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HomeMy WebLinkAbout1988-0552.Ianni.90-06-12 GRIEVANCE CpMMISSION DE SE~LEMENT REGLEMENT BOARD DES GRIEFS 180 ~UNDAS ST~E~ WEST, SOtTE 180, RuE DUNDAS OUES~, ~UREAU 2~, TORONTO (O~TA~IO). M5G tZ8 FAC3IMILE/T~L~COPJE : (4~6~ 326-t396 55~/88 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN: OLBEU (Ianni) Grievor - and - The Crown in Right of Ontario' {Liquor Control Board of Ontario) Employer - and - BEFORE: A. Barrett Vice-Chairperson I. Thomson Member D. Walkinshaw Member FOR TBE M. Gold GRIEVOR: Counsel Koskie & Minsky Barristers & Solicitors FOR THE R. Little EMPLOYER: Counsel Hicks Morley Hamilton Stewart Storie Barristers & Solicitors HEARINGS: April 12, 1990 May 4, 1990 At issue in this grievance is whether or not the grievor's resignation of June 11, 1988, should be set aside as being induced by duress and false representations made by management; and secondarily, if the resignation is void, was there just cause for discharge? Mr. Ianni .is accused of theft of two bottles of Dom Perignon champagne worth $190.00 from the liquor store in which he worked as a temporary employee. The incident occurred on Saturday, June 11, 1988 at' approximately 5:'30 p.m., during the store change of shift. The manager,.Mr. Currell, had just gone home and Mr. Gray, a bargaining unit employee, was acting manager for the evening-shift. .The assistant manager, Mr. Linton, was also just about to go off'shift. Mr.' Gray was stocking shelves in the retail area' of the store, facing the back or warehouse area, when he saw Mr. Ianni walking with two bottles o~ wrapped wine towards the garbage area at the rear of the store. Mr. Gray saw him put the bags in. the garbage, then throw the garbage outside. Mr. Gray told Mr. Linton what he had seen, and Mr. Linton agreed to check out the garbage behind the. store when he left for the day. A short while later, Mr. Linton telephoned Mr. Gray from an outside phone and advised -him he had found the two bottles of wine in the garbage. Mr. Gray then approached the grievor, took him into an office, and told him what he had seen, and what had been reported to him. He said that he had no option but to recall Mr. Currell to the store. Mr. Ianni did not say anything in response to the allegations against him. When Mr. Currell arrived all three went in{o a back office together and Mr. Gray outlined again what he had seen and what had been reported to him. Again, the gr±evor offered no explanation or denial. The witnesses diffe~ as to what was said ~nd done next. Mr. Gray says that he stood off to the side while Mr. Currell and Mr. Ianni talked. He heard some mention of a resignation and suggested that he (Mr. Gray) go to another office to pick up some blank paper so a resignation could be written out. Mr. Currell said, "I will accept his verbal resignation." Mr. Ianni then asked Mr. Gray to leave the office so he could talk in private with Mr. Currell. The 'grievor says that in the ensuing conversation with Mr. Currell a resignation was extorted from him through threats and promises. The grievor says that Mr. Currell promised not to report him to the police if he resigned, and threatened the loss of Mr. Ianni's real estate licence (which he had recently obtained} if he got a criminal record, and further suggested that Mr. Ianni's brother, Who works at another liquor store, might be in trouble too. Mr. Ianni says he then agreed to resign: he shook hands with Mr. Currell, and left the store for good. His grievance alleging unjust dismissal was filed on June 24, 1988, the same day the police contacted him regarding a theft charge. Mr. Currell denies making any of the promises or threats and says that in their private meeting Mr. Ianni asked him to overlook the matter as it was a first offence. Mr. Currell responded that he could not do so, and told Mr. Ianni to leave the store. Mr. Currell has no authority as store manager to discipline or discharge an employee and must simply report incidents to his superiors. Mr. Currell also testified that there was an exceptionally high rate of shortages in the store around that time and ways to prevent it and to spot fellow emDloyees stealing had been discussed at a meeting of all employees a few months earlier. Mr. Currell further testified that when he heard Mr. Gray's allegations, he said to Mr. Ianni, "John is this true?" and Mr'. Ianni replied, "Yes, it is true." Mr. Currell then asked the grievor who had planned to retrieve the bottles from the garbage and the'grievor said, "Me." The grievor concedes that he did not make any denial or offer any explanation to Mr. Gray or Mr. Currell when confronted with the accusations, but denies that he admitted to the theft. He say~ that the reason he failed to offer an explanation and agreed to resign was because of Mr. Currell's long-standing overt prejudice against him based on his ethnic background (Italian). Mr. Ianni testified that Mr. Currell often referred to him with derogatory ethnic slurs such as "wop", "mafia-type", "cement shoes", etc. He also gave him the'heavy jobs to do with more frequency than 'other employees. Mr. Ianni said that he was so dispirited from this treatment that on the day in question he performed the following actions: While shifting, garbage bags ..preparatory to putting them out the-back door~ he heard the ~clink of two bottles in one bag. He oDened the bagr saw the two full bottles of Dom Perignon and took them out of the bag. He looked at'them, then replaced them in the bag and threw the garbage out. He says that he did not consider withholding the bottles from the bag or reporting the matter to anyone because his morale was so low as a result of Mr. Currell's treatment of him that he "just wanted to put in his eight hours" and not get involved. He offers this as an explanation for Mr. Gray seeing him put the bottles in the garbage bag, but at the same time denies he could have been seen walking with the bottles in his hands toward the garbage area. He says he did not know who put the bottles in the garbage, nor who was to retrieve them. Nor did he even know why they were there. He did not offer this explanation at the time because he did not expect Mr. Currell to believe him or treat him fairlY. Two Other employees, friends of Mr. Ianni, were.called to corroborate Mr. Ianni's story of Mr. Currell's ethnicprejudice. Miss Gold heard Mr. Currell call Mr. Ianni "wop" and "dago" and testified that in general Mr. Currell's attitude to MrS' Ianni was less than respectful. In cross-examination, Miss Gold conceded that Mr. Ianni was not the only employee subject to derogatory ethnic or sexist remarks: that black people were called "niggers" and "coons", and women were called "broads" Ms. Peter also testified that she heard Mr. Currell use ethnic slurs when speaking to or about Mr. Ianni, but ~he did not say that Mr. Ianni was particularly singled out. She said: "He treated a lot of us with a little bit 'less then respect. I can't 'think of many of us that he liked much. John was one of many who got it." ; Mr. Currell denied having any animus against Mr. Ianni based on his ethnic background~ or otherwise, and stated that, to the contrary, he favoured Mr. !anni with more hours work than other temporary employees and always gave him fully satisfactory performance appraisals, which were introduced in evidence. Credibility is obviously in issue here, but is not the main issue. The essential allegation against Mr. I~nnf is that he put two bottles of product in a garbage bag and Dut the garbage outside the store, thus constituting theft or attempted theft. These facts are not denied by the Hrievor. His "innocent" explanation for doing so is not credible, or even a proper defence to the charHe. He knew, or ouHht to have known, that puttinH product into a Harbage bag and placing it outside would deprive the employer of its riHht to possession. · We found Mr. Gray to be a credible witness and have no reason to disbelieve that he saw Mr. Ianni carry the bottles to the garbage bag. As to Mr. Curre!l's credibility, we have some reservations. We conclude on the evidence ~hat Mr. Currell displays an "Archie Bunker'' mentality and probabl~ made the ethnic slurs he is accused of 'though denies. This fact,, however, is somewhat of a red herring. Mr. Currell did not witness the incident, nor was he hovering nearby. He was called back to the store to deal with a problem that arose in his absence. The only way in which his evidence is relevant is on the issue of whether or not he induced Mr. Ianni to resign. We note .that the resignation, which Mr. Ianni admits he tendered, was more to his advantage.than Mr. Currell's. We believe that he thought he would avoid criminal prosecution if he resigned, and that it would be clearly to his benefit with respect to all aspects of his future life. What did Mr. Curreli stand to gain? Certainly he knew that any decision with respect to Mr. Ianni's future with the employer was not his. If he did offer leniency, surely that was to benefit Mr. Ianni, not himself. Mr. Ianni' suggests that Mr. Currell offered him a deal to save himself in some way perhaps to stave off this very hearing! That does not ring true. We find it significant that it was Mr. Ianni who asked Mr.'Gray to l~ave the room so there would be no witness to the private conversation between him and Mr. Currell. That would indicate some trust of Mr. Currell or hope of leniency. Mr. Ianni initiated the conversation'that he now tells'us was full of'threats and duress. But, he did not attempt to get his job back until the police approached him some thirteen days later. Mr. Currell did not report the matter to the police until that time when he was required to do so by his supervisor. Having concluded that Mr. Ianni committed the theft or attemDted theft, as alleged, we need not delve too deeply into the private discussion that ensued. If Mr. Ianni had not resigned he would have been justly discharged by senior management. There are no circumstances 'here that'would lead us to consider mitigating the penalty. He has not admitted the theft or shown remorse. In fact, his denials at the hearing were arrogant and designed to cast aspersions on the credibility of others. In summary, we find Mr. Ianni culpable in the theft or attempted theft of product on June 1!, 1988. We find that he attempted to made a deal for a resignation in lieu of discharge with Mr. Currell, and came away'from the meeting thinking a deal was made. He may have misled himself, or Mr. Currell may have said some of the things Mr Ianni said he did. It appears from the thrust of Mr. Ianni's evidence'that Mr. Currell was really trying to find out who else was involved in the theft and, possibly, made derogatory remarks about Mr. ianni and others in the process. Even if we were satisfied on a balance of probabilities that Mr. Currell made the remarks he is alleged to have made, which we are not, we would still be compelled to find that if Mr. Ianni . did not resign voluntarily~ he was discharged for just cause. Accordingly, the Grievance is dismissed. DATED at Toronto, this 12th day of June , 1990. A. BAKRETT, Virce Chairp~son I. THOMSON, Member D. WALKINSHAW, Member