FPSLREB Decisions
Decision Information
Termination (disciplinary) - Negligence -the grievor, an employee in charge of a meal program at a penal institution, was terminated for having failed to properly monitor, control, record, and report storeroom inventories of a kitchen, as well as falsifying reports to conceal inventory loss - the grievor's contention was that he was not properly trained to perform his duties, that his actions were consistent with the prevailing practice, and that he had kept his superiors informed of the state of affairs - the employer disputed these contentions - the adjudicator preferred the employer's version of events and found that the grievor's actions violated the trust between him and the employer - the adjudicator found no mitigating circumstance or remorse on the part of the grievor. Grievance denied.
Decision Content
File: 166-2-26517 Public Service Staff Before the Public Service Relations Act Staff Relations Board BETWEEN JOHN CUDMORE Grievor and TREASURY BOARD (Solicitor General Canada - Correctional Service)
Employer
Before: Yvon Tarte, Vice-Chairperson For the Grievor: Jacques Dupont, Public Service Alliance of Canada For the Employer: Roger Lafrenière, Counsel
Heard at Moncton, New Brunswick, September 28 and 29, 1995, and April 25 and 26, 1996.
Decision Page 1 DECISION Mr. Cudmore has grieved his discharge from employment as a GS-FOS-6 in food services at the Westmorland Institution. At the time of his discharge in January 1995, the grievor had been in charge of the Small Group Feeding Program at the penal institution since its inception in August 1993.
In October 1994, the employer received an anonymous letter which raised concerns about Mr. Cudmore's integrity and ability to perform the duties of his position.
Prompted by the allegations contained in the October 1994 letter, the employer decided to conduct a detailed examination of the grievor's activities in the operation of the Small Group Feeding Program. Certain discrepancies were uncovered and Mr. Cudmore was discharged.
The allegations of theft and abuse of position contained in the anonymous letter were not included in the employer's reasons for dismissal and were therefore not considered by me in reaching my decision in this case. Rather the termination was motivated by the grievor's failure to keep proper records as well as his falsification of certain inventory documents.
At the outset of the hearing in this matter and at the request of the parties, I made an order excluding witnesses. At the beginning of the session on April 26, 1996 Mr. Lafrenière informed me that a union official who was not a witness in the proceedings but who had been present throughout the testimony of various witnesses had discussed some of that testimony with staff at Westmorland Institution.
The union official concerned admitted the breach of the exclusion order and apologized. I accepted the apology while stressing the need to take such orders seriously. I indicated that breaches of such orders could affect my view on the credibility of certain witness and could even lead to contempt charges.
Because of the nature of the case and the time span over which it was heard, the parties were asked to file written arguments. The full text of these arguments follows. To a great extent the factual underpinnings of the case as set out by the parties are not contested.
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Decision Page 2 Argument for the Employer PART I - GRIEVANCE AGAINST DISCHARGE A - Letter of termination of January 9, 1995 On January 9, 1995, the employment of John CUDMORE as a Food Services Officer (GS-FOS-06) with the Correctional Service of Canada (CSC) was terminated for disciplinary reasons. The letter of termination dated January 9, 1995 was signed by John GILLIS, Warden of the Westmorland Institution (Exhibit G-1). It reads as follows:
I have now completed a full review of the evidence pertaining to the operation of the Small Group Feeding Program at Westmorland Institution and have taken into account the comments you and your representatives made at the December 23, 1994, and January 9, 1995, meetings, at which time I reviewed details of your misconduct.
Based on the evidence gathered and from your own admission, you failed to properly monitor, control, record and report storeroom inventories; properly price inventory items consistent with price indexes, properly monitor and control foodstuff disbursements to the living units; retain supporting financial documentation for the prescribed retention period, and ensure living unit inmates received goods to the values and quantities they were budgeted and entitled to.
As well, you did intentionally and willfully falsify the October 1994 Food Services Monthly Return (Living Units) - CSC Form 157, to conceal inventory losses.
I have carefully reviewed your misconduct and mismanagement practices. Your lack of professional conduct and unethical behavior has damaged management's confidence irreparably.
Therefore, by virtue of the authority delegated to me pursuant to Article 11(2) of the Financial Administration Act, I must inform you that I hereby terminate your employment with the Correctional Service of Canada, effective 1500 hours, Friday, November 18, 1994.
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Decision Page 3 You have the right, in accordance with your collective agreement, to present a grievance relating to this action directly to the final level of the procedure.
B - Grievance and Final Level Response On the same day Mr. CUDMORE received his letter of termination, he presented a grievance contesting the discipline imposed. In his grievance, Mr. CUDMORE seeks as corrective action reinstatement to his position and reimbursement of all loss of salary and benefits. On May 4, 1995, the grievance was denied at the final level of the grievance procedure by D.M. DUFRESNE, Corporate Advisor, Human Resources. She wrote:
The circumstances of your grievance have been discussed with your Union representative at the National Office of USGE.
After a thorough investigation surrounding the facts of your grievance, it was determined that you have committed a grave offence and that your behaviour has resulted in a situation in which your other managers no longer have the confidence in your ability to perform the functions of your position.
In view of the circumstances surrounding your discharge from the Correctional Service of Canada, your grievance is denied.
C - Reference to adjudication and adjudication hearing This matter was referred to adjudication on May 9, 1995. The hearing proceeded before Deputy Chairperson Yvon TARTE in Riverview (Moncton), New Brunswick on September 28 and 29, 1995. It was adjourned over to April 25 and 26, 1996 for completion of the evidence. The parties agreed to submit arguments in writing.
At the commencement of the hearing, an order excluding witnesses was granted by Mr. TARTE at the request of the employer. This order was to be in effect for the complete duration of the hearing. Mr. TARTE stressed the importance of such an order in cases such as this one where credibility was at issue. A warning was issued to witnesses present that they were not to discuss their testimony. A specific caution was also given to all in attendance that the order applied to them equally.
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Decision Page 4 The employer called five witnesses in its main case: (1) Maurice LEBLANC, Assistant Warden of Management Services, (2) Sharon WARD, Chief of Finance and Administration, (3) Giles ALLAN, Unit Manager at Atlantic Institution, (4) Guy POIRIER, Regional Chief of Budgets and (5) John GILLIS, Warden of Westmorland Institution.
The bargaining agent called four witnesses on behalf of the grievor: (1) John CUDMORE, (2) Elroy FLETCHER, Food Services Supervisor at Dorchester Penitentiary, (3) Scott TURRIF, Food Services Officer at Dorchester Penitentiary and (4) Paul DEVARENNES, Senior Fieldsman at Westmorland Institution.
The employer subsequently called three witnesses in rebuttal: Wayne McCLUSKEY, Food Services Supervisor at Westmorland Institution, Sharon WARD and Maurice LEBLANC.
On Friday morning, April 26, 1996, it came to the employer’s attention that a representative of the local bargaining agent had breached the exclusion order. This individual had discussed in great detail the testimony of the employer’s witnesses with other staff at Westmorland Institution immediately after they had testified in September 1995. The fact the breach occurred was not disputed before the Deputy Chairperson. Considering the apology tendered at the hearing, the employer sees no need to have the representative’s identity disclosed. However, it was submitted by the employer’s counsel that the Deputy Chairperson should take into account this breach in his decision. He agreed to do so.
It should be noted that two witnesses, Elroy FLETCHER and Scott TURRIF, were called as witnesses following the breach of the order. Their evidence is plainly suspect in that both denied knowledge of the grounds for discharge of the grievor and further made no enquiries about this prior to testifying. Yet both of these witnesses were willing to admit under oath that they had falsified documents as Food Services Officers, misconduct identical to one of the grounds for discharge of the grievor. The employer requests that their evidence be disregarded in its entirety as both unreliable and contrived. In any event, their evidence is irrelevant in these proceedings as it cannot serve to explain or excuse the grievor’s misconduct.
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Decision Page 5 PART II - THE FACTS Introduction The great majority of the facts in this case are uncontested. The employer tendered as an exhibit in these proceedings an internal investigation report dated December 20, 1994 (Exhibit E-7). This document sets out in detail the facts and findings which served as the basis for the discharge of Mr. CUDMORE. The investigators had interviewed Mr. CUDMORE on November 24, 1994 and the grievor’s responses were incorporated in the report. Those notes of the November 24 meeting (Exhibit E-9) were recognized by the grievor to be a fair reflection of his statements to the investigators. Both the grievor and his bargaining agent representative were given a copy of the investigation report at the commencement of the disciplinary meeting with the Warden on December 23, 1994. This meeting was taped and a transcript of the proceedings (Exhibit E-6) was also acknowledged by the grievor to be accurate. Mr. CUDMORE was then afforded until January 9, 1995 to provide more information. No further information was provided.
The few disputed facts will be discussed below. It is important to emphasize at this point however that where an issue of credibility arose, it invariably arose as between Mr. CUDMORE and another witness. It should also be noted that the grievor’s account and explanations changed often from the time he was initially confronted by Mr. LEBLANC on November 15, 1994 and the time he testified before the Deputy Chairperson. The following is a narrative of evidence, extracted from the testimony and exhibits.
Around August 1993, a Small Group Feeding Program (SGFP) was implemented at the Westmorland Institution (the institution), a minimum security institution located near Westmorland, New Brunswick. The SGFP was a "pilot" activity designed to assist inmates to provide for themselves by ordering their own food, budgeting and preparing meals. Prior to the implementation of the SGFP, the institution fed approximately two hundred and thirty (230) inmates and eighty (80) to one hundred (100) staff at it (sic) main kitchen. In the fall of 1992, construction of eighteen (18) residential row houses for inmates started. The units (or condos) were designed to house six (6) inmates each and included a living room and kitchen facilities.
John CUDMORE, as a Food Service officer, was selected to supervise the SGFP activity. At the time of its implementation, expectations, duties and responsibilities were discussed with Mr. CUDMORE by Maurice LEBLANC, Acting
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Decision Page 6 Warden, Management Services (AWMS), and Sharon WARD, Chief of Finance. He was to report to Wayne McCLUSKEY, the Acting Chief of Food Services. His duties at that time were to help him in ordering small wares for the units, set up the training kitchen, as well as look at menus and start ordering food to start feeding inmates in the units by mid-October (breakfast only), and all three meals by December 1, 1994.
The SGFP operation was located in the basement of the "B" Unit Administration building, just north of the main Westmorland Institution office complex. It was determined that each unit would be allotted $215.00 per week for food. Orders were distributed the Tuesday and Friday of each week. The food orders were recorded by the inmates on a form entitled "Bi-Weekly Grocery Orders".
Mr. LEBLANC initially approved all of the purchases for the SGFP and was involved in discussions with Mr. CUDMORE pertaining to its operation. He also met with Mr. CUDMORE, Mr. McCLUSKEY, and Ms. WARD on numerous occasions to discuss the budgetary side of the food operation.
Initially, the budget for the SGFP was integrated with that of the larger institutional kitchen (main kitchen). A decision was made at the end of November 1994 to separate the two budgets. Effective April 1, 1994, the SGFP budget of $175,000.00 was separated from the main kitchen budget and Mr. CUDMORE was given signing authority and became responsible for the control of the budget and related expenditures.
Mr. CUDMORE was told that he was being given a budget for his operation. He was also told that he was responsible for the entire operation. His duties included ordering food for the units, keeping proper inventories, paying invoices and hiring inmates. He was also required to prepare monthly reports, per diem reports, and cash forecasts as required by the Finance section. He was advised that if he had any problems, he could see either Mr. McCLUSKEY, Ms. WARD or Mr. LEBLANC.
From August 1993 to October 1994, the per diem meal rates for the SGFP, as reflected on the Food Services Monthly Returns, were consistently within an acceptable range. No discrepancies or problems with the operation were suspected until an anonymous note was received on or about October 11, 1994 (Exhibit E-7, Annex D). It reads as follows:
I am writing this letter because I am concerned that one of your employee (sic) (Mr. John Cudmore) seems
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Decision Page 7 to be abusing his privileges and I would like to bring this to your attention.
I have been made aware of certain irregularities by being in contact with individuals who know Mr. Cudmore. I would like to point out a few of these incidents.
For instance he uses the government vehicle to purchase food and is keeping some for his personal use. In some cases he has even offered some for sale. Xmas of 93 he had a trunk full of turkeys for sale. I understand he own (sic) a take out in Shediac and has a catering business and has used food and utensils from the prison and on occasion even used equipment at the prison to prepare food for his own personal business. Even prison uniforms were seen being worn outside at other business. His son was seen on several occasions with these uniforms at Hotel Shediac.
I am bringing this to your attention as I feel this is very unfair that an employee who works for the correctional service is this dishonest and is given so much freedom without supervision. Someone is not doing a thorough job if this guy gets away day after day.
A very concerned citizen. This letter set in motion a closer examination of the SGFP monthly reports by Mr. LEBLANC and Ms. WARD. Mr. LEBLANC ordered that inventories be checked for the end of October in both Mr. CUDMORE’s operation as well as the main kitchen in order to avoid any suspicion on the part of Mr. CUDMORE. The SGFP inventory was completed on October 31, 1994 by Sharon Ward and Brenda Silliker.
Following the inventory check, it was determined that Mr. CUDMORE had inflated the prices for certain items being distributed to inmates. On November 15, 1994, Mr. LEBLANC and Ms. WARD decided to confront Mr. CUDMORE with their preliminary findings. Mr. Cudmore appeared very nervous and could not provide them with an explanation as to how he arrived at those prices. He was asked to reflect on this and return with an explanation. In a follow-up meeting on November 17, Mr. CUDMORE stated that he did not know how he arrived at those prices. He claimed he “did not stay on top of things and that was it”.
Mr. LEBLANC consulted with Commissioner, Mr. Jim Davidson, and asked him to convene
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Decision Page 8 an inquiry on the whole matter. On Friday, November 18th, Mr. Giles Allan and Mr. Guy Poirier started an investigation. To protect the evidence and to avoid any tampering, Mr. LEBLANC also decided to suspend Mr. CUDMORE without pay pending the outcome of an investigation.
Investigation On November 18, 1994, Mr. Giles Allan, a Unit Manager at Atlantic Institution, and Mr. Guy Poirier, Chief, Budget Analysis, Atlantic RHQ, started an internal investigation into the operation of the Small Group Feeding Program at the Westmorland Institution.
Their investigation disclosed serious deficiencies in the operation of the SGFP by Mr. CUDMORE. Set out below is a summary of their findings as they relate to the grounds for discharge. Wherever the facts are disputed by Mr. CUDMORE, a analysis of the testimony at adjudication is provided.
I - INVENTORY CONTROL Accessibility Little or no control over inventory was exerted by the grievor CUDMORE. He allowed unrestricted accessibility by many staff to this area. The storeroom door was routinely left open after business hours, allowing anyone who had a key to the "outside" basement doors access. This allegation was not disputed by Mr. CUDMORE.
Month-End Inventory Calculations There was a lack of effective controls in the taking of month- end stock. The two inmates who worked in the storeroom conducted and reported month-end inventories. Mr. CUDMORE did not take an active part in this activity, was not present when the stock taking occurred, and relied largely on the inmate reported inventory levels being accurate.
In an interview with Mr. CUDMORE on November 24, 1994, he stated that inventory control was not part of his job description as a GS-FOS-06. Mr. CUDMORE did claim, however, that if he noted an obvious discrepancy in inventory levels, he would investigate further but that such follow-up was infrequent.
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Decision Page 9 Disbursements from inventory Disbursements of food to the living units on Tuesdays and Fridays of each week were not supervised by Mr. CUDMORE. The storeroom inmates completed food orders by recording quantities issued and distributed the goods. The process did not allow for inmates picking up orders to review the grocery order list to confirm goods ordered were actually received. There was also no mechanism in place for inmates to sign for goods received.
Inventory adjustments Mr. CUDMORE would regularly enter the living units and remove foodstuffs from the kitchens, claiming the inmate supplies was (sic) excessive. Mr. CUDMORE had previously been counselled to cease this practice. These food items, once confiscated, were returned to the ' B' Unit storeroom to be re- issued at a later date. Inventory levels were not adjusted accordingly.
Use of Training Kitchen When the SGFP was established, its primary purpose was to train one inmate from each of the eighteen (18) living units in meal preparation. A fully equipped kitchen was set aside for this purpose. The training of inmates, using supplies from the storeroom, was carried out by Mr. CUDMORE and an inmate cook until approximately June or July 1994. From that point onward, however, there was a decreasing level of inmate interest in this activity and the "training" program essentially ceased.
When interviewed on November 24, 1994, CUDMORE stated that between 12 to 16 staff members were fed daily in the training kitchen using foodstuffs from the Small Group Feeding storeroom. No record of inventory used was kept and, accordingly, inventory levels were not adjusted to reflect such alleged usage.
At adjudication, Mr. CUDMORE testified that he had attempted on many occasions to prevent staff from eating in the training kitchen. He further claimed that he had approached Mr. LEBLANC and Ms. WARD for assistance, but was rebuffed. His testimony is at odds with that of Mr. LEBLANC and Ms. WARD. Moreover, his version changed with the investigators and then with the Warden.
Mr. LEBLANC testified that he was the one who initially asked Mr. CUDMORE to put a stop to feeding staff when he first learned found out that some staff were obtaining “sweets” in
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Decision Page 10 November or December 1993. Mr. LEBLANC stated that Mr. Cudmore’s response was: “No problem”. Mr. LEBLANC also testified that he was unaware the practice was continuing until he heard rumours in spring or early summer 1994. He once again asked Mr. CUDMORE to discontinue the practice. Mr. CUDMORE’s response, according to Mr. LEBLANC, was: “Well, they keep coming down. Whether they eat in the main kitchen or downstairs, there’s no difference.” He agreed however to discontinue the practice. Mr. LEBLANC was unaware the (sic) Mr. CUDMORE continued to feed staff until the day he and Ms. WARD confronted the grievor about the inflated prices (on November 15, 1994). Mr. CUDMORE claimed that the prices had been inflated to cover off cost of food to feed staff.
Ms. WARD testified she was unaware that Mr. CUDMORE was feeding staff. Moreover, she denied in rebuttal having been approached by him to seek assistance in stopping staff from coming to the training kitchen to be fed.
During the interview with investigators, Mr. CUDMORE was asked about the inflation of unit prices (Exhibit E-9, pp. 5-6):
Q.. Did someone advise you to do this? A. No one directed me to do anything. No one would tell me not to do it (feed staff).
Mr. CUDMORE contradicts himself during the disciplinary hearing of December 24, 1994 (Exhibit E-6, pp. 5-6):
John Gillis: OK, the training kitchen, you used to feed staff and when did you officially stop feeding staff?
John Cudmore: November the first but then a couple kept coming down. A couple kept coming down just to see if they could still get something or.
John Gillis: Were you told to stop that process? John Cudmore: Was I told? John Gillis: Um, Um. John Cudmore: Officially, in writing, no. John Gillis: Verbally? John Cudmore: Verbally - yes, but even when I wasn't here, which ah Wayne would even go down and they'd still be feeding the fellows down there and.
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Decision Page 11 John Cudmore: It was said that we shouldn't be feeding ... shouldn't be.
Reported Inventory Levels Fifty-six (56) tins of crab meat were found in Mr. CUDMORE's office which had not been recorded on his original October month-end inventory record. Seventy-two tins were purchased but only 56 were located. There was no grocery order disbursement of crab meat to the living units in October. Nor did the grocery order lists reflect an item called crab meat.
II - INVENTORY PRICING PRACTICES Prices reflected in the month-end inventory reports were substantially higher than the purchase price for certain items. An example which initially raised suspicion was the price of flaked tuna reflected on the October month-end inventory record as $2.05 per tin. The purchase records indicated a purchase price of $0.90 per tin. The price had therefore been inflated by $1.15 per tin.
During an interview on 94-11-24, Mr. CUDMORE was asked to justify his prices that were quoted on the October month- end inventory report. He initially attempted to calculate the figures but, having no success, claimed his figures were the prices he'd used when he first began his operation and he hadn't changed them since that time. When questioned further, as inventory records on hand showed price differences from the present, Mr. CUDMORE stated: "I can't justify the prices."
Mr. CUDMORE went on to say that he consciously inflated or adjusted the inventory prices to mask the consumption of foodstuffs at the training kitchen. Mr. CUDMORE stated that each day, 12 to 16 staff members were fed, in addition to 6 inmates and himself. His inventory prices therefore were adjusted to reflect the cost of operating this kitchen. Mr. CUDMORE stated: "There was no credit allowed to cover it ... there was no other way to hide it (cost)."
At adjudication, Mr. CUDMORE reiterated that “his figures were the prices he'd used when he first began his operation and he hadn't changed them since that time”. Two exhibits filed by consent squarely contradict this statement. A comparison of unit prices in the month end stock lists for the months of May, June, July, September and October 1994 (Exhibits E-11 and E-12) indicates a number of changes to the unit prices over that period.
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Decision Page 12 As a result of this practice of inflating prices, the living unit inmates received smaller quantities of food each week than the allotted $215.00 amount weekly. The end result was a shortage of $4,127.04 for the 18 living units for the month of October 1994. In terms of dollar value, each living unit received $63.05 less in food due to overpricing alone. Moreover, the inflation of prices by Mr. CUDMORE overvalued the October month-end inventory by $ 4,634.62.
III - FINANCIAL REPORTING The Food Services Monthly Return recorded: (1) Inmate Meal Days, (2) Total Purchases and (3) Cost of Food Consumed. This information would enable Mr. CUDMORE to calculate the "actual" food cost per day to feed the inmates, also known as the "per diem".
During the summer of 1994, Mr. CUDMORE acted as Assistant Food Services Supervisor, replacing Mr. McCLUSKEY during his absence. During this period, Mr. CUDMORE completed all monthly forms himself for both work areas. Subsequently, Mr. CUDMORE continued to complete both the "Main Kitchen" and "Living Unit" monthly returns for McCLUSKEY's signature.
Mr. CUDMORE admitted to purposely "inflating" his inmate prices which would affect the valuation of inventories taken at month-end. According to Mr. CUDMORE, this was done to conceal the cost of goods consumed in the training kitchen. Once again, according to Mr. CUDMORE, the shortage could not be accounted for, other than by manipulating the month- end figures so as to arrive at an acceptable "per diem". This manipulation would not raise suspicions or be questioned.
For the month of October 1994, Mr. CUDMORE reported an opening inventory of $19,404.00 (Exhibit E-7, Annex E). This opening inventory is inaccurate. Several items totalling $2,771.84 are not accounted for in the September month-end inventory. Also not factored into the September month-end total was $1,744.09 in food for October issued prior to the inventory being taken.
The Agribusiness purchases for the SGFP for October were $5,498.00. However, the Food Services Monthly Return for October reflects an amount of $10,178.00. This amount was, in fact, the Agribusiness purchase figure for the main kitchen. As well, the purchase total did not include an outstanding invoice unpaid in the amount of $1,264.80. The actual October purchases for CUDMORE's area totalled
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Decision Page 13 $18,309. This resulted in purchases being overstated by CUDMORE in the amount of $3,415.00.
At adjudication, Mr. CUDMORE testified that the “switch” of Agribusiness figures was performed in order to resolve a deficiency he had noted in the main kitchen inventory. He stated that he had a surplus of $5,000.00 in the SGFP budget that month. He also claimed that this was done in the full knowledge of and with the consent of Mr. McCLUSKEY. Mr. CUDMORE’s statements on this issue are contradicted by Mr. McCLUSKEY.
The employer notes that the question of Mr. McCLUSKEY’s active participation in falsifying the October monthly returns was first raised by Mr. CUDMORE at adjudication. There was no mention of this during the investigation and disciplinary hearing. This allegation was denied by Mr. McCLUSKEY in rebuttal. Mr. CUDMORE testified that both he and Mr. McCLUSKEY had drafted the monthly returns together. This was flatly rejected by Mr. McCLUSKEY. Mr. McCLUSKEY declared that the returns had been prepared by Mr. CUDMORE and placed on his desk. During the investigation, Mr. CUDMORE offered the following explanation (Exhibit E-9, p.2):
At this point I showed him the Food Services Monthly Return for October (I 994) to which he stated that he completed the form and that they were "my figures". Explaining further, Cudmore offered that he did not write the figures down and that someone else (an inmate) possibly Michael BOWES actually wrote the numbers on the form.
Mr. McCLUSKEY also stated that he first learned of the problem when Mr. CUDMORE approached him on November 14 (1994) to let him know that there was a mix-up in the farm bill with Agribusiness.
Mr. CUDMORE recorded October's SGFP month-end inventory at $25,345.00 (Exhibit E-7, Annex E). A re-evaluation of the October ending inventory was conducted by the Chief (sic) Finance who determined the October month-end inventory to be valued at $20,710. This represents a difference of $4,635.00 less than reported.
IV - RECORD STORAGE CSC has specific policies dealing with the retention of financial records (Exhibit E-7, Annex V). Supporting financial
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Decision Page 14 documentation for certain retention periods were missing. Mr. CUDMORE acknowledged having destroyed these documents. In some cases, partial records were stored but were insufficient to allow an in-depth analysis of the SGFP activity. CUDMORE's office was inspected and the only records located were as follows:
Semi-Weekly Grocery Order Sheets (Period 94-08- 16/31)
Semi-Weekly Grocery Order Sheets (Period September 1994) (except 94-09-06/10)
Semi-Weekly Grocery Order Sheets (Period 94-02- 15/22)
Month-End Inventory Records (Nov, Dec/93, Jan, Mar, Apr, (handwritten) June, July/94)
At adjudication, Mr. CUDMORE did not dispute that the above documents were all the documents found in his office. During the 94-11-24 interview, Mr. CUDMORE stated he kept records for 7 to 12 weeks and: "I dumped the rest, no one ever said not to." Mr. CUDMORE claimed a lack of adequate storage space to keep the Grocery Order sheets. However, the investigators found that Mr. CUDMORE was using less than half of his available file cabinet space.
Mr. CUDMORE's explanation for failing to observe the retention periods for records was that no one had ever told him what the requirements were and that he had never received training in this regard. This excuse is implausible in light of the extensive training received by Mr. CUDMORE and his experience as an acting Food Services Supervisor (Exhibit E-7, pp. 20-21). Mr. CUDMORE further alleged that he had informed Mr. LEBLANC during the course of an inmate grievance that he was destroying documents after 7 to 12 weeks. Under cross-examination, Mr. CUDMORE acknowledged that he could not recall specifically having told Mr. LEBLANC.
Disciplinary hearing and decision Following receipt of the investigation report, the Warden convened a disciplinary hearing on December 23, 1994. A transcript of the proceedings was filed as Exhibit E-6. Mr. CUDMORE, according to the Warden, was provided a further opportunity to make submissions on January 9, 1995. Mr. CUDMORE denies that such an opportunity was given. Mr. CUDMORE’s testimony is contradicted by his own witness, Paul DEVARENNES, his union representative. Mr. Public Service Staff Relations Board
Decision Page 15 DEVARENNES confirmed that the Warden offered the grievor a further opportunity to additional information, but Mr. CUDMORE declined.
The Warden testified that he viewed the allegations of misconduct to be a serious breach. He took into account the fact that Mr. CUDMORE was supposed to be a role model for inmates and that these very inmates had been shortchanged by the actions of the grievor. The Warden testified that he considered all mitigating and aggravating circumstances. He considered the number of infractions and the serious nature of each one. He took into account the milieu in which the misconduct occurred. As a correctional institution, staff is required to correct anti-social behaviour and must therefore open, beyond reproach and exemplary role models.
The Warden concluded that the grievor was not a reliable and dependable role model. He explored the mitigating factors, such as length of service and past performance. However, the fact that Mr. CUDMORE failed to acknowledge his misconduct and express remorse lead him to conclude that “this individual is not salvageable”.
PART III- ARGUMENT The employer submits that the grounds for imposing discharge have all been established on a balance of probabilities. Those grounds are set out in the letter of termination as follows:
Based on the evidence gathered and from your own admission, you failed to properly monitor, control, record and report storeroom inventories; properly price inventory items consistent with price indexes, properly monitor and control foodstuff disbursements to the living units; retain supporting financial documentation for the prescribed retention period, and ensure living unit inmates received goods to the values and quantities they were budgeted and entitled to.
As well, you did intentionally and willfully falsify the October 1994 Food Services Monthly Return (Living Units) - CSC Form 157, to conceal inventory losses.
Mr. CUDMORE ultimately admitted to intentionally manipulating unit prices of the inventory. He tendered at various times many contradictory explanations for having done so. He initially disclaimed any responsibility for the
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Decision Page 16 change of unit prices on the bi-weekly grocery lists. He then offered as an excuse his attempt to ensure an "acceptable" per diem. He also stated that he did not actively account for inventory as it wasn't written in his job description as a GS-FOS-06 and that he was never given any direction or guidelines to follow.
During his interview with the investigators on November 24, 1994, Mr. CUDMORE blamed much of the errors in reporting, pricing, and inventory control on either his lack of training or direction, as well as the fact that he was only a GS-FOS-06. When asked what he would have done differently had his classification been at the GS-FOS-07 level, his response, after a long pause, was: "I would be responsible to ... (pause)... I don't know."
The evidence suggests that Mr. Cudmore knew full well his duties and responsibilities. Mr. CUDMORE was given direction and counselling on several occasions regarding his role and responsibilities as supervisor for this area. He knew or ought to have known what his responsibilities and accountabilities were in that capacity. Mr. LEBLANC and Ms. WARD met with Mr. CUDMORE when the program was initially started and several times thereafter to reinforce the need for effective inventory and other controls.
Mr. CUDMORE also received in-service training and more specifically attended a workshop geared towards the SGFP. He acted in the capacity of GS-FOS-07 (Assistant Food Services Supervisor) on numerous and lengthy periods. In fact, Mr. CUDMORE boasted in a resume that he had carried out the duties of " ... managing all financial, human and material resources for this operation for Food Services which is separate from the Main Kitchen" (Exhibit E-7, Annex W).
The issue to be determined is whether it is likely that Mr. CUDMORE, with all his acting experience in a supervisory capacity and with the extensive training he received, was unaware of his financial and operational responsibilities regarding the monitoring, control and recording of inventory and financial resources? The employer submits that it is not.
The evidence discloses that proper training and direction was given to Mr. CUDMORE. Common sense dictates that an employee who ascertains that there is a shortage in inventory would first of all take steps to remedy the situation. Mr. CUDMORE took no such steps. Where the employee is unable to deal with a situation, he should notify his supervisor of the concern. It is submitted that Mr. CUDMORE failed to do so, notwithstanding his claim that he approached Mr. LEBLANC and Ms. WARD. At the November 24, 1994 meeting with the
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Decision Page 17 investigators, Mr. CUDMORE claimed he brought these issues to someone's attention but would not identify that person (Exhibit E-9, p. 7).
The purchase of crab meat and its storage in Mr. CUDMORE's office also undermines his credibility. On the one hand, he claims that the tins were kept in his office to prevent pilferage, on the other hand, he takes little or no steps to properly monitor the rest of the inventory. Moreover, these tins of crab meat, which were acknowledged by Mr. CUDMORE to be valuable in the institution, were not placed on the inventory sheet until they were found by staff conducting the October 31, 1994 audit. The employer submits that these facts clearly suggest that the grievor was purchasing food items for purposes other than feeding inmates. The fact that Mr. CUDMORE dispensed these items at his entire discretion can only be seen as buying himself some favours.
It is believed up to $2,500.00 in food is missing and/or unaccounted for. Mr. CUDMORE's explanation for the shortage is the high cost of operating the training kitchen by feeding staff. It is submitted that Mr. CUDMORE’s estimation of the number of staff being fed on a daily basis was greatly exaggerated. There is no evidence corroborating his statement that a great number of staff was fed daily. Moreover, the consumption of food by staff would only have involved small quantities at minimal cost to the operation.
The falsification of the Food Services Monthly Returns (Exhibit E-7, Annex E and F) completely discredits the grievor. By his own admission, Mr. CUDMORE acknowledged that he knew Mr. LEBLANC would be relying on the truth of the information submitted. The employer submits that Mr. McCLUSKEY was also entitled to rely on the honesty of the grievor.
This conscious and deliberate act is in violation of Section 80 of the Treasury Board Manual (Chap 8-1 FAA) on Financial Management (Exhibit E-7, Annex T) which states:
"Every officer or person acting in any office or employment connected management or disbursement of public money, he
b) ... makes opportunity for any person to defraud Her Majesty, and
d) willfully makes or signs any false entry in any book or willfully makes or signs any false
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with the collection,
Decision Page 18 certificate or return in any case in which it is the duty of that officer ... to make ...
... is guilty of an indictable offence and liable on conviction to a fine not exceeding five thousand dollars and to imprisonment for a term not exceeding five years."
The facts clearly establish that Mr. CUDMORE knowingly and willfully made false entries on the October Food Services Monthly Return, as well as on the inventory records on hand. Even if the Deputy Chairperson concludes that Mr. McCLUSKEY was aware of the falsification, which is denied, it is submitted that a supervisor cannot condone or sanction a criminal activity.
CSC Records Classification & Scheduling Plan (Exhibit E-7, Annex V) states that any records related to control systems must be stored for a minimum of three (3) years. The need to retain the financial records that can justify month-end figures is obvious. It is the only way an accurate audit of the efficiency of an operation can be monitored. Mr. CUDMORE acknowledged that he was aware audits were carried out by the department.
The grievor may argue that the employer ought to have exercised more control over him. The employer disagrees. The fact is that employers have the right to expect employees to follows reasonable rules, and more particularly, to be honest. Honesty is the cornerstone of the employer-employee relationship. The job the grievor was asked to perform required that he act with a minimum of supervision. It was a position of trust. Monthly reports submitted by the grievor were an adequate mechanism to monitor his performance. The possibility of an audit was meant to ensure accuracy of information. It is submitted that the employer had for good reason lost confidence in the grievor. The grievance ought therefore be dismissed.
PART IV - ADJUDICATION DECISIONS The Moore case (Board file 166-2-23658) involved the discharge of an employee for creating two consecutive fraudulent unemployment insurance claims. These false claims resulted in another person receiving sixty-five weeks of benefits to which he was not entitled. Mr. Turner had to consider the seriousness of allegation of fraud and concluded:
The conscious committing of fraud by a federal public servant is a very serious breach of trust and
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Decision Page 19 must be punished accordingly. At the time the punishment is to be determined, unless the employer is made aware of all and every possible mitigating circumstance that led to the crime in the first instance, the punishment must be severe.
... To be dishonest with an employer goes to the very heart of one's job responsibilities, even though I accept that she did not personally benefit financially.
Ms. Moore's offence was serious, premeditated and repetitive. Even in light of her good long standing employee record and my heartfelt sense of sympathy and compassion for her and her family, I cannot disturb the sanction imposed. Her employer was in my opinion correct when it wrote in its final level response to her grievance that even after " new" evidence (of the 'fear factor' and her relationship with Mr. Giesbrecht) came to light, it was not sufficient to mitigate in her favour and allow management to conclude that she still possessed "the high level of trust, honesty and integrity which is inherent in the duties and responsibilities of an Agent I'.
Although Ms. Moore regrets what she has done and has learned a bitter lesson from her actions, the total severance of trust with her employer does not allow me to set aside her discharge.
This grievance is therefore denied. (emphasis added)
The grievor will likely argue that his misconduct, while negligent, was not willful, similar to the argument raised in the Potvin case (Board file 166-2-23870). There are important distinctions between the Potvin case and the one at hand. In Potvin, the Deputy Chairperson found that that the departmental policies concerning leave records were being disregarded by the grievor's supervisors at the time. He determined that:
Mr. Potvin did act in an improper manner but not to the extent suggested by his employer. These improprieties are the result of negligence not willful deceit or fraud. The seriousness of the improper conduct is attenuated by the moderating circumstances which existed at the time.
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Decision Page 20 It is submitted that no such “moderating circumstances” exist in this case. Mr. CUDMORE had not been instructed to “fiddle” with the unit prices and “juggle” amounts around. There is no evidence that such practice existed at Westmorland Institution, nor is there any evidence of condonation.
In the Swan case (Board file 166-2-3579), Vice-Chairman Cantin upheld the discharge of an employee alleged to have falsified cash books. He stated:
The evidence in this case is to the effect that the grievor knowingly falsified the cash books in order to prevent the auditors from discovering a shortage of money of about $900. This shortage of money had existed for sometime but it was not reported by the grievor to her superiors prior to August 12, 1977. The purpose of altering the cash books was, as I stated before, definitely to mislead and there is no doubt in my mind that we are dealing here with a lack of honesty. An employee needs not to commit a theft to be looked at as being dishonest. According to Websters's New Collegiate Dictionary, dishonesty means "lack of honesty or integrity, disposition to defraud or deceive". Honesty on the other hand means: "fairness and straightforwardness of conduct". Laskin, later to be Canada's Chief Justice, stated in 1959 in Canadian General Electric and United Electrical Workers, Local 524, 1 L.A.C. 320:
McIvor was discharged for dishonesty ... There can be no graver charge of misconduct in employment ...
Young in At the Point of Discharge, pages 27 et seq., refers to a number of cases involving dishonesty and which resulted into (sic) discharge.
I come to the grounds relied upon by arbitrators in reducing the penalty initially given by the employer and also referred to as mitigating factors and extensively described in the above decision of Steel Equipment Co. Ltd. and United Steelworkers at Pages 356 to 358. One of the factors is whether or not the offence was an isolated incident in the employment history of the grievor. I cannot accept in the present case that there was only one incident. There were on the contrary several incidents. Another factor is whether the offence was committed on the spur of the moment as a result of a momentary aberration due to strong personal impulses or whether the offence was
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Decision Page 21 premeditated. Again it is clear that in this case there was premeditation. A last factor which has to be taken into account is the seriousness of the offence.
It has been decided in connection with the mitigating factors that in any grievance in which the employee intends to challenge the penalty, he has the obligation to affirmatively prove the existence of such mitigating factors. This was decided in Phillips Cables Ltd. (1974), 6 L.A.C. (2d) 35 (Adams), Canadian Car Fort William Division of Hawker Siddeley Canada Ltd. (1968), 19 L.A.C. 375 (O'Shea), excerpted in Baton Broadcasting Ltd. (1970), 21 L.A.C. 7 (O'Shea), at p. 11 and Aerocide Dispensers Ltd. (1965), 16 L.A.C. 57 (Laskin).
The grievor was employed as an accounts clerk and she was someone in whom her employer had placed and had to place considerable trust. She knowingly falsified cash records and she was dishonest. She was 52 years of age and was regarded as being a woman with experience and ability. She has no excuse.
ALL OF WHICH IS RESPECTFULLY SUBMITTED Dated at Toronto this 21st of May, 1996.
Argument for the Grievor The employer suspended and subsequently discharged the grievor for alleged misconduct.
The letter referring to the suspension was filed under Exhibit E7, Annex "B". This letter, addressed to the grievor, is signed by Maurice LeBlanc, Acting Warden, Westmorland Institution.
The letter referring to the termination of employment was filed under Exhibit G1. This letter, addressed to the grievor, is signed by John Gillis, Warden, Westmorland Institution.
The issue before the adjudicator is the following: Public Service Staff Relations Board
Decision Page 22 Considering the circumstances, and based on the evidence presented at the hearing, is termination of employment warranted?
We submit that no disciplinary action is warranted, and in the alternative, if disciplinary action is warranted, the ULTIMATE PENALTY is NOT appropriate and a lesser penalty more appropriate.
NOTA BENE with regard to the breach of the adjudicator's exclusion order by one Union local officer sitting in as an observer at the hearing, we submit that, to our recollection, the individual stated that he had discussed the manner in which an adjudication hearing was conducted and generally illustrated the physical aspect of such a hearing. The individual stated that, if this had been and was perceived as offending the exclusion order, this same individual offered and tendered his sincere and honest apologies to the adjudicator and to the parties.
We submit very respectfully that this individual never again stated, to our recollection, that he had discussed in great detail the testimony of the employer's witnesses or any other witnesses with other staff at Westmorland Institution immediately after they had testified in September, 1995, contrary to the submission of the employer's representative. We submit, with all due respect, that no evidence per se has been tendered at the hearing to support the employer's position that a situation occurred permitting the employer to seek that all evidence submitted by witnesses Elroy Fletcher and Scott Turriff be disregarded in its entirety as both unreliable and contrived or irrelevant.
We respectfully submit that the statement and apologies offered by the local union officer at the hearing, combined with the absence of specific concrete evidence, are sufficient to conclude that the respective testimony of both Elroy Fletcher and Scott Turriff is credible and relevant to this case. Their respective testimony is reflective of the practices of "arranging/inflating/deflating" the per diem under certain circumstances, and that this practice is not strange to employees of the Employer. Their testimony is also reflective of the flow (i.e., borrowing) of goods/food between the Institutions' kitchen facilities.
The Employer, Correctional Service Canada, operates a penal institution situated at Westmorland, New Brunswick. Westmorland is adjacent to the Dorchester penal institution (also under the authority of the CSC). Dorchester is itself a prison and is self-contained. Amongst other facilities, there is a main kitchen manned by its own staff. It is at this
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Decision Page 23 Dorchester Institution kitchen that the grievor was working as a public servant, where he held the position of cook, classified as GS-FOS-6. It was the grievor's substantive position at the time he was assigned the duties of cook at Westmorland Institution.
As already said, Westmorland is a penal institution adjacent to the Dorchester Institution. Westmorland is manned by it's own staff. Among other sectors of activities at this institution, there is a farm and two kitchens. There are the MAIN kitchen (serving inmates and staff) and the INMATES' CONDO kitchens (aside from the individual kitchen in the condo units). Maurice LeBlanc and Wayne McGlusky were the responsible public servants of these areas of activities before, after and during the time John Cudmore was assigned the duties of the condo kitchen (reference Exhibit E7, Annex "C", paragraph 4).
Exhibit E7, Annex "C", (paragraph 2) and the viva voce evidence leads us to acknowledge that the employer (Maurice LeBlanc) "very reluctantly placed John Cudmore in the implementation of the Small Group Feeding Program."
On this point, in cross examination, Maurice LeBlanc testified that John Cudmore was not the best nor the better person/employee to perform the new tasks at the condo kitchen and he acknowledged being aware of Mr. Cudmore's history of employment with the Employer, his past record and his discrepancies.
We know that these tasks, at the beginning of the assignment (August, 1993), were not those that existed by the beginning of April, 1994. The duties and responsibilities given to John Cudmore increased more and more as time went by, and he saw his acting pay terminated.
On the evidence adduced at the hearing, we know that John Cudmore was receiving acting pay at the GS-FOS-07 level from the fall of 1993 until April, 1994. We also know from the evidence adduced that John Cudmore was performing his duties without a job description related to his new assignment at the condo kitchen. The Employer had ample time to come up with a job description during the time of the grievor's assignment and, most of all, during the hearing, but failed to do so under both of these circumstances.
Because the grievor, while assigned to the condo kitchen, had no specific or specified official description of duties, although some general instructions, we submit the following:
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Decision Page 24 • What exactly was expected from John Cudmore during this assignment so one can determine what he had to accomplish?
• What authority (per se) did he possess over the other staff, inclusive of managers, with regard to this assignment? For example, to order these same staff, inclusive of managers, to stay away from his area of work (condo kitchen, re: free meals), considering that even Wayne McGlusky could not eliminate the coming of the staff to eat or get food from the condo kitchen.
• What assistance did he get from Messrs. LeBlanc and McGlusky to prevent the staff of the Institutions from coming to the condo kitchen to get a "free lunch" and to "borrow" food for the usage of the other kitchens (the quantities of such borrowing were determined by the witnesses)? We know that John Cudmore had raised this matter a number of times, and had even asked for an "assembly meeting" to notify all those concerned, but to no avail.
• What power did he possess over situations of concern to him and the Employer?
These questions and a multitude of others cannot be answered categorically and/or practically for lack of specific instructions or references. One can only speculatively answer such questions and we submit that this is not good enough.
We respectfully submit that John Cudmore was assigned a job, not usually his normal job, in a "go as you grow" fashion.
John Cudmore needed training for this new task, and the uncontradicted evidence demonstrated that he attended a seminar in Montreal, Quebec. He informed this tribunal of what the seminar's agenda consisted of, i.e., no training session with regard to the correct administration of a condo kitchen or the implementation of the Small Group Feeding Program that dealt with budget preparation, balancing of books, the per diem, etc., pertaining to the difficulties that might or are bound to occur within the day-to-day operations and environment with regard to food swapping, food being stolen, borrowed, free lunching, etc. The Employer should and must be held responsible, if not liable, for not having provided adequate training concerning this new assignment. Page 26 of Exhibit E7, paragraph 1 (submitted 1994-12-21) states that "There are no finalized CDs, RI, SOs or written procedures/policy in effect regarding the operation of the Small Group Feeding Program." We submit that, under the
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Decision Page 25 circumstances, Mr. Cudmore was on his own and used his judgment (although not always the ideal one) to carry out his duties. Under the circumstances, the Employer should share its part of responsibilities and consequences. To this effect we refer you to PSSRB file 166-2-11262, adjudicator Donald MacLean's decision in Read, R., rendered April 26, 1982. We draw your attention to page 12, under Conclusion and Reasons for the Decision. We submit that the reasoning of adjudicator MacLean applies to the circumstances of this case.
We know from the evidence that John Cudmore was never assessed in the performance of these new duties during the time he held these. We ask, then, how could he have corrected his deficiencies if these were never identified?
From the evidence presented, John Cudmore's qualifications were never properly rated before his assignment to this new job nor during his tenure of this acting assignment at the condo kitchen, nor after his acting pay ceased in April, 1994.
John Cudmore accepted the assignment and agreed to do the best possible job and we submit that, under the circumstances, he did what was required of him.
The grievor testified that he performed his duties during the period at issue amidst stressful personal problems, but always keeping in mind the Treasury Board's and the taxpayers' dollars. He cared for that.
John Cudmore performed his duties as he felt they should be performed, bearing in mind the lack of training given to him and the way things were being done at the institutions under the same circumstances (balancing the per diem).
The grievor performed his duties the way he did and as others were doing, by arranging the per diem amount in accordance with the procedures in practice at different institutions, and particularly at his institution and the adjacent one. He had to balance the per diem under the circumstances that were revealed at the hearing of this case.
John Cudmore testified that he would not have done what he did if he had known that what he did was and is not acceptable, and had he known what was expected of him.
John Cudmore testified that he wishes to return to his duties as a GS-FOS-6, his previous job, the job he loves most and does best.
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Decision Page 26 John Cudmore testified that he regrets what has happened and the problems his ways of administering have caused the Employer.
We submit that John Cudmore's version of events did not change in substance from the time that he was first interviewed by the Employer to the time that he testified at the adjudication hearing.
We must remember from the evidence (Exhibit 7 and John Cudmore's testimony) that the grievor had been under the impression that he was being investigated for alleged theft or similar infractions. He was informed by many persons, and rumours were, that he was being investigated for theft, and that even the RCMP was involved.
John Cudmore testified that he was nervous when he was approached by and appeared before management and/or the disciplinary committee, thinking it would be for theft. Under the circumstances, we submit that he was entitled to and/or had reasons to feel or be nervous.
When he was asked, under these circumstances, to respond to specific questions with regard to the issues of this case, he could not, and only later could he provide that he could not offer an explanation, except that he had to balance the per diem in accordance with the operation of the condo kitchen. He did this after considering all the food losses through staff eating free, food going to the Regional Jail, social functions and others.
The Employer does not deny that food from the condo kitchen was being routed away from the condo's main kitchen, (i.e., the Regional Jail, other kitchens, staff, including managers, free lunching, social functions, the Warden's request, etc.). We submit that all this "scrounging" affected the budget and therefore affected the per diem at the condo kitchen. Mr. Cudmore was faced with these difficulties and had to arrive within his budgeted per diem. He had to adjust this per diem.
Mr. Cudmore did not personally or otherwise benefit from these actions. There was no ill intent from the grievor in the performance of his duties.
There is no evidence that the Employer suffered any adverse publicity.
We wish to make a brief reference to the allegation that John Cudmore failed to keep records, to monitor, and control.
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Decision Page 27 Mr. Cudmore's position is to the effect that; • he did not have enough space to store all records, papers, documents, menus, etc.; • he did not know he had to keep these records for a long period; and • he was not aware nor told that he had to keep them for long periods.
This is what he stated to the investigating team, to Poirier, and that is what he testified to at the hearing. He is consistent on these elements of the situation. We submit that Exhibit E10 is not indicative of the way John Cudmore was to keep records for the condo kitchen. As illustrated in John Cudmore's testimony, Exhibit E10 is not and was not relevant to the performance of John Cudmore's duties.
Mr. Cudmore did provide to his superior, Wayne McGlusky, the essential records, vouchers and other documents for the months prior to October and November, 1994. This was confirmed by Wayne McGlusky's testimony when, in cross examination, he was asked if he had been interviewed by the investigating team. He answered YES and that the members of the investigating committee never asked him to provide them with any other documents other than those for October and November, 1994.
We are still perplexed as to why there is no trace of Mr. McGlusky's statement attached to or contained in Exhibit E7, the internal investigation report, and more perplexed when John Gillis, in his letter of termination to Mr. Cudmore (Exhibit G1) states "I have now completed a full review of the evidence pertaining to..." and when K.M. Dufresne, Corporate Advisor, Human Resources, in his final level grievance response states at the 2 nd paragraph that, "after a thorough investigation surrounding the facts of your grievance..." We submit that the Employer did not take into account ALL of the statements made during the investigation. We ask, why is the statement of Wayne McGlusky not on record? Has it disappeared? We make note of this and ask you, Mr. Arbitrator, to share this perplexity bearing in mind the testimony of Mr. Allan (ex-RCMP) and especially his demeanor when he was cross examined. He was asked:
a) if he had interviewed Wayne McGlusky, to which he answered YES;
b) if Wayne McGlusky had made a statement and, if yes, could he, with the assistance of Exhibit E7 direct our attention to it, to which his answer was yes, it should be
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Decision Page 28 in Exhibit E7, and upon looking at this exhibit, he could not locate it;
c) if he could locate this statement from Wayne McGlusky in the box of documents he was carrying with him, to which he said yes, it should be in the box. He was given time to locate this statement, and after some time, could not;
d) we noticed during the time of this search by Mr. Allan that his demeanor was changing, we found him to be nervous, we noticed that his face, ears and chin became very red and, also noticed that he was trembling while he was searching or attempting to reply. He finally said that he did not have it. Are his demeanor, his nervousness signs of culpable behavior, as was similarly alleged against Mr. Cudmore?
We submit that the all (sic) evidence (at least a statement by one superior) was not included in the report of the investigating committee and we ask you to beware of documents that are missing in this case.
In consideration of all the evidence tendered at the hearing, the grievor's lengthy service, past satisfactory performance, rehabilitative potential, remorse, economic hardship (the grievor's many attempts and efforts to find work), we respectfully submit that you should find in favor of the grievor and grant his grievance in its entirety, that is, to quash the decision of the Employer to terminate the employment of the grievor and to reinstate him in his substantive position with full retroactive pay and benefits, i.e., to make him whole.
If you should find in favor of the Employer and conclude that the grievor is the author of wrongdoing, than we respectfully submit that, under the circumstances, and before all the evidence presented, the wrongdoing does not warrant termination of employment, but a much lesser and more appropriate penalty.
Respectfully submitted on behalf of the grievor. Dated at Ottawa, this 10 t h day of June, 1996. Employer's Reply Argument The following is in reply to the written arguments of Mr. Dupont submitted on behalf of the grievor, John
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Decision Page 29 Cudmore. These submissions will address his arguments in the same order as they were presented.
At the last paragraph of the first page of his argument, Mr. Dupont attempts to minimize the extent of the breach of the exclusion order. He writes that the Local Union officer only admitted to "discussing the manner in which an adjudication hearing was conducted and generally illustrated the physical aspect of such a hearing." That is not my recollection. My notes reflect that he also admitted to commenting on the credibility of the employer's witnesses. This would necessarily entail discussing their testimony.
The effect of this breach on the testimony of Messrs. Turriff and Fletcher, although unknown, can certainly be inferred. It should be noted that Mr. Turriff admitted to having talked to John Cudmore between the two hearings. Both Mr. Turriff and Mr. Fletcher had a hidden agenda in coming forward to testify. It is respectfully submitted that their evidence should be treated as suspect and disregarded.
At the second page, third paragraph, of his argument, Mr. Dupont states that John Cudmore's substantive position at the time he was assigned the duties of cook at Westmorland Institution was at Dorchester Penitentiary. This is contrary to the evidence presented. Westmoreland Institution was the grievor's workplace.
At page 3 of his argument, Mr. Dupont professes that the grievor lacked a job description and was not adequately trained to perform his duties. The evidence is to the contrary. John Cudmore by his own admission knew what was expected of him. He did have a job description, albeit not specific to the SGFP. He had regular meetings with Wayne McClusky, Sharon Ward and Maurice Leblanc. He had acted on previous occasions in positions requiring similar skills and knowledge without complaining of lack of training or supervision. There is no evidence that the employer was remiss in providing Mr. Cudmore with adequate instructions. Moreover, it would have been incumbent on him to ask questions if he truly encountered difficulties. This he did not do.
While Mr. Cudmore did not have direct line authority over staff, he clearly had authority over the entire inventory of goods entrusted to him by the employer. Mr. Dupont's argument that Mr. Cudmore had no control over the "staff feeding" situation is preposterous. By analogy, surely it would not be open to a bank teller to argue that he or she is not responsible for shortages of cash from the till merely by asserting that fellow tellers, over which he or she has no authority, kept taking the money.
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Decision Page 30 At the last paragraph of page 3, Mr. Dupont argues that Mr. Cudmore needed training for his new task. Mr. Dupont fails to indicate what form of training exists to teach an employee to be honest and not to falsify documents. What John Cudmore did was not due to lack of training. He made conscious decisions. Integrity and personal responsibility are innate and not acquired by training.
At page 4, paragraph 2, Mr. Dupont argues that Mr. Cudmore was not evaluated while performing his new duties. Once again, this statement is at odds with the evidence. Mr. Cudmore had several meetings with Mr. Leblanc, Ms. Ward and Mr. McClusky to discuss expectations. He fully knew what was expected of him.
At page 4 of his argument, Mr. Dupont states that John Cudmore did the best that could be expected of him under the circumstances. On this point, the employer strenuously disagrees. Mr. Dupont, on the one hand, argues that the grievor was merely following the instructions given to him by the employer, and on the other hand, was assigned duties beyond his capacities. The grievor himself acknowledged that he acted improperly. Of continued concern is the fact that Mr. Cudmore still refuses to admit that he short-changed the inmates and that this was wrong.
At page 4, paragraph 6, Mr. Dupont implies that Mr. Cudmore relied on the practice of balancing the per diem at other institutions. The fact is that if such practice existed, it certainly was not known by his supervisors, nor condoned by them.
At page 5, paragraph 2, Mr. Dupont insists that Mr. Cudmore's version of events did not change in substance from the time he was first met to the time he testified at adjudication. A careful review of the grievor's statements to Mr. Leblanc, the investigation team, the warden and to the adjudicator reveal that numerous versions, inconsistencies and even contradictions exist.
At page 5, paragraph 5 and 6, Mr. Dupont refers to food losses and the fact that the employer does not deny the manner in which they occurred. In fact, the losses have never been satisfactorily explained by the grievor. The extent of the losses cannot be explained away merely by some staff being fed sporadically. Moreover, these losses should have been noted and reported.
The monthly food service report form specifically required that food used for social events be recorded in a separate column. Why would Mr. Cudmore record such use separately
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Decision Page 31 for the Main Kitchen budget and not for the SGFP budget ? Why would he feel compelled to juggle the per diem for inmates when it could so easily be recorded separately, without affecting the per diem ? These questions remain unanswered.
The failure by the investigation team to record in writing a statement made to them by Mr. McCluskey is certainly unfortunate. However, there is no evidence that this oversight was intentional or resulted in any prejudice to the grievor. He himself intentionally declined to implicate Mr. McCluskey throughout the investigation. Even if there was some procedural unfairness, which is not admitted, but denied, that unfairness "was wholly cured by the hearing de novo before the Adjudicator at which the Applicant had full notice of the allegations against him and full opportunity to respond to them." (see Robert C. Tipple v. Her Majesty the Queen, Federal Court No. A-66-85).
As a final comment, it should be noted that the grievor's representative has failed to address the conflicting evidence in this case. Ultimately, this case comes down to credibility. At the end of the day, the grievor stands alone with his version of events, by itself contradictory and inconsistent.
June 14, 1996
REASONS FOR DECISION The weight of the evidence presented, including the grievor's own testimony which was often contradictory and evasive leads me to conclude that the allegations of misconduct made by the employer against Mr. Cudmore are founded.
The grievor failed on numerous occasions to keep proper records and control inventory. That in itself might not warrant discharge if it were not accompanied by the wilful and deliberate falsification of several documents.
Mr. Cudmore's alleged unsuitability for the position (with which I don't agree), his lack of training and the absence of an up-to-date job description cannot be used here in mitigation of fraudulent activity. Had the grievor merely been guilty of the negligent or poor performance of his functions, those factors could have weighed in the balance. Mr. Cudmore knew or should have known that what he was doing was wrong. Public Service Staff Relations Board
Decision Page 32 Even Messrs. Fletcher and Turriff who testified on behalf of the grievor to the existence of some "loose" reporting practices denied ever falsifying the price of items on month end reports or inventory lists. Mr. Fletcher quite candidly admitted in cross-examination that he would have problems working with Mr. Cudmore if it was proven that the grievor had in fact falsified documents.
Trust between employer and employee is the cornerstone of the employment relationship. Mr. Cudmore's conduct in this case has shaken and damaged that foundation to its very roots.
The grievor at one point in his testimony indicated that he regretted his actions because they brought him only grief. He also indicated that he could now work by the rules. Mr. Cudmore did not however admit or recognize the serious impropriety of his conduct. Quite the contrary, any admission of misconduct on his part was always explained and justified by reference to his inexperience, existing practices and the lack of adequate direction. Employees should not need training or a job description to realize that honesty and integrity are required in the execution of their duties.
Mr. Cudmore's inability to recognize and admit his wrongdoing forces me to conclude that the trust he has violated cannot be restored. The acts of misconduct committed by Mr. Cudmore are serious enough to warrant discharge. His grievance is therefore denied.
Yvon Tarte, Vice-Chairperson.
OTTAWA, July 25, 1996. Public Service Staff Relations Board