Ontario Public Service Employees Union (Lewis) v. The Crown in Right of Ontario (Ministry of Education and Training), 2001 CanLII 25776

GSB#1222/99

OPSEU#99E119

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union

(Lewis)

Grievor

• and -

The Crown in Right of Ontario

(Ministry of Education and Training)

Employer

BEFORE Randi H. Abramsky Vice Chair

FOR THE George Richards

GRIEVOR Grievance Officer

Ontario Public Service Employees Union

FOR THE Ben Ratelband, Counsel

EMPLOYER McCarthy Tétrault

Barristers and Solicitors

HEARING February 17, 2000, May 12, 2000, May 23, 2000,

August 14, 2000, September 26, 2000, December 22, 2000.

AWARD

On August 17, 1999, the grievor, Mr. Earl Lewis, was discharged by the Ministry of Education and Training. He was discharged for soliciting donations from private companies on behalf of the Ministry and a charitable organization, the Children’s Wish Foundation, then expropriating the donations for personal use. At issue is whether the grievor was discharged for cause, or whether another penalty should be substituted as just and reasonable in all of the circumstances.

Facts

On August 17, 1999, the grievor was handed the following termination letter:

August 17, 1999

Mr. Earl Lewis

Dear Mr. Lewis:

It has come to my attention that you have solicited private companies for charitable donations. The letters requesting the donations were written on the former Ministry of Education and Training letterhead. These solicitations were for the purported benefit of a well-known charity. The Charity has confirmed that you are not acting on their behalf. You then expropriated the donations for your own personal use.

Pursuant to Section 22(3) of the Public Service Act, this will advise you that you are hereby dismissed from your employment as a Learner Services Officer with the Ministry of Education, effective August 17^th, 1999.

The fact that you have misrepresented yourself, on behalf of the Ministry and the Charity, to these private businesses, for your personal financial gain, constitutes serious misconduct and is a breach of the trust placed in you by the Employer. Furthermore, your actions had the potential to cause serious damage to the reputation of the Ministry of Education. After careful consideration, I have decided to dismiss you for all of the above reasons.

Sincerely,

Victoria McArdle

Acting Director, Independent Learning Centre.

The evidence, most of which was not disputed, overwhelmingly shows that during July 1999, Mr. Lewis solicited charitable donations of passes or tickets from private companies – Niagara Helicopters, Maid of the Mist and Whirlpool Jets – on behalf of the Ministry and the Children’s Wish Foundation which he intended to use during his family vacation in Niagara Falls. He would first call these companies from work to solicit donations on behalf of the Ministry and then would follow-up by letter, on Ministry letterhead, using his title as “Learner Services Officer”, and fax them from the Ministry’s fax machine.

A typical letter is the following one to Whirlpool Jets:

July 20, 1999

Ms. Marnie Klose

Whirlpool Jets

Niagara-on-the-Lake

Dear Ms. Klose: RE: COMPLIMENTARY TICKETS

Further to our telephone conversation of this afternoon, please accept this letter as a request for a Family Pass on your exciting ride.

As I mentioned to you, we have a fund-raiser each year with all left over proceeds going to the Childrens’ Wish Foundation.

If you have any questions please call me at 416-325-4373. Would you please call to confirm receipt of this request.

The tickets are raffled off and the lucky winners venture on your ride.

I presume the winners will be there either Monday July 26 or Tuesday, July 27, 1999.

As per your instructions, they will phone in advance for reservations.

Respectfully,

Earl C. Lewis

Learner Services Officer

Mr. Lewis acknowledged, on both examination-in-chief and cross-examination, that there was no “fund raiser each year with all proceeds going to the Children’s Wish Foundation” and that no tickets were to be “raffled off.” The tickets were to be used by his family while on vacation.

On July 21, 1999, a similar letter requesting a “Complimentary Family Pass” was sent to Niagara Helicopter stating that “[e]very year at the Ministry we have a fund raising event with all monies collected going to the Childrens’ Wish Foundation.” It was hoped “we can count on your firm’s generous support.” A similar request was made to the Maid of the Mist Steamboat Company.

The Ministry first became aware of these letters when Ms. Ana Pierce of Niagara Helicopters called the Ministry to inquire if Mr. Lewis was connected to the Children’s Wish Foundation. She had found it suspicious when Mr. Lewis called to pick up the tickets himself, saying he had made a donation to the Children’s Wish Foundation for them, when his letter had said that the tickets were to be raffled off. Ms. Pierce was advised that neither the Ministry nor Mr. Lewis had any connection to the Children’s Wish Foundation.

The Ministry’s Fact-Finding Report, which the parties agreed would be admitted into evidence for the truth of the matters asserted, states that on July 26, 1999, Mr. Lewis called Niagara Helicopter and spoke to Anna Pierce. He told her that he was calling from Whirlpool Jets and asked if he could come over and pick up the tickets that had been donated. Ms. Pierce told him that the tickets had already been mailed to him at the Independent Learning Centre (ILC), but that she would leave a set of tickets at the heliport for pick up later that day. She then asked him whether there was someone at his office she could contact to get back the tickets that had been mailed there. He replied, “No, they wouldn’t know about this. They were not involved in it. Besides, I have already bought the tickets and sent the money to the Children’s Wish Foundation.”

The tickets to Niagara Helicopter were mailed to the ILC and arrived after he had left on vacation. Mr. Lewis never came to pick up the tickets at Niagara Helicopter. The value of the tickets was $228.00. During the investigation meeting with the grievor on August 17, 1999, the grievor stated that “ I felt sure that given the situation at Whirlpool Jets that I didn’t even attempt to pick up the tickets.” Later, at the same meeting, he stated that he “asked my wife if she wanted to go on the ride. She said sure, but I didn’t go because of the problem earlier in the day at Whirlpool Jets.”

On July 26, 1999, Mr. Lewis had registered himself for a ride on Whirlpool Jets. Later that day, however, Ms. Klose received a telephone call from the Ministry about Mr. Lewis’ request and when he, and his party of four, arrived Ms. Klose pulled him aside and told him that the tickets were not for his use but were intended for the winner of the Ministry’s fund-raiser. She told him that since the tickets were not being used for the fund-raiser they were not valid and were being voided. Mr. Lewis replied, “I bought them” to which she replied, “no, you couldn’t have” but she offered him discount tickets available to the public. She told him, “you can either pay for them now or we’ll see that you don’t get on the boat for the tour.” Mr. Lewis paid for the discounted tickets and his party went on the ride. The value of the complimentary tickets that Mr. Lewis had requested was $214.00.

The evidence further shows that Mr. Lewis received a complimentary family pass to the Maid of the Mist, which he and his family used on July 26, 1999. The value of these tickets was $170.40.

The evidence is clear that in phone calls and letters to these companies, the grievor intentionally misrepresented the purpose of the request for a donation, misrepresented the Ministry’s involvement and that of the Children’s Wish Foundation. He improperly used his position as a Learner Services Officer and the name of the Ministry as well as that of the Children’s Wish Foundation to obtain complimentary passes to rides and attractions for his own personal use.

Throughout the investigation and at arbitration, the grievor insisted that what he did was not wrong because he “would have sent money to the Children’s Wish Foundation.” Had he used or sold the tickets he would have sent money – that was his intent all along. He stated that it was never his intent to cheat anyone. He stated that in the past, when he had sold a donated item, he would make a donation to the Children’s Wish Foundation. He made these donations anonymously, through money orders, and had no records or receipts to substantiate them. He could not recall dates or amounts.

When the Ministry first learned about this situation, it contacted the Director of the Children’s Wish Foundation, Kathy Wisnieski. On August 6, 1999, she confirmed in writing that “we have no record of receiving funds or confirmation of a fundraiser being held by the Ministry or Mr. Earl Lewis in support of the Children’s Wish Foundation.” At the arbitration hearing, Ms. Wisnieski testified to the same effect. There was no record of any donations made by the grievor or record of an approved fundraising event. She testified that the Children’s Wish Foundation was very concerned about what had occurred because of the value of its good name and reputation. In her view, donations were made by these companies because of the Ministry’s involvement and that of the Children’s Wish Foundation. She was concerned that the people involved, having been misled once, would be wary of donating again to their cause.

On August 17, 1999, the Ministry held an investigation meeting with the grievor and his Union representative. At that meeting, the allegations concerning Niagara Helicopter, Whirlpool Jets and Maid of the Mist were conveyed to the grievor, and he was provided with an opportunity to respond and explain what occurred.

At that meeting, the grievor was not fully candid or forthcoming. He was specifically asked whether he received passes to Maid of the Mist for 1999, and he responded: “No. I never received or used the passes for 1999.” In fact, the daily log for July 26, 1999, less than three weeks earlier, showed that he and his family used four complimentary passes on the Maid of the Mist. When confronted with this, he responded: “Yes. I did use them – complimentary passes. I will send a donation to the Children’s Wish Foundation now.”

The grievor was also asked: “Have you written any other letters to solicit for charities at the ILC or elsewhere?” The grievor responded: “Yes, probably at OTAB. I’d have to go back and think about it. I can’t think…I know I got passes from Wild Water Kingdom and in 1999 I got tickets from them again, in May.” He was also asked whether he sent out e-mails about these tickets, to which he responded “no.” Shortly thereafter he was asked whether he had anything to add, and he responded as follows:

I’ve worked for the government for thirteen years. I’ve always tried to help with federated health, social committees, United Way. I’ve always been honest. I’m apologizing. I’ve never tried to cheat anyone. I had a lack of judgment. I’m a family man, married with two children. I’d never jeopardize my career. I’ll cooperate in any way possible. The union told me to cooperate and tell everything I know.

At the conclusion of the investigation meeting, the Ministry discharged the grievor. Victoria McArdle, then Acting Director of the ILC, testified that the decision to terminate was based on a number of factors - the seriousness of the grievor’s misconduct, the fact that it was repeated rather than isolated, the fact that Mr. Lewis continued soliciting in this manner even after being warned not to do so, the fact that he was not forthright and lied during the investigation meeting, the fact that he offered no explanation for his actions nor demonstrated true remorse. Based on all of this, she felt that the trust placed in him had been destroyed.

In light of the grievor’s comment about the Wild Water Kingdom, the Ministry conducted a further investigation, which revealed several additional incidents of improper solicitation of complimentary tickets on behalf of the Ministry for a charity event. This “after-acquired” evidence was admitted into evidence, pursuant to an earlier ruling, as relevant to the proceeding, with the parties to argue regarding what weight, if any, to give to it.

1. Wild Water Kingdom.

The investigation revealed that Mr. Lewis had sought and received three complimentary family day passes to Wild Water Kingdom in April 1999, valued at $227.40, and received passes in 1998 as well. It was learned that originally one pass had been sent to him in 1999 and that he requested two additional passes to be used for “staff and volunteer incentives.” It was also discovered that in May 1999, contrary to his assertion at the investigation meeting, he sent e-mails to staff members offering to sell the passes at a discounted price. The tickets were not sold and on September 11, 1999 – after his discharge – the grievor returned the tickets to Wild Water Kingdom, stating that “[y]ou were kind enough to donate these to the Ministry of Education and Training but we were not able to use them.”

2. Dresses for Humanity.

The investigation further found that on September 2, 1998, Mr. Lewis wrote to the Hudson Bay Company, on Ministry letterhead, requesting five tickets to the Dresses for Humanity event. That letter states, in pertinent part, as follows:

September 2, 1998

Ms. L. Carter

The Hudson Bay Company

Dear Ms. Carter: RE: DRESSES FOR HUMANITY

I am writing to you at this time on behalf of the Ministry of Education & Training, The Independent Learning Centre with a donation request.

Every summer we have a picnic and fund raising for the “Children’s Wish Foundation”.

The employees of this branch are very excited about Princess Diana’s dresses and we are hoping that you could count on your generous donation of 5 tickets to the above event.

We would raffle the tickets off to the highest bidder and all monies raised would be sent to the “Children’s Wish Foundation” and The Hudson Bay Company would be noted for sending us the tickets.

In the past we have received tickets from “The Ontario Science Centre”, “Paramount Canada’s Wonderland”, “Marineland” and the “Maid of the Mist” in Niagara Falls.

If I can answer any questions you may have, please feel free to contact me at 416-325-4373.

Respectfully,

Earl C. Lewis

Learner Services Officer

Upon receipt of the tickets, the grievor sent out e-mails to staff, stating that the Hudson Bay Company had donated some passes to the show of Princess Diana’s dresses. He stated that the price for each pass is $13.00 “but I would like to raffle them off, with the proceeds going to the Children’s Wish Foundation.” When one employee responded that she would like to buy a raffle ticket, the grievor responded as follows:

I shouldn’t have used the word “Raffle”.

We wish to sell the ticket for the $13.00 which they are priced at and I will send the money to the "Children’s Wish Foundation.” If you are still interested please just bring the money and I will give you a ticket.

There was no annual picnic and no raffle; nor was a raffle ever intended.

3. Canada’s Paramount Wonderland .

The investigation found that on April 28, 1998, the grievor requested a family season pass to Canada’s Paramount Wonderland. On Ministry letterhead, the grievor wrote, in pertinent part, as follows:

I was hoping to obtain a Family’s Season Pass for one of our student/students as an Award/Reward for some student or students who are deserving of same. …

I am sure you will agree that sometime a little reward provides great incentive and a pass as suggested above would do wonders for a student’s ambitions.

Originally, Mr. Lewis requested two passes but later called Wonderland to request four passes. Four passes were sent to Mr. Lewis at the Independent Learning Centre. There is no “Award/Reward” for deserving students within the ILC.

4. Spice Girl Tickets.

Also in April 1998, Mr. Lewis requested three complimentary tickets to the Spice Girls concert that was to be held at the Molson’s Amphitheatre in July 1998, “to be used as an incentive or award to certain students.” According to the Fact-Finding Report, Mr. Lewis told Michelle Magder who was responsible for group ticket sales with Universal Concerts Canada, the company that operates the Molson Amphitheatre, that he was requesting the tickets for a charitable cause to help out underprivileged school children in the school system. She informed him that the concert was sold out and she could not give him complimentary tickets, but she agreed to order him three tickets and to waive the normal administrative fee of $15.00 per ticket due to the cause.

The tickets were paid for by Judy Lewis, the grievor’s wife. The tickets were used by the grievor’s children. On June 17, 1998, the grievor wrote to Ms. Magder, on Ministry letterhead, that “[o]n behalf of the Ministry of Education and Training, The Independent Learning Centre, I am writing to thank you very much for all your time and efforts in obtaining the Spice Girl Tickets.” He continued: “I am sure the children who will receive these tickets would like to thank you personally but we thought it better if I did.”

There is only one example of a donation to the Children’s Wish Foundation in relation to a pass sold by the grievor. The grievor had stated, during the investigation meeting, that he sold one of the 1998 Maid of the Mist passes to a co-worker, Sherry Smith, at the face value of the pass. In January 1999, the Children’s Wish Foundation received a cheque from Sherry Smith for $35.00, an amount less than the face value of the pass. The grievor had no recollection of what happened to the other passes that he received in 1998, although he recalled that he did not sell them.

The grievor testified that the impact of his discharge has been devastating. He is 56 years old and has a high school education. He has been unable to find work, leaving his wife as the sole support of his family. He has one adult daughter and two minor children, and his termination has caused a great deal of stress and difficulties with the family.

At the time of his discharge, the grievor had worked for 13 years with the government. He worked as a Learner Services Officer with the Independent Learning Centre (ILC). The ILC primarily serves as a correspondence school for approximately 30,000-40,000 adult students trying to obtain a secondary school diploma. Staff provides the public with information about ILC services and programs, process applications for course enrolment and ensure course requirements and prerequisites are met, and update student records including lesson and test results as well as inventory (course material) loans and returns.

According to Ms. McArdle, the position of Learner Services Officer, which is not closely supervised, offers a number of opportunities for an employee who seeks financial gain. Given the importance of a secondary diploma, eligibility requirements might be overlooked to gain enrollment, lost materials might be “found”, deadlines might be extended and so forth.

The grievor’s work record was discipline-free, but in the Fall of 1998, Mr. Lewis was specifically warned by the Director of the ILC, Paul Raymond, not to solicit charitable donations on Ministry letterhead. Mr. Raymond testified that in the Fall of 1998, someone found at the fax machine a copy of a letter written by Mr. Lewis, on Ministry letterhead, addressed to the Raptors soliciting basketballs to be auctioned off at an ILC picnic with the proceeds to go to the Children’s Wish Foundation. It was brought to him and he stated that he called Mr. Lewis into his office. He showed Mr. Lewis the letter and told Mr. Lewis not to use Ministry letterhead to solicit for charity, that the trillion was sacred as it represented the Government, and that what he did was not acceptable. Mr. Raymond testified that the grievor responded that he didn’t realize that it was a problem. Mr. Raymond told him it was a problem, that it was fraud, and that it must not happen again. He said that Mr. Lewis responded that in his prior job, it had not been a problem but agreed that he would not do it again.

Mr. Lewis’s recollection of this conversation was a bit different. At the arbitration hearing, he testified that Mr. Raymond approached him at the front counter, not his office, and told him that he found a fax that Mr. Lewis had sent to the Raptors requesting basketballs and that he asked him not to do that again, to which he replied “I won’t.” In his view, it was not a “you are not to do this” type conversation. What he took from it was that he was not to solicit basketballs or approach the Raptors and he never did that again. It was his view, at the time, that Mr. Raymond would not be upset if he got tickets and sold them and donated the money to the Children’s Wish Foundation. At the investigation meeting, Mr. Lewis stated that Mr. Raymond did not mention use of Ministry letterhead.

To the extent that the grievor’s version of this discussion varies from that of Mr. Raymond, I prefer the testimony of Mr. Raymond. Mr. Raymond had quite a clear recollection of this conversation, and I find his version more plausible than that of the grievor’s. It is unlikely that such a conversation took place at the front counter, and it was definitely a “you are not to do this” type conversation, as the grievor acknowledged when he admitted that he agreed that he would not do it again..

Mr. Raymond testified that he did not formally discipline the grievor over the Raptors letter because he thought it involved one occurrence, the grievor had not realized it was a problem and he had promised not to do it again. It was “one case of misjudgment” and he felt that Mr. Lewis now understood the seriousness of his action. At the time, Mr. Raymond was unaware of any other solicitations of this kind by the grievor.

Decision

1. Was there just cause for discharge?

Based on the facts set forth above, there is no doubt that the Ministry had just cause to discharge the grievor. Based on the initial findings of the investigation as of August 17, 1999, which were substantiated at the hearing, the grievor engaged in three cases of serious misconduct. He improperly used his position as a Learner Services Officer, improperly used Ministry letterhead, and knowingly misrepresented the sanction and involvement of the Ministry and the Children’s Wish Foundation in order to obtain complimentary passes and tickets for his own personal use. This was not a case of lack of judgement. It was fraud perpetrated on three private businesses. They provided complimentary passes because they believed that he was acting on behalf of the Ministry and the proceeds would go to the Children’s Wish Foundation, none of which was true. The grievor’s misconduct, moreover, was directly related to his employment, since he used his position and title, the Ministry’s fax, telephone, address and its name to perpetuate the fraud.

The grievor knew, or should have known, that his conduct was wrong. He was explicitly told so in the Fall of 1998 by Director Raymond. He was told not to solicit charitable donations on Ministry letterhead again. The grievor’s claim that he understood Director Raymond’s admonition, as limited to the solicitation of basketballs cannot be credited. Their conversation cannot reasonably have been construed so narrowly.

In hindsight, it may have been better if the grievor had received formal discipline at the time. But the Director made a decision to proceed informally based on the information he had at the time. That is, that this was a one-time only occurrence that the grievor had not realized what he did was a problem but now did, and he had promised not to do it again. So Mr. Raymond dealt with it firmly, but informally. However, the message – do not do this again – was very clear. Although informal, the purpose of progressive discipline, to put the employee on notice that his conduct is not acceptable, was met by the Director’s action. Accordingly, the grievor knew, or should have known, that solicitations of this nature, on Ministry letterhead, was wrong.

Even if there had been no specific warning, the grievor should have known what he did was improper. It is similar to the situation in Re Black Diamond Cheese (Division of Ault Foods Inc.) and Black Diamond Cheese Employees’ Independent Union, Local 555 (1992), 1992 CanLII 14480 (ON LA), 27 L.A.C. (4^th) 428 (Jackson), in which an employee was discharged for forging company letters to secure a mortgage loan. The company’s rule was clear that it was an offense to falsify records relating to work or employment, and the arbitrator concluded at p. 439 that “it should be absolutely clear from this, if not from basic civic values, that people should not submit forged letters.” In his view, as he stated at p. 438, “knowingly submitting forged letters can only be characterized as dishonest behaviour.” The same is true here. The grievor’s actions were dishonest and that should have been clear to him from Mr. Raymond’s admonition, if not from basic civic values.

Despite being warned not to do this again, the grievor continued to do so. He was going on vacation to Niagara Falls in late July 1999 and sought complimentary tickets to rides and attractions there. He called Niagara Helicopters, Whirlpool Jets and Maid of the Mist from work, identified himself as a Ministry employee responsible for organizing the Ministry’s annual picnic and sought a complimentary pass to be raffled off, with the proceeds going to the Children’s Wish Foundation. He then followed-up with a letter, on Ministry letterhead, and left his work number to call if there were any questions. He then faxed the letter from work. He did all this knowing there was no annual picnic, knowing there was no raffle, knowing that the passes were for his own personal use while on vacation. His actions were planned and premeditated. They were not isolated. The Ministry had just cause to discharge him.

The after-acquired evidence reveals further examples of the same type of misconduct and corroborates that his actions in July 1999 were not isolated events, or an isolated case of misjudgment, but an ongoing pattern of misconduct over a prolonged period of time. Although some of the solicitations involved other misrepresentations – i.e., seeking donations to provide a fictitious reward/incentive to deserving children/students – the goal was the same: to obtain free tickets for his own use or to sell. Time and time again he improperly used his position with the Ministry, and the name of the Ministry and that of the Children’s Wish Foundation to fraudulently obtain free passes and tickets.

The grievor’s testimony that he sent money to the Children’s Wish Foundation anonymously was not supported in any manner. There were no records of the money orders he stated were sent. He could not recall dates or amounts. During the investigation he stated that he would check at home for such items, but none were presented at the arbitration hearing. The Children’s Wish Foundation had no record of any donations by Mr. Lewis, nor was he associated with them in any manner. In contrast, there was substantial evidence that the tickets and passes solicited were for his personal use and that he sold and attempted to sell many of donated items. I therefore conclude, on the balance of probabilities, that the grievor sought these donations for his personal use and financial gain, not to benefit the Children’s Wish Foundation.

Based on the evidence, the Ministry had just cause to discharge the grievor. He abused his position of trust with the Ministry. His actions had the potential to harm the reputation of the Ministry as well as that of the Children’s Wish Foundation.

2. Is it just and reasonable in all the circumstances to substitute a lesser penalty?

This question presents the heart of the dispute – whether there are mitigating factors, which warrant substitution of a lesser penalty. Arbitrators have considered a number of factors in assessing whether a lesser penalty is appropriate. As set out in Re United Steelworkers of America, Local 3257 and The Steel Equipment Co. Ltd. (1964), 1964 CanLII 984 (ON LA), 14 L.A.C. 356 (Reville), they include the following, at p. 357-358 (citations omitted):

1. The previous good record of the grievor.

2. The long service of the grievor.

3. Whether or not the offence was an isolated incident in the employment history of the grievor.

4. Provocation.

5. Whether the offence was committed on the spur of the moment as a result of a momentary aberration, due to strong emotional impulses, or whether the offence was premeditated.

6. Whether the penalty imposed has created a special economic hardship for the grievor in light of his particular circumstances.

7. Evidence that the company rules of conduct, either unwritten or posted, have not been uniformly enforced, thus constituting a form of discrimination.

8. Circumstances negativing intent, e.g., the likelihood that the grievor misunderstood the nature or intent of an order given to him, and as a result disobeyed it.

9. The seriousness of the offence in terms of company policy and company obligations.

10. Any other circumstances which the board should properly take into consideration…

Other arbitrators have looked at whether there has been (1) a frank and prompt admission of fault; (2) whether the individual was in a position of trust or subject to minimal supervision; (3) whether the act was premeditated and deliberate or whether it was a spur of the moment; (4) whether there was a clear and consistent policy which was known to the grievor and to other employees; (5) the importance of deterrence and the relationship of the grievor to other employees in this regard. Re Lake Ontario Steel Co. and United Steelworkers, Local 6571 (1990), 1990 CanLII 12686 (ON LA), 17 L.A.C. (4^th) 136 (Finley) at p. 143-144; Re Air Canada and Canadian Auto Workers, Local 2213 (1997), 1997 CanLII 24943 (CA LA), 62 L.A.C. (4^th) 151 (Stewart), at p.160.

In this case, the mitigating factors are the grievor’s length of service and prior good record as well as the fact that termination has created a significant economic hardship for his family because the grievor has been unable to find work. On the other hand, the offence was not isolated. It was part of an ongoing pattern of improper solicitation over a substantial period time. It was not a spur of the moment event, but was repeated and premeditated. The grievor was clearly warned not to solicit in this manner and there is no reasonable likelihood that the grievor misunderstood that direction. The misconduct engaged in was extremely serious. The Ministry did a full and thorough investigation and provided the grievor with a full opportunity to explain and respond.

When confronted by the Ministry on August 17, 1999, the grievor was not forthcoming. There was no full and frank admission of guilt, nor, with the exception of the Wild Water Kingdom, an admission of his other solicitations. Those were uncovered by the Ministry in its investigation with no assistance by the grievor. Even though the Union had advised the grievor to tell the Ministry everything he knew, he did not.

Likewise, the grievor’s apology at the investigation meeting was perfunctory and self-serving. He stated he had “a lack of judgment” and was “apologizing.” He expressed a more sincere apology in the Fall, but he still did not reveal the full extent of his improper actions. Indeed, there still does not appear to be a genuine understanding by the grievor of the misconduct involved. Throughout the investigation and even at the hearing, the grievor insisted that it was his intent, all along, to donate to the Children’s Wish Foundation and that what he did was okay as long as a donation was made to the charity. He did not seem to grasp that his actions were still fraudulent, even if the money had been sent to the charity. He did not seem to understand that even if all of the money for the donated tickets had been sent to the charitable organization, a wrong was still done. He misused his position, he misused of the name of the Ministry and that of the Children’s Wish Foundation, and he made misrepresentations to the companies involved. The companies which donated tickets and passes were solicited under false pretenses. They were duped, by the grievor, into believing that they were donating to the Ministry of Education, with the proceeds going to either “deserving students” or the Children’s Wish Foundation. Yet, all along, the grievor intended the donations for his own personal use or financial gain.

The Union argued that the grievor’s offense was not directed at the Ministry, his employer, or its clients. It notes that there was no evidence that the grievor made any effort to take advantage of his job in his dealings with clients, or that his misconduct interfered with the performance of his job. That is true, but the fact remains that the grievor abused his position and the trust placed in him by the Ministry. Although his offenses were not directed at the Ministry or its clients, he repeatedly misused his position and the name of the Ministry for personal gain, effectively destroying the trust placed in him as a Learner Services Officer.

I find it significant that neither at the investigation, nor during the hearing, was a reason or explanation offered for the grievor’s actions. There was no evidence or assertion of a medical condition or personal situation, which led the grievor to act in this manner. Nor, as noted above, is it clear to me that the grievor truly understands the serious wrong in which he engaged.

I have no doubt that the grievor is now truly sorry for his actions. His termination has had a very significant impact on his family. As he stated during the investigation meeting, he would “never jeopardize my career.” But, unfortunately, that is exactly what he did. After being told not to do this again, he did so, repeatedly. Although I find myself sympathetic to the grievor’s personal circumstances, he alone is responsible for the situation in which he now finds himself.

Therefore, based on all of the relevant factors, I cannot conclude that the penalty of discharge should be mitigated.

Accordingly, for all of the foregoing reasons, I conclude as follows:

1. The Ministry had just cause to terminate the grievor.

2. There is no basis, considering all of the relevant factors, to substitute a lesser penalty.

3. The grievance is dismissed.

Dated at Toronto, this 15^th day of February, 2001.