HomeMy WebLinkAbout1985-0754.Rice.86-04-16IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
\
Before
THE GRIEVANCE SETTLEMENT BOARD
Between: OPSEU (Rice)
- and -
Grievor
The Crown in Right of Ontario
(Ministry of Transportation and Communications)
Employer
Before: 3. W. Samuels Vice-Chairman
A. Russell Member
A. Reistetter Member
For the Grievor: E. J. Shilton Lennon
Counsel
Cavalluzzo, Hayes & Lennon
Barristers & Solicitors
For the Employer: B. P. Smeenk
Counsel
Winkler, Filion & Wakley
Barristers & Solicitors
Date of Hearing: March 10, 1986
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Christopher Rice was a Field Office Issuing Clerk in the Ministry’s
Chatham office for ten years. He sold vehicle licence plates, renewal
validation tags, and the various other documents associated with the motor
vehicle registration system in Ontario. He was a good employee--known as
a quiet, introverted and honest man. He was a bachelor, and up to several
years ago when he was in his early thirties, he expected to be single for the
rest of his life. By 1985, he was handling some S I million per year, of
which $400,000 would be in cash. He.worked alone, and there was little or
no supervision. He took in money and prepared his own records, including
the bank deposits.
In late 1984, he met a woman who changed hfs life. They planned to
marry, agreeing that she would pay for the wedding and he would pay for the
honeymoon. In early 1985, he began to steal from his till, in order to afford
the honeymoon he had promised to pay for and would take with his new bride
in May. The’unlawful taking went on from February to Hay, and involved I.
some fi,fteen incidents totalling $1298. Eventually, his theft was
discovered. There was a full Ministry and police investigation. On August 6,
1985, the grievor was discharged from his position, effective August 16. On
February 6, 1986, Mr. Rice appeared In PrOVlnClai Court in Chatham and
pleaded guilty to theft over $200. He was sentenced to twelve months
probation, a $500 fine, seventy-five hours of community service, and
. ordered to make restitution to the Ministry.
‘By now, the restitution has been made, the fine has been paid, the
community service is in the process of being arranged, and he has come to
this Board to ask that we substitute a lesser penalty for the discharge
imposed by the Ministry.
We learned a great deal about the way In Which the lssulng Clerk
carries out his functions, and the convoluted system used by the grievor to
attempt to cover up his theft. In brief, when a customer paid for a
transaction, such as a licence renewal, the grieVor would not enter the I
transaction into the computer, and would pocket the amount of the fete. The
customer would leave with the appropriate certificateor validationtag, but
there would be no~record in the computer of this. Because each certificate
or tag is numbered, this would create a ‘skip’ in the stock of paper kept by
the office. The grievor would keep track for himself of the number of the
certificate or tag, and at a later transaction with a different customer, he
would record it as having been used on this later occasion. This would clear
the earlier ‘skip’, and create a new one--now the number on the certificate
or tag taken by the new customer would not be recorded in the computer.
And so on. The grievor would cover up the previous ‘skip’, creating another
and another. Over time, the grievor would have several ‘skips’ on the go at
one time.
What is critical is that the grievor engaged in a sustained program of
theft for some three months, that in ‘total ~there appear to have been fifteen
incidents totilling $1298, and that the grievor attempted a rather elaborate
.cover-up. furthermore, not only did the Ministry suffer losses, but the
public was also at risk, because the grlevor’s scheme involved his failure to
record various transactions, such as a licence renewal, and his taking of the
money paid by the customer. Therefore, for example, a customer would walk
out with a new validation tag which had not been recorded and would not
show up as having been purchased if the police checked the licence number.
And when the,Ministry and his supervisors discovered the suspicious
transactions, the Grievor did not admit his wrongdoing, but insisted he could
not recall why these transactions were done. Thus, because his supervisors
trusted htm entirely, they were put to the trouble of hunting high and low
for a legitimate explanation which would save the grievor. In the end, the
grievor admitted his thefts to his employer, his lawyer, his wife, and
finally his parents and Parents-in-law, in each case at the last moment
when it became clear that the recipient of the admission was going to get
the news anyways in some dther less palatable form.
,
a‘
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In spite of this very serious breach of trust, and rather grudging
admission of guilt, the Union now argues that we should consider
substituting a lesser penalty. We heard the testimony of the grievor’s wife
and his mother. It is absolutely clear that the two women are loving, warm
and compassionate individuals who love the grievor deeply and stand with
him firmly to support him in this very trying time. The grievor himself
seems to have fully realized his error and the need to return to the
scrupulously honest life he led before early 1985. In a very eloquent
submlsslon, counsel for the Union asked us to consider the grlevor’s ten
years’ seniority (his ‘equity’ in the job); his satisfactory performance apart
from the thefts; that the criminal conduct was out of character for him;
that he acted under special pressures associated with his impending
wedding and desire not to disappoint the woman he loved; that he committed
the crime clumsily, not as a hardened criminal would have done; that he
stopped robbing the till on his own, before he was caught; that he ,was
sincerely remorseful; and that he had a very strong support system available
to him In hls family, hls new-found assoclatlo~ wlth the Church, and the
credit counselling he and his w’ife are receiving. We were asked to consider
a number of cases where this Board has reinstated employees in spite of
theft committed against the employer-- Penner X77/80; Gi/befL /059/84;
k/e//.$2/82; LanctoC, /226/84; Kaufman, 259/79; Pfeffer, /48..79. These
cases are in line with recent developments in the private sector, where
discharge has not been the automatic and irreducible penalty for theft--see,
i n part i cu 1 ar; Re Canadian Br OadcastHg Copofat/on and Canadian Union of
Pubficfmp/oyees ( 19801, 23 L.AC. (2d) 227 Mrthurs).
f-lost of the cases have made it clear that every case must be
determined on its own facts and that the essential bottom line is whether
or not,.in light of the grlevor’s conduct and the surroundlng ClrCUmStanCeS,
it is likely that the grievor will be an acceptable employee in the fUtUre.
Arbitrators have considered the nature of the criminal acts; the emotional
and physical condition of the employee, and whether or not these
circumstances are likely to recur; Whether or not the act was premeditated
or a momentary aberration; the way in which the employee has admitted the
crime; the familyand other su,pport structures available to keep the
employee honest in the future; the past employment record; and other
relevant factors. .On the other hand, this Board has recognized the ‘principle
that all members of the Public Service of Ontario....should be held to high
standards of integrity in all their actions’ (6ernmlI; /02/79, at page 19).
In short, it all comes down to how the particular panel of the Board feels
about the grievor’s prospects for acceptable conduct inthefuture. Section
19(3) of the Down En?pfo)?es ~oo/L&iv!z? Brgmining Act gives this Board
wide power, if it considers a dismissal to be excessive, to-‘substitute such
other penalty for the.....dismissal as it considers just and reasonable in all
the circumstances’.
In our view, in this case, while the grievor has the good fortune to
have such a wonderful family on which he can rely, and while he appears to,
have come to grips with the wrongfulness of his conduct and is determined
to IlVe honestly, we are not reassured SUfflCiently to vary the diSmISSa
imposed by the Ministry. His former job requires absolute integrity, given
the huge sums of money at the disposal of the employee, and the virtual lack
of regular super&Ion. The grlevor did not commit a single act, but engaged
in an on-going pattern of criminal conduct for three months. The reasons
for his conduct showed a marked lack of self-control. The pressure of a
marriage itself, and the desire to maintain one’s image before one’s fiancee,
are not unusual at all. And.they are no greater than many of life’s crises.
The griever will be tried and tested many more times. And there is Simply
no adequate assurance yet that he can resume a position of trust such as the
jdb of Issuing Clerk. We may have the deepest sympathy for Mr. Rice, and we
may wish hlm well for the future, but we must consider the legitlmate
rights of the employer to be assured of an honest work force. Furthermore,
we do not think that the Board should impose on the Ministry the obligation
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to find some other position for the grlevor, Where he will not have
responsibility for money.
For all of these reasons, we dismiss the grievance.
Done at London, Ontario, this 16th day of April ) 1986.
lcL+-L
R. Russel I, Member
@./&
A Reistetter, Member