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HomeMy WebLinkAbout1984-0247.Avery.85-10-17IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: OPSEU (G. Avery) and Grievor The Crown in Right of Ontario (Ministry of Transportatiw, and Communications) Employer R. J. Roberts Vice-Chairman R. Cochrane Member D. B. Middleton Member For the Grievor: For the Employer: Hearing: 5. Goudge Counsel Cowling & Henderson Barristers & Solicitors D. W. Brown, Q.C. Law Officer Crown Law Office Civil Ministry of the Attorney General January 7, 1985 DECISION 2. This is a discipline case. The Ministry suspended the grievor, an Apprentice Mechanic, for 15 days and required him to repay to the Ministry $1,855.92. The Ministry took this action after concluding that the grievor had fraudulently obtained salary and expenses from the Ministry while attending as part of his apprentice- ship program certain courses at Centennial College in Toronto. The allegation of fraud was based upon a finding by the'Ministry that the grievor had falsified his time sheets 23 times by showing full working time at Centennial, when, in fact, he was not present. For reasons which follow, the.grievance is allowed in part. On September 25, 1979, the grievor commenced employment as an Apprentice Mechanic with the Maintenance Section of the Ministry in North Bay, Ontario. This apprenticeship was a five-year work and study progra~m. In addition to the on-the-job training that the grievor received at his place of employment, he was required to attend three E-week courses at Centennial College in Toronto. Successful completion of all course-work was a pre-requisite to obtaining certification from the province as a Journeyman Mechanic. I On September 6, 1983, the grievor commenced his third and final period of course-work at Centennial. There seems to be little doubt that the grievor regarded this as the final hurdle to .L cross before qualifying for certification. Then g$ievor testified that he believed that it was important to comple:te this particular course. If he did not, there would have been a.delay in getting ‘r . 3. his licence. Apparently, this was due'to the fact ,that there usually was a 6-month delay between receiving notice to go to school and the start-date of the course. It was the practice of the Ministry to pay to each apprentice who was on course at Centennial,full salary plus travel and living expenses. Payment of salary was accomplished according to a well- established routine at the District Office in North Bay. Prior to going on course, an apprentice would be called into his supervisor's office and required to sign a sufficient number of blank time sheets to cover the total period of hi& or her absence. Thereafter, these time sheets were filled out by the supervisor generally to reflect 8 regular hours per day, 5 days a week. As to travel and living expenses, each apprentice was supplied with travel claim forms which they periodically submitted to obtain reimbursement for allowable expenses. The evidence at the hearing left little doubt that the 8 regular hours per day being recorded by the supervisor were hypo- thetical in nature. There was no direct connection between this figure and the time each apprentice actually spent each day taking courses at Centennial and studying. Over the years, there never had been any contact between the District Office and the School for the purposes of obtaining information regarding how many hours per day each apprentice spent "working". The main concern of the District Office , it seemed, was in the result, i.e., whether the apprentice successfully completed the course work. This was reflected in the fact that Centennial College addressed its summary of achievement . 4. form, which reflected the grades of the apprentice to the Ministry as well-as the apprentice. This relaxed atmosphere regarding actual hours "worked" while on course also extended to the matter of reporting of sick time. The grievor gave uncontradicted testimony that whenever he went on course, he was never instructed about what to do if he became sick at school. He was not given to understand that he was to follow the call-in procedure that was required to be observed while working in North-Bay. The grievor stated that the College never required a medical'certificate or other evidence,of illness when he was away from class due to illness. He added that in previous course,work at the College he had missed a number of days of classes with no penalty from the College. Moreover, the Ministry never made any inquiry regarding absences while at school. The events which led to imposition of the discipline at hand actually were initiated by the grievor. Apparently, the grievor was absent for several days in the course which commenced on September 6, 1983. A number of these atiences were due to the fact that half-way through the course, the grievor contracted a case of mumps. Due to' fatigue from this disease, the grievor was unable to take an examination which had been scheduled for a day in late September. On October 3, however, the grievor wrote the examination in his Instructor's Office. plater on that same day, his Instructor informed him that he received a grade of 64% on this examination. This was a passing grade. 5. Later that year, however, when the grievor received his transcript from Centennial, he noted that the Instructor had recorded a failing grade in the course. The grievor went to see a Counsellor for the Ministry of Colleges and Universitiesin North Bay and asked him to look into the matter. The Counsellor reported back to the grievor that he received an "F" in the course because he did not write the examination. When the grievor insisted that he had written the examination, the Counsellor suggested that he call the Instructor. When the grievor called the Instructor, the latter recalled the grievor' writing and passing the examination. He said he would check further - and call the grievor back. He did not. When the grievor called him again, the Instructor stated that there was nothing that he could do for him. In early January, 1984, the grievor asked his Superivisor, Mr. L. Alcorn, to listen in as a silent witness to a further tele- phone conversation that he planned to have with this Instructor. Mr. Alcorn agreed, and the grievor made the call. In the course of this.conversation, the Instructor indicated that he could not find the grievor's examination. He added that due to the grievor's attendance during the course, they would not make any further effort to find it. When the grievor replied that he had been sick with the mumps, the Instructor replied that he was referring to the grievor's attendance in general. At this point, the conversation ended. This was the first time that Mr. Alcorn had heard of any problem with the grievor's attendance at the College. As usual, the Ministry had made no effort to check on the grievor's .’ 6. attendance. And again, as usual, the grievor had made no effort to advise the Ministry of the number of days of classes that he had missed. Mr. Alcorn called the grievor into his office and asked him what the Instructor had been referring to. According to Mr. Alcorn; the grievor replied that he might have missed a half a day here or there, but it did not amount to anything. .Then the grievor walked out of Mr. Alcorn's office. After consulting with Mr. D. Barnes, the District Engineer, > Mr. Alcorn decided to investigate the matter. He requested from * Centennial College a summary of the grievor's attendance accprding to the College's records. He received the following reply: Dear Mr. Ajcorn: Re Gary Avery - S.I.N. 459 615 183. me Records Office has been'given permission by Mr. Trenton N. Douglas to provide the information which yourequested concernin the attendance of Mr. Gary Avery. DATE: September 9 1983 late - periods 1 and 2 .12 1983 day off. 20 1983 off periods 5 and 6. 21 1983 off periods 3 and 4. 22 1983 off periods 5 and 6; 23 1983 off - ill. 26 1983 off - no ,notificati.on. 27 1983 off - no notification.. 28 1983 off - no notification. 29 1983 off - no notification. 30 1983 late - period 1. 4 1983 off periods 1, 2, 3 and 4. 5 1983 off periods 1, 2. 3 and 4; 6 1983 off periods 1 and 2. 7 1983 off period 1. 10 1983 HOLIDAY' 11 1983 off periods 5 and 6.' 12 1983 off periods 1, 2. 3 and 4. 13 1983 off periods 1, 5 and 6.. 14 1983 off - no notification. 18 1983 off period 1. 19 1983 off no notification. y 20 1983 late - period 1. 71 10*('1 ,.cc _^ ..,.r*C1^-.-^- . 7. . It would be an understatement to say that this report indicated considerable absenteeism. In early February, 1984, Mr. Alcorn reviewed this letter with Mr. Barnes. They decided to hold a meeting with the grievor and his Union Representative, Mr. J. ROSS. When the grievor was asked in this meeting to explain why he took all of these days off, the grievor indicated that on two occasions, he was absent due to car trouble. Other than that, the grievor stated, he had had the mumps during the course of the College program, and did not feel that he could attend on a full-time bases because he was feeling "dragged out". When asked why he did not report to the Ministry that he was sick, the grievor replied that he was afraid that if '. he reported this to the Ministry, the Ministry would tell him to come home and he would miss the course, thereby delaying the completion of his apprenticeship. of discipl On February 20, 1984, Mr. Barnes sent the following letter ine to the grievor: Mr. Gary Avery, 1143 Fraser Street, North Bay, Ontario. PiB 2Y2. Dear Mr. Avery: On Thursday, February 16, 1984 you attended a Hearing to discuss your attendance while you attended trade school at Centennial College. At. the Hearing, it was apparent that you had falsified your timesheets twenty-three times by showing full working time when you were in fact, not present. You admitted part of this falsification and had very weak reasons for the balance. 8. The seriousness of this action on your part cannot be overstated. You have fraudulently obtained both salary and expenses from the Ministry over a seven week period. The number of occurrences and this length of time precludes any chance that this was an isolated incident or an unfor- tunate oversight. You are therefore removed from employment for cause without pay for a period of fifteen (15) days. The specific time period will be given to you by your Supervisor, Mr.L. Alcorn. In addition, the Ministry will recover the salary and expenses for the time you did not spend at work. This w~ill be the sum of your unauthorized absences of one-half day or greater prorated over the total time period while in Toronto at College and applied to your salary and expenses. It amounts to $1,855.92. c Yours truly, D. F. Barnes, District Engineer.. Thereafter, on March 5, 1984, the grievor filed the grievance leading to the present arbitration. At the outset of the Board's consideration of the matter, it must be stated that none of the evidence that was adduced at the hearing substantiated a case of fraud against the grievor. It was not the grievor who filled out the time sheets that were submitted during the course of his attendance at Centennial College. These time sheets were filled out as a matter of routine in the office in North Bay. There was not, and never was, according to the evidence, any correlation between the time sheets and the time actually spent by each apprentice at the College. The Ministry displayed indifference to the matter of reporting and recording absences of apprentices while on course. Neither the grievor nor any other apprentice was advised that absence from class was to be reported in the same manner as an absence from work in North Bay. In these circumstances, it I, . 9. would be inappropriate to characterize the grievor's behaviour as fraudulent. It seems that what the evidence did disclose might best be characterized as the taking of undue advantage of the Ministry's liberal attitude towards its apprentices.while on course. In a real sense, the.Ministry trusted its apprentices to take a responsible attitude toward their course work in recognition of the fact that they were there at Ministry expense and were receiving full compensatic Moreover, it does not seem that this expectation had to be brought - to the attention of each apprentice in bold print before going away to the College. The Ministry had the right to expect that each appren- tice would draw this as a natural inference from the circumstances of the arrangement between the.parties. The grievor's behaviour while at the College fell below the standard of responsibility that the Ministry had a right to expect of him. While it is true that several days of his absence might have been due to the grievor's illness, this factor appears to fall short of furnishing a complete explanation. In his testimony, the grievor conceded that at least two of his absences were due to car trouble which he preferred to deal with himself rather than seek alternative transportation. Several other absences, particularly from October 11 on, were sought to be explained by the grievor as due to his illness however, these absences fell outside the two-week period in which the grievor, by his own doctor's note, would have been acutely ill. The inference that the griever could have attended on a full- time basis in this period is strengthened by the fact that, while 10. the grievor's doctor indicated that the grievor might feel fatigued for about three to four months, the grievor logged a near-perfects attendance record upon his return to North Bay. Accordingly, the Board concludes that whi,le at College the grievor engaged in blameworthy conduct which constituted cause for discipline. In light of the conclusion of the Board that the grievor was not fraudulent in this misconduct, however', it must be concluded that the discipline which was imposed was too severe. The grievor was suspended without pay for 15 days and, in addition, was dock&d $1,855.92, representing the salary and expenses for the time that the grievor was absent from class. While in the light of the findings of fact of this Board, it might be said that the 15 day suspension was within the range of reasonable disciplinary responses, imposition of .this further monetary penalty was not. It is directed that upon the issue of this award, the grievor must be repaid the sum of $1,855.92 which was withheld by the Ministry. The,grievance is allowed in .part. .~~~_ _.-..-. *' DATED at London, Ontario, this 17th day of October, 1985, -- K. J. Roberts, Vice-Chairman "With addendum to R. Cochrane, Member follow" *2&4< D. A. Middleton, Member