HomeMy WebLinkAbout1980-0419.Gutierrez.81-05-15IN THE MATTER 3: A!i ARBITRATION
iJnder The
CRO1;FI 3W.CIEES COLLECTIVE BARGAINING
Before
T;?E GRIEVAXCE SETTLEKEYT BO,<RD
ameen :
For the Griever: -
Hearinq:
ACT
Mrs. Gl;a Giit1errp2
and
'-t-of. R. J. Roberts - Y'ce-Ckdirmac
Ms. ii. LainG - )!emer
Mr. H. Neisbach - Pembe:
Mrs. L. Stevens , Grjevance 3ffic?r
Ontario Pl~blic Service Empii;yees $nisfl
Ms. Ja;ie% Minor
Xinistry of the Attorney General
March 25th, 1?81
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This is a disc:har;e case in w'hich the yrievor, 323.
OlqaGktierrez, claims that she was discharqed xithout just
cause. The Empioyer, the :linistrv of i the Attorney General,
claim that there was just cause for the dismissal of the
yrievor, in that during the course of her employment with
-the Fiinistry the yrievor was convicted of theft under $200
arising out of a incident of shoplifting at a Toronto depart-
ment store. Counsel for the Employer also noted that before
this conviction came to the attention of the Employer, theqrie';or
had had four previous convictions for siailar offences, one
of which occurred durillg the course of her emplo.Fent but
had not come to the attention of the Xinistry. The others
had occurred prior to her employment with the Ministry.
They were not disclosed by the yrievor at the time of her
application for employment.
The Employer argued that it essentially was inconsistent
with the missions and public gesture 05 the Minist-T of 'the
Attorney General to have in its employ someone with a current
and continuinq criminal record such as the qrievor's. In
support of this contention Counsel for the Zmployer.emphasized
that there was no medical or other evidence before the Soard
upon which to base any inference that a similar incident and
conviction will not happen in the future. counsel also stressed
the confidential nature ~of the work performed by the qrievor,
i.e., keying into the computer all court records and documents.
_ :.
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The Union ar~qued, on the other hand, that the discharqe
of the yrievor could not be justified on the above yrounds.
in this regard, it~was stressed that the shoplifti2y offenses
of which the grievor was convicted were not related to the
work place, and that there was no evidence to indicate that
the ,qrievor ever had taken anything from the Employer's premises.
Further, the Union argued that continuation of the qrievor's
employment did not impair t??e public image or mission of the
<:~ ;_ Ministry of the Attorney General because the qrievor~was
employed in a position in which she did not have contact
with the public and in which she was not entrusted wit-h
money or unfettered discretion to act on behalf of the ~Yinistry.
4s a matter of routine her work was always checked, and it
was a general point of aqr cement that anqT errors or omissions
in their work would readily be discovered. It also was
a general point of agreement that during her two years
of employment the yrievor was a good and ,responsible
employee. Finally, the Union submitted that while it
could not offer 'in evidenceany proynosis.for a cure of
the yrievor's difficulty with respect to shoplifting,
there was evidence that the yrievor was receiving psychiatric
treatment toward this yoal and had talcen some steps in he:
personal life to resolve any emotional difficulties which
might have given rise to these episodes.
On due consideration of the evidence and argument
of the Farties, we conclude that the grievance must be
allowed. The Employer did not have just cause to discharqe
the yrievor. We direct that the qrievor be reinstated as
of the date of this Award to a substantially equivalent
position, but without back pay or accumulation of any
service or other credits. The precise terms of the
probation upon which the yrievor should.be returned to
work.;uill be set fcrth ate the end of this Award.
The facts as we find them are as follows. From
February 14, 1978 to the date of her dismissal, May 21, 1980,
the yrievor was employed by the Ministry of the Attorney
General as a Key Tape Operator. Her function was to "key"
into a computer data recorder the court documents for ail
of the courts in the City"of Toronto plus CiQ Hall. The
qrievor was one. of several Key Tape Operators.- The testimony
of the qrievor's supervisor at the Hinistry, Mrs. Rose
.._
Leonard, indicated that the yrievor was a good employee.
,slr . Leonard ai& testified that the job performed.b,v the ..'..r.?~..
qrievor was a sensitive one in that a Key Tape Operator
must record confidential court records and records with
money, transactions. She also testified that error or
omission in recording of such information would be caught
in the course of various checking procedures. Errors in
money transactions, she testified, would be detected virtually
immediately because they are verified at the time of keying. I
Apparently, theyrievorperformedher jobwell. !<rs. Leonard, 3s
indicatedabove, testifiedthatthe qrievor was a qood employee.
Further, there was testLTor?:l that the griever got along
well with her co-vor!<ers. There was no indication that
any of her fellow employees !<new of the pieyor's difficulties
with the law. There were never any complaints about the
-~~~' griever nor was there ever any indication that the griever
was removing from the 'office any of the small supplies to
which she had access, i.e. pencils, and similar items.
NIS. Leonard did indicate in her testinxony that if the
fellow employees were to become.aware of the grievor's
criminal record, 'this might cause some friction or in-
efficiency which she .would find difficult to deal xith.
At the same time, Yrs. Leonard acknowledged that she
played no part in making the decision to dismiss the
griever;.
In Harch, 1980, the ,Yinistry becae aware of the
incident leading to the griever's most recent conviction
for theft under $200. In that month, a detective came
to visit Mrs. Leonard ins order to verify that the griever
did, in fact, work in that part~icular office. Mrs. Leonard
interviewed the griever regarding this visit, and subsequently
informed.her supervisor of the pending criminal charge .
against the grievor. When this info-ination came to the i
attention of Mr. B.W. McLaughlin, the Assistant Deputy
Attorney General in charge of the administration of the
courts, he suspended the griever pending the outcome of
the case. The griever was convicted on !4ay 13, 1?80.
Oi May 21, 1980, Z. Allan Leai, Depu+ .Atto:ney C-aneral,
sent to the grlevor a letter stating,. in r;ertinent oart: _
"A recommendation has been received from xr. 3.W.
McLaughlin, Assistant Deputy Attorney General,
for your dismissal from emoloynent pursuant to Section 22(3) of The O'ublic S&vice-Act for
conduct inconsistent wrth your contrnued emolov-
ment with this Ministry. You are, therefore, -
dismissed from duty effective i.mmediateiy with two week's pay in lieu of notice. . ..'I
The letter also informed the grievor of her right, to grieve
~this action under Article 27.6.2 of the Working Conditions
Coliective Agreement. On Sune 23, 1980, the qrievor filed
a grievance requesting "[il‘mmediate reinstatement in my
position . . . as,Key punch Operator with full retroactivity
for any loss incurred as a result of this unjust dismissal".
In due course, this hearing followed.
At the hearing, Nr. XcLoughlin testified that after
the entry of the grievor's conviction in Hay, 1980, he
recommended her dismissal because, in his opinion, she was
not of the character of the persons that should be involved
in. the administration of the courts. iie stated that he
was of this view because of the sensitivity of the court
~SyStWL. It would, he stated, deter tine confidence of the
public and police in the court system if persons in its
employ possessed continuing criminal records such as
that of the grievor. The.existence of such a record would,
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in his view, impair the abiliq of such emnloyees to
discharge the resuonsibilities that the court system :has
to the public and police. Se indicated that if he had
been the person who was involved in making the decision
whether to employ the grievor at the outset and had known
of her record he would not~have hired her. He indicated
that in his view the course of conduct of the grievor
shows that she is not above reproach and that in the
business~of the courts an employee must be. The courts,
he stated must guard against any possibility of being
compromised.
:Xr. McLaughlin's attention was directed to a slio
of paper attached to the application for emplolflent of the
griever which set forth a policy statement of the Ministry _,
of the Attorney General regarding the employment of ?erscns
with criminal records. This policy statement was as follows:
"It .is the policy of the Ministry of the
Attorney General in its employment practices
not to discrimninate against those who have~been
convicted of criminal offences. A'conviction of
s criminal offence is a fact, however, like every
other matter of general background, work history ,and qualification, which may be considered inview
~. of the nature of the emnlovment for which the
application is made. If vbu have been convicted
of a criminal offence, pl:ase write the details. on a separate sheet of ?aper and enclose the sheet
in a sealed envelope. Give the envelope to the
interviewer at the conclusion of the interview.
?Jo disclosure need be made if a pardon for
the offence has been issued."
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When asked what was meant when this oclicl stated that
the tiinistry would not discriminate against those
convicted of criminal~.offences , Mr. XcLoughlin indicated
that in his subjective judgment the statemen~t referred
to the employment of persons who had been subjected to
criminal conviction On an isolated occurrence from
distant gast, such as a single conviction for shoplifting
as a youth Or perhaps the stealing of a bicycle. In such
cases, the convictions would: not impair the employability
of the mature person. In his view, Hr. McLaughlin stated,
the policy would not be.applied to make employable an adult
with a-continuing record of crisGia1 convictions such as
the grievor's.
Inher testimony, the griever admitted that in any
event she did not supply to her interviewer the sealed
envelope required by.the policy statement disclosing the
details of her criminal record. Because of a high level
of nervousness and the existence of a slight language
barrier (the griever 'immigrated to Canada from Ecuador.
in 19731, the grievor did not give a satisfactory reason
why she had failed tOcomply with the policy. We conclude
that it wasmost probable that she did not do so because,
she was afraid she would impair her chances for the job. 1
1.
In any event, little tilrns upon this particular issue. It is'clear that the grievor was not dismissed because she
had failed to comply with the policy statement. ?.atLier she
'was discharged because of.the perceived incompatability of her
criminal record jiith the attributes required.of a person engaged in the administration of the courts.
“. .
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There were other agects 9: the~case upon iihich t2stimCn.j
of the griever must be deemed unsatisfying. .?he most iiqni:i,=a>?.r
of these is her testimony with respect to the nature Of her
criminal convictions and her efforts to obtain psychiatric
assistance in resolving her problem. AS to the criminal
convictions, the griever testified on direct examination
that she was sorry for the crimes that she committed and
that she did not think they would happen again. Hosrever ,
on cross-examination, the grievor claimed that she only
had committed one of the five offences -- that of which she
was convicted on April 10, 1979. 111 of Jcce others she
attempted to .explain away as resulting from confusion _ ,.,. ~ . .
through her difficulty with the English language~and. in
most cases, the sudden disappearance of a friend of her hus-
band whom she then vent.outside the department store to seek?
It is not necessary to comment upon the details of this
testimony. It suffices to say that on these four occasions ,..
upon which the-grievor claimed to be innocent, she was
convicted beyond a reasonable doubt in criminal court.
Further, the position of t:he griever conflicts with a
confidential medical report which was submitted in evidence
as Exhibit 4. This exhibit is a letter dated November 20,
1978, from the grievor's psychiatrist, Dr. H. Xunez, X.D.,
F.,?.C.P.(C) , in which in a narrative of the grievor's
difficulties, Dr. ?Iunez stated that the griever was v'caught
shoplifting on November 13/78. . . . She said that this is
not the first time that this has ihappened to her. She ha<
been taught four more times before. . . . The ?atiant saL.2
that small amounts are alxays involved; . . . she does not
know how she does it. She confesses that she has had this
habit of picking up things all herlife . . . ." In the
light of these contradictions, we must resolve against
the grievor's clalns of innocence and we find as a fact
for the purposes of this Award that the griever did commit
all of the offense for which she was convicted.
AS to the grievor's testimony regarding her course
of treatment with Dr. Nunez, the grievor essentially testified
that she,had entered qon a regular course of treatment with
the psychiatrist in 1978 and wasstillseeing him on a regular
basis.
She also testified that she had been helged by her
t:herapy with Dr. Nunez. On cross-examination, however, it
became apparent that since she began seeing Dr:' Nunez, the
grievor has been irregular in her attendance at therapy sessions,
often skipping several appointments and visiting her own familv
physician to complain that the treatnent orescribed by -2:
Dr. Nunez was not ihelping her.
Further evidence that
the griever’s attitude toward her therapy is below the
level necessary to achieve positive results is provided
by the fact 'Aat her Last two convictions for theft under
$200 have occurred during the period in which she has claimed
to be regularly visiting her doctor. The inference we draw
regarding the griever's attitude toward :h.er therapy appears
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to be further confirmed by her denials of respcnsibilit:,.
for her actions on four of the five occasions for chic:? she
was convicted. That the assessment of graduated amounts of
corrective.discipline against the grievor might have no
effect uponthegrievor'sbehaviour is evidenced by the fact
that despite increasingly severe ?enalties,including fines
and jail terms, assessedagainst the qrievor upon her
convictions, the grievor continued to be involved in
incidents of shoplifting.
To some degree this evidence of a poor prognosis for
the grievor with respect to improvement in the future is
counterbalanced by the fact that some of the underlying
causes for her actions might now have been eliminated. There
was evidence to indicate that during the time period over
which the episodes of shoplifting to which she was convicted
took place, the griever was in considerable emotional turmoil
resulting from a poor relationship with an overbearing and
sometimes brutal husband. That relationship now has.been
severed. The qrievor testified that her husband now is
in Equador, and that they are in the process of obtaining
a divorce.
. At the conclusion of the hearing Counsel for the
Emplbyer argued that given the special needs of the !+nistry
of the Attorney General to have'employees engaged in court
administration who are above reproach, and given the relatively
'poor prognosis for the griever, the Board ought to uphold
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the a&ion of the Zmoloyer i.1 dismissing tine griever. Q:,o ting
from a number of authorities, including reported industrial
arbitrations and cases emanating from the Grievance Settlement
Board,Counsel argued that conviction of a criminal offence
does constitute just cause for dismissal and that in the.
circumstances of the present case there was no reason for
the Board to exercise its discretion -- which was acknowledged --
to substitute a lesser penalty. One of the principal authorities
relied upon in support of this argument was Re Air Canada and
International Association of Machinists, Local 148, 5 L.A.C. (2d.)
7 (Andrews) , in which a number of criteriawere set forth by
the arbitrator for the purpose of determining w'nether a discharge
..:-.,. ,.
for off-job misconduct can be sustained. Quoting from Re Xillhaven
Fibres~ Limited, Millhavnn~ Works~ and Oil,' Chemical and Atomic
Workers, International Union, Local 9~-670 (19671, 1 (A) Union-
Management Arbitration Cases, 328 (Anderson), the award said:
a1
$1 ,..
if the discharge is to be sustained on the basis
of a justifiable reason arising out of conduct away
from the ?lace of work, there is an onus on the
Company to show that: --
(1) the conduct of L?e grievor harms the Company's reputation or product
(2) the grievor's behaviour renders the employee ~ unable +o perform his duties satisfactoril
(3) the grievor's behaviour leads to refusal; reluctance or inability of the other employees to work with him (4) the qrievor: has been guilty of a serious breach
Of the Criminal Code and thus rendering his
conduct injurious to the general reputation of
the Company and its employees (5,) places difficulty in the way of the Comnany properly carrying out its function of e?ficiently managings. its Vorks and efficiently directing
its working forces".
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It is my interpretation that it is not necessary for a company t= show that all five of the cri;eria
in the :".illhaven~ Fibres case have followed on the
employee's conduct; rather, any one of t.?Ie consequences named mav warrant disc;o'ine I-' at p. 3. /I e-d.. . d.
Referring to these criteria, it was argued that the
Zmployer had shown (1) continuationof the qrievor's em~lopent
will harm tne reputation oft the Ministry; (2) the grievor's
off-job behaviour ultimately will result in difficulties with
her co-workers (snot to mentionthe possibility of interferring
with the performance, of the grievor's duties as a result of
the requirement to serve increasing severe jail terms); and,
(3) having the qrievor on the job'in these circumstances will
interfere with the efficient management of the work place.
In LYis regard, Counsel also stressed that unlike other
cases in which reinstatement was ordered in spite of criminal
convictions for off-job behaviour, the grievor had only about
two years seniority, the offences are not isolated incidences:
and that the prognosis for the qrievor, if one can be made,
is not promising. She -- unlike others who had be reinstated --
has not yet acknowledgedherproblem and in her testimony
had made some attempt to justify her behaviour.
In spite of this substantial case ably presented byi
Counsel, we are not convinced that the grievor should have
been subjected to, dismissal immediately upon entry of her
criminal conviction for the Xay 13, 1980 offence. Even iLnz~;.
the circumstances of this case, the Cmployer should have
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made an effort to apply corrective discioLine bef.ore 2roceedinq
to the ultimate sanction of discharqe. It was acknowledged
in a previous award that the ,need of the Ministry to be
above reproach, while an important consideration to 'take
into account, is not overriding in nature but must be
balanced against other factors. In' Sarabura v. The Crown in
Xiqht of Ontario Xinis.trv of the Attorney G~eneraL (October 3,
1380
said
,I
.:
, Grievance Settlement Board Award +289/80, it was
The Board has given anxious thought to the
facts in this case because, as Ns. rinor ve-T properly
emphasized, the offence was not only "job-related but affected the adminis'zation of justice, its
efficiency, its credibility and its integrity. The grievor,'s position was a senstivie 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. . . . I'd. at p. 16."
The Board then went on to conclude that substitution of Lhe
lesser penalty was required be&use of the lesser natuie.:,~
of the criminal conduct of the griever; the qrievor's ..~~
contriteness; her long record of emploq?nent as a good
employee; the severity of the consequences of dismissal
upon the grievor; and the penal-ty already'extracted by
society from the griever in the form of a &iminal conviction.
g. at pp. L6-2a.
.
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In the present case, t?.ere exists other :actors ..,“i -‘7 T,USf _.___
be counterbalanced against the ne2d of the I3inistry to be
above reproach. yirst, there is no evidence to indicate
that the flinistry has in fact been compromise~d by the
off-job misconduct of the griever, even though two of the
grievor's shoplifting convictions were entered during the
course ,of her emo1oymen.t with the Ministry. Before the
detective visited the griever's supe-rsrisor, no one was
aware of~this misconduct. The crimes were not of a
noteworthy or spectacular nature. They have not yet
resulted in the imposition of any crizminal penalty which
would impact upon the ability of the grievor to do her
job, e.g., the imposition of a long jail term. The job
performed by the grievor does not involve her in contact
with the.public or the police. The nature.of the work
does not present the grievor with any opportunity to
commit similar incidences of misconduct at the work .place.
There was no evidence that the grievor had even taken as
much as office supplies during the course of her employment.
The grievor was a good employee who was well liiied by
her co-workers and supervisor. In the light of these
circ*umstances, it is difficult to determine precisely
how the need of the Ministry for integrity in the adminis'la-
tion the. courts vould have required the dismissal of
the griever.
At ‘-ie same time, it must 52 acf<nowlelg& tjati_C t:-=
griever is returned to her work place with her curr2nt
attitude toward her difficul" cles unchanged it might only
be a matter of time before her off the job conduct makes
impossible the continuation of her employment. The next
conviction for theft under $200 might well result in
the imposition of a jail term which might require's long
absence from the work place, thereby interfering with the
operation of the Zmployer., Consideration of the substantiality
of this risk, however, is counter-balanced by the fact that
circumstances in the grievor's personal lifa which might have
motivated this misconduct now have Seen eliminated. In the
light of this factor, the fact that the griever's job is
one which does~ not involve significant risk of compromising
the integrity of the Einistry, and the fact that during
the course of her employment the griever was a good e.msloyee,
we conclude that the griever must be reinstated with the
imposition of~:T substantial but lesser penalty. We are fortified
in this conclusion by the fact that the bulk of the orecedents
cited to us by both Counsel -- and in particular those emanating
from the Grievance Settlement Soard -- appear to have ordered .
reinstatement with a lesser penalty even in more severe
cases where the .criminal misconduct involved activity of
the employee at .the work place. Se2 the Sarabura case which
was cited previously in this Award.
In order to bring home the griavor the seriousness
of her misconduct and the closeness of this case, we determine
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rhat a substantial penalty nust be exacted. For t.cs reason,
tile griever is reinstated as of the date of tihis Award, 'dif:h
ho back pay and no accrual of accumulated service or benefits.
Further, inordertounderscore to the grievor the necessity
for her to make a change in attitude toward her persona&
problem and co-operate in a course of psychiatric treatnent
designed to control and, hopefully, ultiraately to eradicate
her difficulty we make her return to work a probationary
one. For a period of one year from'the date of this Award,
the return to work of the grievor is~ conditioned'upon her
regu~lar attendance-and participation in a course of psycho-
therapy !$ith a qualified psychiatrist. The number of
sessions per month that must be, participated in by the
grievor shall be determined by the pyschiatrist. At any
time during thecourse of the probationary year the Employer
may demand proof of regular attendance and participation
in these sessions, e.g., in the form of a letter from ihe
psychiatrist involved. Failure to fulfill this condition
of her reinstatement will justify the i;;rmediate dismissal
of the grievor. The Board will remain seised of the matter
pending implementation of the terms of this Award by the
parties.
DATED at London; Ontario this 15th day of May, 1981.
2.J. 0 erts
"[I. Laina"' (Addendum to follow)
H. Laing, tiember
"H. !ieisbach" H. Weisbach, Xember~