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HomeMy WebLinkAbout1979-0103.McKenna.80-11-18Between: IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE GARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Mr. Jack McKenna And Ministry of Transportation & Communications Before: Professor K. P. Swan - Vice-Chairman Mrs. M. Gibb Member Mr. J. Smith Member For the Grievor: Mr. G. Richards Grievance Officer Ontario Public Service Employees Union For the Employer: Mr. N. H. Pettifor Staff Relations Supervisor, Personnel Branch Ministry of Transportation & Communications Hearinq: Suite 2100 180 Dundas Street West Toronto, Ontario September 23rd, 1980 :’ -3- Cl9681 s.c.R.:~~, the Supreme Court of Canada quashed an arbitration award which had'ordered an employer to dismiss an employee at the instance of the union on the basis'of a union security clause. The order was included in the award after a hearing of.a union grievance relating to the proper interpretation of a dues check-off provision which the individual employee had been resisting. The Court held that the requirements of natural justice in such a case militated against the issuing of such an order unless the employee affected receive due notice of the proceedings and be given the opportunity to be present and represented by counsel, and to participate by calling evidence and cross-examining witnesses. Another case decided by the Ontario Court of Appeal at about the same time, Re Bradley a&Ottawa Professional Fire Fighters Association (1967), 63 D.L.R. (zd) 376, was referred to and approved by the Supreme Court in Roogendoorn. In the Bradley case the arbitrator, while dealing with a policy grievance alleging that certain promotions had been improperly made,! had revoked five of the six contested promotions without notice to the employees affected of the possibility that such a result might occur. The Court of Appeal quashed the arbitrator's award. In’Hoqwdoorn, Mr. Justice Hall, for the majority of the Supreme Court, referred to these cases as follows: In both cases the issue was whether an employee whose status was being affected by the hearing was entitled to be represented in his own right as distinct from being represented by the union which was taking a position adverse to his interests. - - 1 - 4 - It.seems to us that strictures which apply to private sector arbitration should apply to statutory bodies like our Board with all the more force; indeed, this Board has already recognized the principle established in Bradley and Hoogendoorn. On the . administrative side, the Board's forms for Notice of Hearing make special reference to the,necessity for notice to affected third / parties. As to the status of persons entitled to standing during the course of the hearing itself, see Re'Doherty and Ministry of Health, 43/76. But the claim of an individual employee to standing depends upon the demonstration of an interest adverse to that being advanced by.the union and directly affected by the proceedings. As it happens, there are peculiar facts in this case which make the position of Mr. Weir not unlike that of the successful applicant in a disputed promotion decision which the union seeks to overturn at arbitration. He was also an applicant for the job which was awarded to the grievor, and he was ranked just behind,the grievor.in qualifications for the job; that is why he came to be selected to fill the position following the dismissal. Nevertheless, we have come to the conclusion that a person appointed to fill the position of a dismissed employee has no consequent right to participate in the hearing of a grievance relating to the justness of that discharge. Reinstatemqnt of the discharged employee may, of course, affect the incumbent of the former position, but that does not create a situation where the union takes "a position adverse to his interests". There may be cases where special circumstances ,.: -5- : are sufficient to raise a particular interest which can only be vindicated by giving "party" status to the incumbent. In this case, for example, there is only one Mobile Auger Operator job in the Northern Region, and the case for standing is thus augumented by the fact that, if the grievor is reinstated, the incumbent's employment will be at the very least dislocated. The Union points out that the collective'agreement may include some protections for the incumbent and that the arbitral juris- prudence may also offer precedents which will protect him, As these matters are not now before the Board but may someday be, we consider that the less we say about such speculative matters, the better. It suffices to say that Mr. Weir has no special knowledge of nor role in the events precipitating the dismissal , and the issue of the justice of the discharge is not one in which he is involved except in a peripheral ww. His personal views on whether he should retain his job in preference to the grievor cannot in any way influence our deliberations on whether the Employer had just cause to discharge the grievor. In this case therefore, and in probably the vast majority of dismissal cases, the incumbent cannot assert a right to participate in the hearing. Turning to the merits of the discharge, we are satisfied by the evidence before us that the Employer placed considerable emphasis on the necessity for a good driving record for applicants for the Mobile Auger Operator job. The job involves driving a five-ton truck with a -mounted power auger across the considerable expanse of the Northern Region. The precise qualifications set out in the competition announcement only require a "valid Ontario Driver's License Class D. minimum" and : "successful completion of Ministry Equipment Maintenance and operating tests to qualify as a Highway Equipment Operator 3,", but the testimony makes it clear that the testing process under the second of these qualifications also involves a search of the applicant's driving license to verify his drivi,ng record. Whether or not a clean driving record (i.e.: one which does not reveal any accumulation of "Demerit Points" as those indications of convictions under the Highway Traffic Act and certain other legislations 1 are defined in. R.R.O. 1970, Regulation 413)is a minimum requirement and is strictly necessary for employment in the job in question, we certainly accept from,the evidence that it constituted a material factor to be considered in-the selection process. All members of the selection board which recortnnended Mr. McKenna's appointment stressed the importance of a clean driving record, and all stated that, had they known of the state of the grievor's record at the time of the interview, they would not have recommended him. We think, should it be necessary for us to make a finding, that consideration of a driving record in the course of selecting a person to drive heavy machinery is perfectly reasonable for any employer and that, while the present Employer's arguments about the special public image of the Ministry that not only builds and maintains highways but also issues driving licenses and administers the Demerit Point System are persuasive, they add very little to the vital ~interest any employer would~have in such a case as this. Against that background, we turn to the evidence of, the alleged misrepresentation. The grievor's driving-record shows a conviction for failure to come to a full stop at an intersection in 1975 (3 point;), an accident for which no charge was laid, another conviction for the same offence in 1977 (3 points) and a speeding conviction in early 1979 .for travelling 141 kmh in a 90 kmh zone (6 points).By the material time, the first of these convictions had lapsed, and his accumulated point total was thus 9 points as of January 5, 1979. On January 29, a letter instructing the grievor to come to an interview with a Driver Improvement Counsellor was sent to the'grievor, a provided by Regulation.413, s.10 when a 9 point accumulation has occurred. This interview took place on February 20, 1979 in the early afternoon. Although no action was taken concerning his driver's license (the interview is really an informal "show cause" hearing whether or not the point total should result in a suspension of the ,driver's license), the Counsellor who interviewed the grievor discovered that, as we shall see, he had been selected for a job at the Ministry. It is the uncontested evidence of the Counsellor, Mr. Harry Molyneaux, that he spent some considerable time explaining to the grievor his responsibilities at the Ministry to maintain a good driving record and the possibility of serious employment consequences if his license were ever suspended. In the meantime, the grievor had been interviewed for and had been awarded the Mobile Auger Operator job. His application had been on file with the Ministry, and he was invited to appear before a selection board. All of the Employer's witnesses to that Board's deliberations agree that the grievor was asked if he had a clean driving - 8 - record and that he answered that he did. The griever asserts that he was only asked what his driving record was like and that he replied only that it was "good". He explains this answer by stating that he had forgotten about the 1977 conviction and still intended to contest the speeding conviction, an intention which was foreclosed when his wife paid the ticket (presumably thus entering a guilty plea on his behalf) in his absence and without his knowledge. In any event, he says, he was not aware of the implications of these matters for his Demerit Point total. The grievor was ultimately selected for the vacant position and was to start work on February 26, 1979 subject, it appears, to successful completion of the tests for Highway Equipment Operator 3 classification. In the course of the testing, which he passed without difficulty, the grievor completed a form (Exhibit 10). This form . is divided into three blocks, the uppermost of which is for a listing of driving licenses held. The last two blocks are headed, in large block capitals, "DRIVING AND OPERATING EXPERIENCE" and "PREVIOUS DRIVING CONVICTIONS OR LICENSE SUSPENSIONS". The experience block is filled out by the grievor beginning with his driving experience in 1955. Along the rightiide.is a column headed "Any accidents?" with two sub-columns to check "Yes" or "No". "No" is checked beside each entry. The convictions or suspensions block is left entirely blank. In a certificati.on block headed "I hereby certify the above statements to be complete and correct" the grievor has filled in the date and his signature. The grievor disputes the check marks in the "no accidents" column, which he does not recall inserting, but otherwise admists that he filled out this form. He -9- states however, that he did not advert to the importance of the document, since he had been filling forms and doing tests all day. He agreed that his driving record had, by this time, been clearly brought to his attention by the interview with only Mr. Molyneaux a few days before. In the event, the grievor's actual driving record came to light some two weeks later, when the offprint of his record finally reached the Region offices. Meetings were convened, and the grievor was invited to explain why he had not mentioned his record on the two earlier occasions when an opportunity arose. According to the management witnesses,. he was able to offer no satisfactory explanation, nor even an excuse. He himself says that he advanced the same explanation on that occasion as we have recorded above.In the end, a decision was taken, and implemented, to discharge the grievor from his position. In his own testimony, the grievor spent some time attempting to minimize the seriousness of the infractions appearing on his Driving Record. In our view, this evidence is irrelevant.' His license was in jeopardy, at the material time, of being subject to a discretionary suspension. Any further infraction, however minor, would have increased the possibility considerably. A serious infraction costing 6 points would have resulted in a mandatory suspension.. On April 24, 1979, the danger would have subsided somewhat by the lapse of the 1977 3-point conviction, but it would not have disappeared entirely. In the circumstances, these were factors which the Employer was entitled to consider for any ,driving job; the evidence is that the crew which accompanied the mobile auger would be particularly dependent on the grievor's ability to drive and.thus particularly susceptible were he to lose his license temporarily. . . - 12 - .- As to the nature of the misrepresentations, they occurred at two critical junctures - when he was being assessed in competition with other aP!JliCantS for selection and when he was being tested for the Ministry's Highway Equipment Operator 3 permit, a requirement for employment; they thus directly induced the Employer to hire the grievor. On the other hand, no,direct warning of the consequences of misrepresentation was given on either occasion, although a general duty to be honest and reasonably forthcoming about material factors can, we think, be inferred. Finally, as to the relationship between the parties and the Employer's conduct, there is little to assist the grievor. He had virtually no seniority, the misrepresentation was promptly discovered and quickly acted upon and it was clearly the sole reason for the discharge.. On the basis of all of the Gould ?hrmfacturiny test factors, therefore, the grievance in this case presents little to support it. One further matter remains. Does it matter whether the misrepresentation was intentional or innocent, and if so, was the grievor's.conduct deliberate and thus culpable? Some arbitrators have held that even an innocent misrepresentation may, if i~t relates to matters affecting an employee's ability to do the job, be grounds for discharge: see Re Oil, Chemical and Atomic Workers, Iocal 9-670 and Millhaven Fibres Ltd. (1971), 22 L.A.C. 160 (Curtis): Re Douglas Aircraft co. of Canada Ltd. and United Automobile Workers, Local 1967 (19731, 2 Z.A.C. (Zd) 147 (Simmons) (where the proposition is obiter); Re Budd Automotive Co. of Canada Ltd. and United Automobile Workers, .mcal 1451 (19741, 6 L.A.C. (Zd) 311 (Brandt). We take the view that - 11 - "(10) The materiality of that falsifl'cation or matter or offence 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 company from taking action. The theory behind that view se.ems to be that where a matter is hidden the employer my not have an opportunity of conducCriny an investigation into the situation where the grievor has concealed or falsi- fied his record he cannot then take advantage of his own wrongdoing and the hiding of relevant faults by compelling the, company to invtistigate matters about which it had no knowledge. The list is clearly, given the ~generality of item (111, not intended to be exhaustive, nor will every factor be instructive in .every case. It provides, however, a useful framework for analysis of the case before us. Here the factor misrepresented (we choose a term not necessarily implying deliberate lying for the moment) clearly went to the central job function for which the grievor was hired. Only one factor was misrepresented, but that factor was directly related to the grievor's qualifications and at least indirectly related to his on-going ability to perform his job. The Employer's witnesses have testified, and we accept, that the grievor would not have been hired had his driving record been known at the time of,the selection board interviews. Thus all of the factors relating to the materiality of the misrepresentations weigh heavily against the grievor. . - 10 - It may be that, presented with his explanations, the Employer might have waived the grievor's driving record in favour of his other undoubtedly impressive qualifications and experience. Unfortunately, the Employer never had an opportunity to make such a decision. Thus the critical question here is only whether the suppression of the actual state of the grievor's driving record, however it may have been explainable as trivial , constituted grounds for discharge. This Board has already dealt with the general question of falsification of employment records in Re Spiers and'Ministry of Natural Resources, 181/78. In that decision a panel chaired by Professor J.R.S. Prichard adop,ted the multi-,faceted test set out in Re ~Gould Manufacturing of Canada Ltd; ad United Steelworkers (1972), 1 L.A.C. (2d) 314 (Shine). The test is stated by Mr. Shime at.page 317: A review of those cases indicates that not every falsification of an employment application constitutes just cause for discharge. The relevant factors are as follows: (1) (2) (3) (4) (5) (‘3) (7) (8) (9) The nature and character of the falsification and the matter or offence concealed. The number of matters concealed. The date when the falsified or concealed matter occurred in relation to the signing bf the employment application. Any warnings contained on the employment application. Whether the revelation of the matter or offence concealed would have resulted in the employer not hiring the indivi&al. The time that has elapsed between the signing of the false application form and the date of discovery. Whether the employer acted promptly upon learning of the falsification of the employment record.. The seniority of the qrievor. Whether the griever was in fact discharged for the falsification. - 13 - it is inappropriate to assist "litmus paper" tests into this area of the law, where a variety of influences may act upon a decision to include or not include something in an employment application. Material- ity is not sufficient reason to make every innocent misrepresentation grounds for discharge. On the other hand, the employee's state of mind at the time of the misrepresentation is another factor to be considered in the assessment of the wrongfulness of the conduct. Here the misrepresentation we accept, was central to the job function to be performed; the grievor literally got the job because his driving record was concealed. 'Thus there is a heavy dose of materiality to be overweighed by the grievor's assertion of innocence. Moreover, that assertion rings rather hollow. On the first'occasion, if we accept the Employer's version, the grievor said that he had a clean driving record when he had been stopped for.a very serious speeding offence less than two months before and when he was waiting.to contest it in court. Even if he had reasonably forgotten the three year old earlier offence, it would seem reasonable to expect him to recall the speeding ticket and give some 'explanation. His own evidence is that he only replied that his record was "OK", presumably a relative rather than an absolute assurance of a good driving record. Even on this 'version, some explanation of the sp.ceding charge was required of someone applying for a driving job. Even if we give the benefit of the doubt to the grievor on that occasion, however, the completion of the form on February 26, . i - 14 - 1979 is not so readily explained. The form is very simple, straightforward and unadorned; there is no scope for misunderstanding the large letters and the three blocks for information. The signature certification states that the information is affirmed to be both complete and correct, and appears immediately underneath the place for convictions to be noted. At.this time, the grievor was on his own admission entirely aware of the nature of his record, of the danger to. his license and of his new employer's attitude towards driving records. It is extemely difficult to believe that, in the circumstances, his failure to fill in this part of the form was anything but a deliberate misrepresentation or wilful blindness to its importance. In all the circumstances, the critical materiality of the misrepresentation and the strong evidence of calculation on the grievor's part are sufficient to convince us that the discharge was, for all the reasons stated above, entirely justified. In our view, this is not a case in which to consider the mitigation of the penalty imposed. The offence goes to the root of the employment relationship, and actually procured the establishment of the relationship. The Union advanced this Board's decision in Re Maw and Ministry of Transportation and Communications, l/75, a CaSe which also involved concealment of a driving record. The difference in those two cases is, of course, the long service of Mr. Maw before the conduct, probably more serious even than that complained of in this case, which occasioned the discipline. Here there are simply no grounds on Dated at Toronto, Ontario this 18th day of November, 1980. & Professor K. P. Swan Vice-Chairman I concur Mrs. M. Gibb Member I concur Mr. J. Smith Member