GSB# 2001-0562
UNION# 01C403
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Guelph)
Grievor
- and -
The Crown in Right of Ontario (Ministry of Transportation)
Employer
BEFORE
Daniel Harris
Vice-Chair
FOR THE UNION
Peggy Smith Eliot, Smith Barristers and Solicitors
FOR THE EMPLOYER
Carol Ann Witt Counsel Management Board Secretariat
HEARING
June 10 & 11, October 22 & 28, November 5 & 25, 2002; April 1 & 8, 2003.
Decision
This is a discharge grievance. Pauelette Guelph’s employment as a “hot-line operator” with the Ministry of Transportation (hereafter “the Ministry”) was terminated on June 22, 2001. She had been an employee of the Ministry for approximately 22 years. The letter of termination was signed by Morah Fenning and reads as follows:
Dear Ms. Guelph:
On Wednesday, May 2nd, 2001 you were suspended with pay and without loss of credits to allow Management to carry out a complete investigation with regard to a possible conflict of interest and misuse of government property.
This investigation concluded that you engaged in extensive outside activities which brought you into a position of conflict of interest and contravened the Public Service Act, Regulation 977, Section 15(1), (2) and (3). You had an obligation to disclose your situation to the Deputy Minister and failed to do so. The failure constitutes a violation of the Conflict of Interest guidelines and a breach of public trust.
I have reviewed the report of the investigation and have determined that there is just cause for dismissal. Therefore, by the authority delegated to me by the Deputy Minister under section 23 of the Public Service Act, you are dismissed effective immediately.
You have the right to file a grievance in accordance with the Collective Agreement.
Sincerely,
The Ministry first became concerned about the grievor’s activities outside of the workplace as a result of charges made to a Ministry credit card issued to the grievor. The Shared Services Bureau (hereafter SSB) sent a confidential memorandum to the grievor on January 30, 2001. It reads as follows:
Re: American Express Corporate Card Account
The AMEX monthly accounts reports dated Jan 10, 2001 indicate that your account is past due, exceeding 60 (sixty) days.
The outstanding balance for this period is categorized as follows:
Total New Charges Payments
Due 90 Days+ 60 Days 30 Days + Other Debits past 30 Days
$12,941.02 2, 107.58 5953.71 4879.73
Refer to Ministry Directive (Corporate Services Finance, B-10) dated 1995 04 21 which states your responsibilities as a corporate cardholder.
Please take appropriate action to settle the account. If there is a discrepancy with your last statement contact American Express at 1-800-568-2639.
Thank you for your help in this matter.
That memorandum was copied to Tim Ferguson. He was the Program Manager of Licensing Services for the Ministry. Upon receipt of his copy, he discussed the matter with the grievor’s immediate supervisor, Linda Bethune. They also discussed the grievor’s recent absenteeism and personal cell phone use while at work. Mr. Ferguson instructed Ms. Bethune to discuss the Amex charges with the grievor and cancel the card. He initiated a waiver of liability for the outstanding amount with SSB. He subsequently obtained a detailed list of the expenses charged to the card. When Mr. Ferguson reviewed the details of the credit card charges he contacted Alan Tait, the Manager of Internal Audit Services. The concerns raised with Mr. Tait were the use of her personal cell phone on Ministry time, the Amex charges, absenteeism and the general suspicion that the grievor was operating a business using Ministry time and resources. The evidence at the hearing clearly establishes that the grievor was operating a retail store in downtown Kingston throughout this period, and prior.
The grievor was off work for medical reasons from about February 21, 2001. Seemingly, she knew nothing of the Ministry’s nascent investigations at that time, but she was in receipt of the SSB memo of January 30, 2001 regarding the Amex arrears. Ms. Guelph confirmed in her evidence that she knew of the Ministry’s concerns. While off sick she attended at the Ministry offices to provide Ms. Bethune with a medical note and to fill out her time sheets. Ms. Bethune asked Ms. Guelph to turn in her Amex card. She replied that it had already been destroyed. Although Ms. Bethune did not explain why she wanted the card returned, Ms. Guelph testified that she knew that the Ministry was concerned since she had received a couple of letters asking her to pay the outstanding balance. She said in her evidence that the balance owing could have been in the thousands and consisted of a mixture of personal and business charges.
Ms. Guelph first learned formally of the Ministry’s concerns by letter dated April 30, 2001. She was put on notice of a “suspected conflict of interest” and instructed to attend a meeting with Ministry investigators on May 3, 2001. She was warned that she might be dismissed. She had not been suspended prior to April 30, 2001 because she had been off sick and had also asked for a leave of absence to commence May 1, 2001. Ms. Guelph testified that she attended a meeting on May 1, 2001 to discuss the requested leave of absence. At that meeting she learned that it would be approved on the condition that she remain available for the May 3 meeting and any other meetings or discussions required. She also testified that if she had to be available for such meetings she might just as well return to work and so advised Ms. Bethune and Mr. Ferguson. In the result, she was suspended with pay pending investigation effective May 2, 2001, that being her first scheduled workday following her sick leave.
Ms. Guelph did attend the May 3, 2001 investigation meeting with a Mr. David Dell, the investigator. Also in attendance were Bettina Toenig, auditor and Parveez Maqbool the Local Union President. Ms. Guelph testified that she felt quite comfortable at the meeting. She said it was, “very laid back”. She also testified that she was not able to fully express herself because she was not thinking straight having just come off of a stress leave. On May 14, 2001 she provided a lengthy written response to Mr. Dell’s allegations.
The investigator subsequently prepared a report which was presented to Mr. Ferguson on June 4, 2001. Mr. Ferguson discussed it with Jane Albright, the Employer Relations officer, Jane Gibson, the Human Resources Consultant, Linda Bethune, the Manager of Client Services and with Alan Tait and David Dell, the investigators. He recommended to Morah Phenning that Ms. Guelph be dismissed.
A further meeting with the grievor was held on June 11, 2001. The Notice of that meeting reads as follows:
This is to advise that a meeting has been scheduled for 11:00 a.m. on June 11, 2001 in Boardroom #4, located in the Conference Building at 355 Counter Street, Kingston, Ontario, K7L 5A3.
The purpose of this meeting is to discuss the facts and circumstances involving a potential conflict of interest with your duties as a public servant.
As discipline may result from this meeting, you may be accompanied by an OPSEU representative of your choosing. If you or an OPSEU representative do not attend, proceedings will take place and you will not be entitle to input at a future date.
That meeting was attended by Mr. Ferguson, Linda Bethune, Sharon Gibson, Paulette Guelph and Parveez Maqbool. Mr. Ferguson reviewed the Ministry’s concerns, which fell under the following headings:
working at her retail store while on paid, short-term sick benefits and knowingly violating conflict of interest guidelines;
misuse of the Ministry Amex card;
misuse of Ministry telephone;
misuse of Ministry computers
Ms. Guelph was given an opportunity to answer these allegations but made no response. As a result, the grievor’s employment was terminated as set out above.
The foregoing narrative broadly sketches out the uncontradicted facts. This was a lengthy hearing, taking eight days, stretching over nine months. The evidence includes viva voce testimony, dozens of documents and video tape surveillance evidence. I will refer to further and other evidence as required to illuminate my reasons for decision. However, I have carefully considered all of the evidence and the submissions of the parties regarding the evidence and the applicable jurisprudence and conclude that the discharge must be upheld.
First and foremost, the grievor used the Ministry’s Corporate Amex credit card to her retail business’s advantage. There is no dispute that during the period in question she had no cause to charge any expense to the Ministry. All of the charges were for her benefit either personally or in her capacity as the proprietor of her retail store known as “Trendsetters”. Much of the grievor’s justification for her actions is that she did not know she was doing anything wrong. She was seemingly of the view that any purchase on the Corporate Amex card was allowed, provided the bills were paid. The grievor failed even that standard. She did not pay the charges as they fell due, and it was her unpaid Amex bills that triggered the investigations that led to her dismissal. She testified that as of the date of giving her evidence, the Amex bill still remained unpaid. It must be appreciated that the charges at issue are not incidental. The outstanding balance that provoked Mr. Ferguson was close to $13,000.00, $8,000 of which was greater than thirty days overdue. The grievor admitted in her evidence that she used the Ministry Amex card to purchase inventory from “Yellow Rose”, “Fashion Wigs” and “J.B. Imports”. From December 2000 to February 2001, those purchases totaled some $3200.00. In her evidence the grievor quibbled about purchases from “Discount Beauty Supplies”. She admitted to buying some items for the store but said she also bought some items for her personal use. The total of purchases from Discount Beauty Supplies was $2140.45. There are many other purchases from many other suppliers that appear to be business purchases. In any event, Ms. Guelph admits to using the Ministry Amex card to finance her retail store’s inventory.
Next, the surveillance evidence establishes that Ms. Guelph worked at her store on March 19, 20 and 21, 2001, being days for which she received short-term sick benefits. Even accepting the submissions made on her behalf that such work was not inconsistent with a “stress” leave, one cannot but consider that the short-term sick leave plan was an advantageous contribution to her business undertaking derived from her employment and was used as such. The Union argued that the work undertaken at the store was consistent with her medical restrictions. However, there is no medical evidence as to the nature or extent of her illness such as would permit the drawing of such a conclusion. The physicians’ reports filed as exhibits are vague in that regard.
Next, her use of the Ministry’s telephone system is abuse on any scale. It was submitted on her behalf that any non-employment related telephone calls were only ever made on her lunch or relief breaks. Mr. David Dell, the Investigator, was cross-examined regarding the grievor’s non-Ministry telephone usage. By his estimate, the grievor made 75.5 hours of non-Ministry calls over a six-month period. Although some of that estimate may be questionable, even so, over that period the grievor seemingly took no lunch and virtually no relief breaks. At the same time, she complained of stress, fatigue and headaches from performing the duties of her position. It is appropriate here to explain her duties.
The grievor was a telephone hot-line operator for the Ministry. She took calls from the various licensing offices, province-wide. If an unusual situation presented itself in a licensing office, either vehicle license related, or driver license related, field staff would call the hot-line for assistance. There is often a queue of calls. Without doubt the grievor was paid to spend the majority of her time answering telephone enquiries. That is, receiving rather than placing calls. To have spent almost every break and lunch period on the telephone in aid of minding her retail store must have interfered with the performance of her regular duties. On her own account she deprived herself of any appreciable respite during the workday for months on end, which surely would have contributed to her professed need to take time off sick, due to stress. Further, a large proportion of the calls at issue were to the suppliers which show up on the Amex credit card statement. Those calls were predominantly long distance calls. Accordingly, the grievor clearly derived an advantage from her employment as a public servant to her business, in the form of significant and sustained telephone usage.
Finally, the investigation revealed non-Ministry use of computer resources. A number of documents on her computer appear to be business related. The grievor’s explanation was that the documents were assignments from various courses she had taken with Ministry approval. It may well be that some of those documents were for course assignments. However, it is clear that some of them were for her business. In some measure the number of documents and the apparent private business use of the computer is de minimis. However, the use of the computer cannot be seen in isolation from the other transgressions set out above. Taken as a whole, the grievor made significant and continued use of Ministry resources to operate her business undertaking.
A submission made on behalf of the grievor was that the letter of termination cited an inapplicable conflict of interest regulation. The then current regulation was Reg 435/97 amended by Reg 480/00. The letter of termination referred to R.R.O. 1990, Reg 977. The employer urged me to ignore this clerical error. The union said that the newer regulation is more onerous and that the earlier regulation would not catch the facts of this case. The relevant provisions are as follows:
Reg 435/97:
A public servant shall not become employed by or engage in a business or undertaking outside his or her employment in the service of the Crown in any of the following circumstances:
If the public servant’s private interests in connection with the employment or undertaking could conflict with his or her duties to the Crown
If the employment or undertaking would interfere with the public servant’s ability to perform his of her duties to the Crown.
If the employment is in a professional capacity and is likely to influence or detrimentally affect the public servant’s ability to perform his or her duties to the Crown.
If the employment would constitute full-time employment for another person. This paragraph does not apply with respect to a public servant who is employed part-time by the Crown or is on a leave of absence (as defined in subsection 70 (1) of Regulation 977 of the Revised Regulations of Ontario, 1990) or a secondment.
If in connection with the employment or undertaking, any person would derive an advantage from the public servant’s employment as a public servant.
If government premises, equipment or supplies are used in the employment or undertaking. O. Reg. 435/97, s. 9.
- – (1) A public servant shall not engage in any outside work or business undertaking.
(a) that interferes with the performance of his or her duties as a public servant;
(b) in which he or she had an advantage derived from his or her employment as a public servant;
(c) in which his or her work would otherwise constitute full-time employment for another person; or
(d) in a professional capacity that will, or is likely to, influence affect the carrying out of his or her duties as a public servant.
(2) A public servant who considers that he or she could be involved in a conflict of interest, in that he or she might derive personal benefit from a matter which in the course of his or her duties as a public servant he or she is in a position to influence, shall disclose the situation to his or her deputy minister, agency head or minister, as the case may be, and shall abide by the advice given.
(3) A public servant who considers that he or she could be in a position of conflict with the interests of the Crown arising from any of his or her outside activities shall disclose the situation to his or her deputy minister, agency head or minister, as the case may be, and shall abide by the advice given.
(4) Contravention of any of the provisions of subsection (1) or disregard of subsection (2) or (3) may be considered as cause for dismissal.
It is section 9 (6) of the new regulation that more firmly catches the grievor’s conduct. Undoubtedly, the grievor breached that subsection. In any event, a fair reading of O. Reg 977 also prohibits the conduct of the grievor. To the extent that the employer’s reasons for discharge are confined to the letter of discharge and its incorporation of Reg. 977 15 (1) (2) & (3), the grievor’s discharge is none the less a reasonable response to the facts at hand pursuant to s.15 (4).
On her own evidence, the grievor’s activities interfered with the performance of her duties. First, and as set out above, she said that she suffered debilitating stress from her job answering telephone calls. Her self-denial of breaks in order to engage in more telephone calls could only have exacerbated those complaints, contrary to s. 15 (1) (a). Second, there can be no doubt that the grievor engaged in her retail business on the basis of advantages derived from the Ministry, contrary to s.15 (1) (b). She financed inventory using the Ministry’s credit card. She used the Ministry’s telephone system and long-distance calling facilities to place calls to her suppliers. She was able to spend time at the store while drawing sick pay and made some small use of the Ministry’s computers for retail business purposes. Largely, the grievor’s explanation is that she did not know it was wrong to run her store on the Ministry’s back. I am not persuaded of this. These circumstances disclose such a blatant and continuing misuse of Ministry resources that the grievor knew or ought to have known that she was engaged in a business undertaking in which she had an advantage derived from her employment as a public servant.
Much was made in the evidence of the grievor’s obligation to obtain a conflict of interest ruling and of which regulation was applicable. There is also a conflict in the evidence regarding whether she was specifically told to obtain a ruling. Suffice it to say that the grievor was of the view that there was no need to obtain a ruling. She had done so in the past regarding a different business venture and concluded on her own, from that prior experience, that there was no conflict. The salient point to be derived from that evidence is that the grievor certainly knew, from first hand experience, what the earlier regulation forbade and that a ruling was required. Further, although the minding of a retail fashion store is not on its face in conflict with the Ministry’s telephone hot-line activities, I should think that a request for a ruling that included a proposal to use Ministry resources as they were used here would draw a predictably negative response. She knew that she should obtain a ruling and failed to do so, contrary to s. 15 (3). Applying either regulation to the grievor’s conduct leads to the same result. The union’s reliance on restricting the employer to the arguably more lenient, earlier regulation does not assist the grievor.
Finally, the grievor’s written response of May 14, 2001 offered to provide further information and documentation to support the grievor’s explanations for her conduct. The union argued that the employer did not take the grievor up on those offers. The opportunity to provide such explanations and supporting material also presented itself to the grievor at the hearing before this Board and was not discharged sufficiently to explain in a satisfactory way the grievor’s various behaviors. Notably, the letter is silent on the issue of the credit card charges. At the time of the hearing, the charges remained outstanding and no credible justification was or could be given for treating the Ministry’s credit card as a line of credit for the grievor’s retail store. Accordingly, there is no basis for interfering with the employer’s decision to discharge the grievor.
In all of the circumstances, the discharge is upheld.
DATED at Toronto this 29th day of January 2004.