GSB# 2000-0092

UNION# 00D240

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Timmerman)

Grievor

• and -

The Crown in Right of Ontario (Ministry of Natural Resources)

Employer

BEFORE

Dan Harris Vice-Chair

FOR THE UNION

Nelson Roland Barrister and Solicitor

FOR THE EMPLOYER

Kelly Burke Senior Counsel Management Board Secretariat

HEARING

May 18, 2004.

Decision

The grievor, Charlene Timmerman, was employed by the Ministry of Natural Resources. She was a seasonal parks clerk who collected fees at various provincial parks. She was discharged from her employment by letter dated February 4, 2000 for misappropriating over $16,000 from the funds she had collected at Sharbot Lake Provincial Park in the summer of 1998. The union grieves the discharge as unjust.

This matter came on for hearing in Belleville on May 18, 2004, at which time the employer sought a ruling that just cause for discipline had been established by virtue of the grievor’s criminal conviction on January 13, 2003. The employer entered a certificate of conviction and a court transcript of the grievor’s guilty plea and sentencing in the Ontario Superior Court of justice sitting at Kingston, Ontario that day before the Honorable Madam Justice H. MacLeod.

The transcript sets out the agreed facts upon which Ms. Timmerman entered her plea, was found guilty and was convicted. A portion of the story is as follows:

At page 2:

Ms. Timmerman stole $16,424.45 from Sharbot Lake Provincial Park. These were gate receipts. She was employed as a seasonal senior park clerk and was responsible for documenting gate receipts and making deposits. After money was counted and recorded in the presence of a second person – so usually there would be the actual gate attendant who would collect the money, write it down on a blotter and then would count the money with Ms. Timmerman who was their supervisor. After that process had occurred and the amount had been recorded, she would alter the records and the deposit slip to cover for money that she was pocketing. The period of 1998 she was skimming between $100.00 and$750.00 per day. It amounted to about $2,000.00 per month.

At page 4:

With regard to Sharbot Lake in particular, 1998, and that is the amount that is just under $17,000, there were 234 daily shift summaries recorded on 23 cash blotters. Of the 115 cash discrepancies found, three were considered minor clerical errors. The remaining 112 were classified as due to misappropriation of funds. Also added to that was one incident where monies were never deposited. Throughout the time period in question, the accused Charlene Timmerman held the position of senior park clerk and had control of the monies in question. The amounts, as I have already indicated, Your Honour, the thefts occurred on a regular basis and varied from as low as twenty or thirty dollars to as high as seven hundred and fifty dollars for any particular day.

Your Honour, I can indicate as well that her husband, Dale Lloyd, received most, if not all of these monies when she returned home and it financed a lifestyle beyond their means, including financing of their honeymoon. Those are the facts, Your Honour.

THE COURT: Are those facts admitted as being substantially correct?

Mr. GRIFFIN: I can indicate this, Your Honour, that Ms. Timmerman doesn’t wish to quarrel with those facts. I have attempted from time to time, over the last two years, to review those facts with Ms. Timmerman. Her health, both physical and mental health are such that she’s not in a position to challenge those facts and as such she is not quarrelling with those facts that you’ve heard.

THE COURT: Thank you. The facts then are deemed to be admitted as read. Based on that the accused is found guilty as charged. You can have a seat. I will have your submissions.

Defense counsel made submissions on the grievor’s behalf that touched on her personal circumstances, including her mental and physical health. She was convicted of the theft and given a conditional sentence of twelve months. Also, a free standing restitution order was made in the amount of $16,445.25.

At the hearing before this Board, the Union said that the grievor denies having taken any money. The employer then relied upon the Crown Employees Collective Bargaining Act, 1993, s. 48(1) and the Public Service Act R.S.O. 1990, as amended, s. 33(1) which read as follows:

s. 48(1) Criminal conviction or discharge considered conclusive evidence - If a Crown employee is convicted or discharged of an offence under the Criminal Code (Canada) in respect of an act or omission that results in discipline or dismissal and the discipline or dismissal becomes the subject-matter of a grievance before the Grievance Settlement Board, proof of the employee’s conviction or discharge, shall, after the time for an appeal has expired or, if an appeal was taken, it was dismissed and nor further appeal is available, be taken by the Grievance Settlement Board as conclusive evidence that the employee committed the act or omission.

s. 33(1) If a public servant is convicted or discharged of an offence under the Criminal Code (Canada) in respect of an act or omission that results in discipline or dismissal and the discipline or dismissal becomes the subject-matter of a grievance before the Public Service Grievance Board, proof of the conviction or discharge shall, after the time for an appeal has expired, or if an appeal was taken, it was dismissed and no further appeal is available, be taken as conclusive evidence that the public servant committed the act or omission.

The Employer also relies on Toronto (City) v. C.U.P.E., Local 79 2003 SCC 63, [2003] 3 S.C.R. 77 in particular at paragraph 58, in part, as follows:

In short, there is nothing in a case like the present one that militates against the application of the doctrine of abuse of process to bar the relitigation of the grievor’s criminal conviction. The arbitrator was required as a matter of law to give full effect of the conviction. As a result of that error of law, the arbitrator reached a patently unreasonable conclusion. Properly understood in the light of correct legal principles, the evidence before the arbitrator could only lead him to conclude that the City of Toronto had established just cause for Oliver’s dismissal.

The Union conceded that the Board is constrained by the law as set out above. However, it submitted that the Board may still enquire into whether discharge from her employment was the appropriate penalty to impose upon the grievor. It said that there were many mitigating factors to put before the Board.

There can be no doubt that stealing $16,445.25 is just cause for discipline nor can there be any doubt, as a matter of law, that the fact of the theft is proven by the grievor’s guilty plea and conviction. However, the union may lead evidence and make submissions with respect to mitigation of the penalty, as did the grievor’s defence counsel at the criminal proceedings.

The union was unable to proceed on May 18, 2004 due to the grievor’s state of mental health. A letter dated May 4, 2004 from one of her physicians reads in part as follows:

I have not seen Ms. Timmerman in a number of months, but she has been a patient of mine for a number of years. She is currently on a great deal of medication, and suffers from a major mental illness. Both of these factors would certainly interfere with her ability to interact in this grievance arbitration.

The employer did not oppose the union’s request for an adjournment, but was properly concerned that there be no inordinate delay in dealing with this matter, the central facts of which accrued throughout the summer of 1998.

In view of the submissions made by the parties, I ordered that the matter be adjourned, not be put down again for hearing before August 31, 2004. Prior to that date the union shall provide to the employer clarification of the grievor’s capacity “to interact in this grievance arbitration,” including a date by which she is expected to be able to do so. The union shall also provide full particulars to the employer of the facts it says ought to lead to mitigation of the penalty and the relief it will seek.

This matter may be scheduled, at the request of either party, to be heard on any date after August 31, 2004.

Dated at Toronto, this 25th day of May, 2004.