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HomeMy WebLinkAbout1987-0860.McWilliams.88-08-15L _ +g ! i OWAARIO EMP‘OY~SDE u CO”RONNE CROWNEMPL0”EE.s DE L’ONTARIO GRIEVANCE COMMISSION DE ;;j;;MENT RkGLEMENT DES GRIEFS . Between: Before: 860187 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEE~S COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OLBEU (Brian McWilliams) Grievor and The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer B. Fisher Vice Chairman P. Klym Member E. Orsini Member For the Grievor: E. Mitchell Counsel Koskie & Minsky Barristers and Solicitors For the Employer: R.J. Drmaj Counsel Hicks Morley Hamilton Stewart Storie Barristers and Solicitors Hearings: April 7, 1988 April 8, 1988 June 27, 1988 n .< DECISION . This is a discharge case. The grievor worked for the LCBO from 1970 until April 22, 1987 at which time he was suspended pending investigation and later discharged. At the,time of his discharge the grievor held the position of “A” store assistant which, in essence, meant that he was the assistant store manager at store 483 located at Union Station in Toronto. There were originally two grievances filed, one with respect to the suspension, the other with respect to the discharge. However, the Union withdrew the suspension grievance in the course of the hearing. The primary reason put forward by the employer for the discharge was theft. This Board accepts the doctrine that, although normally a discharge must be proven merely on the balance of probabilities, where there is an allegation of illegality it is necessary for the employer to support the charges by clear and convincing evidence. This position has been accepted by numerous Grievance Settlement Board decisions including Irwin (1377/86) a decision of Vice Chairman Slone and Menzies (102/83 and 126/83) a decision of Vice Chairman Weatherill. The evidence of the employer was primarily put forth by the two security officers who investigated this matter, Mr. Simpson and Mr. Wenham. Both Mr. Wenham and Mr. Simpson were involved in a stake.out of the Union Station store on the afternoon and night of April 22,1987 when the grievor was working as the acting manager of the store. Mr. Simpson was the first witness for the employer. He made extensive notes shortly after the incident and relied heavily on those notes in his testimony. Mr. Simpson was employed at the relevant time with the LCBO as an investigator in the security department. Mr. Simpson commenced surveillance at approximately 4:40 p.m. on April 22, 1987. At approximately 6:28 p.m. he 0bserve.d the grievor leaving the front door of the store and walked towards the bank of lockers located near the store, however, he did not observe the grievor physically at the lockers because it was out of his line of vision. -2- I Mr. Simpson observed the grievor again leaving the store at approximately 7:13 p.m., this time carrying a plastic bag under his arm which was covered with a folded newspaper. Mr. Simpson observed a bulge in the bag similar to the shape made by a bottle. The grievor proceeded towards the lockers looking around often. He placed the bag in the locker and then exited out some doors just to the west of the lockers. At 850 p.m. the grievor was again observed by Mr. Simpson leaving the front of the store and going for a walk past the lockers, however, he did not stop and open any locker at that time. At IO:15 p.m. the grievor was seen by Mr. Simpson coming out of the store with another employee. At the front of the store the grievor met a male and female in front of the store who had been waiting there a few minutes. The grievor had a brief conversation with the male and then they parted company. The grievor then immediately went to the lockers, opened the one that he had previously put the white bag in, removed the plastic white bag and proceeded towards the doors.to the west of the lockers. These doors led to a tunnel. At that point, Mr. Simpson and Mr. Wenham started following the grievor through the tunnel and while going through the tunnel, Mr. Wenham called out, “Brian.” The grievor stopped and turned and at that time Mr. Wenham identified himself by saying that he was Director of Security for the LCBO. The grievor said, “Yes, I remember you.” According to Mr. Simpson, Mr. Wenham then said that they were investigating a theft from the store and asked the grievor what was in the bag. The grievor replied, “An exchange from the store.” Mr. Wenham then asked the grievor if he would show him the contents of the bag and the grievor said, “No, it is my personal property, who is this guy?” This reference was an enquiry by the grievor as to the identity of Mr. Simpson. According to Mr. Simpson, Mr. Wenham then introduced Mr. Simpson as an investigator with the LCBO. Mr. Simpson at this point said that they should all go to the store to clear up these matters. ; i. -3- Mr. Simpson testified that the grievor asked, “Am I under arrest?“, to which Mr. Simpson replied “No, but you are being detained for the police to see what is in the bag.” The parties then proceeded through the tunnel towards a subway access door with the intention of returning to the store. When they got to the entrance of the subway, Mr. Simpson testified that the grievor said, “Before we go back to the store, I want to speak to my wife. She’s waiting for me in the car, it’s just around the corner.” Mr. Wenham then said to the grievor that they would prefer to go to the store first and again asked if the grievor would give the bag to Mr. Wenham, to which the grievor refused saying that it was his personal property and none of their business. At this point Mr. Simpson testified that the grievor started shouting and creating a commotion by saying to various passerbys things like, ‘“These two guys say they are police and they are trying to arrest me for theft.” At that point, Mr. Wenham and Mr. Simpson agreed that they would escort the grievor to his car so that he could talk to his wife. The three of them then proceeded along the underground passageway to the underground parking lot. As they approached the car, it was clear that the car was occupied by a male and a female with the male sitting in the driver’s seat and the female sitting in the front passenger seat. Mr. Simpson then testified that they walked to the driver’s side of the vehicle at which time the driver rolled down the window and the grievor mumbled something to the driver. The driver did not seem to comprehend what the grievor was telling him. At that time, the grievor turned and shoved Mr. Simpson and threw the plastic bag into the open car window while shouting, “Frank, get the fuck out of here, they are trying to pinch me for theft.” Mr. Simpson then proceeded to put his arm into the car in an attempt to retrieve the bag but the grievor shoved and pushed him. Mr. Simpson said that, during this scuffle, the bag opened up and a six pack of beer fell out -4- on the floor of the car but the bag still had other contents. He felt the contents of the remaining bag and indicated that if felt like a bottle although he was unable to identify it as a liquor bottle. The male driver of the car then closed the window up on Mr. Simpson’s arm, placed the car Ian gear and drove off, dragging Mr, Simpson along. The grievor at that time was pulling and grabbing at Mr. Simpson’s free arm as the driver drove off towards a low retaining wall with Mr. Simpson in tow. Mr. Simpson subsequently freed himself just before hitting the wall and the car sped away. At that point, Mr. Wenham, Mr. Simpson and the grievor returned to the store. Mr. Wenham asked him for more details about the exchange but the grievor said he had nothing to say about it. Mr. Wenham then called the police and the grievor again indicated that he was not prepared to talk and that he wanted to speak to his lawyer. At that point, Mr. Simpson provided the grievor with a phone and left the room. Later on that night the police came and charges were ultimately laid against the grievor for theft and assault. It should be noted that at a later time both charges were withdrawn. On cross examination, Mr. Simpson admitted that although he had an identification card showing that he was a Liquor Board investigator, he did not show this I.D. to the grievor. Mr. Simpson claims that he was not asked to show such I.D. by the grievor. On cross- examination Mr. Simpson admits that when he accompanied the grievor from the subway access point to the car, he may have touched or tapped the grievor’s elbow. On cross examination Mr. Simpson denied that he ever made a physical attempt to grab the bag other than when it was in the car, however, he does state quite clearly that on a number of occasions he asked the grievor to give him the bag but the grievor refused. On cross-examination Mr. Simpson also denied that the driver of the car, once he commenced moving it with Mr. Simpson’s arm in it at one point stopped and then re-started the car. Mr. Simpson was adamant that once the driver started moving the car he kept going in a forward direction. . The next witness for the employer was Mr. Wenham, the Director of Security for the LCBO for the last 8 years. Mr. Wenham also took extensive notes of the incidents and relied on those notes in his testimony. Mr. Wenham was observing the situation from a slightly different location than Mr. Simpson. However, in all material respects his testimony of the incidents is consistent with that of Mr. Simpson. The third witness for management was Edward Stokes, the manager of the store at the relevant time. Mr. Stokes, in his cross examination admitted that the procedure followed at the Union Station store for exchanges was not strictly in accordance with the LCBO policy. He indicated, however, that where an employee wished to exchange liquor on his own account, it was required that he indicate the exchange to some other employee in the store. If the employee doing the exchange was in charge of the store, like himself or the grievor, then it was required for that employee to indicate to another LCBO employee that the exchange was occurring. Mr. Stokes also testified that, on occasion, sales agents from wine companies would leave samples of their products in the store which would later be given out to staff. It would also not be unusual for a staff person to exchange this free wine for another listed product and there was no problem with that as long as they complied with the exchange policy referred to above. The employer then called a series of witnesses who simply testified that they were working with the grievor on April 22,1987 and at no time did he come to them and indicate that he was making an exchange. Management then called Mr. Alfred Farrell as a witness who was, at the time in question, the bookkeeper at the Union Station store. Mr..Farrell indicated that on a previous occasion, approximately four days before the incident in question, he observed a white plastic bag in the office of the store which had bottles of liquor in the bag and a newspaper wrapped around it on the inside. At the end of the shift, Mr. Farrell observed the grievor taking the . -6- plastic bag with him and proceeding towards the lockers located outside the store. The only witness called by the Union was the grievor, Mr. Brian McWilliams. Mr. McWilliams’ testimony about the day in question is as follows. He reported to work at approximately 2:20 p.m., which is 40 minutes before the start of his shift. He then proceeded to a variety store located just across from the liquor store where he purchased a few bottles of Perrier water but nothing else. These were the large bottles of Perrier water and rather than using a bag, he stuck them in his coat pocket. He then proceeded into the store and put the Perrier in the staff fridge, located in the staff lunch room. Mr. McWilliams was the only manager in the store on that shift after .5:30 p.m. He left the store at about 6:00 p.m. for 10 or 20 minutes to take a break and during that period of time he walked out of the store and went passed the lockers and through the tunnels and came back to the store. He said he did this often, it was his way of taking a break. At that time, he did not have anything with him and he was away for 10 minutes at the most. At about 7:00 p.m. Mr. McWilliams testified that he took another walk. This time, however, he filled a white plastic bag with the Perrier water out of the fridge that he had bought, some shirts that he had with him, a newspaper and some other personal effects and then took them out and put them in a locker. He said he also had six cans of beer in the plastic bag. Later on in his testimony he indicated that the “other personal belongings” that he put in the bag was a smail bag containing about five or six ounces of marijuana. Mr. McWilliams claims that the beer was as a result of an exchange. He indicated that at about two weeks prior to this incident, some wine agents came in and gave out bottles of wine. He had been given a bottle and placed it in the bottom drawer of the filing cabinet in the office. Two weeks later on April 22, 1987 he decided to exchangethe wine and indicated that he priced it, put it back on the shelf and took a six pack of beer. Mr. McWilliams . . -I- admitted in his testimony that he did not tell anyone from the store that he was making the exchange and that he knew that this was contrary to the policy of the store. When asked why he did not make anyone aware of this exchange, he indicated that everyone was too busy. On examination in chief he indicated that he put all these belongings in the locker at that time because he was concerned about his bags being looked at by other employees. He said he had used a locker since November because of the fear that other employees would look through his belongings and presumably steal them. I note that this overwhelming concern for his security was notwithstanding the fact that both the wine, the Perrier water and his shirts had not been put in the locker for some considerable period of time and therefore, these products were open to inspection and theft by his co-workers. However, this did not seem to concern Mr. McWilliams until about 7:00 p.m. on the night in question. When asked why he, all of a sudden, wanted to put his marijuana in the locker at 7 o’clock at night, he indicated that he had had it on his person and he had forgotten about it and did not want to be caught in the store with marijuana so he put it in his locker. He left the store about lo:15 that night. As he came outside the store, he just happened to run into two people that he knew, a male and a female. They had a short conversation at which time they offered to drive him home and he said “O.K.” They then separated as the male and female went towards the parking lot and he went towards the locker. He went to the locker, took the contents out and proceeded to exit through the tunnel. According to his testimony, as he was walking through the tunnel he heard someone call out his name but he did not stop as he could not see who it was. Then two people came up to him~ running out of the tunnel and tried to grab him. He admits that Mr. .Wenham asked, “Do you know who I am?” Mr. McWilliams responded, “Yes, I vaguely recall you.” ‘t. ,, ;- -8- . Mr. McWilliams indicated that he asked both Messrs. Simpson and Wenham for their I.D. but they refused. Mr. McWilliams admitted he knew who Mr. Wenham was at that time but still asked for his I.D. Mr. McWilliams also admitted that Mr. Wenham had identified Mr. Simpson as another security officer but apparently Mr.- McWilliams did not believe him and that is why he continued to ask for the I.D. of both of the investigators. Mr. McWilliams testified that while in the tunnel Mr. Simpson was continually trying to grab the plastic bag and Mr. McWilliams was not allowing him to do so. Mr. McWilliams denies that he raised his voice or caused a commotion at all outside the subway access. He asked at that point of Mr. Simpson and Mr. Wenham if he could go back to his car to tell his buddies in the car that he was going to be late. He does not recall whether he used the term “girlfriend” or “wife” as was testified by Messrs. Wenham and Simpson. As they got up to the car, Mr. McWilIiams acknowledges that the window in the car was up and Frank rolled the window down. Mr. McWilliams’said he then placed the bag on the window sill of the car and said to Frank, “Get the fuck out of here, they are trying to charge me with theft.” At that point in time, Mr. McWilliams accidentally dropped the bag into the car because Mr. Simpson was pulling at him. He denies grabbing, shoving or putting his hands on Mr. Simpson at all. He also said when Frank started the car, he stopped it at one point and then started it up again. Mr. McWilliams said that although he was asked to provide an explanation of this incident, he refused because his lawyer had told him not to talk to anyone or write anything down about the incident as it was clear he was going to be charged with a criminal offence. I accept this as a reasonable excuse for the grievor to refuse to provide an explanation at that time. It was the LCBG’s decision to lay charges, therefore they cannot now accuse him of failing to co-operate when they created the situation whereby his legal advisor told him not to.do so. In all the circumstances it is a reasonable reaction for 1 . -9- a person charged with a criminal offence to not make any statements to either the police or his employer. Mr. McWilliams admitted that he committed an error in judgment in that he did not get proper approval for the exchange and acknowledged that some discipline should flow for that breach of policy. The Vice Chairman proceeded to ask Mr. McWilliams a few questions regarding some points, in . particular, whether or not Mr. McWilliams accidentally dropped the bag containing the beer in the car or whether he did so on purpose. In his examination in chief it was very clear that he was claiming that he dropped it in accidentally. However, in answer to the Vice Chairman’s question, he changed his testimony and admitted that he intentionally dropped the bag into Frank’s possession because he was concerned that the LCBO or the police would find him in possession of the marijuana. Mr. McWilliams said that the reason he refused to show Messrs. Wenham and Simpson the bag and the reason he disposed of the bag was not because ‘he was trying to dispose of the beer, but only that he was trying to dispose of the marijuana. Mr. Williams also indicated that at no time was he in fear of any physical harm from either Mr. Wenham or Mr. Simpson as he is the holder of one of the highest belts in karate and teaches karate. It should also be noted that Mr. McWilliams is a gentleman of considerable size whereas Messrs. Wenham and Simpson are considerably smaller, both in height and weight. On cross-examination he indicated that it was just a matter of coincidence that at 7:00 p.m. on April 22, 1987 he decided to exchange a bottle of wine that had been sitting in his bottom drawer for three weeks, put some shirts in a bag that had been on the premises for at least a few days and hide some marijuana that had been in his possession since at least 2:00 th.at day. ‘. On cross-exammation he also indicated he was fully aware of the proper procedure for changing liquor and that he had done it properly on previous occasions. He also admits that when confronted by Mr. Wenham and Mr. Simpson in the tunnel that he -lO- indicated that he had an exchange in his bag but that he refused to show them the bag. Mr. McWilliams now says that the true reason he refused to show the bag was not because he was concerned about the discovery of the beer because, he had admitted that, but rather he was concerned about the discovery of the marijuana. On cross-examination Mr. McWilliams did a very surprising thing in that he reverted to his theory that he accidentahy dropped the bag in the car. This totally contradicts what he previously answered to the Vice Chairman’s questions and shows that Mr. McWilliams was reverting to the story he indicated on examination in chief. Mr. McWilliams indicated that he bought the Perrier water at the begimiing of his shift and put it in the fridge either for the purpose of drinking it in the store or taking it home at night. Notwithstanding his intention to perhaps drink it in the store, he removed it from the store at about 6:30 p.m. which was about half-way through his shift. He again indicated that the reason he removed the goods at that time from the store and put them in the locker was because he was concerned about the items in the bag. However, on further questioning, he admitted that the real reason he put everything in the bag at 6:30 p.m. was not because he was really concerned about the integrity of his property but rather that he was very concerned about putting the marijuana away and wanted to make it look like he was just routinely putting things away so as not to attract attention, rather than just going up to a locker and hiding a small quantity of marijuana. This contradicted what he said in examination in chief at which time he said that theonly reason he was putting these things away was because he was concerned about his personal possessions. This case comes down largely to one of credibility. If the grievor is believed then all that occurred was a violation of an exchange policy. All of his other actions including the refusal to show the bag to Messrs. Wenham and Simpson and the disposing of the bag to Frank in the car were for the purpose of preventing the discovery of the marijuana by the - ll- LCBO and subsequently by the police. Mr. McWilliams’ whole alibi therefore rests on the marijuana defence as an explanation for his unusual conduct. With respect to credibility, this Board prefers the evidence of the employer’s witnesses over that of Mr. McWilliams where there is a contradiction. The reasons for this are as follows: 1. Both Mr. Wenham and Mr. Simpson gave consistent, although not identical, testimony regarding the incidents and they gave this testimony in a straightforward manner from notes that they had prepared shortly after the time of the incident. They appear to this Board to be forthright and honest and no material change in their evidence was brought forth on cross examination; 2. The evidence of Mr. Farrell regarding the incident of seeing a bag of liquor in the office a few days before the incident and subsequently being removed by Mr. McWilliams was not cross examined and therefore can be accepted by the Board as some sort of evidence that the grievor on previous occasions had utilized the plastic bag to remove liquor from the store. &though management is not relying on any other incident other than April 22,1987 as to evidence of theft, this is at least evidence of similar conduct in the past for which Mr. McWilliams is not claiming the marijuana defence; 3. Most importantly, the grievor himself materially changed his testimony on two important aspects in the course of his examination in chief, cross-examination and questions by the Vice Chairman. In particular, he claimed in chief that he accidentally dropped the bag of goods into Frank’s car and did not intentionally dispose of the evidence. However, when questioned by the Vice Chairman, he candidly admitted that he dropped it in there purposely so as to dispose of the marijuana evidence. He then must have forgotten which story he had told because on cross-examination he reverted to the accidental theory. More importantly, it is absurd to think that a man of Mr. McWilliams’ size would accidentally drop a bag of this nature when jostled on the arm by a man of Mr. Simpson’s considerably smaller size and weight. Also, if Mr. McWilliams was so concerned about the discovery of marijuana in the bag, which he testified he was, then it would be entirely consistent to intentionally dispose of the bag and it would be absurd to think that he would not do otherwise. However, the Board senses that Mr. McWilliams was somewhat reluctant to admit that he intentionally disposed of the bag because he thought that would harm his defence to the allegation of theft. However, to be consistent, the only logical answer is that he did indeed intentionally dispose of the bag so as to prevent the LCBO and more importantly, the police, from having any evidence against him with respect to possession of marijuana; 4. On examination in chief, Mr. McWilliams testified that the reason he was desirous of putting the plastic bag in the locker at 7:00 p.m. was that he was concerned about the integrity of his property. From this the Board understood that he was concerned that his goods would be stolen by his co workers, or at least inspected. It is therefore incredulous that the goods that he sought to preserve consisted of two bottles of Perrier water that had already been in the fridge for a few hours, some cans of pop that had been in the fridge already for a few days and some shirts that had been on the premises for a few days. Presumably, if Mr. McWilliams was really concerned about the integrity of his personal property, he would never leave goods like this on the premises and would consistently use the locker. However, again when questioned further on this point, Mr. McWilliams conceded that the real reason he wanted to put all these things in the locker at 7:00 p.m. was sort of a ruse so that he could dispose of the marijuana. Again, his testimony changed from examination in chief to cross-examination. Frankly, it appears to the Board that Mr. McWilliams conceived of the marijuana defence as an attempt to create a situation in which his somewhat unusual actions could be explained, but as often happens with people who invent stories, he failed to come up with a consistent story and his contradictions appeared blatantly in his own testimony. It is for these reasons that : - 13 - the Board finds that Mr. McWilliams’ testimony is not credible and that the testimony of management’s witnesses is to be preferred where there is a conflict. We therefore have a situation in which an employee admits to having liquor in his possession contrary to the established rules, who refuses to allow security officers of the board to inspect the bag when they have reasonable cause to suspect that he is in possession of stolen goods and most importantly, intentionally disposes of the evidence in question for the express purpose of frustrating the investigation of the LCBO and subsequently that of the police. It is not necessary in this decision to decide whether or not the LCBO had the right to inspect the bag in question and therefore whether or not the Liquor Board can discipline Mr. McWilIiams for failing to show them the bag. However, it is clear that the grievor’s intentional disposition of the goods in question creates an overwhelming inference that he had in fact.stolen the beer in question and disposed of the goods in an attempt to frustrate the investigation of his employer. If he had, in fact, exchanged the goods as he testified he did and as he told to Messrs. Wenham and Simpson in the initial contact, there would be no reason in the world why he would not agree to show them the beer. It would be inconceivable that if all he was guilty of was an improper exchange that he would intentionally dispose of the goods. The intentional disposition of the goods therefore is only consistent with a conclusion that the grievor stole the beer and sought to cover up his tracks by disposing of the stolen goods. It is clear that the beer was LCBO property as the grievor admitted this in his examination in chief. It is clear from the case of Massey-Ferguson Industries Limited and the UAW. a.decision of Mr. Dunn dated March 20,198 that it is not necessary for the employer to show in particular that specific goods were stolen in order to support a discharge based on theft. Certainly where the grievor himself disposes of the goods, he cannot now complain that the employer has failed to prove its case because they are unable to produce the stolen goods. : . - 14- The employer alleged in its closing argument that the grievor was terminated for three reasons which are as follows: 1. He failed to properly follow the procedure regarding exchanges; 2. He failed to co operate with the Board in their investigation, in particular by refusing to show the bag and by disposing of the goods; 3. Theft of the beer. The grievor admitted that he failed to follow the proper exchange procedure and the LCBO’s position is that this itself constitute grounds for dismissal. The Board disagrees with that proposition and finds that if all the grievor had been guilty of was an improper exchange, then discharge would have been an extremely excessive penalty. The evidence of all the witnesses was that the exchange procedure in this particular store was exceptionally sloppy and consisted simply of the grievor having to indicate to any employee in the store that he was exchanging goods. It is conceivable that an employee would ignore the procedure on a certain occasion because he himself knew that the exchange was proper and did not feel any need to have it approved by another co worker, especially when that co worker would be a subordinate. At best, if all the grievor was guilty of was failing to follow proper procedure, the appropriate remedy would be a suspension of a week or two. With respect to the allegation that the grievor failed to co operate with the Board in their investigation, the Union raises the objection that this allegation was not stated in the discharge documents. The Board got the distinct impression that management was relying on this allegation only as a result of the way the evidence came out on the hearing because this ground was not referred to in the opening statement of the employer. In any event, it is not necessary to consider this ground and the Board does not allow it to be added as a ground at this time. - 15 - . This Board finds on the evidence, and especially based on a close examination of the credibility of the grievor as compared to the credibility of the other witnesses, that the employer has proven with clear and convincing evidence that the grievor did in fact commit theft in that he stole six bottles of beer on April 22, 1987. Having come to that conclusion, the Union asks that consideration be given to a penalty other than discharge given the circumstances in the case. The Union claims that the mitigating factors to be considered in this situation are as follows: 1. This employee is obviously of long service and the only evidence we have of any warnings were some verbal warnings some years ago so in essence this grievor had a very good record prior to his discharge; 2. The value of the theft was obviously minimal; 3. The grievor had some sort of cancer surgery a few years ago and is still under care although it is in total remission and furthermore, he apparently lives at home and looks after his ill father. The Union argues that we should consider these factors as compassionate grounds. However, I note that no evidence was led whatsoever as to what the grievor is doing now, so as far as we know he has a job; 4. The Union says that we should consider the rehabilitive potential of the grievor. There was evidence that the grievor was a volunteer teacher of karate to children. In considering whether the usual penalty of discharge should flow from an allegation of theft, it is critical to appreciate that in this particular case the grievor denied during the hearing and presumably still denies that he was guilty of any theft. On this point, careful note should be taken.of the decision of arbitrator Weatherill in the case of Re: International Nickel Company of Canada Limited and UAW. (1977). 15 L.A.C. (2d) 224 where from page 224 - 225 he says, Generally speaking, where there is theft or attempted theft o an employer’s property there is just cause for discharge f oft ze employee concerned... . . . There are no cases where an arbitrator has re-instated a grievorfound to have committed theft or attempte4 the t where the grievor denied the offence at the ar@ratron If earing itself: No doubt most arbitrators would conxder that any serious denial of the o employee’s honesty stage would reflect on the committed) so that there would had in fact been e no justification for re- instatement on the basis that the offence war a momentary aberration.... For re-instatement to be considered where there has been Without at least these In this casi, of course, there was absolutely no prompt and frank acknowledgement of the theft by grievor. Therefore, in all the circumstances it is this Board’s opinion that there is no basis for substituting a penalty other than discharge in these circumstances. This is especially so where the grievor is in a position of trust in that he was the acting manager for the period of time that he was in the store. For all the reasons stated above the grievance is dismissed. Dated this 15th day of August, 1988. airman I partially dissent. (Partial dissent attached.) P. Klyq Member 860/87 B. McWilliams PARTIAL DISSENT I disagree with the majority decision with respect to the penalty imposed. The sole offense which the grievor is found to have committed was the taking of six cans of beer. The penalty imposed is the ultimate penalty of discharge. Bearing in mind his position as assistant manager, a serious disciplinary penalty is justified. However, I believe consideration should be given to the grievor’s long service of approximately seventeen years and the small value of the product involved. I find that the offense warranted a demotion from assistant manager and a lengthy suspension, but not a discharge. Peter Klym