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Home My WebLink About1982-0372.Koufis.82-11-27li <i .-.-..I:..; , IN THE MATTER'OF AN ARBITRATION .Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: For the Grievor: For the Employer: Hearing: September 24, 1382 OPSEU (Mr. Steve Koufi's) Grievor - And - The Crown in Right of Ontario (Ministry of Correctional Services) Employer P.G. Barton P. Craven H. Roberts N. Luczay' Grievance/Class Ontario Public ification Officer Service Employees Union Vice.Chairman Member Member J.F. Benedict Manager, Staff Relations Human Resources Management Ministry of Correctional Services . . 2 -2- On June 17, 1982 the Grievor a Correctional Officer II in the Toronto jail,was dismissed from his employment. He filed a grievance alleging an improper dismissal without just cause and seeks reinstatement. The Griever was dismissed following a (meeting held in the office of a Superintendent, I. D. Starkie. at which meeting the Grievor was required to respond to allegations that: "During your period of employment at the Toronto jail, you have fraudulently altered medical certificates submitted to justify absence alleged to be due to illness." There were four medical certificates involved, dated April 30, 1981 and December 26, 1981, January 20, 1982 and June 9, 1982. These certificates covered a period of sixteen days of absence plus others, and it was admitted by the Grievor on a number of occasions that he did alter these certificates by the addition of those dates. In sumnary what happened was that the Grievor was under a requirement of producing medical certificates as found in Article 51.10 of the Collective Agreement and had missed work on the dates in question, claiming sickness. When the legitimacy of his absences was questioned by the Employer, he obtained certificates from his doctor and altered them by adding additional dates than those referred to by the doctor. In all he appears to have been paid approximately $1,500.00 and has not returned the money. The letter of dismissal also notes that since he began employment on September 24, 1979 he had been suspended on three separate occasions and reprimanded for an unrelated matter, and that his attendance had been unsatisfactory from the beginning. The letter concludes: "The nature and circumstances of the misconduct in question constitutes a deliberate and calculated attempt to defraud the employer over a period of many months, and cannot be viewed as an isolated incident. This dishonest conduct has damaged,the employer/employee relationship to the extent that you cannot be allowed to continue in employment which requires trust and responsibility." Some background might be useful. As indicated earlier, the Grievor had attendance problems from the beginning,of his employment with the Ministry. As a result he was put on the compulsory medical C@rtifiCate requjrement in the suinner of 1980. His attendance problems were brought t0 his attention and the attention of the Superintendent and just Prior to Christmas, 1981, the Superintendent became aware of suspectedalterations in his medical certificates. Only one of these certificates dated prior to this, was. filed in evidence and that certificate is dated April 30, 1981. It was issued'for a period from April 28 and 29 and was altered to cover a period from April 25 to April 29. Thus three additional days were covered by it. On December 8, 1981 the Attendance Review Committee met with the Grieiror and ina letter to the Grievor dated December 14, 1981, referred to 26 months of employment and 44 and 314 days of illness. The letter referred to the fact that the Committee wished to extend help to the Grievor "in every possible way" and suggested that the Grievor discuss it with his Supervisor, Mr. A. Kennedy, as job or health related problems. On December 16, 1981, the Superintendent wrote to the Griever referring to the fact that absences of nine days in 1981 had not been covered by certificates. he was directed to produce certificates for those -4- dates by Friday, December 18, 1981 or be removed from payroll for the days concerned. On December 26, 1981, the Grievor produced a certificate apparently prepared to cover December 16 to which he had added eight additional days, which days coincided with those mentioned in the Superintendent's letter. This was filed in evidence. The Superintendent in his evidence,indicated that he intended to investigate the suggestions of improper medical certificates but the investigation was delayed because of an escape on Christmas Day 1981, the sequel of which occupied a good amount of time of the staff of the jnstitution, and because there were a number of staff changes in the early spring of 1982. In late March of 1982. they decided to investigate fur~ther. By this time an additional certificate dated January 20 had been produced and altered to add an additional day. On June 11 an offfcer in charge of security, R. Smythe, went to the doctor's office and apparently confirmed with the doctor that the three certificates plus another one fssued on June 9 to which an additional four days had been added, had been altered by somebody other than the doctor. A meetfng was held on June 11 at which the Grievor admitted having made the changes and the meeting of June 16 which led to his dismissal was set up. It appears that during the spring of 1982, a number of letters were written to the Grievor requesting medical certificates and the two altered certificates produced in 1982 were in response to those letters. .~ The Griever offered explanations for his conduct at the meeting of June 16. 1982 and at the hearing. It appears that he was and is substantially in debt to the amount of over $14,000.00, and that he had a number of family problems during his years of employment. One problem in particular related to the failure of his parents,who are Greek to accept his girlfriend and his life style. Other problems related to.a ca,r accident in the spring of 1981 which led to a substantial period of lost time and reduced i.ncome. thereby increasing his financial problems. He did indicate that he had been “legit- imately sick" on the relevant dates covered by the altered certificates but gave,no satisfactory explanation as to why he had been unable to obtain doctor? certificates for those dates. We are somewhat concerned about the quality of the doctor's certificates in any event, given that some of them seem to have been obtained from the doctor, prior to alteration, to cover dates when the Grievor was in fact at work. There is certainly an implication, albeit a weak one, that the Grievor was not being totally candid with his doctor. What the Grievor did.was obtain payment for days on which he did not work, through the use of forged documents. The employer character- ized 'the conduct as "dishonest and fraudulent." We do not know whether or not the Grievor was legitimately sick on the dates in question. Giving him the benefit of the doubt it is still clear that he acted fraudulently and dishonestly. This case is somewhat similar to the case of Re Forrester and Treasury Board (Post Office Department) 1981 2 L.A.C. (3d) (O'Shea). In that case the Grievor had forged a doctor's signature to a number of certificates and received approximately three days sick benefits. The Grievor had a number of personal problems of a fairly severe nature -., I.., I.. : - 6 - but her conduct was aptly described as: "We are not dealing here with an isolated incident for which there was immediate contrition but rather with a repetitive scheme to deceive the Employer for the purpose of gaining a benefit, if not in the form of sick benefits, at least in the form of escaping the consequences of her unapproved absences." The grievance was dismissed. There are two facets of the case which trouble us. One relates to the delay in pursuing the matter from December, 1981. At the time the matter came to the Superintendent's attention there was only apparently one altered certificate in existence, but by the time the Grievor was confronted with the problem there were four. Although we have little sympathy with the Grievor, his position might well have been different if he had been confronted in mid-December, 1981. The second problem that we have is that the Grievor never appears to have taken advantage of any counselling about his attendance problems and reasons for it. We do not know whether sincere efforts were made to counsel him and whether he was too proud to accept them, indeed there is a considerable amount about the Griever's background, motivations, and personal situation which was not brought to our attention. It is clear that he was under a considerable amount of stress at the time. In part stress is one of the major features of a job as a correctional officer. We cannot consider reinstatement without evidence that he has taken steps to deal with the problems he had at the time of his dismissal. What little evidence we have does not suggest that any action has been taken. Accordingly the grievance is dismissed. i” i - 7 - DATED at London, Ontario this 27th day of November, 1982. "I concur" P. Craven Member "I concur" H. Roberts Member \ 7:3112 7:3300