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HomeMy WebLinkAbout1984-0337.Intine.85-03-01in __ ONTARID CROWN EMPLOYEES GRIEVANCE !W&bEMENT TELEPHONE: rls/5os-ome 337184 Between: IN THE MATTER OF AN ARBITRATION, ~, Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Before: For the Grievor: P. Sheppard Grievance Officer Ontario Public Service Employees Union For the Employer: Hearing: OPSEU (Joseph E. Intine) Grievor The Crown in Right of Ontario (Ministry of Labour) Employer P. M. Draper M. V. Watters F. T. Collict Vice-Chairman Member Member L. McIntosh, Law Officer Crown Law Office Civil Ministry of the Attorney General August 15, 29, September 18, 19, October 4, November 6, December 4, 18, 1984, January 2, 16, 1985 r. _,,,,‘. ,, _... :r-. . _ :, ,, 1 ,..:... : : .,: -.. (. ,~ .,. .~ , _. . . .,. :.;,. ~.’ :... ‘.,.- ;, .,.. ; .._ ,~. ,. ,.~ .:~..;.., : .: , :, ;,..: Y. ..~_..<, .~ .;. .,. ., ;, :.,;.i’, ., ^ (: ~~,: .;. ; :. -2- The Grievor, Joseph Intine, grieves that he was dismissed without just cause from his employment as a Construction Safety Officer (CSO). The Grievor was one of four CSO’s attached to the Hamilton District Office, Western Region, Construction Health and Safety Branch, Occupational Health and Safety Division of the Ministry. The duties of CSO’s may be shortly described as monitoring and enforcing compliance with the Occupational Health and Safety Act and Regulations in the construction industry. They work out of their homes and spend their work week in the field except for one afternoon each week which is spent doing paperwork and meeting informally at the district office. There are approximately 70 CSO’s across the province who do about 60,000 inspections of construction sites per year. The inspection system followed by CSO’s begins with the required filing of a Notice of Project (NOP) by a constructor with the Branch if the project is of a certain value or involves certain potential hazards to workers. CSO’s receive .NOP’s from the district office for projects in their assigned geographical areas once a week and have between 50 and 60 to act on at all times. The CSO decides when and how often to inspect a project based on his workload and the type and size of the project. He completes a Project Inspection Report (PIR) in four copies for each inspection of a project. A blank report form is appended hereto. The first copy is left with a person on the site who would normally be the project superintendent but could be a foreman, a safety representative (on large projects) or a worker (who may be an employee of a sub-contractor rather than of the constructor.) Constructors are not required to retain their copy on file, or to post -3- it on the project site unless it contains a compliance order. The second and third copies are turned in to the district office, one of which is transmitted to the head office of the Branch in Toronto. T?e fourth copy is retained by the CSO who keeps it on file for an unspecified period and then destroys it. If a project is inactive or completed it is noted as such and the first copy is destroyed. If a contravention of the Act or Regulations is discovered, which happens with about 28 percent of PIR’s, an order to comply is written on the lower half of the form and a copy of the repat is mailed to the head oflice of the constructor by the Director of the Branch. While no official quota is laid down there are informal arrangements, which may vary from district to district, as to the number of PIR’s expected to be completed by a CSO. The ministry yardstick appears to be a minimum of 800 per year, which would require a daily average of at least four to be completed by each cso. Early in 1984, a routine audit of the Hamilton District Office was conducted by R. Littleford, an internal auditor in the Ministry, during which the various reports required to be filed by the four CSO’s such as weekly activity and expense reports, monthly statistIca and attendance reports and, in particular, PIR’s were examined. Littleford had some concerns about a number of the Griever’s PIR’s which he communicated to D. Pizak, Director of the Branch. The Griever’s explanations being considered unsatisfactory, Littleford continued his investigation, which included interviews with constrwctors, and turned up I4 PIR’s which appeared to him to be false. At a pm-disciplinary meeting held in early ,March, the Griever was given the I4 PIR’s together with Littleford’s comments on them and asked to explain some apparent discrepancies. On the advice of his -4- OPSEU representative he refused to do so but complied with a request to respond in writing within a few days. The written explanations were found to be generally inadequate, a conclusion with which, having seen them, we must agree. The decision to dismiss the Griever was made and he was dismissed as of March 15, 1984, by letter of that date. The letter of dismissal reads: On March 6th, Mr. Pizak and I, along with representatives from the Personnel and Internal and Management Audit Branches, met with you and your union representative, to discuss apparent discrepancies found in a number of inspection reports. We requested explanations for the apparent discrepancies, and since none were offered by you, we asked that the explanation be received the next day. You were provided with copies of the inspection reports referred to at the March 6th meeting. Your union representative requested an extension of the time period allowed for explanations, and your Hamilton OPSEU representative was notified on March 7th that the time would be extended until the afternoon of March 9th. We have reviewed the explanations you sent to us on March Sth~and find that they do not explain the discrepancies uncovered. As a Construction Safety Officer you play a vital role in monitoring and enforcing the Occupational Health and Safety Act and the Construction Regulations thereunder. The falsification of inspection reports is unacceptable in any circumstances, but is particularly serious in the case of a Health and Safety Inspector whose integrity and conscientious attention to duties is an essential precondition to. the successful functioning of the Occupational Health and Safety Act. Our client groups - employees, employers and unions are entitled to absolute honesty from all persons charged with administering this important~ public statute. Our investigation estabIishes that you have failed to fulfill those fundamental requirements. Therefore, pursuant to Section 22(3) of the Public Service Act, you are dismissed from the Ontario Public Service effective March 15, 1984, on the grounds of falsification of inspection reports. You are entitled to grieve this decision at the second stage of the grievance procedure provided you do so within 20 (working) days. - 5- By the time of the stage 2 grievance meeting early in April, Littleford had examined all of the PIR’s filed by the four CSO’s at the Hamilton District Office during 1983. Amongst them were some 64 (including the original 14) filed by the Griever which he considered questionable in one or more of several respects such as the signature of the recipient at the project site, the status of the project, and the date and time of the visit to the project site. In each instance, he concluded that the impection recorded on the PIR had not taken place’, The Grieva testified to the following effect. He is 40 years of age, is married and has two children in their early twenties whom he supports. He is a master electrician and worked at his trade in Canada and the United States before joining the Branch in June, 1977. As a result of the failure of a business venture he began in 1979 he incurred debts of over $250,000. In October, 1981, on the advice of his lawyer, he declared personal bankruptcy but was not discharged until mid- 1983. That year he was forced to sell the property where he and his family were living and his planned purchase of a new property led to a lawsuit which is not yet settled. After renting premises for a short time he purchased a home in October, 1983. The necessity of meeting the trustee in bankruptcy and various accountants and lawyers involved in these matters made demands on his time which could not be met during lunch breaks and after working hours. He began to falsify PlR’s to cover the time taken from his workday to attend to his personal affairs. A chronic back problem was also a factor in his need for time off. Both his financial and health problems were known to H. Strada, Manager of the Hamilton District Office. The car provided to him by the Ministry aggravated his back condition bkt despite his doctor’s request and Strada’s recommendation that a car with a suitable -6- seat be provided, no action was taken. He purchased a car, which had not been delivered at the time of his dismissal. He did not ask for and was not offered help with his problems or time off to deal with them. Dr. W. Awrey, the Griever’s family physician, testified that in 1982 the Grievor developed a duodenal ulcer which healed after treatment. In March, 1983 and again in November, 1983 he treated the Griever for lower back pain and lack of mobility which dated from 1981. The condition continued to worsen and in January, 1984 physiotherapy was prescribed. Further-deterioration occurred and in July, 1984 a .calibrated axial tomography (CAT) scan revealed a pathological condition for which surgery is required. The Crievor is about 5 feet~ 10 inches in height and weighs over 240 pounds, which contributes to his problem. He is aware of the reason for the Crievor’s dismissal and is frank to say that he cannot attribute the Griever’s conduct to his medical condition. It is admitted on behalf of the Grievor that he falsified 19 PIR’s by tracing on to them authentic signatures from NOP’s in his possession, and that the inspections which they purport to represent were not in fact made. With regard to the PIR’s ‘filed in evidence over and above the 19 admitted to be false, we see no purpose to be served by cataloguing the various respects in which they are questionable and making findings as to the validity of individual,PIR’s. In our opinion it is the qualitative rather, than the quantitative aspect of the Griever’s conduct that is crucial. There is no figure below which falsification of F?IR’s is permissible and above which it is not; obviously even a -7- single instance of falsification is not acceptable. Accordingly, to express our conclusions in general terms, we find that in respect of the PIR’s on which the authenticity of the signatures of recipients is in question the burden of proof borne by the Employer has not been met; as to those which lack certain entries or contain certain incorrect entries, that they cannot be said on that account to be false; and as to those which report projects to be inactive or completed where the evidence of the constr~tors is that they were active, that they are false. Leaving aside the indisputable fact that the falsification of PIR’s by the Grievor was dishonest because it was a deliberate deception practiced on the Employer, what is most significant is that because the inspeaions they purported to record were not in fact made, health and safety conditions on the projects concerned were not known. With reference to the 19 PIR’s admitted to be false the Crievor claims to have selected projects on which the possibility that hazardous conditions existed was minimal. That does not lessen the gravity of the Grievor’s conduct and, of course, gave no assurance that a project was actually safe. Any contraventions of the Act or Regulations there might have been would go unreported. Because the Griever’s duties were carried out over a wide geographical area and without immediate supervision, he was necessarily entrusted with a large measure of independence and discretion. In such circumstances the existence of a bond of trust is basic to the employer-employee relationship and dismissal is a legitimate disciplinary response to breach of that trust. -8- We are not convinced that whatever degree of stress may be associated - with the duties of a CSO, it can be said to have influenced the Grievor’simproper conduct. The Grievor himself does not claim that he could not cope with it and he believes that he could perform capably if reinstated. We are, however, inclined to think that his financial difficulties, if only because of their formidable dimensions, were bound to be emotionally unsettling. We fully agree with what is said .in the letter of dismissal about the importance of PIR’s to the effective administration of the Occupational Health and Safety Act. However, we have some doubt that that message has been sufficiently brought home to CSO4. The pressure “from above” to turn out more PIR’s revealed in correspondence between the Branch head office and the district offices seems to us to have contributed to the Grievor’s mistaken impression (and he is apparently not alone in this) that PIR’s are simply part of the paperwork, something “to feed the computer.” The fact that PIR’s are used to account for time spent on other than inspections, such as attendance at regional meetings of CSO’s, would tend to reinforce that perception. Productivity is measured by the number of inspections made as shown by the number of PIR’s filed by CSO’s. An estimate is made of the number of inspections expected to be carried out in a year and explanations are required if it is not met. The Branch must have “good figures.” There is nothing exceptionable about this from a business practice point of view. There must, as a matter of course, be control mechanisms and reliable records. But it is unfcrtunate that the need to use PIR’s for statistical and budgetary purposes comes to obscure their primary importance. - -----J -9- Of more concern to us is what we view as the lack of an adequate managerial procedure to check the accuracy, and in the process to ensure the authenticity, of the entries on PIR’s. We are unanimous in our conviction that this shortcoming provided the opportunity to the Grievor to falsify PIR’s and ultimately led to this long and costly case. Unless a compliance order is written on a PIR, in which case a carefully edited copy is mailed to the constructor, or unless a PIR is returned from the Branch computer centre for correction, PIR’s are filed and distributed within the Branch as they are submitted by CSO’s. A prime example of the resulting problems is in the matter of the signatures of recipients at the project site. The report form provides for the entry of the name and title of the recipient. Yet on the PIR’s filed in evidence, with but a few exceptions, only a signature, almost always indecipherable, appean. This practice, presumably tolerated by the Branch, makes the identification of signatures a virtual impossibility, as happened in this case. We are not able to judge the feasibility of the exanination of PIR’s at district offices as they are received from CSO’s. But thoroug:l managerial scrutiny of completed PIR’s at an early stage would seem to us to be an elementary safeguard particularly with reference to title of the individual to whom the PIR is given at the project site. If we had concluded that the employer-employee relationship here has been irreparably damaged, we would not disturb the penalty of dismissal. But the circumstances surrounding the Griever’s fall from grace persuade us that dismissal is an excessive penalty and that he is deserving of the opportunity to redeem himself. He is knowledgeable about the construction industry, was regarded as an excellent CSO prior to his lapse, hasno disciplinary record and evidently - lo- appreciates the gravity of his misconduct. We believe that he can be a conscientious and productive employee and that his return to employment as a CSO will not compromise the Branch in the pursuit of its mission under the Occupational Health and Safety Act. We do, however, consider that the Crievor’s actions warrant a heavy penalty. It is therefore ordered that (1) The Employer reinstate the Crievor to the position from which he was dismissed, as of the date of that dismissal, March 15, 1984. (2) The Employer suspend the Grievor without compensation and accumulation of seniority for a period of one year commencing as of March 15, 1984. (3) The Employer amend its records in accordance with the terms of this order. We remain seized of the matter in case our assistance is sought in the implementation of this decision. We commend counsel for their effective presentation of the voluminous evidence in the case and for their comprehensive submissions on the issues. -II- DATED at Consecon, Ontario this 1st day of March, 1985. P. M. Draper, Vice-Chairman fmdld La.t - - -- --- M. V. Watters, Member .’ .’ x... * ,, ,I L ‘, , . F. T. Collict, Member Project Inspection Report - -