FPSLREB Decisions

File: 166-2-28016 Public Service Staff Before the Public Service Relations Act Staff Relations Board BETWEEN CAROL ANCTIL Grievor and TREASURY BOARD (National Defence)

Employer Before: Jean Charles Cloutier, Board Member For the grievor:: Yves Picard, Counsel For the employer: André Garneau, Counsel Heard in Québec, Quebec on July 21 and December 8, 9 and 10, 1998.

Decision DE CISION Page 1 On August 28, 1997, Mr. Anctil referred his grievance to adjudication and, on October 20, 1997, the parties were informed that the hearing for this case was set for January 20 to 23, 1998. However, on January 16, 1998, the Board was forced to postpone the hearing "because the Board member was unable to hear the case as a result of the ice storm and of his emergency situation" and the case was placed on the roll for July 21 to 23, 1998.

On July 21, 1998, I opened the hearing and the representative for the grievor requested an adjournment because the grievor no longer wanted to be represented by his bargaining agent and preferred to obtain the services of counsel of his choice. Counsel for the employer objected to the request but understood that Mr. Anctil was entitled to be represented. I granted the request and the case was returned to the roll for December 8 to 11, 1998. A request from Mr. Picard, dated November 25, 1998, asking for a further postponement was denied by the Board.

Carol Anctil, an assistant foreman, held a GL-ELE-2 B 3 position in the General Labour and Trades (non-supervisory) group, GLT (NS). He was employed by the Department of National Defence in Valcartier, Quebec. He was assigned to the Roads and Land Workshop, Construction Engineering Section, CFB Valcartier. On October 30, 1996, Mr. Anctil was suspended without pay during the employer's disciplinary investigation of him and his employment was terminated on December 12, 1996.

The employer's letter of suspension (Exhibit E-4), dated October 30, 1996 and signed by the Acting Commander, Lieutenant-Colonel J.R.A. Têtu, reads as follows: [Translation] NOTICE OF SUSPENSION PENDING THE RESULTS OF THE INVESTIGATION

We hereby inform you that you are suspended without pay pending the outcome of the investigation of allegations that you were involved in a theft of materiel belonging to the Department of National Defence. If, following the investigation, these allegations are found to be without foundation, you will immediately be reinstated in your job and your compensation reinstated, retroactive to the date on which you were relieved of your duties. Should the allegations against you be found to be justified, you will be subject to appropriate disciplinary action.

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Decision Page 2 Further, you are denied access to the Base during the investigation. If, however, for any reason, you should need to access any location on the base, you must contact you supervisor, Warrant Officer Tremblay, in advance so that he can arrange an escort for you from the main sentry box.. You are also required to turn over all of the keys in your possession before you leave.

On November 28, 1996, under Major J.D. Godbout, Command Construction Commander, CFB Valcartier, the grievor's dismissal. The letter of termination of employment (Exhibit E-1), dated December 10, 1996 and signed by the Acting Base Commander, Colonel J.C.S.M. Jones, reads as follows: [Translation] NOTICE OF TERMINATION OF EMPLOYMENT On November 29, 1996, I informed you of my decision regarding your guilt and that your case had been submitted to a higher authority for determination of the appropriate penalty.

I hereby inform you that, under the authority conferred on him by the Deputy Minister of National Defence under section 50 of the Public Service Terms and Conditions of Employment Regulations, the Commander, Quebec Sector, Land Force, has decided to terminate your employment with the Public Service. You are being dismissed because you have been found guilt of the following offences:

- you misappropriated roof timbers belonging to the Department and transported them off the Base without permission;

- used a departmental vehicle without permission for this purpose;

- left your post without permission; - used your authority as a supervisor to involve one of your subordinates in the execution of your offence;

Given the nature of your position, the seriousness of the offences in question and the fact that your conduct has irreparably damaged the trust of your employer, your employment with the Department will be terminated on December 12, 1996.

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the terms of his investigation, Engineer recommended to the

Decision Page 3 Under your collective agreement, you have the right to file a grievance directly to the final level of the grievance procedure to challenge this decision.

Please contact Jacqueline Chamberland, Pay and Benefits Advisor, [...] for all information concerning the compensation and benefits to which you may be entitled.

The grievor filed a grievance on December 30, 1996, which reads as follows: [Translation] I am filing this grievance against Major GODBOUT as a result of the decision to dismiss me following the investigation carried out in the Construction Engineering Section.

The suspension that I have been subjected to since the start of this investigation is unjustified.

The manner in which the investigation was conducted is not credible.

My dismissal is not motivated by the fact that I was found guilty of the following offences:

You misappropriated roof timbers belonging to the Department and transported them off the Base without permission;

Used a departmental vehicle without permission for this purpose;

Left my post without permission; Used my authority as a supervisor to involve one of my subordinates in the execution of my offence;

As corrective action, I request that I be reinstated in the position I held on October 30, 1996 in the Construction Engineering Section, Roads and Lands, pending a more credible investigation.

The employer replied at the final level of the grievance procedure by letter dated July 28, 1997, signed by R.J. Sullivan for the Deputy Minister of National Defence, which reads as follows:

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Decision [Translation] Your grievance regarding employment was reviewed at the final level of the departmental grievance procedure.

My review revealed that you demonstrated a lack of integrity by misappropriating roof timbers belonging to the Department and transporting them off the Base without permission. To this end, you used a departmental vehicle without permission and you left your post without permission. You also used your authority as a supervisor to involve one of your subordinates in the execution of this offence. I have determined that a proper investigation was conducted regarding the circumstances surrounding these incidents, and I conclude from it that management cannot tolerate such lack of integrity in a supervisor. Further, you file shows that this is your second serious incident of misconduct in less than twenty-four months. It is my opinion that the employer-employee relationship of trust, based largely on integrity and loyalty, has been irreparably broken. Consequently, your grievance is denied and no corrective action will be granted to you.

Lucette Charron, your representative at the national level, has been informed of this decision.

Yours sincerely, The question before me is to determine whether the action taken by the employer was justified in the circumstances.

A request to exclude witnesses was filed and granted. During the hearing, which lasted three days, five exhibits were filed in evidence by counsel for the employer and 24 exhibits were filed in evidence by counsel for the grievor.

Five witnesses appeared for the employer, one of whom was recalled for cross-examination, and 10 witnesses appeared (including Mr. Anctil) for the grievor. One witness, Master Warrant Officer Gaston Jean, had received a subpoena to appear, dated December 3, 1998, which was served on him by the bailiff, but he did not appear. Counsel for the grievor requested that this fact be noted in the record.

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Page 4 the termination of your

Decision Page 5 The evidence The evidence can be summarized as follows: In 1994, the grievor was suspended for 15 days for having sold, without authorization and for his own profit, a roll of copper wire belonging to the employer.

On October 25, 1996, an anonymous telephone call was received by Corporal Stéphane Ferland of the military police informing him that goods, specifically roof timbers, commonly called trusses, had been transported to a private lot. Upon arriving at the lot in question, the military police determined that these trusses belonged to the Department of National Defence. Major Daniel Godbout, Command Construction Engineer, was then informed and, after meeting with Personnel Officer, Yvan Roy, he decided to conduct an investigation into the disappearance of the trusses from Base Valcartier.

Major Godbout met with several employees and was always accompanied by an administrative officer.

Dany Bédard testified that, in summer 1996, Carol Anctil, his immediate supervisor, had asked him to help him load the trusses onto a trailer belonging to National Defence. Once the trusses were loaded (approximately 15), he accompanied Mr. Anctil to Shannon where they unloaded the trusses onto an empty lot where there were already several trusses.

Under cross-examination, Mr. Bédard stated that he was not suspended during the investigation but that he was later suspended for a week.

Pierre Gaudet, foreman in the Heating Workshop, testified that he had seen the trusses at the Base and that he was interested in acquiring them. He asked Captain Marques if he could purchase them. The Captain's response was negative because the only way that National Defence could dispose of them was to go through a tender process. Mr. Gaudet then asked Normand Côté, foreman in the Carpentry Workshop, whether the trusses could be modified and the response was negative. Mr. Gaudet then met Mr. Anctil and mentioned to him that he was interested in acquiring the trusses and Mr. Anctil replied: "Leave it to me". Mr. Gaudet stated that Mr. Anctil came to see him in September or October 1996 saying: "Come with me". Mr. Gaudet got into Public Service Staff Relations Board

Decision Page 6 Mr. Anctil's truck and they drove to Shannon where they stopped behind a house. There were between 10 and 15 trusses there and Mr. Gaudet "thought they were for him". Mr. Gaudet was suspended for 20 days and he did not object to his suspension through the grievance process.

Under cross-examination, Mr. Gaudet confirmed his earlier testimony, reiterated that he had never asked Mr. Anctil for anything, and stated that he had told him the following: "If I had these trusses, they would come in handy". He confirmed that there was never a question of money and he never spoke to Mr. Anctil about this matter again.

Normand Côté, foreman for the Carpentry Workshop, confirmed the conversation he had had with Mr. Gaudet and, under cross-examination, he stated that only the supply people were authorized to dispose of materiel belonging to National Defence.

Counsel for the grievor called Lieutenant-Colonel Daniel Benjamin, who explained the materiel disposal procedures (Exhibit A-8).

Several witnesses testified for the grievor and filed in evidence copies of the performance appraisals they had completed on Mr. Anctil over the years. All of these appraisals showed that Mr. Anctil had performed his duties in a fully satisfactory or superior manner. Mr. Anctil was a good assistant foreman, a fact that was not contested by the employer.

Robert Lannin testified at the request of counsel for the grievor, stating that he was the owner of a lot in Shannon and that he had never given permission for trusses to be put on his property and, moreover, he did not know they were there nor did he know where they came from. He clarified the situation saying that the trusses were on a lot connected to his, but that one had to go through his lot to leave them there. It was impossible to see the trusses from the road or from his house.

The grievor, Carol Anctil, testified that he had been the foreman for the Construction Engineering Section for several years and that all of his work was carried out under the "work orders" he received. Mr. Anctil also filed (Exhibit A-16) a blank specimen of the work order control he always prepared. Mr. Anctil claimed that

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Decision Page 7 Mr. Gaudet told him that he had permission to remove the trusses, but he added that he never asked to see the proof (work order) from Mr. Gaudet. "I thought he had permission to remove them," were Mr. Anctil's words. Mr. Anctil admitted that he had taken the trusses off the Base, that he had made two trips to do this, one with a National Defence vehicle, and that it had all taken place during his hours of work. He stated that he had committed an offence by trusting Mr. Gaudet, but that he had simply wanted to do him a favour and he never thought of the consequences.

Under cross-examination, Mr. Anctil admitted that the regulations were explicit regarding the removal of materiel from the Base without authorization.

Summary of the employer's arguments Mr. Garneau raised the following points: (a) the evidence establishes the grievor's misconduct: (1) trusses were stolen and the grievor took them off the Base without authorization;

(2) the grievor left his post without permission; (3) the grievor requested the assistance of a subordinate; (4) transportation was done, in part, using one of the employer's vehicles.

(b) termination of employment is a fair and reasonable penalty under the circumstances:

(1) the grievor held a position of trust since he was an assistant foreman;

(2) this is his second offence of the same type, the first having been committed within the previous two years.

Counsel for the employer referred me to the following cases: Lynch (Board file 166-2-27803); Fauteux (Board file 166-2-26211); and Cudmore (Board file 166-2-26517). Public Service Staff Relations Board

Decision Page 8 Summary of the grievor's arguments Mr. Picard raised the following points: (a) the employer did not establish the grievor's misconduct on the balance of probabilities;

(1) Mr. Gaudet's testimony is not credible; (2) Mr. Gaudet had obtained permission to take the trusses.

(b) if there was misconduct, termination of employment is not an appropriate penalty under the circumstances:

(1) no criminal charge was brought against the grievor; (2) the grievor did not intend to misappropriate property from National Defence;

(3) the grievor simply transported the trusses, he did not misappropriate them;

(4) the trusses were surplus; (5) the trusses could not be used elsewhere; (6) the grievor did not cause any prejudice to the employer;

(7) the employer was not justified in questioning the trust that it can place in the grievor;

(8) the grievor has many years of service; (9) the grievor is skilled and all of his appraisals over a 20-year period are rated "fully satisfactory" or "superior";

(10) the grievor can be rehabilitated and is not beyond Public Service Staff Relations Board

Decision Page 9 redemption; (11) the grievor's dismissal has caused him serious financial difficulties, which is adequate punishment;

(12) termination of employment is considered capital punishment in labour law.

Counsel for the grievor referred me to the following cases: Chilliwack General Hospital and Hospital Employees’ Union (1985), 18 L.A.C. (3d) 228; Boisvert (Board file 166-2-5399); Skilnik (Board files 166-2-7953 et 166-2-8049); Melcher (Board file 166-2-27604); Khanna (Board file 166-2-17117); Douglas (Board file 166-2-18237); Kendall (Board file 166-2-2239); Hamilton (Board file 166-2-14975); and Re City of Edmonton and Amalgamated Transit Union (1985), 23 L.A.C. (3d) 76.

Reasons for decision In this case, the burden of proof was on the employer and I believe that it was satisfied. Additionally, during the hearing, the grievor abandoned his claim that the employer's investigation was not credible.

The weight of the evidence presented, including the testimony of the grievor himself, which was often contradictory and evasive, leads me to conclude that the allegations of misconduct made by the employer against Mr. Anctil are with foundation. I considered the grievor's explanations: they were sometimes weak, imprecise, or contradictory and they were not plausible. He tried to convince me that he "had taken the trusses away" in complete innocence to do a favour for his fellow worker. I do not believe it. Nevertheless, the grievor admitted taking the trusses, loading them on one of the employer's trucks, with the assistance of one of his subordinates, and taking them off CFB Valcartier without authorization or a "work order". Mr. Anctil knew, or should have known, that what he was doing was reprehensible.

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Decision Page 10 Despite the grievor's many years of service and his fully satisfactory performance, the employer felt that it could no longer trust him. This conclusion does not seem unreasonable to me in the circumstances, given the suspension he had received for a similar disciplinary infraction within the previous two years. Given the freedom that this assistant foreman enjoyed to come and go both on and off the Base, it seems to me that the employer was even more justified in wanting to have complete confidence in him.

I also considered the arguments put forward by counsel for the grievor concerning mitigation of the penalty. Despite the sympathy that his case inspires, I do not believe, on the basis of the circumstances of this case, that I am able to amend the employer's decision and reinstate Mr. Anctil in his duties. Mr. Anctil's acts of misconduct are serious enough to justify dismissal.

Accordingly, the grievance is denied.

Jean Charles Cloutier, Board Member

OTTAWA, March 2, 1999. Certified true translation

Serge Lareau

Public Service Staff Relations Board