GSB#2012-0822

UNION#2012-0310-0026

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Shackleton)

Union

• and -

The Crown in Right of Ontario (Ministry of Labour)

Employer

BEFORE

Barry B. Fisher

Vice-Chair

FOR THE UNION

Richard Blair Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Jennifer Richards Ministry of Government Services Legal Services Branch Counsel

HEARING

October 19, 2012, February 4 & 11, September 24, October 15 & 28, December 9, 2013, January 17 & 24, 2014

Decision

1This is a discharge case. The Grievor was an Inspector with the Ministry of Labour. He is accused of abusing his authority as an Inspector in an effort to gain access to a private residence, namely the home of a tenant in a house owned by his sister.

2There are a number of witnesses who I will have to refer to in this award but as they are not members of the Ontario Public Service, I will not use their names in this award, rather I will refer to them by their respective roles.

3There were a number of grounds for the termination relied upon by the Ministry, all of which occurred on the day in question, which was November 23, 2011.

4I will deal with the most serious ground first, namely the one related to the attempted entry to the tenants’ home.

5The Grievors’ sister (the Landlord) owns a home in Barrie. She lives on the upper floors and rented out the basement to tenants. The Tenant at the time was a single mother with two small children. At the time she was pregnant. The Tenant received social assistance.

6The relationship between the Tenant and the Landlord was horrible. Simply put, they despised each other. Each of them wrote numerous threatening letters to the other. Each tried to involve outside governmental agencies in their battle. For example the Landlord contacted the Social Assistance agency and reported to them that the Tenant had a “man in the house”. This was an attempt by the Landlord to have the Tenant’s social assistance stopped, which would have forced the Tenant out of the residence, as she would no longer have the funds to pay the rent.

7On many occasions, the Landlord had tried to gain entry to the Tenant’s premises, for the alleged reason of performing an inspection. The Tenant refused entry on all these occasions.

8On November 21^st the Landlord gave 24 hours written notice to the Tenant that she was seeking entry to the unit so that she could conduct an inspection.

9The Landlord wanted her father to accompany her in the inspection, as he was a skilled carpenter. The Father declined but suggested that she call her brother, the Grievor, who was also a skilled carpenter. She called her brother. He reluctantly agreed to help her and said that he would attend at her house the next day to assist in the inspection.

10On November 23, 2011 at around 3:30 p.m., he attended at his sister’s place. He was either still on working hours or was on his lunch. He was wearing a jacket with the words “Ministry of Labour" on the front.

11The entrance to the basement apartment is on the side of the house and down a few stairs. The Landlord went down first and knocked on the Tenants’ door. The Grievor was standing on the stairs to the left of his sister.

Here is a sketch of the unit:

12There are four different versions of what took place at this point.

a) The Video Version;

In anticipation of the Landlord’s planned entry, the Tenant had placed a computer with audio and video recording capacity at the end of the hallway facing the front door. The recording was made an exhibit. The sound quality was poor and at times the image of the front door was blocked because the Tenant’s mother stood in front of the camera and partially blocked the view. However the video clearly shows the following events.

The video confirms that there were two separate incidents.

First the door was opened and some conversation takes place between the Tenant and someone outside the door. This conversation lasted 36 seconds. The sound is very muffled but at some point someone says the words “24 hours”.

Then the Tenant closed the door.

After another 3 seconds, there are 3 loud knocks on the door. The Tenant called out twice “Who are you” in a loud voice.

She then opened the door for a second time. This occurred 71 seconds after she shut the door.

Again conversation takes place between the Tenant and someone on the other side of the door. In this time frame, one can clearly hear a male voice say the words “24 hours notice” and “warrant”. This second conversation lasted 17 seconds. The Tenant then closed the door for the second time.

b) Tenant’s Version:

At around 3:30 she heard a knock at the door. She opened the door, saw the Landlord and said “yes”. The Landlord was talking to a man beside her. The Landlord said that she was there to see the apartment. She said “No”.

The Landlord said “I gave you 24 hours notice so I am coming in”.

She said “no”.

At this point the Grievor said “we have every right to enter your apartment on 24 hours notice“. The Grievor was wearing a black jacket with the words “Ministry of Labour” on it. The Grievor also said “Hi, I am the Ministry of Labour, we are coming to see your place.”

She then shut the door. She then heard a loud knock on the door. The knock occurred two or three times.

With the door closed she asked who he was. He was holding something up to the frosted glass window of the door. It looked like a badge. He was now on the landing, not on the stairs as he was before.

He was yelling but she could not make out what he was saying.

She opened the door a bit (this was the second opening of the door). She said, “Who are you?” The Grievor then said “I am the Ministry of Labour, let me in your apartment right now. How dare you shut that door on me. I have a warrant. As of now you have 24-hours notice. I will be back tomorrow.” The Grievor shoved the badge in her face. She then shut the door on him.

She identified the badge and warrant. This is a picture of what she said she saw:

Note : The picture in this award has been altered to remove the face of the Grievor and the badge number. The actual exhibit shows his face.

She did not edit the video. She passed the video onto the Ministry investigator.

Immediately after the incident she called her father and told him the story.

She also prepared a statement of what took place that day as she anticipated that there would be a Landlord and Tenant proceeding. She also contacted the Ministry of Labour and reported the incident.

13The Tenant’s mother, who was in the apartment at the time, also testified. During the entire incident she was about 20 to 25 feet from the front door. She confirmed that there were two separate incidents, with the door being closed in between the two incidents. During the first incident, she confirmed that the Grievor came down the stairs and stood on the landing when he spoke to her daughter. She did not remember the Grievor saying where he was from but she did hear him say that he had a warrant and that they had the right to enter the apartment.

14After her daughter closed the door the first time, she said that the Grievor hit the window on the door with a badge shaped item and said, “I am from the Ministry of Labour. I have all the rights to come in. I have a warrant.”

15After her daughter opened the door the second time, she heard the Grievor say, “Consider this your 24 hours notice.” She seemed somewhat unsure as whether the Grievor was still showing the badge to her daughter. She also heard the Landlord say that she would be calling the police.

c) The Grievor’s Version:

After his sister knocked on the door of the Tenant’s apartment, the Tenant opened the door. At this point the Grievor was behind his sister, two steps up from the landing. He stayed in this position throughout the entire incident. His sister said that they were there to inspect the unit for damage and wanted to come in. The Tenant said “No”. The Tenant then looked at the Grievor and said “Who the fuck are you?”.

The Grievor told the Tenant that he was her brother. He also went to pull out his tri fold wallet and held it in front of him. It flopped open. He said that it had a fifty/fifty chance of opening up on the drivers license side (which would have shown his drivers license and a space for credit cards) or the Ministry side (which would have shown his badge and Ministry Warrant card). By the time he looked up the Tenant had closed the door. His wallet was open for maybe 1 to 3 seconds. At that point, his sister said that she was going to call the police and they left. He left his name and address for his sister to give to the police, which she did. He denied that he ever knocked on the door. He denied placing his badge against the window on the door. He denied ever identifying himself as being with the Ministry of Labour. He denied that said that a warrant could be obtained.

The only words that he spoke throughout the incident were “I am her brother.”

16In his written statement to the Ministry of April 17, 2012, he wrote:

“I was asked by the tenant to identify myself and I produced my Ontario Drivers License which is located in my tri-fold wallet”

This gives the impression that the Tenant asked him to produce his ID, when in fact all she did was ask who he was.

In his written statement to the Ministry he never once mentioned that he told the Tenant that he was the Landlord’s brother.

He said that he did not press his badge against the door window. He said that he did not use the word “warrant’.

According to him there was only one encounter at the door, not two as the video clearly shows.

d) The Landlord’s Version:

17Throughout the incident she stood on the landing and the Grievor stood on the stairs. She knocked on the door. The Tenant opened the door, looked at the Grievor and said “Who the fuck is that?” The Grievor took out his wallet and then the door slammed. She then said to the Grievor that she was going to call the police.

18She was adamant that the Grievor said nothing at all during the incident.

Analysis:

19In determining the veracity of these conflicting versions, I have taken into account the following factors:

1. The Video is the best evidence of what actually happened. There was no evidence that would allow me to find that it has been altered or edited in any way.

20The video is clear that there were two separate incidents at the door that day, with two separate door openings and two closings. However both the Grievor and his sister insist that there was only one encounter. This is clearly wrong and there can be no conclusion other than they were both lying. Remarkably, the Grievor stuck to this one incident story throughout the arbitration even though he had seen the video.

21According to the Grievor he said nothing other than “I am her brother“. In the video, although it is not entirely clear, there are two voices coming from the outside, one male and the other female. The male conversation lasts considerably longer than it would take to simply say, “I am her brother“.

22In fact, the total time that the Tenant was in conversation with the Grievor and his sister was, according to the video, a total of 53 seconds for the two incidents.

23Moreover, one can hear the words “24 hours notice” and “warrant” being said by the male voice on the outside of the door during the second incident.

2. The Grievors’ explanation of why he took out his tri fold wallet is simply not credible. According to the Grievor, in response to the Tenant saying, “Who the fuck are you?” He said, “I am her brother”. The Tenant denied hearing this statement. The Mother of the Tenant denied hearing that statement. Even the Grievor’s sister said that the Grievor said nothing at all during the entire incident. As mentioned above, the Grievor did not include this alleged statement in his letter to the Ministry of April 17, 2012.

24Moreover, it would be highly unusual for someone to show his or her drivers license because someone simply asks who you are. The usual response to this question is to simply give your name. Presentation of formal ID to answer a question like that is usually reserved to situations such as an authority figure asking you a question or in direct response to a request for ID. So when a policeman asks who you are, they may ask for ID. A clerk in a store who has to record formal information may ask for a drivers’ license.

25However I have never heard of anyone showing his or her driver’s license in response to the simple question “Who are you?”

26I should note in passing that the video clearly shows the Tenant screaming through the door between the first and second door opening “Who are you?” I did not hear her swear during that portion of the video.

27It seems obvious that the Grievor needed to contrive some explanation for how the Tenant would know that he had a badge. He thus presented this implausible story to his employer and repeated it at the hearing.

28I find it much more likely that in response to the Tenant’s aggressive statements that he pulled out his Ministry badge in an attempt to intimidate the Tenant into letting he and his sister into entering the apartment. As a Ministry Inspector he would undoubtedly quite often flash his badge at a worksite to establish his authority and credibility.

29I emphasize that I am deciding the issue of credibility not as a contest between the Grievor’s version and that of the Tenant and her mother. Rather I am comparing the testimony of all parties in relation to the video and to my understanding of normal human reactions. I say this because I understand the deep animosity between the Tenant and the Landlord, and that this animosity may well color the testimony of either witness. However since we do have a partial record of what actually happened, it is quite proper to use the video as a standard to test the different oral testimonies to determine which is most likely to be truthful.

30Applying these criteria, the testimony of the Tenant and her mother is far more credible that the testimony of the Grievor and his sister.

31I therefore find that the Grievor did abuse his authority as a Ministry employee by intentionally showing his Ministry badge and warrant card to the Tenant, by telling her that he was from the Ministry of Labour, and by wrongly telling her that he had authority flowing from his position to enter her premises.

32This is a serious abuse of the trust put in the Grievor by the Ministry. It alone amply justifies his dismissal with just cause.

33I therefore do not find it necessary to consider the other grounds of just cause, which I find were not nearly as serious as the one that I have discussed.

34The Union did not present any argument on mitigation of penalty.

35The grievance is therefore dismissed.