HomeMy WebLinkAbout1985-0423.Mantha.86-05-26BETWEEN:
IN THE MATTER 0: AN ARBITRATION
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
BEFORE
~7302 GRIEVANCE SETTLEMENT BOARD
OPSEU (LIONEL +~ANTHA)
Grievor
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The Crown in Right.bf Ontario
(Ministry of the Envir~onment)
BEFORE: '. R. L. Verity Vice-Chairman
J. McManus Member
F.. T. Collict ffember
FOR THE GRIEVOR: M. I,. Rotman
Cbunsel
Rotman & Zagdanski
Barristers & Solicitors
FOR THE EMPLOYER: 0. W. Brown
Crown.Law Office, Civil
Ministry of the Attorney General
HEARING DATES: January 21, 1986
March 18, 1986
Employer
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DECISION
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In a Grievance dated May 23, 1985, Lionel Mantha
alleged that during a period of "serious emotional and mental
distress" he was coerced into submitting a resignation "in lieu
of a dismissal". The Grievance alleged dismissal without just
cause. .The settlement requested was that the resignation be
rescinded, and that the Grievor be reinstated with retroactive
benefits. The Employer contended that the Grievor had
voluntarily resigned in the absence of any arrangement or
coersion.
The matter first proceeded to Arbitration on a
jurisdictional issue on September 3, 1985. Subsequently on
October 7, Vice-Chairman .Roberts dismissed the Employer's A,(
preliminary objection that alleged undue delay in the filing of
the Grievance.
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The merits of the Grievance were pl.aced before the
present panel'. T,,he facts are both unusual and tragic.
The Grievor is 49 years of age and has been employed
with the'ontario Government since 1970. At the time of the
"resignation" the Grievor was a Systems Analyst in the Systems
Development Section of the Ministry in Toronto.
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In the latter part of September, 1984, the Grievor
concocted two fraudulent schemes against his Employer. on or
about October 1, the Grievor fully processed a purchase order
for $2,400.00 to hire a consultant under the Waste Site
Information System Program, which was designed~to benefit the
Grievor personaIIy (the ian,dscape contract).
At approximately the same time, the Grievor proc.essed
a second fraudulent purchaser order for $ 3,OOO.OO to hire a
consultant for modifications to the pesticide system (the
pe~sticide contract). This second contract wa's prepared to
benefit a company controlled by relatives of the Grievor (and ,
presumably the-Grievor himself). This second contract was not
fully processed when the f'raud was discovered.
On October 2, 1984, Stephen Rose telephoned the
Grievor’s Supervisor, Systems Development Office Manager G. F:
Scanlon. Mr. Scanlon was'fully briefed by Mr. Rose on th.e
landscape contract, and was advised that Mr. Rose wanted no . ..~
apart in any fraudulent activity. Mr. Scanlon promptly
contacted his superiors and retrieved both contracts.
In what appears to be a totally unrel;ated incident,
Stewart Summers, Mr. Scanlon's Supervisor died unexpectedly on
the evening of October 2. Mr. Summers’ death had a marked
effect upon the Grievor w~ho became greatly insen~sed that the
office staff did not send flowers to the funeral home.
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On October 18, the Grievor was suspended without pay
following a police investigation during which the Grievor was.
charged tiith two counts of fraudulent conduct under the
Criminal Code of Canad'a. On November 14, 1984, the Grievor was
given written notice that he'was further suspended (without
pay) from November 16 to December 13 for attempted
misappr.opriation of: Ministry funds.
On November 30, 1984; the Grievor submitted the
following written resignation:
“I have received my notice of suspension..
dated November 14, 1984. I have seriously
considered the matter and have decided to
resign effective November 30, 1984.
I request,that all benefits (vacation,
severenc,e, etc.) be forwarded to me as soon
as is practicable."
Counsel for the Union advised the Board that the
Grievor pleaded guilty to committing a fraud upon the
Government, contrary to Section 110 of the Criminal Code of
Canada. He was duly convicted and placed on six months
probation. The Board was also advised that a second charge of
"attempted fraud" was withdra.wn by the Crown.
Or. David S. Byers testified on behalf of the
G.rievor. Or. Byers is a psychiatrist inn private practice in
Toronto specializing in adult and forensic~psychiat~ry. He has
practiced psychiatry for approximately'11 years, six of which
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were +s staff psychiatrist at the Clarke Institute of
Psychiatry.
Dr. Dyers first examined the Grievor on February 14,
1985 as a result of a referral from the Grievor's lawyer at the
time, Michael Muldover. Although Dr. Dyers was consulted for
purposes of a second opinion, he has continued to provide the
Grievor with ongoing psychiatric treatment. The Grievor had
been examined previously on No~vem,ber 30 and December 7, 1984 by
Toronto Psychiatrist Dr. Andrew Malcolm.
Dr. Byers’ diagnosed the Grievor's problem as “severe
affective disorder” which he described as a serious form of
mental illness associated with mid-life. The illness causes
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severe depressions. In the Psychiatrist's opinion, the Grievor
had experienced the illness for some 12 to 18 months prior to
his criminal conduct and subsequent resignation. The
Psychiatrist formed that opinion, in part, on the strength of
the Grievor's statements that he had experienced a marked loss
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of interest in h,is normal extracurricular, activities such.as
jogging, hockey, Boy Scout activities, arranging canoe.trips
and neighbourhood functions. The Grievor had a~lso experienced
the usual symptoms of the illness - loss of app~etite, weight
ioss, sleep disturbance, loss of energy, increasing social
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withdrawal and suicidal tendancies. According to Dr. Byers’
testimony, the Grievor experienc'ed the typical reaction of
"working even harder" at his job.
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The Grievor was given the anti-depressant drug
"Lmipramine" and is currently taking 125~ milligrams of the drug
on a daily basis. Unfortunately, the Grievor has had
difficulty tolerating the medication and .has experienced
certain unpleasant side effects. The goal of the Psychiatrist
is to increase the drug dosage to between 200 and 300
milligrams per day.
Dr. Byers testified that he is convinced that the
Grievor's criminal activities and his subsequent resignation
were caused by the pre-existing illness referred to above. He
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based~'~that opinion on the strength of his 20 years of clinical
experience and the fact that Dr. Andrew Malcolm, had come to the
same conclusion. In cross-examination, when asked whether the
Grievor's judgment was so impaired that he was incapable of
weighing the.consequences of his decisions, Dr. Dyers replied:
"He had all the information intellectually... Emotionally, he
was unable to weigh that information”. ~‘.
Or. Dyers prepared two medical .reports concerning the
Grievor. The first report dated March 4, 1985 was prepared
after three one hour interviews. That report was prepared
solely for use in sentencing in the.Criminal Court proceedings..
The second medical report of Dr. Byers is dated
August 23, 1985, and was prepared with the arbitration hearing
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in mind. Portions of Dr. Byers’ medical report merit
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repetition:
"I cant inue to have the opinion that Mr.
Mantha, at the time of his criminal . 1 involvement and resignation, was suffering
from a depressive illness of such severity
that he was not fully aware of the
implications of his decision to resign and
in fact the impaired judgement as well as
self-defeating almost se~lf-destructive
thinking at that time led him to behave in
a manner leading to the formal resignation
but with an. underlying sense of II*,.j.ust
wanted to stop everything'....
In this setting, then,'of increasing severe
depression with ruminations about other
losses by way of death and friends'
illness, Mr. Mantha would be expected to
experience sufficiently-;impaired judgement
and reasoning ability ,that his
decision-making process ~would be interfered
with such that in particular I would
anticipate that he would not be fully aware
of all the ramifications of his decision to
resign including being able to look at
alternative courses of a,ction including
entering therapy or approaching superiors
in the Ministry etc. As well, there.-was a -.
general background flavour of a
self-destructive, almost suicidal, flavour
in operation that would .further impair, his
judgement and reasoning ability. This same
interference would of course interfere wiTh
his ability.to follow through with any form
of redress through his union with respect
to looking at pr0cedure.s of grievance."
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The Psychiatrist testified that it was quite
understandable that the Employer saw no signs of the illness.
In the Psychiatrist's opinion, the Grievor’s conduct in
September, October .and November were totally out-of-keeping
with his general character. Dr. Byers testi.f'ied that of, the
hundreds of cases that~he has treated, there is only one. other
s. .~
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case in addition to the Grievor’s where he was satisfied that
the depression pre-dated the criminal behaviour.
The Grievor testified that his long-time active
involvement in extracurricular activities such'as jogging,
canoe tripping, cross country skiing, scouting and hockey came
to an abrupt end some 12 to 10 months prior to his criminal
activities. He candidly admitted his involvement in both the
landscape contra,ct and the pesticide contract. In par.ticular,
he admitted that he would have gone ahead with the. landscap'e‘
contract had the consultant been agreeable to do so. The
Grievor testified that he resigned on the advice o-f his lawyer,
Mr. Muldover. .In the Grievor's own words, "I felt I was on a
merry-go-round - I couldn't get off". His testimony was to.the
effect that ins retrospect he now recognizes that he had taken
on.more projects.at work than he was capable of handling.
The Employer called two witnesses. Stephen Rose
worked for the Grievor on a contract basis on two occasions,
namely from November, 1982 to February, 1983 and’from June,
1984 to September, 1984. He described the Grievor as “very
friendly and.easy going" and "very easy to work with". Mr.
Rose detailed.his knowledge of the Grievor's scheme to defraud
the Ministry in the landscape contract. At no t,ime.was Mr;
Rose a wi lling participant in the Grievor's proposal.
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G. F. Scanlon has been Manager of the Systems
Development Unit of the Ministry for approximately 14 years.
He has worked with the Grievor for many years and has developed
not only an excellent working relationship, but a personal
friendship with the Grievor. Mr. Scanlon described the Grievor
as "competent", "a good worker” and "a real asset to .the
group". Mr. Scanlon approved the Grievor’s purchaser order for
the landsca~pe contract on the u'sual basis that he relied upon
the Grievor’s recommendation;~
Neither Mr. Rose nor Mr. Scanlon noticed any change
in the Grievor’s personality or conduct at w‘ork. In Mr.
Scanion's words, "the testimony of Dr. Byers is a revelation to
me".
On behalf of the Grievor, Mr. Rotman argued that the :
medical testimony demonstrated conclusively that the Grievor
was unable to form the requisite intent to submit a voluntary
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resignation. In short, it was alleged that the Grievor’s
judgment was impaired at all relevant times. Mr. Rotman urged
the Board to reinstate the Grievor and to place him in the
status of an employee on leave of absence.
For the Employer, Mr. Brown contended that the.
Grievor had voluntarily resigned, and that there was no
coersio'n on the part of theMinistry. He contended that-there
was no evidence that the Grievor was dismissed. Mr. Brown.
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argued that the Grievor was not. under such emotional stress to
prevent him from embarking upon the two fraudulent schemes..
Alternatively, he argued that the emotional stress was not a
factor and had been contrived as an alibi to attempt to explain
the Grievor’s conduct. Mr. Brown further argued that Dr. Byers
had been mislead by the Grievor that the death of Stewart
Summers had played any role in- the Grievor's involvement in
either fraudulent activity.
In assessing the~evidence, the difficurty the Board
is faced with is the absence of direct medical testimony
concerning the state of the Grievor's mental health on November
30, 1984 - th'e da.y of the purported resignation. From the
testimony of Dry. Byers, the Board does know that another
psychiatrist, Dr. Andrew Malcolm examined the Grievor on that
very day. For whatever the reason, Dr. Malcolm was not called
upon as a witness. However, the Board does know that Dr.
Macc'olm ag&ed with the diagnosis of Dr.~ Byers as to the
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Grievor's mental condition.
The .only medical testimony as to the Grievor's mental
condition was the evidence of Dr. David 'dyers. Dr. Byers is a
Toronto Psychiatrist with extensive experience in his chosen ..~.
field of expertise. In addition to private practice, he is
assistant Professor with the Department of Psychiatry at the
University of Toronto, and is a Psychiatric Consultant to the
Lieutenant Governor of Ont.ario. The Board is satisfied that
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Dr. Eyers is a very credible witness indeed. I" the absence of
any med.ical evidence to the contrary, the Board accepts Dr.
Byers' testimony that in all probability the Grievor's actions
in the fall of 1984 resulted from his pre-existing mental
illne'ss..
Dr. Byers acknowledged that he was unaware of the
details surrounding the pesticide contract. In our opinion,
Dr. Byers is likely.mistaken in his asses'smknt of the. effect of
Stewart Summers' death on the Grievor’s involvement with that
contract.- The evidence did establish that both the landscape
contract and the pesticide contract were pt,epared by the
.Grievor prior to Mr. Summers' death. We find as a fact that
the death of Stewart Summers was of no significance in the
Grievor's fraudulent activiti~es-: Neve?th,eless, on the strength
of Dr. Byers' diagnosis, we find as a fact that in all
probability the Grievor suffered from severe depression due to
mental illness for a considerable period of.time prior to the
fall of'1784.
In retrdspect, it is indeed tragic that the Grievor
pleaded guilty in February of 1985 to the criminal charge.
Presumably, the reason for having done so was the absence of
complete psychiatr,ic assessments at the time. Simply stated,
the Board is not~satisfied that the Grievor was of sufficiently
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sound mind at all relevant times to form the requisite intent
to defraud the Employer. ~1" our opinion, the evidence before
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us has established that the Grievor’s judgment was impaired to
such an extent that it is questionable that he should have been
held accountable for his actions;
Similar 1
I November 30, 1984
y, this Board is not satisfied that on
the Grievor was of sufficiently sound mind
to have fully comprehended all of the ramifications of a
voluntary resignation. In cases of this nature, Arbitrators
have frequently stated that there must be both a subjective and
an objective element to the resignation.
The Board adopts the rationale of Vice-Chairman
McLaren in OPSEU (Anonymous) and the Ministry of Government
Services), 268183 where'the Arbitrator states at pages 9 and
10: .,'~;>z~.
"The 'quit versus discharge.-case law admits
of a rationale based upon protection of an
employee who niornentarily acts against his
int~erest, but is an abhorrent or temporary
aberration for an otherwise rational
person. The case law requires that there
be a real subjective intent to resign which
is assessed by an objective examina.tion of
the conduct.surround0!g the circumstances
of termination of employment with close
attention being paid to the actions of the
employee involved. This case cannot admit
of such an examination because here the
einployee is incapable of. forming an intent
because of mental incapacity at the time of
resigning and following thereafter. While
an objective examination of the conduct
surrounding the circumstances of the
termination might suggest a real subjective
intention to resign, the mental ,illness of
the Grievor makes it unnecessary tom conduct
';a" objectiveexamination of those
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circumstances because the person is
considered at law ~to be incapab-le of
forming the real objective intent because
of the inability to appreciate the
consequences of the actions which flow from
the conduct. In such circumstances, the
contractual agreement between the employer
and employee cannot be brought to an end by
the apparent voluntary actions of the
employee."
In the instant Grievance, although the Grievor may
well have given the appearance'of rationality, the medical
testimony of Dr. Byers would indicate otherwise. Admittedly,
the letter of resignation was written by the Grievor himself in
sufficient detail. However, in the absence of medical evidence
to the contrary, the Board accepts the testimony of Dr. Byers
that as a result of the Grievor's mental state, he was unable
to appreciate all of the ramifications of his resignation.
In view of his lengthy tenure, it is difficult to
understand why the Grievor did not consider alternate courses
of action, namely to request an extended leave of absence or to
spe'ak with his friend and Supervisor, W.,F. Scanlon. In short,
the Board finds that the Grievor lacked the mental capacity to
resign.
The evidence does not disclose that the Employer
any manner attempted to coerce the Grievor. or to make an
arrangement to force a resignation, The Employer did not
discharg~e the Grievor in the normal sense of dismissal.
However, the fact remains that the Employer processed the
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purported resignation and subsequently refused to reinstate the
Grievor when presented with evidence as to the Grievor’s mental
condition at the time of the "resignation". Such action on the
part of the Employer can only be characterized as constructive
dismissal which amounts to discharge without cause which
in turn is grievable under the Collective Agreement.
Ian our opinion, this may not be the appropriate case
for reinstatement at the present time. As indicated
previously, Dr. Byers testified that the Grievor was
experiencing an adverse reaction to the anti-depressant drug..
The Psychiatrist also testified that the majority of patients
suffering from severe affective disorder respo:nd to medical
treatment. Dr. Byers also stated that approximately 20% of
patients become chronic victims of the illness.
Inall the circumstances, the resignation is
rest inded and the Gr ievor shall be deemed to have been an
employee since the purported re~signation of November 30, 1985.
The Grievor shall be accorded the status of an employee on
",$~~,,
leave of absence without pay and without benefits, but.~ with no
loss of seniority. The Grievor shall be returned to active
employment with the Ministry upon production of a medical
certificate-,-From Dr. ~Byers, or from any other duly qualified
psychiatrist, to the effect that he is able to meet the normal
requirements of his po'sition. .,
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The Board shall remain seized in the event that the
Parties experience any difficulty in the interpretation or
impldmentation of this Award.
DATED at Brantford, Ontario this 26th day of May,
A.D., 1986.
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H. L. Verity, 'Q.C. - Vice-Chairman
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3. McManus - men 3. McManus - Member P7!& g qf f&z2
F. F. i. Colllcc.- Member ?. Collict.- Member
COMEIENT - G.S.B. FILE #423/85
This member is in concurrence with the award in this case.
The essence,of the award is captured in the following para-
graph from page 13.
"In the instant Grievance, although the Grievor may
well have given the appearance of rationality, the
medical testimony of Dr. Byers would indicate other-
wise. Admittedly, the letter of resignation was written by~.the Grievor himself in sufficient detail.
However, in the absence of medical evidence to the
contrary, the Board accepts the'testimony of Dr.
Byers that as a result of the Grievor's mental state,
he was unable to appreciate all of the ramifications of his resignation."
Dr. Byers' testimony was that he first examined the grievor on
February 14 of 1985, whereas the resignation was submitted on'
November 30, 1984. The incidents which led to the resignation
ocdurred in September of 1984.
Subsequent to a review of the evidence in this case it is indeed
difficult to accept testimony which indicates a "retroactive"
evaluation and interpretation of events which occurred some five
to six months earlier and, as testified to by Dr. Byers, were
brought about.by severe depression. Aberrant behaviour of the
part of an employee,is often the incident which precipitates
some form of -response from management, whether discipline, dis-
charge, resignation or some form of termination: - and it is of
great concern to this member that such behaviour is to be
justified or ~explained on the grounds of some stressful circum-
stances that might be alleged to have brought about the aberrant
behaviour. All employees are subject to varying degrees of
stress and depression from time to time and it .is ,not unusual
for personal circumst~ances to precipi~tate actions associated
with the work place which are not acceptable to management.
2.
The Board is faced with testimony from an expert witness in
this case; and notwithstanding the perplexion caused by t~he
evaluation which "explained" the earlier behaviour, the Board
is in no position to refute the expert testimony presented
unless additional expert testimony is advanced to clarify,
explain or give clause to the Board for an alternati,ve explan-
ation of behaviour.
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