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HomeMy WebLinkAbout1978-0181.Spiers.79-03-28IN THE FiATTER 0: AN ARBITRATifit4 Under The CROWN ENPLOYZES COLLECTIVE BARGAINING ACT Before TtiE GRIEVANCE SETTLEMUIT 60ARD Eetbwzeii: Mr. John Spiers And Grie\wl The iYinistry Of r:'atural Resources Emp!cyer Before: Professor J.R.S. Prichapd Vice-Chaiman Mr. J.H. Mcrzow !4enber Mr. R. Cochrane Member E_or the Grievor: --__ Mr. Robert Goodman ticLean, Lycns & Kerr, Barristers & Solicitors 10th Floor 372 Bay Street Toronto, Ontario M5H 2X5 For the Efiployer: Mr. J.A. Temple, Supervisor Compensation, Personnel Servifxs 4506 Whitney Elock 99 Wel,lesiev Street West Toronto, On'aric M7A lW3 Hearinn,: Decei;$er 1'2th, 1973 Suite ZlCO, lS0 Gund2s Street b!est Toronto, Ontario -2- I By a grievance dated August 30, 1978, the griever, Mr. John Spiers, grieves that his dismissal as a Recreational Ccntrol,Officer (RCO) with the Ministry of Natural Resources was without just cause. He seeks "reinstatement immediately without loss of pay or credits". Mr. Spiers was dismissed for providing false information on various application forms and supporting one of these applications with a fraudulent certificate of high school graduation. He was notified of his dismissal by the following letter dated July 28, 1978: REGISTE'RED July 28, 1978 Mr. John Spiers 1470 Bronte Road North R.R. 6'2 Oakville, Ontario L6J 423 Dear Mr. Spiers: I have reviewed the report and recommendation from Mr. Patrick resulting from the hearing held in Cambridge, July 7, 1978. You have committed two serious offences. The first was providing false information on your various application forms for employment and for the Ontario Police College course and your persistence in maintaining that you had achieved a much higher level of education than was actually true. The second offence was producing as verification for the higher educational level, a docu- ment which you knew was fraudulent. Such dishonesty in staff cannot be tolerated, I am there- fore dismissing you from employment with the Ministry of Natural Resources. This action is not being taken without regard for your personal circumstances. You do have a family and are currently living in a Ministry house. The effective date of your dismissal will be August 31, 1978. This should -3- provide you with sufficient time to find alterna- tive housing and make whatever arrangements are necessary for your physical move. Unless you choose otherwise, you may continue with your normal employment duties until August 31, 1978. Yours truly, J. K. Reynolds Deputy Minister b.c.c. Mr. W. T. Foster, Assistant Deputy Minister , Southern Ontario R.6312 Mr. R. M. Dixon, Regional Director, Central Region, Richmond Hill Mr. W. R. Catton, District Manager, Cambridge At the time of his dismissal, the grievor was a probationary employee since he had been a member of the classified staff for only approximately four months. Mr. Spiers, aged 29, was first employed with the Ministry on the unclassified staff from May 17 to September 26, 1975 as a Security Officer at the Bronte Creek Provincial Park. Subsequent to that he was again employed by the Ministry on the unclassified staff for the follow- ing periods: I i) March 27 to May 21, 1976, Security Officer ii) June 19, 1976 to March 18, 1977, Security Officer (iii) April 23, 1977 to January 13, 1978, Park Warden (iv) February 18, 1978 to March 31, 1978, Park Warden Therefore, by March 31, 1978, the grievor had worked on the unclassified staff at Bronte for over two years, first as a Security Officer, and later as a Park Warden. : . -4- On April 1, 1978, the grievor was appointed to the position of Recreational Control Officer as a probationary member of the classified staff, a position which carried the classification of Resource Technici-an 3. When the grievor was dismissed he had served four months in that position. Therefore, while the grievor was still technically a probationer at the date of his dismissal, he had in fact worked at Bronte almost continuously for two and a half years. The grievor's appointment to the classified staff came as part of a Manpower Control Program instituted by the Ministry in the spring of 1978. This program was devised in recognition of the fact that a number of essentially permanent jobs at Bronte were being filled by unclassified staff. The Ministry decided to classify these jobs and make permanent appointments to the positions. Mr. Spiers applied for and was awarded the position of Recreational Control Officer without a competition. The evidence indicated that this job was in essence the functional equivalent of the position of Park Warden which the grievor had filled up to April 1, 1978 as a member of the unclassified staff. In order to obtain this position, the grievor completed by hand an application form dated March 15, 1978 (Exhibit 2). The application was subsequently typed and then signed by the grievor [Exhibit 3). The function of a Recreational Control Officer (RCO) is to -5- organize and maintain the security program at Bronte Creek Provincial Park with the objective of providing a safe environment for park users and protecting park property and equipment. The Duties and responsibilities of an RCO were set out as follows in the Position Specification and Class Allocation Form (Exhibit 9): SUMMARY OF DUTIES AND RESPONSIBILITIES indicate percentage of time spent on each significant function, indicate scope, equip- ment, working conditions unusual features etc.) 40% 1. Under direction and supervison assists in organizing and implementing the park security program by: - preparing draft budget estimates for security program. - becoming familiar with and using control techniques for crowds. - investigating complaints regarding park operations and consulting with supervisors reference to responding to public concerns. - being familiar with deployment of search and rescue tech- niques to deal with injuries associated with the parks wide variety of recreational facilities and rugged natural areas. - creating and maintaining close liaison with other outside agencies and provincial jurisdictions i.e. local, regional and provincial police and the district enforcement co- ordinator. - supervising standards for staff assigned to security and recreation control. - participates in regular security program - lays charges and makes court appearances - maintains records of occurences and weekly enforcement reports - through supervisor co-ordinates support of Conservation Officers. - notes areas of park or operation that present user problems, submits reports and recommendations to supervisor. - recommends levels of security necessary to provide security and recreational control. 2. 30% Provides for supervision of security program by: - hiring suitable additional staff as required during peak periods. -6- - preparing work schedules for park wardens and security staff - maintaining time sheets - training or providing for adequate security staff training 30% 3. Assists other programs as directed e.g. - visitor services, farm program, recreation complex. The same form set out the "skills and knowledge required to perform the work" as follows: 4. SKILLS AND KNOWLEDGE REQUIRED TO PERFORM THE WORK (state education, training, experience etc.) Demonstrated supervisory ability, valid Ontario Driver's Licence. Completion of park wardens' course (MNR) A thorough knowledge of the Provincial Parks Act and an ability to deal with people. Graduation from an approved technical course in Resource Manaqe- ment or equivalent of education and experience. Mr. Robert Catton, District Manager for the Cambridge District of the Ministry of Natural Resources, the individual responsible for making recommendations for appointment to the classified staff at Bronte testi- fied at length about the grievor's appointment. We should state at the outset in considering Mr. Catton's evidence that we found him to~be an extremely helpful witness exhibiting the utmost good faith and integrity. As we understand the evidence, it appears that when the need to fill the RCO position first arose in the ipring of 1978, the grievor was not Mr. Catton's first choice to fill the position. Mr. Catton pre- ferred another candidate since he knew that the grievor did not have a post-secondary education in resource management. However, at that point the union intervened and urged Mr. Catton to appoint the grievor to the RCO position. As Mr. Catton stated, he:was forced to "eat crow" in light of the union's submissions and to appoint the grievor to the position. While the evidence on this point was not entirely clear, it appears that the union's argument at the time of the appointment was that since the grievor had been acting as Park Warden for approxi- mately a year prior to April 1 and since the positions of Park Warden and RCO were functionally virtually identical, the grievor was entitled to the position on grounds of "equivalent of education and experience". Thus it appears that Mr. Catton appointed the grievor to the RCO posi- tion knowing that he lacked "graduation from an approved technical course in Resource Management" or other similar education. We must conclude that he did so - and did so quite properly - on the basis of the grievor's experience and record in the functional equivalent of the position to be filled. Subsequent to completing the application form on March 15, 1978, the grievor was required to assist in the documentation, process which is required whenever a person is appointed to the classified staff. Since this process is not required for appointment to the unclassified staff, this was the first time documentation was completed for the grievor. It was during this process that it was noted by the Ministry that the grievor had stated different educational qualifications on his March 15, 1978 application form than he had on his original application for the unclassified staff dated May 5, 1975 (Exhibit 6). Furthermore, these qualifications were found to be different again from those stated on an application he had made in January, 1976 for attendance at the Ontario Police College (Exhibit 7). -8- On the March, 1978 application form the grievor claimed to have completed Grade 12 in Nova Scotia which he described as Senior Matricula- tion. On the May, 1975 application form, while there is some possible ambiguity, we find that he claimed to have completed four years of high school again in Nova Scotia. On the January, 1976, application form, while there is again some possible ambiguity, we find that he claimed to have obtained the Grade 11 Diploma again in Nova Scotia but at a different high school than that indicated on the May, 1975, application form. When asked by the Ministry to document his Senior Matriculation, the grievor submitted a high school graduation diploma (Exhibit 5). However, subsequent checking by the Ministry revealed that this diploma was a forgery, and when confronted with this fact the grievor admitted it was a fake. He explained that the document had been given to him years earlier as a joke by his brothers.who were embarrassed that he had not attended high school. Again, when asked by Ministry officials to explain himself in early June, the grievor admitted that he had completed only Grade 8 in Nova Scotia and, apart from the Police College, had not attended school since. Upon discovering that the grievor had lied on three applica- tion forms and that he had submitted a false document in support of the most recent application, the Ministry decided to dismiss the grievor from employment with the Ministry. It did so by the letter reproduced at the outset of this award and it is this dismissal that is at stake in this grievance. It should be stressed that the grievor was dismissed for misconduct and not merely released from employment during the -9- probationary period. Thus, as counsel for the Ministry acknowledged, the reasoning in me Leslie 80/77 could not be relied on in this case. m - This grievance faces the Board with the question of the response to a case of dishonesty in the completion of an employment application form. To our knowledge, the Board has not addressed this issue previously,although a somewhat analogous problem was dealt with by the Public Service Grievance Board in 'me Teddy 675/73. Furthermore, since at the time of his dismissal the grievor was still a probationary employee, we must consider the appropriate standard of review which should be applied to probationary employees in such cases. The general question of the standard of review for probationary employees has been the subject of considerable comment by the Board in cases including Re Eriksen 12/75, Re Temple 12/76;'Re ~Gordon 13/76;'Re'Joyce 21/76, Re Dykstrr? 25/76, Re Mania& 56/77 arld.Re.D'Mello 150/77. The appropriate response to providing false information on the employment application form has been the subject of discussion in numerous arbitration awards in the private sector (See drown 6 Beatty, Canada Labour Arbitration (1977) pp. 316 - 318 and Palmer, Collective Agreement Arbitration in Canada (1978) pp. 287 - 291 for a discussion and citation of the leading cases on the subject.) However, the great majority of these awards deal with failure to reveal some prior medical condition or a criminal record and not with an overstatement of the . applicant's educational qualifications. The award of Professor Simmons in me Douglas Aircraft of Canada Ltd. (1973). 2 L.d.c. (2d) 147 represents one approach to this problem, an approach relied on by counsel for the Ministry. At page 153 of that award, Professor Simmons summarizes his view of the cases as follows: - 10 - : From the foregoing arbitration decisions, including the American once, there appears to be at least four possible results that may arise whenever an applicant falsifies his employment application form to which a statement is attached signifying that,the information which he is giving is the truth. one, is the information which is withheld or wrongly given, is innocently withheld or given . Then, if that information is not material to the job performance, the employee will in all likelihood not be dismissed from employment when this ezzo= is subsequently discovered. Secondly, if the information is material to the performance of the job then, notwithstanding the fact that it has been innocently withheld or given, the employee may indeed be dismissed. Thirdly, in instances where the information is deliberately withheld or knowingly falsely given in an attempt to gain employment then, when sub- sequently discovered, the false misrepresentation will be sufficient grounds to terminate the employmwkrelationship. The fourth and final possible result may involve a waiver df the right in the employer to terminate the employment rela- tionship if his conduct clearly indicates that he condones that which the applicant has done. Despite its attractions of simplicity and certainty, this approach involving categorization of the cases has a certain inherent rigidity which may deny the flexibility required to.consider each case on its individual merits. Q Thus we are reluctant to accept in total the scheme offered by Professor Simmons. We should note that if we were to follow his reasoning, this grievance would necessarily be dismissed since there is no dispute that the information was "knowingly falsely given in an attempt to gain employment' and thus that this case would fall within Professor Simmons' third category. This approach does not invite a review of all the facts of the case but rather focuses on one or two facts which are said to be the dominant considerations. A somewhat different and more flexible approach to the problem has been developed by Mr. Shime in me Gould Manuf+uring of Canada Ltd. - 11 - (19721, 1 L.A.C. (2d) 314 (subsequently upheld in Re Gould Mfg. and United Steelworkers of America cl9731 2 O.R. 279 (Div. Ct.) and fol- lowed in numerous subsequent awards. Mr. Shime summarized iiis view at p. 317 as follows: A review of those cases indicates that not every falsi- fication of an employment application constitutes just cause for discharge. The relevant factors are as follows: . _ (1) The nature and character of the falsification.and the matter or offence concealed. (2) The number of matters concealed. (3) The date when the falsified or concealed matter oc- curred in relation.to the signing of the employment application. (4) Any warnings contained on the employment application. ! (5) Whether the revelation of the matter OI offence con- cealed would have resulted in the employer not hiring the individual. (6) The time that has elapsed between the signing of the false application form and the date of discovery. (7) Whether the employer acted prcmptly upon learning of the falsification of the employment record. (8) The seniority of the griever. (9) Whether the griever was in fact discharged for the fal- sification. (10) The materiality of that falsification or matter or of- fence concealed to the work performed. (11) Special considerations such as a sensitive employment position. It is also of ,significance that few if any of the cases indicate that the passing of the probationary period bars the comp&y from taking action. The theory behind that view seems I 3 to be that where a matter is hidden the employer may not have an opportunity of conducting an investigation into the situation where the griever has concealed or falsified his record he can- not then take advantage of his own wrongdoing and the hid- ing of relevant faults by compelling the company to inves- tigate matters about which it had no knowledge. The relevance of the probationary status of the grievor in this case can be treated as relevant to item 8 in Mr. Shime's list of factors, "The seniority of, the griever". In this context, the n, status is relevant to the weighing of the grievor's total circumstances in that he will have only a short work record to balance against the negative considerations associated with the falsification. i. i - 12 - While this approach would incorporate the probationary status of the grievor within the consideration of the grievance, it might be argued that to do so in this way would be to neglect improperly the generally accepted arbitral principle that probationers should be subjected to a different standard of review than regular , employees. Indeed, the Board in the cases cited above which have considered grievances by probationary employees have expressly developed a standard of review different from that for regular employees. While we endorse this development of different standards of review for most disciplinary situations, we believe that it is inappropriate and unnecessary in the case of discipline imposed for falsification of application forms. The reason for isola-ting falsification of application form cases as a separate category ol' disciplinary offence is that the employee's offence occurs at the same point in the employment record regardless of the employment status of the employee; it always occurs at the out- set of employment. The primary difference between probationary and regular employees in this regard is the timing of the disco.very of the falsification, not its occurrence. Indeed, it could be argued that to hold probationary employees to a harsher standard of review in these cases would merely encourage further ef.Forts to conceal the offence in an attempt to survive the probationary period. Therefore, in the situation of falsification of employment application forms, there does not appear to be any particular advantage to categorizing the cases depending on whether the employee in question - 13 - is a probationary or regular employee at the time of the discovery of the falsification. Rather, the preferable approach is to consider.the falsification in the light of the factors listed in me GOUM manufacturing (supra) and any other factors which may be relevant to a particular case. It should be emphasized that in this context the probationary employee's short record of work will weigh against him in that he will normally not have a substantial work record demonstrating his suitability for and competence in the job. Applying these principles to the facts of the case before us, and exercising our discretion under Section 18 Of~The C~CWI employees Collective Bargaining Act to review the penalty imposed, we have concluded that dismissal is an excessive penalty in this case and that a suspension of four and a half months should be substituted. Further- more, during the suspension, the g;-ievor should accrue no time of service towards the achievement of regular employee status. Therefore, the grievor shall be reinstated as of January 15, 1979 but still as a probationary employee. His probationary status will expire when and if he completes the required period of service excluding the time from August 31, 1978 to January 15, 1979. The factors which influenced our decision to reduce the penalty imposed are as follows. First, while the grievor was a probationary employee at the time of his dismissal and had served only four months as a member of the classified staff, he had in effect been on the job for over two years carrying out essentially the same functions. The switch from unclassified to classified staff in the spring of 1978 6 - 14 - during the Manpower Control Program was recognition of the functional equivalency of the grievor's work on'the,unclassified staff.. Therefore, it is more realistic to consider the grievor as having a work record with the Ministry of two years duration rather than four months. The relevance of this consideration was emphasized by Mr. Catton's .~ _ (the District Manager) evidence. He testified that if the grievor had not been a probationer but rather an employee with two years senior- ity, he would not have been dismissed. Rather, Mr. Catton testified, he would have recommended some lesser penalty and, at worst, would have recommended that the grievor' be given a new job. Secondly, while we recognize and give weight to the Ministry's arguments regarding the relevance of integrity to the position of a Recreational Control Officer, we do not reach the conclusion that discharge is required. The Ministry argued that since an RCO is some- times required to give evidence in court proceedings arising from offences committed within Provincial parks, any blemish on an RCO's record of integrity would significantly prejudice his ability to discharge this function. The Ministry fears that knowledge of the falsification might be used either to blackmail the grievor or to serve as the basis of a damaging cross-examination. The former fear seems unlikely now that the falsification is admitted and in the open. The latter has some potential validity but not sufficient in our judgment to uphold dismissal. Thirdly, a substantial amount .of evidence was produced at the hearing which suggested that the grievor's work record demonstrated his considerable suitability for the job. During his work for the Ministry, he bad received two performance evaluations indicating - 15~- above average performance. Also, he produced two positive letters of recommendation. Furthermore, at the hearing, the Operations Super- visor at the Park, Mr. Ball (a member of management), testified that in his view, while the grievor's behaviour warranted some discipline, he is still suitable for the job ("dependable, honest and requires very little supervision" and "doesn't treat his position as just a job as is indicated by his unusually high rating".)~ Also, the grievor successfully completed a course in Law Enforcement at the Ontario Police College, showed great dedication to his work by making constant efforts to improve his performance, did volunteer work as a Deputy Conservation Officer and generally showed an enthusiasm for his job not often seen in hearings before the Board. Fourthly, the grievor clearly recognizes that he made a serious and stupid mistake in falsifying his application. He regrets it, has apologized for it and has learned from it. He considers the position of an RCO to be an honour and wishes to regain it. Fifthly, on the critical question of whether or not the grievor would have been given his job if he had revealed his true educational qualifications at the time of appl~ication, we have concluded (despite some considerable lack of clarity in the..evidence on this question,) that he probably would have received the position. His appointment to the classified staff can only be explained as an acceptance by Mr. Catton of the Union's intervention to the effect that the grievor was entitled to the job on the basis of his experience on the unclassified staff. Therefore, we must conclude that Mr. Catton would have come to the same judgment even if he had known of the grievor's actual academic credentials. - 16 - E In sum, considering all the circumstances, we reject the conclusion that by this act of falsification alone the griovor has shown himself to be so lacking in integrity that the Mit:istry and the public to which it is responsible should conclude that the .-. grievor can no longer attain the degree of trust and confidence necessary to success as a Recreational Control Officer. In our view, such a conclusion is not warranted in all the circumstances of this case. Therefore, as stated above, the penalty of discharge should be vacated and a suspension of four and a half months without accumula- tion of seniority should be substituted. The grievor shall therefore be reinstated as of January 15, 1979, This significant suspension should indicate the seriousness, -of the offence of falsifying an employment application. Furthermore, any employee, present or prospective, would be ill-advised in the extreme to interpret this award as in any way condoning or encouraging falsification of employment applications. It is only the combination of all the circumstances favouring the grievor's position that led .us to the substitution of penalty. A similar combination of facts is unlikely to arise again and thus no employee should expect a similar result if the same offence is committed. Furthermore, the position of the grievor remains precarious; he has been reinstated but still as a probationary employee with a serious blemish on his record. Any further misconduct on his part is likely to have grave consequences. . - 17 - VT - In the result, the grievor is reinstated as a probationary employee as of January 15, 1979 with back pay from that dat? to the date of this award. For the period of his suspension fr3m August 31, 1978 to January 15, 1979 he shall not accumulate any seniority. Before closing, we should add that Mr. Temple for the Ministry and Mr. Goodman for the grievor both assisted us substantially with their well prepared and thoughtful submissions. Dated at Toronto this,'28th day of March 1979. Prof. J. R. S. Prichard Vice-Chairman (I concur) Mr. J. H. Morrow Plember (I concur) _, Mr. R. Cochrane Member