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HomeMy WebLinkAbout1980-0289.Sarabura.80-12-15IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT . Before Between: THE GRiEVANCE SETTLEMENT BOARD \ Juliet Sarabura I - And - The Crown in Right of Ontario Ministry of the Attorney General Before: E. B. Jsl!iffe, Q.C. E. A. McLean S. R. Hennessy c;ic;Cphairman Member For the Grievoc L. Stevens, Grievance Officer Ontario Public Service Employees Union For the Emp?oyer: J. Miner. Counsel Legal Branch, Ministry of the Attorney General . Hearing-: October 8, 1980 i x? -2- Miss Juliet Sarabura has grieved that she.was unjustly dismissed in April, 1980; and asks that she be reinstated with full pay and benefits. In this case there is no dispute about the facts, which were fully and clearly established by the testimony of the grievor herself as well as that of Staff Sergeant Michael O'Neill of the Metropolitan Toronto Police, Messrs. Ronald Campbell,, Oavid Avery and 8. W. kbughlin, administrative officials in the Ministry of the Attorney General, and also by'a number of documentary exhibits filed on consent. Further evidence tending to explain the grievor's behaviour was given by,Dr. J. 0. Atcheson, who teaches at the University of Toronto, is senior forensic psychiatrist at the Clarke Institute of Psychiatry, and is. unquestionably an expert. witness. The issue here is whether dismissal is the appropriate penalty for grave misconduct on the part of the grievor. Since the facts are uncontested, it becomes possible to outline in chronological order the history of the grievor including the series of events which led to her suspension in 1979 and dismissal a few months later. Now 42 years of age, the grievor grew up in Thornhill, Ont\ario, where she still'lives with her sister, who is also unmarried. Throughout childhood life was difficult, their father being a chronic invalid on total disability compensation for silicosis contracted while a miner. To this unhappy background Dr. Atcheson attributes the grievor's failure to form normal relationships with her contemporaries and also an inferiority complex, loneliness and zeal for hard work which havecharacterized all ,e -3- her adult years. After graduating with honours from the Central High School of Commerce, the grievor began work at the age of 18, first with the City Police, then the Metropolitan Toronto force and from 1967 with the Province, which had taken over administration of the courts. Thus she, carried seniority from November 12, 1956, to her dismissal on April 2, 1980, a period of more than 23 years. Her service record reveals steady progress in promotions and salary increases. From 1974 she was classified Clerk General 4. As such she had supervisory responsibility over eight others in what is known as the "Fines and Warrant" sub-section, part of the system maintained to process and record charges and convictions related to thousands of:minor offences which occur in Metropolitan Toronto every day. The volume is enormous, although most of it involves "parking tags". It is an important element in the system that certain ' convictions for traffic offences must be not only recorded at the Old City Hall but also forwarded to the Ministry of Transportation and Communications, where demerit points are stored - - -and accumulated. The grievor was highly regarded by administrators. Mr. Campbell described her as a "good and hard worker". When there had been trouble I about "missing papers" she was given the job of "cleaning up", and* she did a great deal of overtime. She was such a "work-horse" that when her salary in 1978 reached about $15,000 her gross pay was closer to '$20,000. Mr. Campbell said that when he was her immediate supervisor from 1971 to 1976 he "never had any complaint or problem". There was "restricted access" to much of the material for which she had responsibility. Due -4- to her long experience and.thorough familiarity with the system, she possessed or could obtain information not generally available. Notwithstanding success in her work the grievor suffered from serious emotional problems. She felt that her personal life was a failure, devoid of normal relationships. She considered herself an object of derision among the clerks in her office because she was a "loner", lacking friends or admirers. She had always thought herself to be overweight and unattractive, and sought to'compensate, as Dr. Atcheson said, by being "careful about her wardrobe" and by taking an interest in horses and a rare breed of dogs. But even after an eight-week vacation in 1976, she returned to the office "very depressed". At‘ this vulnerable stage in her life, nearing 40, the grievor encountered a man who was her undoing. He was introduced to her by a Justice of the Peace whom she respected. At the time she did not understand why her new acquaintance, one Joseph Tardiff,spent so much time at the ~. old City Hall and seemed to know many people there - - - or why he took an interestin her. At first the Tardiffqueries seemed innocent enough; "they were normal questions at that time", according to the grievor. In 1977 he began to ask for more sensitive information, although she says it was mostly to , verify information he already had. Among other things, he would try to find out which J. P. was to sit on a case in which he was interested, or when a certain police officer would be on vacation. The grievor became aware that this kind of information would be,used by Tardiffto his own advantage, and she states "I fel t at the time i t was wrong." Eventually, il .~ -5- he implied that he wanted the record of a certain conviction destroyed. She destroyed it and the result was that the result never reached the Ministry cf Transportation and Communications. That inexcusable act appears to have been her most serious offence. But her conscience was troubled and at some point early in 1979 she began to reject his inquiries and to terminate the relationship, such as it was;she'"finally managed to tell him to go to hell." The grievor's vulnerability had been such that she had become completely bemused by an unprecedented event; a man was paying some attention to her. His attentions were casual and superficial; they had lunch together occasionally and exchanged telephone calls. She was too intelligent not to know that "ticket-fixing" was in the wind, but it dawned on her rather slowly that he had been using her merely as a source. of information. This was.no romance at all; it seems that their only evening "date" was when she unsuccessfully attempted to take him to dinner at the Royal York. The grievor did know that Tardiffhad a taxicab and employed at least .one other driver. She knew little else about him, except that he seemed to have a wide ci~rcle of friends and acquaintances at.the Old City Hall and \ indeed told her that'he obtained information from other employees. LJhat the grievor did not know was that about 90 of her telephone conversations with Tardiffwere intercepted by the Metropolitan Toronto Police, who had obtained judicial approval to wire-tap certain lines, and particularly calls made by Tardiff. -6- Staff Sergeant O'Neill has served with the Metro Police since 1961 and in recent years has been concerned with what are known as "internal affairs"; a euphemism for misconduct or suspected misconduct related to law enforcement. He took part in an investigation begun in 1977 and expanded in January, 1978, when he was joined.by another officer. .The investigation was fruitful: early in 1979, he initiated charges against Tardif and nine others (including the griever) alleging that between January 1, 1976, and March 21, 1979, they "unlawfully did conspire together and with another person or persons unknown to wilfully attempt to obstruct, pervert or defeat the course of justice by interfering with the lawful disposition of infonations and summonses". This particular charge (Exhibit 3) was ultimately withdrawn as against the grievor, apparently because she co-operated with.the~ police, and another similar charge naming her and nine others, was laid separately so that on March 5, 1980, she came to trial alone. Staff Sergeant O'Neill explained that in all 14 persons were charged. Of these two were justices of the peace, three were clerks or supervisors and the others were members of the general public. Another investigation resulted in charges against a police sergeant, a constable and a member of the Bar, but the last was ultimately dismissed. Generally speaking, the scheme involved arrangements for "ticket fixing" for cab- drivers and owners, which was important to them because it affected their insurance rates. By means of the wire-tap, the police learned of the griever's, involvement in Tardiff'sillicit enterprise. On May 9, 1978, she was heard to tell Tardiffshe had torn up,an information; On June 1 she was heard to tell him about the absence of an officer on vacation. On , I ,; -7- September 28 she disclosed the name of a J. P. ass.igned to hear a case in night court; Tardiffthen approached the J. P. and arranged to have the charge dismissed. On November 28 it was revealed. that she.had destroyed the report of a certain conviction. As to this incident, Staff Sergeant O'Neill said "it looked as though she did it on her own initiative --- totcurry favour --- although I think she knew it was wrong. At one point she said she was warning one of the others he should stop." Nevertheless, the Staff Sergeant said "we consider she was one of the lowest members of this conspiracy.' He was not aware of her receiving any benefit other than an imaginary romantic involvement. Based on certain conversations, "some of which she may not be aware of," he thought that "she was being used" by Tardiff, the leader of the conspiracy. There was no evidence she had been forced to do anything. She seemed to know she could get into trouble, but she called him "to. get attention." In the later stages "she seemed to'turn him down," there were less frequent calls and the relationship was cooling. The witness added: "We have strong evidence that other persons were rewarded - - - double the amount of the fine specified on the summons. I doubt that she was aware this was, going on." On the day he testified before this Board, October 8, 1980, the Staff Sergeant said four of the accused had pleaded guilty, one was to be tried "next week" and five on November 10. These trials were to be before provincial court judges. The provincial court level was of course, not involved in the allegations against J. P.'s, who are at ‘I -8- the lowest level in the judicial hierarchy. Resulting from the charges laid by the police, the grievor was suspended with pay on March 23, 1979. and suspended without pay as and from NoEmber 14, 1979. On March 5, 1980, her guilty plea was received by Provincial Court Judge Mercer, who suspended sentence and placed her on probation for one year. By letter from the Deputy Attorney-General dated April 2, she received notice of dismissal. The reason given was clearly stated in the third paragraph.: You have participated in a scheme to allow persons to avoid prosecution and payment of fines by removal of court documents' from the court system. This criminal activity was committed in abuse of your duties within the court office and constituted a direct negation of your position of trust. It is worthy of note that the grievor's trial in March, 1980. had taken a rather unusual course. The facts were explained by Crown Counsel and confirmed by the defence. A conviction was recorded. Defence counsel then spoke to the matter of sentence at considerable lengthy and was followed by Crown Counsel, who agreed in substance with what defence counsel had said. Both counsel recommended a suspended sentence and probation, having regard to all the circumstances. According to the transcript of that proceeding, which is Exhibit 2 before this Board, Crown counsel (after describing the offence itself as a very serious one) used the following words: I discussed the matter at great length with the police officers and we have reviewed the transcripts of the intercepted conversations -9- i and I’ve heard Mr. Stortini’s submissions to YOUI- ~onour this afternoon with respect to sentence, and I can’t disagree with anything he has said to Your Honour with respect to sentence. I have also had the advantage of reading a rather extensive report that has been submitted to Your Ronour, prepared by Dr. Atcheson. I note in that report that he indicates that Miss Sarabum has a history, a long history of emotional problems. She suffers from depression. Re has taken a rather unu.suaZ step for a mm in his position at the Clarke Institute of taking her on as a patient on a continuing basis because of his concern for her weZfare. I u7der8tmd that she suffers from depression as a result of all this. I have no quarreZ with the subntission that in relation to the part pluyed in this conspiracy by other persons, some who pleaded guilty and some whose charges are ~stitt outstanding, Miss Sarabum’s part was very smtt, indeed, and she gained nothing from it. She was led into the matter and has been duped because of her. apprehended emotional involvement of Mr. Tardiff, ‘and there is no dispute, M quarrel, about that. It’s my. respectfit submission then to Your Honour that the interests of justice wouZd not be served, given the background of this Zady who is before Your Eonour end who has pleaded guilty and co- opemted with the police, that it wouZd not be. in theintzrests of justice to sentence her to a ten of imarceration despite the fact that I very strongly feel that the background we heard had not been presented that the Crown wouZd be .asking for a lengthy sentence. The Court concluded as follows: Miss Sarabura, I have listened tom the representations of Mr. Stortini, your counsel; and Mr. Wiley, who appeared for the Crown, and I have also read the report of Dr. Atcheson rmd I am in agreement with the submissions made by counsel. I am quite satisfied that yo'h were led into this scheme and that your involvement was of a very minor ncture, and I am satisfied that you haue suffered enough atready, that you have Zost a very good job, and I also note that you are taking and wilt continue to take treatment at the CZarke Institute. - 10 - Therefore, I am registering a conviction, suspending the passing of sentence and I place you on probation for a period of one ye&. The terms of probation are that you will keep the peace and be of good behaviour and attend in Court when required to do so. You realize that if 'you breach the conditions of your probation you may be charged with a breach of probation and you may be brought back before me for sentencing. I am not making any condition that you attend the Clarke Institute. I am sure that you intend to do that, anyway. There is no point in me making that order. I hope that the treatment is a success and that you are able to find yourself employment in the reasonably close future and are in a position to put this matter behind you. The other charge against the grievor was then withdrawn by leave of the Court. Incidentally, the same judge. had already presided at the the trial of Tardiffand others, so that he was not unfamiliar with the material facts. As already explained, this Board heard testimony from. several Witnesses. The grievor's account of the conspiracy and her unhappy role in it corresponded very closely with the evidence of Staff Sergeant O'Neill. She makes no attempt to excuse her misconduct, except to suggest that her judgment was impaired by . an Illusory romance. Not until the end of their relationship did she realize that TardfFfwas - ~- - in her words - - ' a con man'!. Dr. At,cheson's lengthy letter of May 30, 1979, giving his explanation of the grievor's lapse, after 23 years of exemplary conduct and zealous service, is the letter read 10 months later by the Provincial Court Judge. The psychiatrist's testimony before this Board reiterated the explanation given in 1979, but he also added his estimate of her progress from March, 1979, to October, 1980. He had said in his letter: ‘I -ll- It would be my opinion that whatever poor ju,dgement she has demonstrated in being involved in the present charges are a product of her personality disorder. The type of personality problem that she demonstrates is classified as a personality disorder inadequate type. She is not basically an antisocial person and in areas of moral judgement would set herself very high standards. It was my opinion that she had engaged in extreme fantasy concerning her relationship with the co-defendant. . She now appreciates that this was fantasy and had no basis in reality and, in fact, she sees herself as being used by this person. The degree of embarrassment that she experiences in sharing this feeling with the examiner tends to reinforce her .s!elf-iqage of inadequacy. Testifyi~ng before this Board, Dr. Atcheson said '. that in his opimon the grievor's judgement had been impaired during her association with Tardiff,for the reasons set out in his 1979 letter. He had seen her twice a week for two or three months and then about once a week. At first she was suffering from deep depression or remorse, and her, grief seemed uncontrollable but she responded to treatment: "Once she had a support system, her tears, diminished and she achieved some painful recognition of realities . . ..Very keen on self-improvement....1 found she has the attributes'of an intelligent, articulate and competent woman. She is much more stable now. She's had much stress in the last year but her insight now would not permit her to repeat the experience.... She's not anti-social. I see her as a very honest lady; The Board cannot refrain from commenting that it seems clear Dr. Atcheson was most helpful in enabling the grievor to c J’ - 12 - recover from her downfall - - - and also perhaps from some of the root causes thereof. His testimony was very impressive, and,if the grievor is a better and wiser person today, she owes much to his compassionate understanding and~professional expertise. Illustrating her urge for self-improvement, it appears that the grievor has taken several courses at Seneca College and Ryerson in such subjects as 'Management techniques and the analysis of financial statements, and also courses in Management and con9nunications at Sheridan College. Recently she has gained employment with a "placement service", earning $159 a week, or about half of what she earned before being suspended. On being asked'whether she~really desired to returnto her former post at the Old City Hall she.said "I could handle it but maybe they couldn't," an obvious reference to other employees in the same office. It has been argued that the only question to be decided here is whether there was just cause for dismissal. That is somewhat over-simplified. In the Provincial Court all agreed that a serious crime had been committed: the real problem was what should be done about it in the circumstances of the case. Similarly, the issue to be decided here in the context of the employer-employee relationship is not one of determining whether there was grave misconduct: there undoubtedly was misconduct so grave as to call for disciplinary action. Again, the real problem is what should be done about it, i.e. whether the appropriate penalty is dismissal. - 13 - In her argument on behalf of the employer, Ms. Minor referred to the following passage at page 320 in Brown and Beatty's "Canadian Labour Arbitration:" It i.s now generally accepted that an employee kho is convicted of a criminal offence committed during the course of his employment, which jeopardizes the employer's property and security, or its public reputation or the interests of the other employees, may be discharged. Similarly, an employee who is convicted of a criminal offence during his off-duty hotis, which prejudices any one of those interests, may also be terminated by his employer. Applying the tests used in many of the decided cases, Ms. Minor contended they give overwhelming support to the penalty of dismissal. The grievor had unlawfully used a position charged with the administration of justice... She had,destroyed documents and intercepted at least one on its way to the Ministry. She had some authority and much knowledge at her comnand. The'matter is clearly one of public concern. The motive was not financial gain but the.acts in themselves were grossly improper. It was not relevant that the public may sometimes regard parking tags or minor traffic offences as trivialities. The processes of justice had been tampered with, If not this offence, Ms. Minor asked, then,what would justify dismissal? On behalf of the grievor, Ms. Stevens said the "unblemished \ work record” of the grievor could not be ignored. The reasons for her misconduct had been fully explained. She had been caught in the net of mtrch more serious involvement by others, but she herself derived no benefit whatever. On being approached by the police she accepted her guilt and was fully co-operative. Penalties should be rehabilitative rather than punitive, as the Court had recognized. In this case it iuas clear that no repetition of misconduct ro~ld be expected. - 14 - Mrs. Stevens also drew attention to 10 cases decided earlier by this Board, in all but one of which dismissal had been set aside. The Board's jurisdiction to decide the issue in a case such as this is found in sections 17 and 18 of The crown hp~oyees Collective Bargaining Act, 1972 ch.67 as amended in 1974, Ch. 135. Subsection (2) of Section 17 provides as follows: (2) h addition to any other rights of grievance under a collective agreement, an employee claiming, . . . . . . . . . . . . . . . . . i’ .= (c) that he has been disciplined or dismissed or suspended from his employment without Just cause, may process such matter in accordance with the grievance procedure provided in the collective agreement and failing final determination under such procedure,.the matter may be processed in accordance with the procedure for final deter- mination applicable under section 18. Subsection (3) of section 18 provides as follows: . (3) Where the Grievance Settlement Board determines thaf a disciplinary penalty or dismissal of an employee is excessive, it may substitute such other penalty for the discipline or dismissal as it considers just and reasonable in all the circumstances. The grievor in this case exercised her right to grieve against dismissal under Article 27 of the applicable collective agreement and section 17(Z) above, and processed the matter for final determination by this Board under Section 18 above. In a number of previous cases the Board has exercised the power vested in it by section 18(3), usually with important conditions or qualifications. For example, in Haight 23/75. ;. - 15 - a grievor who had been involved in the misappropriation of government property [from an abandoned radar site) valued at $700 was reinstated, but without compensation to the date of the award, so that in effect he received a long-term suspension. Again, in Cranley a&Staunton 48 & 49/76, where the grievors had made improper use of a government vehicle and misappropriated firewood on private property, the grievors' unblemished records were taken into account and they were reinstated without compensation. In'pilon 151/78, a grievor in very poor health had tampered with the attendance records of herself, her supervisors and others over a considerable period of time; for dismissal the Board substituted a one-year suspension without pay"& other benefits, required restitution and directed probatjon for another year. In Nicholls 199/78 and 14/7g, an O.H.C. Caretaker (who had been acquitted on a charge of assaulting a tenant's child) failed to convince the Board of~his innocence, but was reinstated with what. amounted to a lo-month suspension, the Board holding he had been guilty of "bad judgment and foolishness" rather than "wickedness". In uriviere 65/79, the grievor had been dismissed for failing to carry out certain required du,ties and other minor offences; the penalty was-reduced to.a~two-week-suspension.-. In Travers. 79/79 and 213/78, a majority of the panel found that the grievor had used excessi.ve force against an inmate of a correctional institution, but reinstated him to "another substantially equivalent position" with a very lengthy period of suspension. On the other hand, in Bernardi lo.?/79, the majority upheld the dismissal of a Liquor Control Board store manager who had altered or falsified cash register tapes and reporting forms, not with a vie\+ to financial gain but for the purpose of justifying a la~rger staff. The difficulty about resorting to the results in previous cases is of course that there are no two exactly alike; ‘each-turns on .its' own unique set of facts. The Board has given anxious thought to the facts in this case because, as Ms. Minor very properly emphasized, the offence was . not only "job-related" but affected the administration of justice, its efficiency, its credibility and its integrity. The grievor's position was a sensitive one. The public most certainly has a right to demand that the court system from the highest to the lowest level be untainted by corruption of any kind. These are very serious considerations which are not underestimated by this Board. There are, however, other considerations as well which must be taken into account. The grievor, as Staff Sergeant O'Neill said, "was one of the'lowest members of this conspiracy." She sought no financial, gain (the usual motive for corruption) but sought only the friendship of the leading conspirator. The Staff Sergeant doubted she was aware of the financial rewards being received by others. In other words, she was on the periphery of a conspiracy and her involvement was personal. Although she knew that it was wrong to give sensitive '~ information to Tardiff her judgment, in the opinion of the psychiatrist, was impaired by her fantasies and an illusory romance. She had probably been confused at the outset by the relatively "normal" inquiries made by Tardiff; there is evidence, for example, that the schedules of i ,iz’ - 17 - J. P.'s assignments were (at that time) plainly visible on the wall of an office to which many people had access. She was not a J.P. or an officer of the court; her duties were those of a supervising clerk. In short, one must not be carried away by the notion that she was a conscious or active member of an elaborate conspiracy to pervert the course of justice. Realistically speaking, she was a victim of the conspiracy (or of the leading conspirator) rather than herself a conspirator. As already mentioned, the grievor's most serious offence was : the destruction of the record of a conviction destined for the Ministry of Transportation and Communications. That example of misconduct appears to have been the worst that emerged from 90 telephone conversations intercepted by the police, and the grievor knew it was wrong, even though done for purely personal reasons. A counterbalancing factor, obviously recognized by the police and Crown counsel, was that she co-operated with them and made clear she would plead guilty. There was no attempt whatever to conceal or justify her behaviour. Another important consideration is that the grievor had an excellent record of service over a period of more than 23 years. Clearly she was an employee highly valued by administrators who knew her work in theMinistry of the AttorneyGeneral. Tffere seems to be no doubt that the griev~or can continue to play a normal productive and law-abiding rcle in society, as she,has done since her suspension in March, 1979,and as indeed was recognized . r,. h - 18 - in the remarks of the provincial judge when he suspended sentence and placed,her on probation for one year. The remaining question is whether it would be proper to return her to a position as an Ontario public servant. In other words, is dismissal the only appropriate penalty for the mistakes she made arising out of a superficial and very personal relationship with Tardiff? If the grievor, after building a record of misconduct on previous occasions had deliberately entered into a conspiracy with Tardiffto corrupt and pervert the course of justice with a view to receiving financial rewards for the assistance given, or if she had rejected subseqdent opportunities for redemption and rehabilitation,thus proving that she would be unworthy to hold any office of trust - - - :if these were the ,facts of the case the answer to the problem would become obvious.. Those, however, are not the facts in this case; the evidence, including the evidence of the police, is to the contrary effect. To us it does not seem,logicai that the griever should.suffer exactly the same penalty, dismissal , as if the facts in the hypothesis above were applicable to her. Arbitrators have often been troubled by a phenomenon characteristic of modern society; that of the employee found guilty of wrongdoing who -receives the minimum or very lenient punishment from the court having jurisdiction - - - and then suffers the extreme penalty, dismissal by the employer in respect of the same offence. A solution to this problem appears to have been contemplated by the Legislature when it provided in section 18(3) of The Crown ~nployees Collective Bargaining Act that a lesser penalty could be fixed by this Board iF it considered the original penalty The first test mentioned above ---- a "previous good record," --- must be resolved in favour of the grievor. The same is true of the second, "long service." As to the third test, it can not be said that the grievor's relationship with Tardiff over a period of many months was "isolated." On the other hand, it was all in a legal sense part of one transaction and there is no evidence of misconduct by the grievor apart from the - 19’- excessive. Similar provisions appear in the Ontario Labour Relations Act and other federal and provincial legislation; e.g. Section 61.5(9)(c) of the Canada Labour Code and Section 128 of the Quebec Labour Code. InUnited Steelworkers Local 3257 and The Steel Equipment Co. a. (1964) 14.C.A.C. 356,.Judge Reville authored an exhaustive decision in which he cited numerous previous cases, on the basis of which he I . 'formulated.10 factors to be taken into consideration by a Board.having power to mitigate the penalty imposed on a grievor. Of these, three seem irrelevant in .this case, e.g. "provocation." The other seven. all of which must be taken into account by this Board, are certainly relevant: i 1. The previous good record of the griever. 2. The long service of the grievor. 3. Whether or not the offence was an isolated incident. 5. Whether the offence was comitted on the spur of the moment,, as a result of a momentary aberration, due to strong emo- tional impuls,eses,-or whether the offence was premeditated. 6. Whether the penalty imposed has created a special economic hardship for the grievor in the light of his particular circumstances. 9. The seriousness of the offence in terms of the employer's policy and the employer's obligations. 10. Any other circumstances which the Board should properly take into consideration . . . . . . . - 20 - information she gave Tardif and the documents destroyed by her to please him. On considering the fifth test, it appears that the offence was not comnitted "on the spur of the moment" but rather in a gradual series of errors and improprieties into which she was led by "strong emotional impulses." The improprieties were in part "premeditated" but were due.to thoughtlessness, imprudence and emotionalism rather than evil motives. As for the sixth test, the dismissal has caused much economic hardship although the grievor's ability is such that she is not likely to become unemployed. It seems clear from the psychiatrist's evidence that the grievor suffered a breakdown over a long period before her trial in March, 19801 so that she washandicapped in earning a .livelihood. The ninth test specified by Judge Reville relates to "the serious- ness of the offence" in terms of the employer's policy and obligations. It is here that the most difficult problem arises in this case. As it was properly emphasized in argument by the employer's representative, it is.of great importance that the administration of justice in all its aspects be free from any taint of corruption. After the grievor had pleaded guilty and been convicted of a criminal offence. the Deputy Attorney-General wrote her (in the dismissal letter) that "this criminal activity was comnitted in abuse of your duties within the Court Office and constituted a direct negation of your position of trust." That statement is manifestly correct, and it justifies a severe. penalty. The question still retrains, however, whether a severe penalty --- which is justified --- must be the extreme and ultimate penalty of dis- - 21 - missal, having regard to all those circumstances..which the provincial judge as well as Crown counsel found should be taken into account, and must also be taken into account by this Board. In other words, the "other circumstances" to which Judge Reville was referring in his 10th test. The grievor has already suffered no small penalty. Her original suspension on March 23, 1979, was with pay, but as and from November 14, 1979. she was suspended without pay, so that for more than one year she has.lost the salary and other benefits previously received. This Board, it must be said, is of the opinion that the employer was fully justified in imposing the suspension without pay after ft had become clear that the grievor would plead guilty to the'charge against her. On the other hand, it is to the grievor's credit that she co- operated fully with the police when they were concluding their investi- gation and made no attempt to hide or obscure from them her role in a conspiracy in which others occupying more responsible positions had participated much more actively. Her motivation became obvious to the police, even when they intercepted her telephone calls, and it is con- sidered that -- unlike others --- she received no monetary rewards. She was, asStaff Sergeant O'Neill put it, "one of the lowest members of this conspiracy;" We are,not unmindful of the perfectly valid argument that law enforcement is vulnerable to the slightest intrusion of unlawful acts. and that the grievor occupied a position of trust in the Court System. The Ministry of the Attorney-General, however, is not the only branch of government where the public is entitled to expect integrity of the highest order. The same is expected of the Ministry of Revenue and others, where many public servants also occupy positions of trust. Having~ regard to the grievor's long service and excellent record, and having regard also to her motivation and all the esta- blished facts surrounding her misconduct, we have reached the conclu- sion that dismissal from the public service was excessive and that a different penalty should be substituted upon terms just and reason- able in all the circumstances. We are not prepared to say that the grievor should be re- instated in her former position at the Old City Hall. Too many diffi- culties could arise if she were 60 return to that milieu, for herself and for other employees. The decision of this Board is' that the grievor shall be re- instated not later than February 15, lSGl,.in another position at a level not less than that of a Clerk General 3, and at a location within the County of York or the Municipality of Metropolitan Toronto other than the Old City Hall. The reinstatement is to be without pay or other benefits in respect of the period since November, 1979, except that there shall be no loss of seniority accumulated before and after her : suspension. In former years, the grievor demonstrated that she was capable of filling satisfactorily a position at the level of a Clerk General 4, and we direct that if such .a position becomes open at any time after this date, she is to be given by the employer an opportunity to fill it on the same footing as'any other eligible candidate. The grievor must inform the employer within 30 days from the date of this decision whether she elects to return to work on these tetms. In our view, the penalty specified above is sufficiently severe ~to correspond with the gravity of the matter, and at the sxc a ;?r?,> - 23 - time it wili enable the employer and the employee to resume a relation- ship which was of mutual advantage in,former years. Dated at Toronto this 15th day of December 1?80.' I concur E. A. McLean Fiember I concur S. R. Hennessy Member