GSB# 2006-2548

UNION# 2006-0546-0057

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Mayers)

Union

• and -

The Crown in Right of Ontario (Ministry of Health and Long-Term Care)

Employer

BEFORE

Nimal Dissanayake

Vice-Chair

FOR THE UNION

Serge Linarello Grievance Officer Ontario Public Service Employees Union

FOR THE EMPLOYER

Kylie Humphries Employee Relations Consultant Ministry of Health and Long-Term Care

HEARING

September 13, 2007.

Decision

This decision concerns the discharge grievance filed by Mr. Granville Mayers (“grievor”). He had commenced employment with the employer on October 4, 1998. Effective March 12, 2007 he was dismissed from his position as Customer Service Representative at the Registration & Claims Branch of the Ministry of Health.

The grievance came before me for mediation/arbitration on September 13, 2007. This decision deals with a motion made by the employer counsel that the Board declare the grievance abandoned.

The matter was scheduled to commence at 10:00 a.m.. I first met with the employer group, and at approximately 10:20 a.m. proceeded to meet with the union. The union representative, Mr. Serge Linarello advised me that he was still waiting for the grievor, and that he was not in a position to start without the grievor. He also advised that he had called the grievor’s home telephone number and left a voice mail. I advised both parties that I would be recessing for one half hour.

When I reconvened at approximately 11:00 a.m., I was advised that there still was no contact from the grievor. At this point, Ms. Humphries for the employer moved that the grievance be declared abandoned. I was presented with the following facts.

The position the grievor held as Customer Service Representative involved serving members of the public who attend at the branch for issues relating to the Ontario Health Insurance Plan. On November 16, 2006 the Ontario Provincial Police arrested the grievor for allegedly issuing forged OHIP cards. He was charged with five counts of forgery. It was also alleged by the Police that the grievor was in possession of a controlled substance at the time. He was charged on that count also. The criminal trial was still pending at the time of the instant hearing.

On November 16, 2006 the employer suspended the grievor pending investigation, and launched its own investigation. The grievor was sent the following letter dated February 28, 2007:

This is a follow up to my letter to you of February 7, 2007.

On November 16, 2006, you were placed on a non-disciplinary suspension, pending the outcome of an investigation into recently revealed allegations of inappropriate actions performed by you in your role as an Ontario Public Servant with the Registration and Claims Branch (RCB), Central West Region.

Based on the results of this investigation, I have evidence of the following:

. Within a five month period from May 2006 until September 2006, you knowingly processed two registrations for two different individuals in which the same citizenship documents were utilized.

. On December 22, 2005 and on January 30, 2006, you accepted documents in order to process health cards which you ought to have known were not authentic or legitimate citizenship documents.

. On December 22, 2005 and on January 30, 2006, you accepted documents in order to process health cards which you ought to have known were not authentic or legitimate citizenship documents.

. In an eleven month period beginning December 2005, you knowingly processed documents which you ought to have known to be incorrect whereby you processed health cards for landed immigrants and then a number of months later changed the citizenship set out on these same health cards to Canadian, and entered an incorrect birth certificate number to support his change.

. On March 20, 2006 you processed a new registration in which two other registrations for the same basic information were found.

. On June 15, 2006 you processed a new registration in which you set out that the registrant was born in Canada but had a citizenship card. Clearly this registrant would have had a Canadian birth certificate and not a citizenship card.

. You issued 69 suspect health cards in which you recorded an applicant as a Landed Immigrant with a letter as supporting documents. In most cases, these letters were not serialized. Landed immigrant documents that were issued after 1972 are serialized. Many of the suspect names/cards had arrival dates in 2000s and the dates of birth were too young to have this type of document. We have been advised by the Ontario Provincial Police that immigration checks were also done and many of the people were either not found, or not landed.

. As a result of a search warrant issued upon your locker at the Mississauga RCB Office, the Ontario Provincial police have advised your Employer that they have found health coverage forms (applications, change of information) and a Social Insurance Number card that was not yours.

Your Employer is aware that you were charged criminally by the Ontario Provincial Police in relation to your activities in the RCB Office, and specifically an Information dated November 17, 2006 alleges your violation of ss. 368(1)(a), 367, 122 and ss. 4(1) of the Criminal Code of Canada. Your Employer understands that these charges continue to be outstanding.

At the time of these actions, you were aware that you were in violation of OPS and branch policies and procedures given the following:

. On October 7, 1998 and again on October 21, 1999 you signed the Oath of Office and Secrecy confirming that you would faithfully discharge your duties as a civil servant and would observe and comply with the laws of Canada and Ontario;

. On October 7, 1998 and again on October 21, 1999, you signed the Employee Attestation confirming that you read and understood the MOH Corporate Policy Statements, “Conflict of Interest” and “Staff Discipline”.

. On October 21, 1999 you signed the Oath of Allegiance setting out that you would be faithful and bear true allegiance to Her Majesty the Queen.

. On August 14, 2000, you signed a Request for RACF Access in which you confirmed that employee accountability is expected and that you accept full responsibility for any actions performed under the assigned User ID. You also confirmed in this document that you would ensure that you perform actions within the security/confidentiality responsibilities outlined in the Oath of Office and Secrecy and the Branch Security Policy Manual.

. On July 3, 2003, you signed a Commitment to Security of Information which confirms that you will use systems and computers for management approved purposes only, that you will accept responsibility for activities performed under your identification, and that you would report any instances or incidents to your supervisor where a security violation may have taken place.

. On August 8, 2003, you signed a Security Briefing Attestation in which you assumed responsibility to maintain security in the office and that you would report security violations, breaches or any suspicious incident.

. On April 28, 2004, you attended training on IT Usage and WDHP Prevention Training. At this training, it was clearly identified that all employees are personally accountable for their use of IT resources while at work. It was reviewed that misuse of IT resources can result in disciplinary action up to and including dismissal. Finally this training reviewed that employees cannot use IT resources to operate a business or do non-OPS work and that employees must not use IT resources to engage in any conflict of interest.

. On December 15, 2005, you attended training regarding Code of Conduct and Conflict of Interest. At this training, prohibited conduct was discussed including the use of your employment directly or indirectly for personal benefit and the consequence of engaging in prohibited conduct.

. On March 9, 2006, you sent an email to your manager indicating that you had completed the review of the “I and IT” Security Orientation for OPS Employees.

. On November 3, 2006, a Business Communication Number 6.5-060003 was read at a staff meeting which you attended. This document sets out that the misuse of the RACF User ID and password will lead to disciplinary action up to and including dismissal.

Your actions constitute fraud upon your Employer, a conflict of interest, a breach of security protocols, a breach of authority, a significant breach of duty and a serious breach of trust.

In the opinion of your Employer, your actions warrant an appropriate disciplinary penalty up to and including dismissal

However, prior to meting out an appropriate penalty, your Employer is providing you with an opportunity to meet and/or provide written submissions regarding any mitigating factors or explanation that you may have for the actions noted above. You may have union representation attend with you.

You must contact the undersigned by no later than 5:00 p.m. (EST) on Thursday March 8, 2007 if you wish to meet (along with your union representative) in order to provide either verbal and/or written submissions regarding the above noted allegations. If you do not contact your employer by the time noted above, the Director of the Registration and Claims Branch will arrive at an appropriate disciplinary penalty in the absence of either your verbal and/or written submissions. You will then be notified of the Director’s written decision.

Please do not hesitate to contact the undersigned if you should have any question regarding the foregoing and/or to arrange to meet and/or provide written submissions. My telephone number is 613-548-6333.

Subsequently the grievor was dismissed effective March 12, 2007, and that discharge was grieved. Counsel for the employer advised the Board that the grievor had failed to show up at his stage 2 grievance meeting as well. She submitted that the grievor’s conduct was wasteful, and an abuse of process. She moved that I declare the grievance abandoned.

Mr. Linarello did not challenge any of the facts asserted by the employer. However, he took the position that it was inappropriate to declare the grievance abandoned, because the grievor may have a very legitimate excuse for not attending the hearing. He advised that he had spoken to the grievor the day before, and that the grievor had given every indication that he would be attending. I reserved my ruling on the motion.

It is of great concern to the Board when a party that has received proper notice advises at the hearing that it is not prepared to proceed. This is particularly so when there is not even a courtesy telephone call on the day of the hearing. Unless there is a very good explanation for such conduct, it is disrespectful of a process agreed to by the parties and mandated by legislation. It is a waste of time and resources of the employer, the union, and the Board. In the absence of extenuating circumstances, such conduct should not be tolerated and must be deterred. On the other hand, the grievance relates to a very serious matter, i.e. the deprivation of the grievor’s job. Therefore, the grievor ought not be denied access to the grievance procedure lightly. In balancing the various interests at play in these circumstances, I order as follows:

(1) If the union is satisfied that it has evidence that the grievor’s absence on September 13th, 2007 was for reasons beyond the grievor’s control, the union should so inform the Board in writing no later than Monday 24th of September, 2007. In the event the union so informs, the Board shall reconvene on October 31, 2007, to continue with the med-arb process.

(2) If no notification is received by the end of the business day on 24th of September 2007 as contemplated in paragraph 1 above, the instant grievance shall be deemed abandoned.

I remain seized in the event there is any dispute between the parties as to whether any reasons offered by the grievor for his absence were for reasons beyond his control.

Dated this 18th day of September 2007 at Toronto, Ontario.