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HomeMy WebLinkAbout1996-0227.Miller.97-04-22EMPLOY&% DE LA CPWWWNNE DE L’ONTARKI COMMISSION DE SETTLEMENT RfkGLEMENT DES GRIEFS 180 DUNDAS STREET WES’I; SUITE 2100, TORONTO ON M5G 1Z8 189, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G lZ8 BETWEEN BEFORE: D. Kates FOR THE GRIEVOR TELEPHONEITiLiPHONE : (416) 326- 1388 FACSlMILE/T~LiCOPlE : (416) 326-1396 GSB # 227/96 OLBEU # OLB098/96 IN THE MATTER OF AN ARBITRATION UnUer THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OLBEU (Miller) Grievor - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer Vice-Chairperson M. Gottheil Counsel Caroline, Engelmann, Gottheil Barristers & Solicitors FOR THE EMPLOYER M. Gage Counsel Liquor Control Board of Ontario HEARING July 26, 1996 October 24, 1996 April 7, 1997 I Decision This grievance pertains to the grievor's challenge of the employer's decision to discharge him from his Customer Service position (Clerk III) at the employer's store outlet at Brockville, Ontario. The grievor is a long service employee with twenty years seniority in the employer's employ. The employer conceded at the outset that the three employee infractions for which discipline was imposed would not of themselves constitute cause for the discharge penalty. Rather, in having regard to the grievor's previous disciplinary record and commonly accepted standards for "progressive discipline" the infractions for which the discharge penalty was assessed constituted appropriate culminating incidents. Because of the admissions made by the trade union with respect to the alleged culminating incidents and the findings I intend to make with respect to these infractions, some comment about the grievor's prior disciplinary record is in order. Within a period of twelve (12) months prior to the grievor's termination, the employer has found it appropriate to impose discipline on four occasions for employee misconduct that can hardly be considered trivial concerns. Indeed in the one case the employer appears to have had grounds for just cause for termination (for theft of store merchandise) but deferred doing so. Rather, a twenty day suspension was imposed along with "a last chance" warning with respect to his future status with the employer. Notwithstanding this last chance warning the employer I 2 exhibited a reluctance to impose the discharge penalty on the occasion of two subsequent infractions for which milder disciplinary penalties were invoked. The employer, and more particularly, Mr. Ron Flett, District Manager, have attempted to extend to the grievor every reasonable opportunity to rehabilitate himself through the disciplinary process so that Mr. Miller might maintain his employment. It is also of some relevance to observe that the grievor's personal situation has been beset by a variety of unsettling difficulties. At all material times he has admitted to being a recovering alcoholic engaged in remedial measures to overcome his addiction. At the material time of the culminating incidents he was separated from his wife and was engaged in embittered legal proceedings with respect to custodial and financial issues that often arise out of a dissolved marriage. Moreover, he has encountered difficulties in meeting his financial commitments from his termination and his ineligibility to secure unemployment insurance benefits and his inability to obtain welfare. There is no doubt that the employer at the time of its decision to terminate was made aware of the grievor's personal difficulties, and, indeed, it may be inferred that that awareness played some role with respect to its reluctance to terminate the grievor's employ on previous occasions when discharge may have been warranted. Rather, the written record does show that the employer has referred the grievor to its EAP programme for assistance. Moreover, when the grievor complained that the managerial functions 3 that were required of him while occupied in the former position of Store Manager, Prescott, Ontario, the employer arranged for his voluntary demotion to the position he occupied at the time of his termination. In fact, the grievor has acknowledged that the employer's co-operation in the above regard most likely preempted the imposition of yet another disciplinary penalty for the committal of a drinking infraction during the course of duty. Accordingly, what this grievance is about (as reiterated during the grievor's disciplinary interview of March 18, 1996) is whether at arbitration Mr. Miller should be extended one more "last chance". From the trade union's perspective it has maintained, without necessarily denying the occurrence of the incidents for which the grievor was terminated, that on the one hand they were so "trivial" in nature that the invocation of the notion of the culminating incident (underlying the doctrine of progressive discipline) was not applicable or, on the other, that no serious infractions occurred that would otherwise justify arbitral review of the grievor's disciplinary record. From the employer's perspective although it has conceded that the three alleged infractions that constituted the culminating incidents were hardly "trivial" or inconsequential, their occurrence per se would not justify imposition of the discharge penalty. In short, from both parties' perspectives consideration of the grievor's past record is essential in my determining the appropriateness of the discharge penalty. 4 Despite initial indications to the contrary, the three incidents for which the grievor was terminated were relatively straightforward and may be briefly described. On February 20 and 21, 1996, the grievor and Ms. Lisa Gemmell, a casual employee, were assigned to the evening shift. Both Mr. Miller and Ms. Gemmell performed cashiering duties during that shift. Because the grievor was the more senior he was couched with managerial responsibilities for monitoring the store and was compensated with a premium in accordance with the terms of the collective agreement for doing so. It is common ground that one aspect of the store manager's responsibilities pertains to the administration and enforcement of the employer's rules and regulations as they related particularly to employee purchases, the security of cash receipts and the general well being and security of the store's merchandise. The three incidents for which the grievor was terminated pertained to alleged violations of some of these rules and regulations. On February 20, 1996, the grievor asked Ms. Gemmell, while she was stationed at her cash register, to "cashl' a personal cheque for $150.00. Ms. Gemmell recalled counting out the monies for Mr. Miller's benefit. It is also pertinent to observe that Mr. Miller and Ms. Gemmell had agreed to share a pizza during their lunch break. The grievor volunteered to pay for the entire pizza as a portion was intended as a birthday gift for Ms. Gemmell. At approximately the time of the cheque transaction Mr. Miller also asked Ms. Gemmell "to ring up" a code representing the purchase of 5 a bottle of whisky. The pizza delivery person arrived at the very time of these transactions and thereby expected to receive payment for the pizza. The grievor handed Ms. Gemmell twenty dollars. She interpreted that the purpose of the monies was towards the payment for the whisky ($19.50). Instead the grievor directed her to pay the delivery person for the pizza. Ms. Gemmell closed the drawer to her cash register without receiving immediate payment for the bottle of whisky. The employer's rules with respect to employee purchases of merchandise read as follows: SUMMARY Staff members are not allowed to fill their own orders, except in a l-person store. The purchase must be made by the Store Manager/designate on behalf of the staff member. Staff may purchase marked down bad label stock and delisted stock only after 5 business days have elapsed form the date of the markdown. Procedure follows. Staff Member 1. Ask the Store Manager/designate to fill the order. Store Manager/ 2. Obtain the requested items from stock. Designate 3. Have the cashier enter the items on the cash register. 4. Seal the package. 5. Attach the cash register receipt to the package. 6. Record staff member's name on the package. 7. Keep the package in the office until the staff member has completed his/her work shift for the day. Ms. Gemmell thereupon proceeded to the kitchen area of the employer's facility to deposit the pizza for consumption later on. She did not l'close" her cash register for the brief period she was 6 away. There is no dispute that for an instant Ms. Gemmell was out of sight of her cash register while it was left "unlockedl'. Mr. Miller, however, remained in the adjacent area of her cash register while Ms. Gemmell completed her task. Upon her return Mr. Miller was observed servicing a couple of customers while using Ms. Gemmell's cash register. He admitted he should have directed the customers to his own cash register to complete the transactions. Instead he violated an important rule relating to maintaining the security of the cash. That rule reads as follows: Cashiers are responsible for cash under their control. While at her cash Ms. Gemmell asked Mr. Miller whether he had paid for the "whisky" she had rung up on his behalf. She recalled the grievor responding affirmatively to her question. Nonetheless towards the end of the shift Ms. Gemmell observed a discrepancy in her efforts to reconcile the balance of her receipts. That discrepancy, as events unfolded, was equal to the purchase price of the bottle of whisky the grievor had bought. And when Ms. Gemmell brought the shortage to the grievor's attention he, without reservation, paid her the requisite amount. The grievor insisted that he had paid for the bottle of whisky out of the proceeds of the cashed cheque. But when challenged to produce the cancelled cheque (with the validation receipt) to confirm that hypothesis the grievor could not do so. In any event, had the grievor's version of the manner in which the transaction occurred been sound there would not have occurred a discrepancy in 7 Ms. Gemmell's cash receipts at the end of the shift nor, indeed, any need for the grievor to make further recompense. It suffices to say that the transactions described above, namely the cashing of the personal cheque, the purchase of the pizza and the grievor's purchase of the whisky, occurred so closely together that confusion reigned and innocent mistakes were committed by both Mr. Miller and Ms. Gemmell. And, indeed, it might arguably be advanced that had the rules and regulations that governed these transactions been adhered to then the misunderstandings that were later to ensue might have been avoided. Firstly, the uncontradicted evidence disclosed that the grievor failed to adhere to the appropriate procedure for completing an employee purchase. In accordance with the rules, it was his duty to bring the desired merchandise to Ms. Gemmell's cash at the time of the purchase and to pay for it. Thereupon, Ms. Gemmell ought to have ~~bagged~~ and "receipted" the bottle and to have placed it in a restricted area until the end of the shift at which time the grievor would leave the store premises with his purchase. No party questioned the reasonableness of the security objective of this regulation. This did not happen. Rather, the grievor did not retrieve his purchase from the store's shelf until the end of the shift at which time he was observed exiting the premises carrying a brown bag presumably containing the whisky bottle. What is described above is what actually occurred. Unfortunately, the grievor did not disclose the truth of his 8 participation in the rules' violation to his superiors on the three occasions he was asked to give his version of the episode. Indeed, on those occasions his description of what had allegedly occurred &A> consistent or compatible with the practices that are presribed by by the employer's rules for employee purchases. In sum, the grievor attempted to contradict the actual version of events as recited by Ms. Gemmell in order to leave the impression that in fact she was uttering the untruth. As a result the grievor, in my view, obviously appreciated the gravity of his infraction and the tenuous nature of his employment situation had he admitted (as he later was compelled to do) what had actually occurred. As to the committal of the second infraction pertaining to the unauthorized use of Ms. Gemmell's cash register in order to serve two customers, the grievor "owned up" to his deviation from the employer's rules and regulations. That is to say, from a security perspective, the employer must ensure its capacity to hold an employee assigned a cash register generally accountable for all shortages whether innocently made or otherwise. In order to maintain that responsibility only the one person "in control" is to have access to the cash otherwise the security system designed to protect both employer and employee breaks down. In describing these episodes the trade union attempted to demonstrate that the employer was inclined to treat the two infractions of its rules for which it has held the grievor accountable as being I'trivial". And its strategy for doing so was to show that Ms. Gemmell was equally at fault or responsible for 9 the difficulties that later ensued with respect to the grievor's purchase and his illicit use of her cash. Moreover, the aggravating factor indicative of the employer's treatment of the grievor's infractions as "minor" pertained to its reluctance to impose any disciplinary penalty with respect to Ms. Gemmell's aberrations. Indeed, my notes of the evidence appear to indicate that at best Ms. Gemmell may have received a verbal reprimand or no censure whatsoever. It would seem that the most serious of Ms. Gemmell's alleged infractions related to her ringing up the purchase of the whisky on the grievor's behalf without ensuring payment. I do not, however, hold Ms. Gernmell totally responsible, as the trade union urged, for the grievor's omission to present her with the whisky bottle for bagging, receipting and storage until the end of the shift. In his capacity as the acting store manager, Mr. Miller ought to be held solely accountable for those deviations from a known and reasonable rule. Nonetheless, ringing up the code with respect to the purchase of merchandise without ensuring immediate payment appears to me to go to the very core function of the cashier's responsibilities. Indeed, later Ms. Gemmell appreciated her mistake when she asked Mr. Miller whether he had deposited all necessary monies in her cash drawer upon her return from the kitchen area after depositing the pizza. At that juncture, Ms. Gemmell was assured (erroneously) by Mr. Miller that he had paid for the bottle of whisky. In my opinion Ms. Gemmell should have been censured for this mistake even 10 though it was precipitated by her supervisor's directive. A second- incident for which Ms. Gemmell was criticized pertained to her leaving the cash t'unlockedll while she delivered the pizza to the kitchen area. Mr. Ron Flett agreed that because she was out of sight of her cash register however momentarily while discharging this task, she was in technical breach of the employer's rules. The cash register should have been "locked". But, as the evidence disclosed, Ms. Gemmell can hardly be said to have left her cash l'unattended'U when Mr. Miller, the acting store manager, remained in the vicinity ostensibly to safeguard its security. The relevant portion of the rules relating to "Unattended Cash Register" read as follows: Unattended When the cash register is not attended: Cash Register - Cashier must sign off from the System - cash drawers must be kept closed and locked While it may be accurate to suggest that had Ms. Gemmell locked her cash, Mr. Miller would have been denied access to it for the purpose of serving the store's customers during her brief absence, I am equally of the view that Ms. Gemmell was entitled to assume her "acting" boss would not exploit that aberration when he could have served those same customers by using his assigned cash register an aisle or two adjacent to Ms. Gemmell's. Common sense would indicate that Ms. Gemmell's technical violation of the rule (in circumstances where Mr. Miller ought to be seen as protecting her interests) cannot be used as a mitigating factor to justify accusing the employer for treating his violation of improperly 11 using Ms. Gemmell's cash as a "trivial" matter. The third episode that constituted a culminating incident justifying the grievor's discharge was not established in evidence to my satisfaction. On February 21, 1996, the grievor and Ms. Gemmell were working together on the same evening shift. During his second break (15 minutes), Mr. Miller absented himself from the store for approximately fifteen minutes in order to attend the adjacent Zeller's store to make a purchase. While absent from the store, Ms. Gemmell was left alone and indeed was at risk of shoplifters, drunks and underaged persons who might enter the store premises at will. Apart from these more dangerous concerns while left alone the store might suddenly become busy with customers while the telephone may also be ringing. The employer admitted that there is no written rule or regulation governing the treatment of breaks at the Brockville store when only two employees are assigned a shift. What appeared to emerge from the evidence was a llloosell convention or practice to ensure some semblance of security for the person left on duty while the other takes a break. Firstly, the convention appears only to apply during the evening hours when it is dark outside. Most times during the day there are sufficient employees on staff to permit proper security for'the employees left behind while another is on a break. In any event, even if that is not the case I was advised that when only two employees are on duty during the day shift the daylight hours 12 appear to constitute a mitigating factor regarding the more serious risks to the employee left alone while a colleague is absent during a break period. The practice that was described suggested that during the night shift the coworker who is on a break generally remains in the store area, often in the kitchen where a drink might be consumed. In that instance the employee on break might be summoned to answer the telephone or serve a customer or otherwise attend to the assistance of a colleague when warranted. Should an employee desire a smoke during his or her break, he or she would then exit the store but would remain within sufficient distance in order to observe what was happening inside through the window. What also appeared to emerge from the evidence was the notion that the above described convention did not necessarily apply to the protection of male employees who were left behind by a colleague (whether male or female) who decided to run an errand and/or otherwise disappear on his or her evening break. Moreover, existed stores the employer readily admitted that there indeed or outlets that were serviced by the one employee on evenings throughout its retail system. And these employees were not serviced or protected by any support whatsoever from the security risks that have been described herein. The trade union effectively marshalled the arbitral criteria in The KVP case (1965) 16 LAC 73 (Robinson) at p. 85, for measuring the reasonableness of a rule to demonstrate the inefficacy of the 13 employer's application of a rule (that did not exist) to support disciplinary action. And, moreover, to the extent the above could be described as a reasonable convention its principal features were hardly ltclear" or were applied in an evenhanded and non- discriminatory fashion. In other words, while it may have been reasonable for Ms. Gemmell to have felt upset, having regard to the vulnerable predicament in which she found herself during her tour of duty, her upset should have been directed more legitimately towards the employer's lack of attentiveness in prescribing and administering a clearly written rule designed to cover the circumstances where all employees, irrespective of gender, may be found at risk while a colleague is absent from the store premises on a break. From the perspective of what had occurred, Mr. Miller could not be held accountable for a disciplinary offence for the violation of a rule that did not exist or for the breach of a convention for which he was not made aware or in any event that was applied and administered in an eclectic and discriminatory manner. Accordingly, the principal issue that must be resolved is whether the grievor's two infractions of the rules designed for employee positions during the course of his evening tour of duty on February 20, 1996, should have constituted culminating incidents that would render a review of his disciplinary record relevant in order to justify his discharge. Firstly, I cannot agree with the trade union insofar as it insisted that the incidents for which the grievor was disciplined 14 constituted "trivial" violations of a rule. In my view they pertained to breaches of security whose design is to protect employees from false accusations of negligence or misappropriation in the handling of the employer's merchandise and funds. To the extent that Ms. Gemmell in the one instance should have been held partially accountable for her aberration in not securing payment for the grievor's purchase at the time she rang in the code I am not convinced that the employer's omission makes the grievor's admitted aberrations any less "minor" or lltrivial". And, in any event, the grievor must be seen as having triggered Ms. Gemmell's aberration, notwithstanding his status as the acting store manager, for which he now seeks to mitigate the seriousness of his own wrongdoings. Even if I were disposed, as the trade union urged, to exercise my discretion, despite the grievor's mediocre record, to reinstate him with a milder disciplinary penalty, the grievor had made it most difficult for me to do so. He insisted that if reinstated he cannot accept or occupy any position in which he may be required to discharge supervisory responsibilities. His personal circumstances relating to his alcohol addiction, his financial pressures and his unsettled domestic situation make the prospect for assuming those responsibilities most daunting. Yet, as Mr. Flett insisted, there is hardly a position within the employer's range of jobs, particularly at the Clerk III level, where there is absent a function that carries with it onerous responsibilities. 15 The grievor has advised that he has since his termination secured employment and is working albeit at the minimum wage. In the final analysis, I am not inclined to interfere with the employer's decision to discharge the grievor even though one of the infractions for which he was accused failed to withstand arbitral scrutiny. The two infractions for which he merited discipline were serious. And with respect to one of them he purposely sought to mislead his employer and shift blame to Ms. Gemmell for the infraction. Moreover, upon reviewing his personal disciplinary record, the omissions for which he is being held accountable were not unlike or dissimilar to the infractions for which the employer has previously imposed discipline and restrained itself from imposing the discharge penalty. As already indicated the employer has attempted to give the grievor on numerous occasions the benefit of the doubt. Mr. Miller has extracted all the last chances that were available in the emplpyer's inventory. I am not disposed to alter that judgment. For all the foregoing reasons the grievance is denied.