
‘.’
.,t;.
., .;, ^.
!i ., :. :;
-2-
The grievor was discharged for tampering with the official
attendance records in the office where she.worked, that of the Co-ordinator
of Affirmative Action Programs. According to an audit report of the
records, which dealt with the attendance of the grievor, her supervisor
and some other employees, the tampering had gone on at least as far
back as June 1976.
The attendance records for the office were in the charge
of the grievor. The offici'al form for the records consisted of an
original and two carbons. The three pages were properly completed by
the grievor and submitted.to her supervisor for signature. The original
and one carbon were then altered to show attendance when individuals
had been absent, and these altered forms sent by Mrs. Pilon to the
Payroll Department. The second carbon stayed in her office. Payroll
transferred the information to its records and returned the first
carbon, which was then altered back to its original, accurate, form by
Mrs. Pilon. These records were kept in the office.
Mrs. Pilon altered her own records this way, and also those
of her supervisor and five other persons, at her own initiative. The .'
value of the days for which attendance was claimed when the person in
question was absent came to $3,144.00 according to a ~Ministry audit.
However, with respect to many of these days, the employee in question
was entitled to vacation or sick leave, so that the value of those days
was not actually "appropriated" by the grievor. The value of the days
tampered with, which were not covered off by some entitlement to.leave,
-3-
was found by a Ministry audit to be $374.32. The two audits form
part of a statement of facts agreed to by the Ministry and the
representative of the grievor.
i
Mrs. Pilon admits that she made these unauthorized changes
to the attendance records, but asks that the Board find that discharge
is too severe a penalty in the circumstances. The Board is asked to
exercise its jurisdiction under rhe crown Employees Collective
Bargaining Act, 1972, c.67, s.18 (as enacted by 1974, c.135, s.9) to
substitute another more "just and reasonable" penalty, namely that of
a period of suspension without pay. Shortly before the hearing of
this matter, in a letter to her supervisor, Mrs. Pilon made an offer
of restitution.
The grievor offered a number of matters in mitigation of
her conduct.
Her submission rests primarily on a long history of
complications arising from a hysterectomy operation in January 1973.
Problems seemed particularly to arise in 1975, after discontinuation
of first one, then another, program of medication to prevent adhesions
and regulate her estrogen levels. In 1975, she started having migraines,
increasing in frequency from once every two weeks to four or five a
week. She also had "vague feelings" of unwell health. She got no
relief from tablets prescribed by her family doctor and ceased taking
a tranquillizer prescribed by him because of low tolerance.
-4-
Things apparently continued to deteriorate. Mrs. Pilon's
absences from work, intermittent and frequent, but not over her
permitted allowance of sick days, nonetheless called forth an indication
from the supervisor that she wanted attendance improved. In July or
August of 1977, Mrs. Pilon had a consultation with a physician who
recommended some type of group therapy but she did not proceed with
this and the physician moved away. From the fall of 1977 through
August 1978, her health became poorer; she was beset by migraines,
fatigue, Weakness and inexplicable feelings of fear, as well asp
physical pains in the side.
A referral from the Ministry's employee health service
brought her to Dr Y.,. Fulgosi in June of 1978. Dr. Fulgosi founds acute
anxiety from an estrogen deficiency as well as a spastic colon, and
~immediately put Mrs. Pilon on estrogen treatments.
On August 2 1978 an interview between Mrs. Pilon and her
supervisor resulted in two things. Mrs. Pilon was to.ld that.she was
being put on the Ministry's attendance improvement program, and she
asked for six to eight weeks of leave of absence to let her medication'
take effect. When ~Personnel was contacted about these matters, the
alteration of attendance records came to light.
On August 4, 1978 Mrs. Pilon was confronted with the
discrepancy and she denied altering the records.. Nevertheless, she
was discharged effective August.4;1978 for making the alterations.
After her discharge, she consulted a psychiatrist, Dr. C. Cochrane,
at Dr. Fulgosifs suggestion. A few days before this hearing,. Mrs.
Pilon wrote to her supervisor that this
I -5-
I
treatment had helped her to see her responsibility and she offered restitutfon. I
; I
The grievor is not arguing that she was so depressed that she was "not
guilty" cf altering the records by reason of insanity. Her submission <s best
summed up by her psychiatrist in the one-page letter from him put before the board:
. ..it was her fear of being dismissed because of sickness
that caused her to alter the attendance records and I am
sure there was never any intent to defraud the employer.
Again, Dr. Cochrane states:
The depression has also altered her judgement to the point
that she became fearful that she would lose her job if her
envtional and physical health problem became known, she lost
confidence in herself and in her relationship with her employer.
There are a number of features here which are against the grievor's
tsequest. The falsifications went on over a long period, and were complicated
to effect. Even though the inclusion of other employees' records seems bizarre,
we conclude that there was an element of rational planning to the falsifications,
and this would point to deterrence, of Mrs. Pilon and others, as an element to
consider in determining penalty.
Secondly, the reason advanced for the falsifications could have been
bolstered by better evidence. Although Mrs. Pilon seems to have seen at least
six doctors over the years, the only medical evidence before us, apart from Mrs.
Pjlon's, was a~ one-page letter from Dr. Cochrane, her psychiatrist. He did not see
Mrs. Pilon until after she was fired, and based his opinion at least in part on'
what she told him about her depression. In addition, there is no evidence of any
clinical reason why depression should have led in this particular case to dishonest
behaviour, rather than to some other type of sympton. The essence of her case seems
to be that her fear of dismissal for absences, a fear brought about by the impair-
ment of her judgement through depression, caused her to alter the records to hfde I
her absences. , In an attempt to assess the grievor's overall position, we have looked
at other cases where it has been argued that dismissal is too harsh a penalty for I
fals(fication of records. Leaving aside cases where the falsification occurred in '
an application for employment. we have found five cases to be of aid:
Re U.A.W., Weal 28 and C.C.M. Co., 5 L.A.C. 1883;
r; -6-
Re V.A.W. &al 127; end Ontario'steel Products~Ltd. 13 L.A;C.. 197; Re United
Steelworkers of America Local'3257~and the 'Steel'Equipment Co. Ltd., 14 L.A.C.
356; Conswners'Gas' Co. &d Independent'Gas Workers' 'Union, January 12, 1979,
~unrep. (Rayner, Chairman), and Cook v:'Ministry of Labour, G.S.B., 115/?8
In only one of these cases;constimers 'Gas, was the discha~rge upheld.
In all of the cases, the falsification inquestion was a serious
one, arguably more grave than that at issue here. InU.A;W:; Local 28, V.A.W.
Local 127 and Re United Steelworkers, the grievor had falsified work records
on which calculation of his remuneration in a piecework or incentive system
depended. Re u;~.ti. in Local 28; he had recorded 30% more pieces than he
actually produced, in what the chairman of the board described as a "flagrant"
'case;. in Re u.d.W: Zocal'l27, the employee had falsified time sheets for a year.
and the board fixed an amount of $1~.000 as what he had to reimburse, and in
Re United Steelworkers, the employee falsified work records for two days, arising
out of a desire to hide his inability to do a particular job. As pointed out
in the cases, falsification of work reports here goes to the root of the
honour system of recording employees' work. The grievor in ~onsumers~ Gas
'falsified reports-of calls to read consumers' gas meters, an activity that
might have impaired customer relations or reduced revenue.. In cook, ~the grievor -
had submitted fifty-five 'fraudulent rkports, of construction safety inspections
he had not done. The implications for worker.safety are patent and grave. Mrs.
Pilon's conduct amounted to an actual loss of between three and four hundred
dollars of employee time and in no direct tangible financial gain to herself.
The grievor's length of service was an important consideration in the
I---- -J-
cases we have looked at. In what might beg regarded as two of the gravest cases
.
,, ,.
of falsification, Re U.A.W. meal 28 and Re u.A.W. .kxal 127, the employees
had very long service, thirty years and twenty-three years respectively. Their
records were, moreover, clear. In Re United Steelworkers Local 3257, involving
two days' of falsifications, the employee had twelve years' service and one
written warning. In Cook, the grievor had four years experience and a good
record. All these cases resulted in mitigation of discharge, It is also
apparent from the cases that the employees' middle age and family responsibilities
played a part in mitigation.
In the one case where discharge was upheld, consumers* Gas, the grievor
was a young man of twenty-six, and his six-years with the company had produced
four past written warnings concerning, among other things, falsification.
Mrs. Pilon, a divorced person, is her own sole support. She has a
daughter, trained as a nurse, who now receives room and board from Mrs. Pilon
while returning to school. She has been in government service for about eight
years, with regular promotions and merit increases. As a woman of about fifty,
Mrs. Pilon may be at a disadvantage in the job market. especially ,with a
discharge on her record. Her psychiatrist was confident that her reliability
would return once the depression was cured, and was, in addition, sanguine about
the imninence of a cure.
We do not find that the interests of the employer here have been
so severely damaged that the factors tending to support mitigation should be
overlooked. On the other hand, we are aware that there are others who, like
-8-
Mrs. Pilon, have sole responsibility for these and other kinds of records, and
that the potential for harm is large if deterrence is underemphasized in this
award.
We accordingly find that the appropriate penalty in this case would
be suspension without pay or benefits for one year (from the time of the origina~l
discharge on August 4, 1978), and the consequent loss of one year's seniority.
Mrs. Pilon should make full restitution, and should, moreover, be on probation
for a year following her reinstatement. Because of the difficulties in her
previous position, we think that her reinstatement should involve re-assignment.
The circumstances of this reinstatement are less favourable to the
employee.than were those in most of the cases we have mentioned. In Re U.A.W.
Local 28( Rep United Steelworkers,, and cook v. Ministty ‘of ,Labour the eillplOyeeS
suffered only one-year suspensions without pay, although in the latter case
reinstatement was-also conditional on continuing effective treatment for the
alcoholism which had precipitated the falsifications. In ~Re.u.A.w., .LOC& 127,
however, the employee suffered a one-year suspension and loss of ten years'
seniority for a year of falsifying time sheets.
We have tried to balance the severity of the misconduct, in terms of
consequences to the employer, with the employees" length of service In
these cases, along with other personal circumstances which could mitigate penalty.
In the three cases where only suspension was exacted; all involving grave
consequences for the. falsifications, the employees had, respectively, thirty,
twelve, and four years of service. Given the comparatively milder consequences
of the falsification here, and the,eight years of service, we are satisfied
that one year suspension, one year loss of seniority,,and one year probation
r -9-
sufficiently reflects our strenuous disapproval of Mrs. Pilon's conduct and
our desire to temper justice with consideration for her personal circumstances.
Dated at Toronto, Ontario this 31s.t day of August 1979.
-~
Mary Eberts
I concur
Harry Simon
I concur
Vice-Chairman
Member
Victor,Harris Member