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HomeMy WebLinkAbout1984-1226.Lanctot.85-05-07IN THE MATTER OF AN ARBITRATION UNDER THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT BEFORE THE GRIEVANCE ~SETTLEMENT BOARD BE T.WE E N: OPSEU (E. Ltictot) Grievor - and - THE CROWN IN RIGHT OF ONTARIO (Ministry of Labour) Empldyer BEFORE-.' R. L. Verity, Q.C. - Vice-Chairman J.,Smith Member E. J. Orsini -. Member FOR THE GRIEVOR: S. Laycock Grievance Officer Ontario Public Service Employees Union FOR THE EMPLOYER: L.' XcIntosh Counsel Crown Law'Office Civil Ministry of the Attorney General HEARINGS: Wednesday, April 10 and,Thursday, April 11, 1985 Kingston, Ontario i -2- DECISION In this matter, the Grievor Edmond Lanctot, alleges that he was dismissed without just cause. The remedial relief requested was reinstatement with full'compensation for lost wages and benefits. To the credit of the Parties, the matter proceeded initially by an agreed Statement of .Facts. The Grievor was hired as an Industrial Safety Officer with the Industrial Health and Safety Branch of the Ministry of Labour in November of 1980. On October employment was terminated by a letter o f grounds of "falsification of inspection sheets." 22, 1984, the Grievor's dismissal on the.' reports and running In August of 1984, the Grievor submitted to his Regional Manager a weekly report for the week ending August 11, 1984, together with two- one page inspection rep~orts and a statement of travelling expenses in the amount of $23.00. . The Regional Manager had serious m isgivings regarding the amount of work accomplished as reflected in the weekly report, and promptly -3- In addition, the Reg Grievor dated August concerns. contacted the Grievor for an explanation. ional Manager sent a Memorandum to the 17, 1984 which listed several significant Subsequently, the Grievor submitted a revised weekly report which differed substantially from the initial report filed. In the revised report, the Grievor claimed that he took vacation time for three half-days on August 7, 8 and 9. The Regio,nal Manager conducted a personal investiga- tion and ascertained the following information: (i) The Grievor had not visited the University of Ottawa on August 7; he had visited on August 1 and had changed th.e inspectidn date on the~re- port to August 5 which was a Sunday; the dura- tion of the visit was l-1/2 hours and not 1 day as reported; (ii) The Grievor had-not visited'the Stormont, Dundas ,. and Glengarry County Boards of Education on August 8, 198.4; the date of his last visit was June 15, 1984; the Grievor forged the signature of Mr. Robert Whittaker, Manager of Employee Relations, on the rep.ort dated August 5; and (iii) In his statement of travelling expenses for the week ending August 11, the Grievor claimed a lunch at $6.50 for August 7, when he had not, in fact, left his home and a lunch at $6.50 for August 9, when he only worked in the morning. On August 24, 1984, the Regioti~al M.anager reviewed his findings with the Grievor who-i-n turn admitted to the accuracy ' ’ - 4 - of the findings. On August 29, the Grievor submitted a letter to his Regional Manager in which he admitted his guilt, and expressed embarrassment with his part: "Part of my problem is explain to myself why I stayed at home and buri of the T.V. set." conduct. The letter reads in that I can't even did this. I just ed myself in front On September 24, the Grievor was suspended without pay pending an .investigation. The. Ministry's Internal Audit Branch reviewed approx- imately 100 inspection reports submitted by the Grievor during the period April 1 to September 21, 1984. The audit revealed discrepancies in reports with respect to 19 wor&laces in addi- tion to the two workplaces referred to above, during the period April to Augusts 1984. The Grievor had not made the inspections recorded in the inspection, reports, and in each case forged the signature of the recipients of reports. The audit also re- vealed that the Grievor submitted, an improper expense claim for a meal on June 1. Miss Patricia Coursey, Staff Administrator, Indus- trial Health and Safety Branch of the Ministry,~.was the sole witness to testify for the Employer in its initial presenta- tion. She testified that the Occupational Health and Safety . - 5 - Act superseded a number of provinc - ial statutes and was first enacted in 1978. The Act extended coverage from the .factory - setting to other institutions such as hospitals, schools, police departments, fire departments,etc. According to Miss Coursey's evidence, only teachers, academics, farmers and domestics are excluded from the provisions of the Act. Sh'e described the purpose of the Ministry's Indus- trial Health and Safety Branch.in terms of promotion of effec- tive Occupational Health and Safety programs to reduce and/or eliminate accidents and fataliti approximately 50,000 work sites Branch personnel. es. Miss Coursey stated that are inspected annually by Her evi,dence focused upon the intricacies of inspec- tion procedures undertaken by Safety Officers (also known as Inspector's); She reviewed the legislative responsibilities of Inspectors as set out in the. Occupational health and Safety Act, the Regulations thereunder, and in the Ministry's proce- dural manual. Basically, the Safety Officer spends 90% of his or her time in the performance of physical inspections of the workplace, and in that capacity is accompanied by Employee and Employer representatives. Generally, the Inspector issues work orders where he ascertains that the Act or the Regulations are being contravened. The enforcement powers of an Inspector ‘. -6- are detailed in Section 28 of the Occupational Health and Safety Act, and the authority for the issuance of orders, where non-compliance is ascertained, is set out in Section 29 of the Act. Suffice it to say that the Ontario Legislature has seen fit to confer broad enforcement powers upon Inspectors. Miss Coursey testified~that Inspectors are required to complete reports oii~the inspection of a work site, weekly reports which list work places inspected and numerous other documentation. In reviewing the characteristics of a good safety officer, she testified that trustworthiness was the single most important facet of‘the job. The Union's case focused on the fact that over an extended period of time the Grievor had suffered from an ill- ness known as manic-depression. Much of the evidence presented at the hearing was psychiatric evidence. Dr.,- Aftab Ahmed testified on behalf..of~the Grievor. Dr. Ahmed is~ Chief of Psychiatry at the Cornwall General Hospital, and in addition operates a private practice limited .exclusively to psychiatry. He has practiced p-sychiatry since 1966 and has been in the Cornwall area since 1973. According .’ _. - 7 - to his testimony, Dr. Ahmed presently treats approximately three to five patients suffering from manic-depression on a daily basis. The Psychiatrist explained that manic-depression is also medically referred to as, 'affective disorder" or "mood disorder". The illness occurs in attacks commonly referred to as ."episodes.". 'Characteristics of the illness can include "mania" i.e. periods of abnormal elation and increased activ- ity~; or "depression" i.e. periods of abnormal melancholy. "Bipolar types" exhibit both manias and depressions. "Unipolar types" exhibit depressions only and no manias. Occasionally, there are "mixed types" where the illness takes the form of simultaneous symptoms of mania and depression. It was Dr. Ahmed's testimony that in.both~manic and depressive phases, the judgment of a patient is impaired: He testified that while there were variations on the theme, on the average the illness takes three to six months to run its course without medical- attention. The cause of the illness is unknown. Medication, in particular."lithium carbonate," can stabilize biochemical dis- turbances and can minimize and reduce the severity of reoccur- rences. Unfortunately, lithium has certain unpleasant side effects such as heartburn, nausea, diarrhea and muscle twitch- ing, .to mention but a few. - 8 - The Board has no intention of reviewing the Grievor's medical history except in terms of generalities. Dr. Ahmed first treated the Grievor when he was admitted to hospital as an involuntary patient on July 26, 1976. The Grievor remained hospitalized for one month during which time he was treated with the drug lithium .and tranquilizers. Dr. Ahmed diagno,sed the Grievor's condition as "affective, disorder, hypomanic type". Prior to his. admission to hospital, the Grievor had resigned his job as a Public Health Inspector, for no apparent reason. As the psychiatrist stated in his medical report of November 8, 1984 in reference to the 1976 hospitalization: "I found him elated, grandiose, boister- ous...". Interviews with Mr. Lanctot and his wife reveal that Mr. Lanctot had.-,some- what similar but relatively less pronounced episodes since 1965..." Upon release from hospital on August 24, 1976, the Grievor was allowed to resume his employment as a Public Health Officer. In September, 1976, he discontinued the use of all medication and was not seen again by the psychiatrist until May of 1979. On that occasion the doctor diagnosed the Grievor's condition as "a mild state of hypomania". The Grievor was treated w ith the drug lithium carbonate until approximately November, 1979 when he discontinued all medication. - 9 - The Grievor was next seen February 4, 1980 as a result of sim i by the psychiatrist on lar symptoms. Medication Ed and used until May of in the form of lithium was prescribe 1980. Apparently the Grievor ignored Dr. Ahmed's suggestion of continued use of medication and did not return as' requested some two months latter. Unquestionably, the Grievor made the personal decision to discontinue the use of medication. The psychiatrist did not see the Grievor again unt il November of 1984. In his medical report of November 8, 1984 , the psychiatrist made the following observations: "When I- saw him on November 6, 1984, he tells me that since May, 1984, he has been conducting himself in a manner that was.not characteristic of-him and that he has shown signs of impaired judgment and irrespon- sible behaviour. According to him he did not share this with his wife, who has been well educated regarding the manic- depressive condition, and was to keep close watch on his conduct so that she could pick up early warning signs and seek immediate psychiatric intervention. Only recently for the last few weeks there has been some sleep disturbances! accelerated thought processes and emotional liability that was noticed by his wife. When I saw him there was some flight of ideas and tendency to drift away from the subject but there, were no obvious signs of grandiose behaviour, elated mood or unusual mismanagement of funds. Considering Mr. Lanctot's history and, earlier manifestations of mood disorder, I encouraged him to start taking Lithium Carbonate 300 mg. three times a day and a - 10 - follow-up appointment was arranged to moni- tor his response to treatment. From the above report, I'm sure you will gather that Mr. Lanctot does suffer from a mood disorder, essentially of a hypomanic type which seems to have a cyclic recur- . rence every three years during the period of spring, generally, April or May. From the past history, I would consider that he was going through another mild hypomanic phase and that under the influence of ill- ness, his judgment and conduct will be impaired and out of keeping with his char- acter. I think Mr. Lanctot's prognosis for recovery is fairly good as it has been 'proven in the past provided he receives proper psychiatric treatmentand follow- up." At the Hearing, Dr. Ahmed expanded upon the above diagnosis and stated that in his opinion the Giievor had.exper- ienced mixed symptoms which would have impaired his judgment. 'Dr. Ahmed testified that many variations can occur dur~ing an episode so that the Grievor could have manic tendencies in the morning followed by depression during the afternoon. The psychiatrist stated t~hat mixed state patterns were first ob- served as pearly as February of 1980. Prior to'that time, the illness was of a manic nature !. The psychiatrist believed that the Grjevor was .p good candidate for long-term treatment; however, there could, be no guarantee that the symptoms would not re-appear. In the doctor's opinion there was "a high probability of minimal dis- functioning" if medication was taken on a long term basis. - 11 - In reply evidence, the Ministry called Dr. Roberts Cooke of the Clarke Institute of Psychiatry. Dr. Cooke is a psychiatrist specializing in "affective disorders." Dr. Cooke was present throughout the course of.Dr. Ahmed's evidence, although it was admitted that he had never treated the Grievor personally. ,j Dr. Cooke agreed with the majority of Dr. Ahmed's testimony with some variations. According to Dr. Cooke, lithium is "the most effective drug available in the treatment of mania and in t,he prevention of mania and depression." His testimony was to the effect that in 20 to 30% of cases, lithium is extremely effective in the sense that the illness is totally "con.trolled. In 30% of patient responses, lithium lessens the severity and duration of episodes and may also decrease the frequency of attacks. However, 30% of patients display a poor response to the medication. It was Dr. Cooke's experience that lithium is not useful in the active treatment of depression but is effective as a preventative device in cases of reoccurring depression. Dr. Cooke tion in 1976 was an the illness at that hypo-mania is often mania, and that dur was in agreement that the Grievor's condi- accute episode of mania and he described time as.."severe." .However;he stated that used tom describe a milder cond ition of ing episodes of hypo-mania a pa tient can - 12 - still exercise control of the illness to some extent and that there is.norma lly less interference in job performance. i- Dr. Cooke was of the opinion that the Griever's ep sodes were not predictable, and he questioned the Grievor's willingness to participate in long-term treatment. In addi- tion, the.psychiatrist stated~ that in his experience, it was more commonfor maMa and depression to be separate episodes in ' time, and that mixed states were "very rare", and when they did occur it was usually during the transmittal period where a patient was passing from the manic to the depressive phase. The Grievor testified concerning his struggle with the problem of mental illness over the past 20 years. He alleged that for the first time, he now recognizes that he has a handicap and that he had been under the mistaken impression that he had outlived the illness. The Grievor candidly admitted that he recognized at the time that the weekly report of August 11 was not accurate, but.he alleged that he had no knowledge of falsification of any.other documentation. He stated that he was severely depressed in August of 1984. Ill his own words, "I had no intent to bring di~srepute on my Employer." The Grievor was candid and forthright in the ,... presentation of his evidence. In .short, he was a totally credible witness. - 13- Each of the Parties presented able and well docu- mented arguments. For the Employer, Miss McIntosh advanced three basic premises: 1. That the fabrication of employment records is just cause for dismissal; 2. That the Board must exercise caution in the substitution of penalty under Section 19(3) of the Crown Employees Collective Bargaining Act; 3.. That the onus was upon the Grievor to show that the penalty of dismissal was excessive. Miss McIntosh reviewed the applicable factors used in mitigation of penalty as determined by Arbitrator R. W. Reville in Steel Equipment Company Ltd. (1964), 14 L.A.C. 356, and con- cluded that mitigation was inappropriate. She argued that the real issue was ,the circumstances which might negate intent which in turn involved the adequacy of medical explanation for the Grievor'~s behaviour. Miss McIntosh reviewed the medical evidence in detail and concluded that Dr. 1 in his testimony, and had in fact changed final episode. It was argued that the Gri charge the onus to negate "intent to falsi, Ahmed was charitable his diagnosis of the evor failed to dis- fy Ministry documen- ..,:.:: tation." She contended that in the absence of strong evidence -_ of a medical prognosis, there could be no assurance of a repe; tition of abnormal behaviour: - 14 - The Union rejected each of the Emp,loyer's three basic propositions as being contrary to arbitral precedent. Miss Laycock~contended that there was no intent to defraud the Employer. It was argued that the evidence established,~that the Grievor's judgment was impaired at all relevant times. knowledge of the Grievor's medical cond no change in diagnosis by the psychiatr . . . Miss Laycock argued that only Dr.. Ahmed had personal ition and that th'ere was ist at the hearing. The Union contended that this was the appropriate case for a conditidnal reinstatement during which time the Grievor would be obliged to take psychiatrically prescribed medication on a long-term basis. Miss Laycock submitted several G.S.B. awards where falsification of records was the issue, and reinstatement was the end result. In considering the arbitral awards s.ubmitted, there is no dearth of precedent on the general-issue of falsification of records. In Pilon and Ministry of Health, 151/78, Vice- . Chairman Eberts reviewed numerous relevant cases in the private sector; At page 7 of the Award, the Vice-Chairman stated as follows~: "All these cases resulted in mitigation of discharge. It is also apparent from the cases that the employees' middle age and - 15- family responsibilities played a part in mitigation. Irthe one case where discharge was upheld, (Consumers' Gas Co. and Independent Gas Workers' Union - unreported decision of Arbitrator Rayner, January 12. 1979), the grievor was a young man of twenty-six, and his six years with the company had produced four past written warnings concerning, among other things, falsification." In the Pilon decision, the Grievor was discharged for tampering with official attendance records, and at the time was suffering the effects of depression. 'The penalty of discharge was f~ound to be excessive and a substituted penalty was imposed involving a one year suspension, a one year loss of seniority and a one year probationary period. Swinton inspecti alcoholi imposed Grievor without In Cook and Ministry of Labour, 115/78, Vice-Ch'airman faced a similar issue involving 55 fraudulent project on reports. In ttiat case. the Grievor had a history of sm dating back to 1969. A substituted penalty was following a finding that discharge was excessive. The reinstatement was subsequently given a conditional back 'pay and p laced on probation for a one year period of rehabilitation. An application for Judicial Review by the Employer was,dismissed at a Divisional Court Hearing in 1980. In Intine and Ministry of Labour, 337/84, Chairman Draper con~sidered a matter in which the Gr Vice- ievor 16 - admitted to falsifying some 19 project inspection reports. In that case, the Board concluded that the Grievor's difficulties were caused, at least in part, by financial difficulties and that dismissal was an excessive penalty. The Grievor was rein- stated and given a one year suspension without compensation and accumulation of sen In assess or i, n9 ty. . . the evidence in the instant matter, there are some areas of confl of the two expert witnesses. .._ Dr. Ahmed's oral testimony di !. ict between the medical testimony In 'addition, it does appear that ffers in some significant respects regarding the final episode when compared against his written medical opinion of November 8, 1984. However, the Board accepts the psychiatrist's explanation that 'he did not,write the medical report with a view to having .it presented to either a Court.~.or a Board of Arbitration. Certainly Dr. Ahmed is <:. entitled to expands upon his medical opinion at the-hearing and the Board does not agree that his credibility as an expert witness.~is in any doubt as a result of having done so. Dr. Ahmed was indeed a credible witness and the only medical wit- ness with experience in the treatment of the Grievor. There can be no doubt that Dr. Robert Cooke was also a credible wit- ness, and a rec.ognized aut,hority in the field of affective dis- order. It is not unusual for experts to ~disagree. ..:,. , - 17- The difficulty in this case is the absence of direct medical evidence concerning the state of the Grievor's mental health from April to and including August 1984. The evidence presented by Dr. Ahmed was nothing more nor less than after the fact evidence by way of a probable reconstruction of events. Having reviewed the evi~dence careful1 y. the Board must find that on the balance of probabilities and, in view of the past medical.history, the Grievor did experience a manic depressive episode which commenced initially in April of 1984. The evidence establishes that the symptoms of the illness.were sufficiently subtle that they remained undetected by either the Grievor or his wife. Failure to detect those symptoms is not particularly surprising in light of the evidence that the Grievor was labouring under the i llusion thatthe illness had run its course. The Grievor and his wife now recognize and accept the fact that the Grievor suffers from chronic manic depression and that treatment by way of medicat ion will be on a long-term basis. suff requ The. Board is not satisfied that the Grievor was of ciently sound mind at all relevant times to form the' site intent to defraud the Employer. In our opinion, the Griever's judgment was impa i, not be held accountable for Grievor's conduct cannot be red Tao such an extent that he can.- his actions. Although the I accurately described as an isolated - 18- incident, the Board is were not consistent wi t satisfied that the Grievor's actions h his general good characterl;~ Nevertheless, the falsification of records is a serious matter which cannot be ignored. There can be little doubt that falsification of important employment records, in the absence of any meaningful explanation, is prima facie just cause for dismissal. Inspection reports are the tools by which the Ministry of Labour is empowered to discharge its mandate under the Occupational Health and Safety Act. The enforcement powers and duties of an Inspector as described in that Act are - designed to protect the health and safety of count less numbers of men and women in the workplace. Failure to carry out those responsibilities is totally unacceptable and could lead to serious consequences. On the other hand, the Grievor has no previous disci- plinary record, and it.was agreed that he was "a good worker." Prior to joining the Ministry in November 1980, he~.had acquired some 20 years experience as a Public Health Inspector and for the last 10 years established a successful record of service with the Eastern Ontario Health Unit. He is 50 years of age, has a secure marriage of some 27 years duration, and has two unmarried dependent children who are presently attending University. - 19 - The Grievor's wife Rita is a Registered Nurse with some.28 years experience, and is presently employed on a full- time basis at the Cornwall General' Hospital. The Board was very impressed with the testimony of Mrs. Lanctot. Indeed, she is an intelligent woman, who has been both supportive and understanding throughout the course of her husband's medical difficulties. On numerous occasions M.rs. Lanctot has taken the initiative in seeking appropriate medical attention. In our opinion, it is unlikely that in today's society the Grievor would have any degree of success in locat- ing'alternate employment, bearing in mind his medical history and the reasons for termination of this employment. The medical prognosis of the Grievor was described by Dr. Ahmed as "good" and "fairly good." Apparently, there is no cure for the illness of manic-depression. Similarly, there is no guarantee that the illness will not reoccur at some point in time. The medical tion, an episode w no history'of regu accordingly there evidence establishes that without medica- 11 reoccur again. In this matter, there is ar use of medication by the Grievor and s no way of ascertaining the effectiveness evidence, the Board is of the of long-term medication. On the opinion that the medical prognos hopeful but uncertain. is can best be characterized as i - 20 - However, the Grievor now recognizes and accepts his medical condition. The Board is satisfied that he is prepared to co-operate and follow the advice of his psychiatrist in the long term use of medication. Three weeks prior to the Hearing, the Grievor's medication was changed from lithium to dura-lith. The use of dura-lith is monitored by blood tests on a.regular basis. In the instant matter, the Board is called upon to weigh the legitimate and the Employee. j . Having rev i that discharge is an and competing interests of the Employer ewed all of the circumstances we must find excessive penalty within the meaning of Section 19(3) of the Crown Employees Collective Bargaining A& That Section reads as follows: "Where the Grievance Settlement Board determines that 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 circum- stances." Counsel for the Employer argued mos t effectively that under Section 19(3) the Board shou Id exercise caution in any variation of the penal authority to vary a di il ty of dismissal. Clearly, a Board has no smissal unless there is a finding that - 21 - the penalty imposed is excessive. Section lg(3) does confer upon a Board of Arbitration very broad powers by way of remed- ial relief in the substitution of penalty in situations where the Board deems it appropriate, having regard to "all the cir- cumstances". We have concluded that the Griever's falsification of Ministry documentation was directly attributable to his ill- 'ness. The Board accepts Or. Ahmed 's evidence that there is a reasonable possibility that the il lness can be controlled on a long-term basis by the regular use of medication. In our opin- ion, the Grievor must be given an opportunity to demonstrate that he can continue to work effectively as an Industrial Safety Officer, on the understanding that he will co-operate with Dr. Ahmed, or some other duly qualified psychiatrist. In the event that the Grievor rigidly adheres to psychiatric advice, there is no reason why he cannot regain the status of a conscientious and productive employee. On these particular facts, i,t would be inequitable to uphold the dismissal of an employee who suffers from the effects of a mental illness, who accepts the chronic state of that illness, and who is prepared to adjust his lifestyle by adhering to.a rigorous program of long-term medication,. - 22 - Clearly, the crux of the matter is control of the medical problem to the status that useful and productive employment is a reality. Mental illness that can be controlled does not justify relegating an employee to the ranks of the un- lity. employed or placing such an emp loyee on long-term disabi Accordingly, the Grie vor shall be forthwith re in- stated to his employment as an Industrial Safety Officer with the Ministry's Ottawa Region. However, that reinstatement shall be conditional for a period of 18 months upon the follow- ing terms: 1. The Grievor shall continue psychiatric treatment by Dr. Ahmed, or some other duly.qualified psychiatrist, and sh.all continue on a regular basis the use of dura-lith or such other medication deemed appropriate by the psychia- trist. 2. The medi Dr. fied Grievor shall sign the necessary cal release forms to authorize Ahmed, or some other duly quali- psyc~hiatrist, to write a medical report to the Employer every 6 months. The medical report shall be - 23 - requested from the psychiatrist by the incumbent Regional Manager of the Ministry's Industrial Health and Safety Branch where the Grievor is employed. 3. In the event that a duly qualified psychiatrist terminates the,use of. medication, that psychiatrist shall notify the Employer in writing, where- upon the Employer shall have the right to conduct an independent psychiatric ~ examination with the full co-operation of the Grievor. 4. Any report written by the Grievor in the cou'rse of his duties that cannot be prepared at an inspection site shall be written at the Ministry's Regional Headquarters. The Grievor shall discontinue the practice of writing reports eat his personal residence. 5. There shall be no.compensation for lost wages or benefits, with the exception that there shall be no loss of se.niority. - 24 - As indicated above, the substituted penalty is a susp.ension without pay or benefits. We adopt that position with some regret, primarily because the Parties may well have avoided the impasse had the Grievor been more forthcoming with the Employer concerning his medical problems. Clearly, the Employer had no knowledge of the Grievor's problems and cannot be-faulted for its actions. The Board retains jurisdiction in the event that there is any dispute with regard.to.the interpretation or implementation of this Award. The Board wishes to complement both Miss McIntosh and Ms. Laycock for their sensitive and intelligent presentations in a difficult case.. . DATED at Brantford, Ontario, this 7th day of May, A.D., 1985. E. L. Verity, Q.C. - Vice-Chairman J. Smith - Member E. J. Orsini - Membet-