GSB#2009-2959

UNION#2010-0154-0001

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Pearson)

Union

• and -

The Crown in Right of Ontario (Ontario Clean Water Agency)

Employer

BEFORE

Barry B. Fisher

Vice-Chair

FOR THE UNION

Christopher Bryden Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Lisa Compagnone Ministry of Government Services Labour Practice Group Counsel

HEARING

March 10, 2011.

Decision

1In this motion OPSEU is requesting that the evidence relating to the reasons for the discharge of the Grievor be limited to seven weeks from the date that the Grievor was provided with the full reasons for his termination of employment.

2The Grievor was a Senior Operator at one of the water treatment plants run by OWCA. He was suspended from employment on November 6, 2009 as a result of concerns that he had falsified the plant log for October 31 and November 1, 2009. OCWA immediately conducted an investigation into these and other time records of the Grievor. In the course of this investigation they went back to January 1, 2008. They found approximately 56 occasions where there was more than a 15 minute discrepancy between the time the Grievor recorded in the plant log that he started or ended his shift and the time recorded on the security system when he entered or left the plant.

3The full investigation report was given to the Grievor and OPSEU on December 16, 2009. At that time he was given an opportunity to respond to the report. In response to his comments, OWCA did further investigations, however they took the position that he was still responsible for multiple instances of falsifying the plant log. The Grievor was terminated from his employment on January 18, 2010.

4There is no dispute that once OCWA was actually aware of the discrepancy between the log and the security system (just before November 6, 2009) they moved promptly to conduct and conclude their investigation.

5OPSEU says that OCWA should be limited in how far back they can go in presenting evidence of alleged misconduct for two reasons.

1. OPSEU says that OCWA had in his possession at all material times both the plant log and the security system report and therefore had constructive knowledge of any alleged discrepancies. It is therefore unfair for them to go back almost two years when they could have discovered these discrepancies if they had conducted a more routine review of this material.

The evidence discloses that although this information was available to the Grievors’ manager on a regular basis, the nature and accessibility of this data is important to understand. The plant log where the Grievor manually reported the start and end times of his shift was located and remained in the water treatment plant. The Grievors’ supervisor was responsible for a number of plants and did not have his permanent office at the plant where the Grievor worked. The main purpose of this plant log was to record events of significance in the plant. It was not the document used for payroll purposes.

The security system recorded the times when a security card was swiped entering or leaving the plant but also recorded many other items involving the operation of the plant. A regular report was issued and delivered to the manager, however his prime reason for reviewing this security system information would be to determine how the plant was operating.

or the manager to uncover the alleged discrepancies on a regular basis would have required him to visit each plant on a regular basis and compare the plant log to the security system and presumably also the time records submitted to payroll. He would then have had to prepare a detailed analysis of these records.

It would not be reasonable to require an employer such as OCWA to routinely conduct such an exhaustive review. Moreover an Employer is entitled to rely on the honesty and professionalism of its employees and to assume, absent reasonable evidence to the contrary, that what is being recorded is accurate and truthful. It would be next to impossible for every employer to operate its business on the premise that its employees were probably lying and therefore be required to set up extensive systems to routinely review anything that might involve dishonesty.

OPSEU is relying on a long line of arbitral cases that restrict employers from relying on incidents of misconduct where they delayed the discipline after they had actual knowledge of the misconduct. This is simply not one of those cases because OCWA responded amazingly promptly once they had actual knowledge of the problem.

I therefore do not find that this ground succeeds.

2. OPSEU claims that it is inherently unfair for the Grievor to be expected to recall and explain why, on a specific occasion as much as 23 months before the interview, there was a 16 minute discrepancy between what time the computer said he entered the plant and what time he recorded in the plant log. I agree.

However, that is not what is being asked of the Grievor in this case. The Employer recognizes that it is not realistic or fair to expect the Grievor to remember specific reasons on specific dates, however the Grievor should be able to list the types of reasons that would explain these discrepancies. In fact, the Grievor has indicated already to OWCA some of these reasons: for instance, he was inspecting the exterior of the plant before he entered or he was in town purchasing supplies for the plant before he arrived at the plant.

The Employer accepts that it has the burden of disproving these reasons for each of the incidents that it is relying on. For instance, if the Grievor says that one of the reasons that there might be a discrepancy was because he was shoveling snow off the walk outside the plant, OCWA would have to show that this could not be a valid reason as the weather records show no snowfall in the 24 hours before the day in question.

Under this protocol, the Grievors ‘ inability to recall specific incidents will on no way prejudice his ability to launch a defense. Furthermore, I will be able to determine on an incident-by-incident basis whether or not the Grievor is prejudiced by the age of the incident and if he is so prejudiced, than I will exclude that incident from my consideration.

OCWA knows that for them to prove just cause for dismissal they have to show more than just an occasional lapse in the Grievors’ record keeping ability. Rather, they would have to show a pattern of misconduct that would justify no discipline other than summary dismissal. The best way to determine whether a pattern exists to look as long a time period as is practicable. In this sense, looking at a longer period of time is fairer to both parties because it will show whether a true pattern exists. For instance, if one chose a short period of time, say three months, and the rate of discrepancies was very high, it may be that the rate would drop over a longer period of time. In other words, the longer the period reviewed, the more validity there is to any patterns that are determined to exist.

6For the reasons above, I am dismissing the Unions’ motion to limit the evidence. The Employer may lead evidence going back to incidents starting in January 1, 2008.