GSB#1721/00

UNION# 01C088

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union

(Bodai)

Grievor

-and-

The Crown in Right of Ontario (Ministry of Training, Colleges and Universities)

Employer

BEFORE Ken Petryshen Vice-Chair

FOR THE GRIEVOR George Richards Grievance Officer Ontario Public Service Employees Union

FOR THE EMPLOYER Kelly Burke Legal Services Branch Management Board Secretariat

HEARING August 23 and 30, 2001; September 7 and 28, 2001.

DECISION

In a grievance dated February 22, 2001, Ms. Maria Bodai claims that she was discharged without just cause. There was no challenge to my jurisdiction to hear and determine this grievance.

Ms. Bodai was advised of her termination by letter dated February 22, 2001, which was signed by Ms. Judith Robertson, Director, Workplace Support Services Branch. The text of this letter reads as follows:

Dear Ms. Bodai:

It has come to my attention that you have engaged in inappropriate activities, specifically soliciting money in exchange for providing passing grades, related to the examination and trade certification process in the Waterloo Area office.

Pursuant to Section 22(3) of the Public Service Act, this will advise you that you are hereby dismissed for cause from your employment as an Examination/ Administrative Clerk with the Ministry of Training, Colleges and Universities, effective February 22, 2001.

The fact that you have compromised the integrity of the examination and trade certification process for your personal gain constitutes serious misconduct and is a breach of the trust placed in you by the Employer. After careful consideration, I have decided to dismiss you for the above reasons.

As the letter indicates, Ms. Bodai was discharged because the Employer determined that she solicited money in exchange for passing grades. Although the Employer called a number of witnesses to support its contention that it had just cause in this instance, the key witness for the Employer was Mr. Antonio Carvalho. Mr. Carvalho was the only witness to provide direct evidence in support of the allegation that Ms. Bodai solicited money in exchange for a passing grade. Ms. Bodai testified that she did not solicit money in return for passing grades. The Union took the position that the Employer has failed to establish with clear, cogent and compelling evidence that it had just cause to terminate Ms. Bodai’s employment. The parties recognize that the result of this case would be determined in large part by an assessment of the credibility of Mr. Carvalho and Ms. Bodai.

The Ministry of Training, Colleges and Universities (“the Ministry”) has the responsibility for supervising trade examinations for skilled trades. The successful completion of an exam is necessary to obtain the appropriate Certificate of Qualification, ensuring that the tradesperson is qualified to perform the work of a particular trade. Ms. Bodai held the position of Exam/Admin Clerk in the Ministry’s Waterloo office since at least the early 1990s. Included in her responsibilities in this position are the obligations to administer and invigilate trade exams and to ensure the security of all exam material. Each trade, and there are a number of them, has an exam booklet and answer sheet. The answer sheets are standard forms requiring certain personal information by the candidate and contain numbers from 1 – 150, with each number having four choices. The candidate is required to make the right mark with a pencil on the answer sheet for each number that corresponds to a question in the exam book. To protect the integrity of the exam process, the exam invigilator is to ensure that candidates do not leave the room with the exam book or with any written material which would disclose the questions contained in the exam book. Unless there is some reason to change them, the questions in a trade’s exam book remain the same. The answer sheets for exams written at the Waterloo office are sent to the Ministry’s London office by courier where they are marked by a computer scanning process.

At the outset of the hearing, the Union suggested that Ms. Bodai would not be in a position to affect a candidate’s exam mark. The Employer’s evidence, however, established that there are ways in which an exam invigilator could affect marks. Since Ms. Bodai conceded in her evidence that there are ways, consistent with the Employer’s suggestions, to manipulate exam results, it is unnecessary to review in detail all of the Employer’s evidence on this point. Suffice it to indicate that the exam invigilator could photocopy the completed exam sheets relating to a particular trade exam and, upon discovering the marks of the persons taking that exam, could match the marks with particular exam sheets. In this way an exam invigilator would be in a position to know what exam sheets produced a passing grade of 60% and which produced a grade in excess of 70%, thereby entitling a candidate to inter-provincial certification. With this knowledge, an exam invigilator could alter existing marks on an exam sheet or fill in a blank exam sheet in order to produce a particular grade. Although the Union intended to demonstrate that an invigilator would be unable to affect grades and therefore, would be unlikely to solicit money for passing grades, the Employer established that a person in Ms. Bodai’s position would have the opportunity to manipulate a candidate’s grade.

Ms. Bodai’s termination in February 2001 followed many years in which there were issues regarding the integrity of the exam process in the Waterloo office. Ms. Robertson, as did other Employer witnesses, testified about the historical context which preceded Ms. Bodai’s termination. Beginning in the mid 1990s, there were rumours circulating among the staff in the Waterloo office about irregularities in the exam process. These rumours arose when certain candidates achieved a significantly higher grade upon re-writing an exam when compared to their earlier exam results. The focus of these rumours was on Ms. Bodai. In August 1999, Mr. I. Jurca, an unsuccessful candidate, wrote to the Ministry with a number of complaints relating to Ms. Bodai. None of Mr. Jurca’s complaints suggested that Ms. Bodai solicited money for passing grades. After reviewing Mr. Jurca’s evidence, it is my conclusion that his complaints were not well founded and arose primarily because of his unhappiness with the rules of the examination process and his belief that Ms. Bodai played a role in the non-renewal of a cleaning contract that Mr. Jurca had to provide cleaning services for the Ministry’s Waterloo offices. Mr. Jurca testified that Ms. Bodai gave him her home phone number and asked him to call her at home, which he elected not to do. In April 2000, Ms. Robertson received a call from a police officer to advise her that a reliable informant had told the police that individuals could purchase passing grades in the Ministry’s Waterloo office. The police would not disclose the name of the informant.

When these issues arose relating to the integrity of the exam process, the Ministry’s response varied, depending upon the circumstances. The early rumours led to a close monitoring of the exam process. Subsequently, internal audits were conducted. The information from the police in April 2000 led to a full-scale investigative audit. As of September 5, 2000, Ms. Bodai was suspended with pay while the investigation into her conduct took place. It was during the course of the investigation that Mr. Carvalho disclosed a previous experience he had had with Ms. Bodai.

Mr. Carvalho came to Ontario from Portugal in 1986. He had spent some time in Portugal working as a policeman. After completing an apprenticeship program in Ontario, and while employed at Freightliner, Mr. Carvalho unsuccessfully wrote the automotive exam in May 1996. He was also unsuccessful when he wrote the truck and coach exam in August 1996. Ms. Bodai invigilated both of these exams and Mr. Carvalho called her directly to arrange to write the August 1996 exam.

After waiting the necessary 90 days, Mr. Carvalho again contacted Ms. Bodai to make arrangements for re-writing the exam. Mr. Carvalho’s testimony with respect to his contact with Ms. Bodai at this time is as follows. Mr. Carvalho phoned Ms. Bodai, identified himself, and advised her that he wanted to re-write the exam. She said that she would like to talk to him but did not want to have a conversation on the office line. Without explaining what she wanted to discuss, Ms. Bodai gave Mr. Carvalho her home phone number and asked him to call between 5:00 and 7:00 p.m. that evening. Mr. Carvalho called as directed from his home, with his wife present. After he asked if it was Maria and she said it was, Mr. Carvalho indicated who he was and asked why she wanted him to call her at home. Ms. Bodai then advised Mr. Carvalho that she had a proposal for him and told him that for $1,000 she would let him get his license. When he asked her what he had to do, Ms. Bodai told him that he would fill out the personal information on the exam sheet, but not answer the questions. Ms. Bodai told him that the answers would be taken care of afterwards. He asked her if he would get an inter-provincial license and she said no because his first grades were too low. When Mr. Carvalho told her that it was too expensive and attempted to negotiate a lower amount, Ms. Bodai said that there were more people involved, but made no reference to any names. When he asked where the exams were sent, Mr. Bodai said that they were sent to London. Mr. Carvalho completed the conversation by telling Ms. Bodai that he could not afford to pay her $1,000 and asked her whether he could call her back and arrange to write the exam a third time, to which she responded that he could. After ending the conversation with Ms. Bodai, Mr. Carvalho told his wife that Ms. Bodai had asked for money and said he could not believe people like that worked for the government. When his wife asked if he would pay, Mr. Carvalho told her that he would not pay.

After making the necessary arrangements with Ms. Bodai, Mr. Carvalho did re-write the truck and coach exam on July 31, 1997. He had no further conversation with her about paying for a passing grade. Mr. Carvalho failed the exam on this latest attempt. Mr. Carvalho did talk to a few friends, including Mike Brown, his foreman, about the conversation he had had with Ms. Bodai. Mr. Brown suggested that his inability to pass the exam might be a result of there being a red mark next to his name. Mr. Carvalho had no further contact with anyone from the Ministry until June 2000. For the three year period since he had last written the exam, Mr. Carvalho testified that he did not initiate attempts to re-write the exam because he did not trust people in the Ministry’s office in Waterloo.

By June 2000, Mr. Carvalho was working at Kenworth Trucks. Ms. L. Thomas, a training consultant with the Ministry, attended at Kenworth at that time to keep in contact with active apprentices. Ms. Thomas met Mr. Carvalho at Kenworth and determined that he was not working legally. Mr. Carvalho contacted Ms. Thomas in January 2001 and asked her to look into an upgrading course for him so that he could re-write the exam. Ms. Thomas did provide Mr. Carvalho with an upgrading program and, on February 14, 2001, Mr. Carvalho attended at Ms. Thomas’ office to discuss arrangements for the exam. During their discussion Mr. Carvalho told Ms. Thomas that he was glad to see that Maria was not there. He also told her that he felt comfortable with her and that he had put off writing the exam because he thought there was an X beside his name. Ms. Thomas asked what he meant and Mr. Carvalho told her about the evening telephone conversation that he had with Ms. Bodai. In essence, Mr. Carvalho told Ms. Thomas that Ms. Bodai told him that he would pass the exam if he paid her $1,000. Ms. Thomas pulled up his name on the computer and showed Mr. Carvalho that there was nothing highlighted by his name. Ms. Thomas, who was a friend of Ms. Bodai, asked Mr. Carvalho if he was telling the truth, to which he replied in the affirmative, and Ms. Thomas concluded that there was no basis to disbelieve him. She was upset by what she had heard and told Mr. Carvalho that he would have to speak to her manager.

In addition to Ms. Thomas’ evidence and her notes of her conversation with Mr. Carvalho, I heard testimony from other witnesses who spoke to Mr. Carvalho. After Ms. Thomas reported the matter to him, Mr. Speers, the acting area manager, spoke to Mr. Carvalho during the evening of February 14, 2001, and prepared notes of this conversation. Ms. M. Freire and Ms. J. Hannah, both Ministry representatives, interviewed Mr. Carvalho on February 15, 2001. A written record of this interview was signed by Mr. Carvalho and entered as an exhibit. The investigative team lead by Mr. Alexander interviewed Mr. Carvalho on February 19, 2001, and recorded his responses in its report. In all of this evidence, Mr. Carvalho provided a version of the relevant events which is consistent with his testimony at the hearing. In summary, Mr. Carvalho told these individuals that Ms. Bodai offered to secure him a passing mark if he paid her $1,000. When asked by Ms. Freire and Ms. Hannah why he did not report the incident earlier, Mr. Carvalho indicated that he had lost trust in the Waterloo office, as well as the apprenticeship program generally. He testified that he did trust Ms. Thomas.

Before deciding to discharge Ms. Bodai, Ms. Robertson met with her and others on February 22, 2001, for the purpose of giving Ms. Bodai the opportunity to respond to the allegations against her. One of the questions she was asked related to the allegation that she gave her home phone number to clients. When Ms. Bodai was asked during the investigation about this, she denied it and at a later occasion said she could not recall giving her home phone number to clients. When asked about these two responses at the February 22, 2001 meeting, Ms. Bodai indicated that she had made “A bad choice of words”. After considering all of the relevant circumstances, Ms. Robertson concluded that she believed Mr. Carvalho and issued Ms. Bodai’s termination letter.

The Ministry employed Ms. Bodai for approximately 23 years. She has a discipline free record and she has received good appraisals over the years. During her employment, she cared for her seriously ill parents, with her mother passing away in 1993 and her father passing away in early 2001. Ms. Bodai is a diabetic. Since her termination she has experienced a number of health problems and she has required psychiatric help. Ms. Bodai has been unable to secure any meaningful regular employment since her termination.

During the course of the investigation and in her evidence before me, Ms. Bodai denied compromising the integrity of the examination process. She denied soliciting money for passing marks and she asserted that she never made the proposition attributed to her by Mr. Carvalho. Given her dealings with so many candidates, she testified that she did not have a specific recollection of her dealings with Mr. Carvalho. When asked during her examination in chief to respond to Mr. Carvalho’s testimony about the evening conversation, she said, “As far as I am concerned, it did not happen”. Ms. Bodai did not know why Mr. Carvalho would lie about the matter, other than to suggest that it had to do with his having been caught working illegally for a number of years and that he viewed her as the reason why he failed the exams. When asked during her examination in chief about giving her home phone number to Mr. Carvalho, Ms. Bodai said, “I don’t recall that”. During her cross-examination, she denied that she gave her home phone number to clients.

In its submissions, the Union argued that Ms. Robertson was inappropriately influenced by the rumours of misconduct and the phone call from the police, such that she did not rely only on Mr. Carvalho’s description of the solicitation of money. In my view, the evidence suggests otherwise. Ms. Robertson denied this suggestion when put to her during cross-examination. More importantly, much of the Employer’s evidence went to providing the context for Mr. Carvalho’s testimony and the Employer’s treatment of Ms. Bodai. The evidence supports the conclusion that the Employer discharged Ms. Bodai for soliciting money from Mr. Carvalho, consistent with the reason set out in the termination letter.

As would be expected, the Union conceded that soliciting money for passing grades is serious misconduct. The Union expended considerable effort during its cross-examination of Mr. Carvalho to challenge his credibility and recognized in its submissions that Mr. Carvalho’s evidence was troublesome for its case. However, the Union maintained that, given all of the evidence, Ms. Bodai should be given the benefit of the doubt. The Union argued that it was likely that Mr. Carvalho made the false accusation against Ms. Bodai to explain why he waited so long to challenge the exam and to generally protect himself. The Union also submitted that, given her position, Ms. Bodai could be a victim of retaliation by candidates who consistently fail the exam, such as Mr. Carvalho.

Although he developed a distrust of Ms. Bodai and the apprenticeship system, Mr. Carvalho’s failure to initiate a complaint against Ms. Bodai after again failing the exam is not particularly surprising. He was able to work in the truck and coach mechanical trade for years before his contact with Ms. Thomas. By January 2001, Ms. Thomas arranged for an upgrading program so that Mr. Carvalho could again re-write the exam. There is no evidence which suggests that Mr. Carvalho needed to justify why he worked so many years without a license. When Mr. Carvalho attended the Ministry’s office in February 2001 to discuss the exam, he asked Ms. Thomas if there was a mark by his name. It is not surprising, given the circumstances as described by Mr. Carvalho, that he would want to ensure that his previous refusal to pay money to Ms. Bodai would not influence the exam process. It was only when Ms. Thomas asked him why he thought there might be a mark by his name that Mr. Carvalho told her of the evening conversation with Ms. Bodai. Mr. Carvalho had nothing to gain by falsely accusing Ms. Bodai of soliciting money for a passing grade.

Given Ms. Bodai’s position, there is some potential for retaliation against her by candidates who are dissatisfied with the exam process. Mr. Jurca is an example of someone who complained about Ms. Bodai in part because she was a representative of what he perceived to be an unfair process. However, as the Union itself conceded, there is no evidence from which one can conclude that Mr. Carvalho is attempting to retaliate in any way against Ms. Bodai. If Mr. Carvalho had such an intention, one would have expected that he would have instantly complained when he failed the exam after his evening conversation with Ms. Bodai.

In applying the usual tests to assess credibility, I found Mr. Carvalho to be a credible witness. Mr. Carvalho testified about the evening conversation with Ms. Bodai in a straightforward manner and maintained his version of the events in the course of a thorough cross-examination. He described the relevant events in considerable detail and in a manner which suggested that his testimony was truthful. It would be difficult to conclude from the content and the manner of his testimony that Mr. Carvalho was engaging in a fabrication. Whenever asked, including his response during his testimony at the hearing, Mr. Carvalho conveyed essentially the same facts about his evening conversation with Ms. Bodai. As noted previously, Mr. Carvalho had no reason to fabricate a story against Ms. Bodai. He only told Ms. Thomas about the evening conversation after he inquired as to whether there was a mark by his name and she asked him why he had made such an inquiry.

Ms. Bodai’s testimony did not contain a similar consistency or a similar truthful quality. When asked during the investigation about whether she gave her home phone number to clients, Ms. Bodai said she could not recall and at another time denied doing so. Even thought she was aware that these different responses were troubling to Ms. Robertson, Ms. Bodai responded in the same way during her testimony, starting with the answer that she could not recall. As Ms. Bodai conceded, there would be no reason for her to give her home phone number to a client. The issue of whether she gave a client her home phone number is not a matter with which one would expect any uncertainty. Mr. Carvalho and Mr. Jurca testified that Ms. Bodai gave them her home phone number. Her equivocation on this issue, in light of the testimony of Mr. Carvalho and Mr. Jurca, does not enhance Ms. Bodai’s credibility. I also found Ms. Bodai’s response to the question of whether she solicited money from Mr. Carvalho to be troubling. To reiterate, Ms. Bodai said, “As far as I am concerned, it did not happen”, rather than “I did not do it.”

Having regard to all of the relevant evidence, it is my conclusion that the Employer has established, by cogent and compelling evidence, that Ms. Bodai solicited money from Mr. Carvalho in exchange for a passing grade. By her conduct, Ms. Bodai compromised the integrity of the exam and certification process. Such conduct also constitutes a serious breach of trust. Ms. Bodai has considerable seniority, a discipline free record and personal circumstances which evoke sympathy. However, the nature of the misconduct and her denial of it, lead me to conclude that the substitution of a lesser penalty would be inappropriate in the circumstances. The Employer has demonstrated that it has just cause to terminate Ms. Bodai’s employment. Accordingly, Ms. Bodai’s grievance dated February 12, 2001, is dismissed.

At the outset of the hearing and again during its final submissions, the Union requested that I comment on its contention that the Employer failed to comply with Article 22.14.5 of the Collective Agreement. This provision provides that “The parties agree that at the earliest stage of the grievance procedure, either party upon request is entitled to receive from the other, full disclosure.” The Union indicated that it had requested certain information at an early stage of the process and subsequently reiterated its request, but did not receive the disclosure it sought until after a conference call with the Vice-Chair. Although the Union acknowledged that the late disclosure did not compromise its ability to represent Ms. Bodai, it submitted that the Employer representatives should be advised of the obligations under Article 22.14.5. The Employer explained that the delay in this instance had to do with the sensitive nature of the information requested by the Union. The Employer submitted that it would not be appropriate to comment on the matter based on the representations by the Union.

The obligation set out in Article 22.14.5 on both parties is clear. Upon request, a party is entitled to receive full disclosure at the earliest stage of the grievance process. The obligation to disclose early in the process is intended, among other things, to assist a party in making an early assessment of its position and to assist in the resolution of disputes. Although no purpose will be served by examining in detail what occurred in this instance, I simply note that the provision does not contain an exception for sensitive information. As with any Collective Agreement provision, the parties are obliged to comply with Article 22.14.5.

Dated at Toronto, this 22nd day of November, 2001.