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HomeMy WebLinkAbout1979-0227.Andrews.81-02-13Between: Mr. Garry Andrews Before: IN THE MATTER OF AN ARPITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD - And - The Crown inRight of Ontario Ministry 0,: Agriculture and Food E. B. Jolliffe, Q.C. V. P. Harris M. Perrin Grievor, Employer. Vice Chairman Member Member For the Grievor: M. Pratt, Grievance Officer Ontario Public Service Employees Union For the Employer: D. W. Brown, Q.C. Ministry of the Attorney General Hearing: October 21, 1980 November 6, 1980 .- ,-. c -2- Mr:Garry Andrews has grieved against his discharge in August, 1979;on being charged with "the unauthoriied removat of Ontario Govemmnt propertg . .." He had been employed as an Agricultural Technician 2 at the Ridgetown College of Agricultural Technology. The events immediately preceding the dismissal may be sumnarized as follows: On July 30, 1979, Mr. W. W. Snow, then Principal at \ Ridgetown,received a telephone call from the grievor's estranged wife. From what she said, Mr. Snow deduced that there was College equipment located at the farm occupied by her and formerly occu,pied also by the grievor. As directed by the Principal, a visit was made to the farm that afternoon by his assistant, Mr. Gordon Walker, accompanied by two other employees. They returned.about 4~~00 p.m. with a list of items shown them by the grievor's wife. These were the following: 1. One cream separator 2. One tarpaulin. wagon canopy 3. Three gallons of herbicide '4. One Haugh unit (for measuring eggs) 5. Two gallons of green paint : 6. One.garden hoe 7. One wheelbarrow 8. One garbage can 9. One high-pressure sprayer The parties agree that all of the items above were Government property which- had formerly been in use at the College. The next day, July 31, Mr. Walker and several supervisors returned to the Andrews' farm with an officer of the Ontario Provin- cial Police and seized the items known to be Government property. _. -3- They were retained by the Ontario Provincial Police as evidence against the grievor. k On the same day Mr. Andrews was called to Mr. Snow's office and asked for an explanation. Mr. Brian Sharp, President of the Local Union, was also present at the meeting. Mr. Snow reported findings to his superiors in Toronto. On August 3rd, Deputy Minister Kenneth Lantz wrote Mr. Andrews, referring to “the unauthorized removal of Ontario Government ppoperty from the CoZZege premises where you are employed” and stating: ‘Based on the infomation’befoore me, I find your conduct to be cause for dCsm&saZ from employment in accordance with Section 22(31.of the Public Service Act. Accordingly, I hereby dismiss you from your employment, effective Tuesday, August 7, 1979. I’ The College undertaking at Ridgetown includes 450 acres of land, a number of buildings, and many ~items used for farm opera- tions, experiments and teaching:. There are about 64 employees, many,of whom, like.the grievor, were engaged in the beef cattle, dairy cattle or swine operations , using various items of equipment from time to time. The equipment was of course government property, but some of it could be and~occasionally was utilized for private purposes, particularly by employees who had gardens or farms of their own. There were dangers inherent in such use of public property for private.purposes and the College made a series of attempts, not entirely successful, to strengthen its controls. On August 13, 1974, a memorandum (Exhibit 61 issued to Mr. Andrews and four other employees by Mr. D. G. Luckham stated (in paragraph 2): -4- “All property loaned to individuals OF to organiza- tions rmtst be supported by authorization by the Principal.” On September 30, 1974, Mr. Luckham issued another memo- randum (Exhibit 7) addressed to “All Stuff-Livestock Section” and ‘Re Loan of Equipment”, reading in full as follows: “Equipment can only be loaned dn the approval of the Principal of the College. For your guidance, equipment is likely to be approved for Fair Boards etc. but cannot be loaned to private individuals for their own use. Your co-operation in applying these regu- lations would be appreciated. All requests for borrotling equipment should be referred to this office. n On December 23, 1974, the Principal's Executive Assistant, Mr. G. 0. Walker, issued a third memorandum (Exhibit 101, headed “Borrowing of Equipment; Items”, this was addressed to ‘All Staff Members” and is as follows: “We have just been informed by Toronto that in the future, personnel of this institution will not be ’ allowed to borrow on temporary loan any item of equipment that is held by this College. As in the past, with the principal’s approval, organ&ations such as Boy Scouts, Fair Boards, Junior Farmers, etc. will be authorized to borrow equipment for floats, parades, etc. which are considered to be part of the connmmity programs. This new instruc- tion is to take effect inrmediately.” In his testimony, the grievor said he.had seen Exhibits 6, 7, and 10 quoted above, and assumes he saw them “within a week OF so." He also said, however, that “I would give someone from beef a spmayep but I would have no way of knowing where it-was going. I’ He referred to the practrce of transferring equipment from one barn to another, presumably for temporary use. -5- Following an audit of inventory, Mr. Walker issued a memorandum to 'AZ2 Stiff” (Exhibit II! dated March 3, 1978, as follows: “‘It has been brought to OUT attention that items are missing from some buildings on the farm- A search for these missing items has been made but tith no success. The O.P.P. have been to inves- tigate this mtter and z-i22 be asked tu continue any investigations of future losses.” In his testimony, Mr. Andrews said he did not see Exhibit 11 above, but he had ‘heard about it.” He also said that by March, 1978, when the memorandum was issued, some items of College property, including the sprayer, were at his farm. At that time he was living in a truck at the farm, but had been denied access to the house by his estranged wife. Mr. Snow (Principal.of.the College at material times) ' and his Executive Assistant, Mr. Walker, were the only witnesses called by counsel for the employer. They explained that in 1974 and following years, on the advice of auditors, an effort had been made by management to tighten control of inventory at the College. The more valuable items were numbered and some were marked with the provincial symbol and the name of the Ministry. Such markings may be seen on a police photograph (Exhibit BCI of the high-pressure sprayer found at Mr. Andrews' farm. ,This ,was an item identified as "missing " at the time of an inventory audit in January, 1979. The grievor does not deny that the items found and seized at his fans had been removed by him from the College without authorization of any kind. There are two elements in his explana- tion, which is substantially the same as the explanation he gave to L -6- Principal Snow on August 1, 1979. The first element relates to the nature and history of the nine items listed at the outset of this decision. The second element relates to emotional problems and the grievor's excessive use of sedatives resulting from disputes with his wife between 1975 (when he bought the farm) and 1979, when he finally regained custody of his son and re-possessed the house and farm. As to the nine items found at his farm, the grievor's explanation is as follows: ~1. The cream separator, an obsolete model in very bad condition, had been “left in the dairy barn and I took it home to restore it. ” (Mr. Walker agrees that it was no longer useful but he said that it would have little value as an 'antique"). 2. The tarpaulin canopy had been borrowed to cover furniture bought at a sale and moved to the farm by truck. (In this move he was assisted by another witness, Mr. Sharp, the Local Union President). He planned to return it "us sootl (zs I could, but the Court's order kept me off the property." 3. Three gallons of herbicide had been left in a storage building %-ith fertilizer bags and other junk. Fred Lee told me to cZean it out. I thought I might as we21 use it. I can’t rem21 when this was." 4. The Haugh unit had been borrowed to test eggs when he was planning to keep chickens in the barn, and "I had 110 chase to take it back.", 5. The College had engaged a contractor to do some painting. ‘When he was finished he Zeft the +JO gallons in a shed for dmping. ” ., i , -7- , -6. The grievor says: 'The hoe I found on the.ro.ad on the way in at 5:30 a.m. and I threw it in the back of the pick-up." .7. The grievor says he had bcrrowed the wheelbarrow to move stones at the farm. He returned it to the College, but borrowed it again: "I used it tuo or three times." 8. The garbage can had been thrown out in-the dump area and "1 thought I couLd use it." 9. The grievor says he 'borrowed" the high-pressure sprayer, probably in the spring of 1978.' He intended to whitewash the chicken-house but that plan was frustrated by his troubles and "I nelter had a chance to use it." Apparently it remained in his barn for more than a year. This seems to have been one of the missing items referred to Mr. Walker's memorandum of March 3. 1978 &hibit 121 presumably because it was an item of some vglue. The grievor also testified that he had neve'r asked leave to borrow anything from the College for .use at home. He gave examples of other employees who had done the same thing from time to time. Another witness, Mr. Sharp, gave evidence to the same effect. The other element in the grievor's defence is his per- sonal history. Soon after purchasing the farm in 1975, relations with his wife became so troubled that he began to rely on drugs for sedation. Exhibit 22 (dated November 4, 1980) is a statement by Dr. L. Malloy of Ridgetown, certifying that Mr. Andrews %xrs on medication, due to an acute anxiety state from January, 1976 until August, 1978." The medication mentioned was "%aZ& 2 mg - as necessary". Mr. Sharp worked with the grievor for part of the -8- period and has testified that the grievor was extremely upset about his marriage and seemed to be taking so much Valium that he became groggy and his work deteriorated. The grievor himself says he was "mt thinking straight" in 1978 and 1979. When he heard in March, 1978, that the O.P.P. were to investigate~the loss of missing items, . fears developed that detection as the culprit would prejudice a continuing struggle to\regain custody of his son. In March, 1978, the grievor had established living quarters in his truck --- at the farm --- and there he remained until September, when he moved to Ridgetown and stopped taking drugs. He emphasizes that a Court order required him to stay away, so that he thought himself unable to return equipment stored at the farm. However, in July, 1979, he was awarded custody of the child and prepa\red to take possession of his house. It can be inferred that this development led to the telephone call from his wife to Mr. Snow. Following the discovery at the Andrews farm, the O.P.P. laid charges of theft and possession of stolen property. The grievor did not come to trial for many/months and in April, 1980, his bargaining agent requested and obtained postponement of the hearing in the case before this Board. Eventually Mr. Andrews was acquitted'on all counts. The Court's reasons are not before us. Presumably it was concluded that he lacked "intent" in the criminal sense and (according to the grievor) was not "in possession" of the equipment when the O.P.P. found it. ' So far as this Board is concerned, the issue is not whether the grievor was guilty of a criminal offence. The sole ;, ; ‘\ -9- issue before US is whether his "unauthorized remova of Ontario Government property” was misconduct so grave as to constitute just and sufficient cause for dismissal. For the employer, Mr. Brown placed emphasis on the warnings given by management in Exhibits 6; 7, TO and 11. There was no evidence that either Mr. Snow or Mr. Walker had knowledge of the loose practices described by Mr. Andrews and Mr. Sharp. Clearly it was only too easy for employees to remove equipment, security being somewhat lax. But if the hefence was that manage- ment tolerated disobedience of its directives, why would the grievor worry about the O.P.P. investigation when he heard of it? The grievor's marital problems and his heavy medication were un- fortunate but did not justify removal of government property. There were ample opportunities --- at least until September, 1978 --- to return equipment stored in the barn. The cream separator had been there for three or four years. The removal of government property --- always unauthorized - had occurred repeatedly and amounted to breach of trust by an employee. The grievor ought to have made full disclosure to management, particularly when he knew the 0.P.P~. had been asked to investigate. The acquittals oncriminal charges were not relevant to the issue. It was also irrelevant that some items had little or no value. Mr. Brown said finally it was important that the policy or principle be enforced, regardless of alleged "t.r&iaZity". For the grievor, Mr. Pratt argued that the notices issued by management in 1974 and 1978 really related to valuable inventory items, and no discipline for infractions had been threatened. The 1 -- - 10 - paint, herbicide and garbage can were discarded items which clearly fell outside the scope of the rule: The grievor had said consistently that he intended to return all the other .items. He did not do so because he was in 1977 and 1978 under great stress and heavy medica- tion, because at the worst point he feared that O.P.P. inquiries .' would jeopardize the claim for his child, and because (after September, 1978) he was denied access to the property by a Court order. His apprehensions were confirmed by his &unary dismissal in,August, 1979, when management did not follow the usual course of waiting for disposition of the charges laid by the 0-P-P. - Mr. Pratt conceded there had been violations of manage- ment policy. In mitigation, he cited the,reasons above. adding that the grievor has al,ready suffered severe punishment throughout 'the whole experience.. Furt'her, he had an otherwise unblemished record in more than six years of service at the College, with three merit increases, an accelerated merit increase and one promotion (Exhibit 9). .Mr. Pratt also referred to previous decisions of this Board, Raight $'23/75, Pfeffer #148/79, and others in which lesser penalties were,substituted for dismissdls. In this case the grievor has admitted misconduct in that he repeatedly removed Government property from the College, contrary to written instructions given him and other employees three times in 1974 by way of Exhibits 6. 7 and 10. all of which he saw. It is I further admitted that he knew of the warning-given in March, 1978 (Exhibit III but for ;ix months thereafter, while stilly using his I T - 11 - truck as a home at the farm, neglected to return any of the items found by Mr; Walker and the O.P.P. in July, 1979. Misconduct having been admitted and proved, this Board must address itself to only one question: whether the,penalty of dismissal was just and reasonable in all the circumstances. As already indicated, there is no need to consider the matter of "theft" in the legal sense of the word. That matter has been tried and disposed of in a Court having criminal jurisdiction. ., What we are concerned with here~ is an employee's beha- viour in relation to his employment and in particular how he dealt t : with‘property~of the employer without permission and indeed without the knowledge of the employer. The first ground for mitigation suggested lis that the employer's enforcement of its directives was lax or non-existent, We are not, however, unduly impressed by evidence that other employees 'borrowed" equipment from time to time without obtaining leave. Such borrowings would.be difficult to police. The College is not a factory; equipment is scattered about in various buildings, it is used spora- dically in farm operations~ and often moved from one unit to another. Thus a special responsibility rests on employees at the College to safeguard government property. The fact that a piece of equipment _- may be easily taken away, or the fact that it may not be needed for some time, is no excuse for removing it from the College and using it for private purposes, the more so when written warnings are given that nothing is'to go out without leave. - 12 - The second ground urged is that the grievor's judgment had been seriously impaired by excessive medication and the emo- tional stress of a broken marriage, so that (as he said) he "was not thinking straight”. There'is little doubt that he was no longer the same cheerful and competent man who had worked with Mr. Brian Sharp between 1973 and 1975. His “acute anxiety” certainly called~ for sympathy and understanding. On the other hand, he remained sufficiently competentfrom 1975 to 1979:to perform his regular duties and to earn salary increases which brought him from a starting rate of $3.62 per hour in 1973 (in his range) to the maximum level of $295.16 per week as of October 1, 1978. There is no evidence whatever that from management's view- point his work was other than satisfactory. In these circumstances it is difficult to~believe that : B the grievor,was incapable of understanding or remembering the three warning notices of 1974 or incapable of realizing that he had removed \ without leave and retained athis own farm various items of.government property for periods of from one to four years. Moreover, it is immaterial that most were of little value and equally immaterial that --- with the exception of the high-pressure sprayer --- their loss went "n-noticed by his superiors. The important consideration is that no item belbng,ed to the gfievor: al~l were the property of the Governrent, as Mr. Andrews knew. Although the grievor lacked access to his farm after September, 1978, he was unable to give a convincing explanation for his failure to return the sprayer or any other item during the -,13 - preceding six months when he was living there in his truck. He could say only that he feared the O.P.P. interest in the matter might affect the ongoing contest about the custody of his son. Since security atthe College was admittedly miriimal and since he had removed many items without detection it seems obvious that the grievor could have made an effort to return at least those items he claims to have.%rrowe#'. There is no evidence that any effort whatever was made. Any finding as to his real intentions is impossible, but it is clear that what~ he borrowed was not returned. On the whole, therefore, the Board is not satisfied that this is.a case where it.would be'just and reasonable (as authorized: by subsection (3) of 'section 18(l) in the &awn EmpZoyees CoZZective Dc~~~&zirq Act) to substitute a~lesser penalty for the employer's decision. Accordingly the grievance must be dismissed. Dated at Toronto this 13th "I concur". V. P. Harris Member "I concur" (Addendum attached) M. Perrin Member Mr. Garry Andrews - And - The Ministry of Agriculture and Food As noted by the Chairman, the grievor in this matter was an employee of six years standing, with an unblemished work record. Additionally, the grievor had been under considerable stress due to a deteriorating marriage and concern for his child. The strain Mr. Andrews was under was of long standing and included extensive medica- tion for a period of time. Nhen then College officials were notified, by an obviously vindictive spouse, that certain items were on the grievor's property, would one not expect Mr. Andrews' superiorsto demonstrate a more sensitive approach to the situation? ~to minimally call in the grievor to discuss the situation prior to bringing in the police? The College's practices were sloppy, albeit partially due to the conditions under which the College operated. And they did not treat an obviously good employee with the sensitivity called for in light of the circumstances. However, Mr. Andrews admitted misconduct in that nine items \ found in his barn were College/Government property. They were borrowed at different times. As noted by the Chairman, the grievor had oppor- tunities to return the items. Therefore, with regret, I concur with the dismissal of this grievance. "Marion M. Perrin" Marion M. Pert-in