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HomeMy WebLinkAbout2003-3099.Cahill.05-08-11 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2003-3099 UNION# OLB606/03 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano LIqUor Boards Employees' Umon (CahIll) Union - and - The Crown In RIght of Ontano (LIqUor Control Board of Ontano) Employer BEFORE Nimal V DIssanayake Vice-Chair FOR THE UNION Kourosh Farrokhzad Engelmann Gotthell Bamsters and SOlICItorS FOR THE EMPLOYER Dan Palayew Ogllvy Renault Bamsters & SOlICItorS HEARING March 15 July 12, 13 November 15 16 2004 February 24 25 June 15 16 July 29 2005 2 DeCISIon This decision relates to a discharge grlevance dated November 19, 2003 filed by Mr Patrick Cahill ("grievor") The grlevor started with the LCBO as a casual Customer Service Representative (CSR) In October 1983 and became permanent In 1986 In April 2003 he was promoted to the Store Manager level 1 position He held the position of Store Manager at the LCBO store in Morrisburg, Ontario, at the time of his discharge The discharge letter dated November 13, 2003 signed by District Manager Mr Rick Wood reads Further to my correspondence on July 9, July 25, August 1, August 11, October 2 and October 15, as well as the meetings held with you and your Union Representatives, Bruce Guilbeault, Elie Naufal and Mike Stanton on November 10, 2003, the LCBO has now had the opportunity to reVlew the information it has at the present time As a result of your actions related to these matters and after consideration of all the information available, I must conclude that disciplinary action is warranted in the form of termination for just cause, effective immediately Furthermore, your criminal conviction and attitude are incompatible with your position As a Store Manager, you hold a position of trust which has been irrevocably breached 3 through your actions Anyone of these matters alone would be sufficient to support our decision to terminate your employment Accordingly, you are directed to return any and all property of the LeBO that you may have In your possesslon to my attention as soon as possible While the letter of termination refers to the grievor's "criminal conviction and attitude" being incompatible with his position, at arbitration the conviction (for driving while his licence was under suspenSlon pending a charge of drunk driving) was not put forward as part of the just cause for his discharge The employer's position at arbitration was that anyone of three incidents of misconduct by the grlevor was just cause for his termination In the alternative, it was submitted that the conduct when combined constituted just cause for termination The allegations against the grlevor fall into 3 categories (1 ) That the grlevor engaged In sexual harassment by making inappropriate comments at work (2 ) That the grlevor requested a casual employee during work hours to purchase a quantity of marijuana for him 4 (3) That the grlevor, while on paid time, supplied a contractor's crew with alcohol, and consumed alcohol himself with the crew at the store to a point of intoxication My first task lS to make factual findings with regard to each of the above allegations Sexual harassment In May 2003 a casual employee at the Morrisburg Store, Ms Michelle Urquhart brought to the attention of Mr Rick Wood, the District Manager, a number of comments of a sexual nature the grlevor had allegedly made at work Mr Wood advised Ms Urquhart to contact the unlon and make notes of the incidents On June 4, 2003 Ms Urquhart filed a grlevance against the employer alleging a violation of article 2 1 (b) The grlevance was settled on July 23, 2003 with the employer undertaking to fully investigate Ms Urquhart's allegations of sexual harassment A Notice of Intended Discipline (NOID) dated July 9, 2003 had been issued to the grlevor informing him that disciplinary action may be taken against him "as a result of alleged inappropriate comments made to a female employee by yourself on numerous occasions" On July 13 the grlevor responded, essentially stating that any comments he may have made to the female employee were made In "a good sprit tone" and 5 not in bad faith, and also suggesting that the employee may have been motivated to complain because of a dispute she had with him In relation to the number of hours of work the grievor had glven her At the time of the alleged comments by the grlevor, he was the manager of the Morrisburg store Ms Urquhart was one of two casual employees who worked under him She testified that from the time the grlevor arrived as manager in April 2003, she felt very uncomfortable gOlng to work because of the frequent comments the grlevor made towards women, and particularly to her She testified about the following alleged incidents (1 ) One day at work, the grlevor asked her if she had just had a hair cut She said "no" He commented, " you look like trash" (2 ) On another occasion, in the presence of a male sales representative who was visiting the store, the grlevor called her over and handed a glow-stick and asked her if she knew what it lS used for She said, "No " He responded, "Maybe you can take it home and find different ways of using it " (3) The grlevor often talked about always having a woman lined up every day 6 (4 ) One day a young girl came into the store and was talking to the grlevor Once she had left, the grlevor said "Michelle, she lS the next on the chopping block She like me " (5) One day she met the grlevor In the LCBO Store parking lot He told her that a girl had come to the store and that she had "big hooters" ( 6) Ms Urquhart heard the grlevor on the office phone calling a girl named Judy The first thing he told her was, "Where lS my blow job?" Ms Urquhart left the office shaking her head in disgust Ms Urquhart testified that she did not complain to the grlevor directly because she did not think it would make any difference and was unsure how he would react Instead he spoke to Mr Wood and to unlon representative, Ms Shelly Churchill She provided written notes about the alleged comments to both of them Under cross-examination, Ms Urquhart agreed that as a result of the grievor's interpretation of what constituted a split shift under the collective agreement, she was not paid for several hours of work she had done She grieved it, and during the grlevance procedure, Mr Wood disagreed with the grievor's 7 interpretation Her grlevance was resolved and she got paid for the hours in question In chief, the grlevor unequivocally denied that he had told Ms Urquhart that she looked like trash Similarly he denied the comment attributed to him In allegation 2, and In fact denied even having seen the glow-stick before it was filed as an exhibit at arbitration He denied allegation 3 and explained that he did not associate with anyone In Morrisburg He said, "I go to work and get back to my hotel " With regard to allegation ( 6) , unlon counsel asked if the grlevor recalled making that statement on the phone and he simply answered, "No " Allegations 4 and 5 were not addressed in chief Under cross-examination, employer counsel reviewed Ms Urquhart's testimony on the "glow-stick" incident and asked, "Did it happen?" The reply was "No " When asked "So, she lS lying?", the grlevor stated "Obviously " Counsel asked, "What motivation do you think she will have to lie?" and the grlevor replied, "Jus t to build a case against me " Counsel then confronted the grlevor with a written statement provided by Mr Peter Hagerman, a Sales Representative from Bacardi Canada Inc , 8 In which he In essence confirmed that he witnessed the incident as alleged by Ms Urquhart, and asked if Mr Hagerman was lying also The grlevor answered, "Yes " When asked what the motivation would be for a Bacardi rep to lie, the grlevor replied "No idea " In cross-examination, counsel referred to the response the grlevor had provided to a NOID the employer had issued "as a result of alleged inappropriate comments made to a female customer" In part, the grlevor wrote, "As for alleged inappropriate, did I say something or did I not Was it taken wrong or did she assume something? Or wish?" Employer counsel repeatedly asked what the grlevor meant by "or wish" The grlevor did not answer the question Instead he suggested that he was getting all these allegations because the "townspeople" were trying to "railroad me out of town" He signed his response to the NOID as "New kid In town" He denied he had done anything wrong Then the following exchange ensued Q Was this customer also trying to run you out of town? A Maybe Q What about Peter Hagerman, the Bacardi Rep? A Yes Q Michelle Urquhart? A Yes Q eam Maclennan? 9 A Yes Q Was Rick Wood trying to run you out of town? A Very possible Q So everyone was trying to run you out of town? A Not everyone I met some good contacts also Q So some people liked you? A Yes Q But the others were trying to run you out of town? A That's my feeling On the basis of the evidence I have no hesitation concluding that the grlevor engaged In each of the alleged incidents of misconduct alleged The glow-stick incident was witnessed by Mr Hagerman Mr Cam Maclennan, a casual CSR testified that he witnessed the "You look like trash" comment I did not find the grlevor to be credible By his conduct the grlevor engaged In verbal sexual harassment, which has no place In the workplace It was culpable conduct which clearly justified a disciplinary response from the employer The Marijuana incident This incident took place In February, 2003 at the LCBO Store In Barrhaven, Ontario It was a small store with a workforce consisting of the grlevor as Senior Full-time CSR and two casual employees, Kyle Higgins and Mary Sue Cardill Since 10 there was no store manager, the grlevor ran the shifts In his capacity as Senior Full-time CSR It lS unnecessary to review all of the detailed evidence tendered by Ms Cardill and Mr Higgins because the grlevor admits that he did ask Mr Higgins to purchase a quantity of marlJuana during the shift that night The evidence indicates that the grlevor did a "cash back" uSlng his debit card and handed an amount of cash to Mr Higgins Mr Higgins left the store, met an acquaintance at a Tim Hortons, and purchased some marlJuana He brought it back, and put it under a jacket on the seat of grievor's car, which was parked In the LCBO parking lot At some point, the grlevor brought the marlJuana into the store and split it up inside the washroom There lS no allegation that the grlevor smoked any of it The disputed lssues are whether the grlevor obtained the marlJuana at the request of a sick friend, who had told him that marlJuana would provide her some relief, whether he told Mr Higgins that it was for a friend, and whether the grlevor kept after Mr Higgins asking him three times to get him some marijuana I find no evidence which casts doubt on the grievor's testimony that he wanted marijuana for a friend and not for his personal use There lS no evidence that the grlevor was a user 11 of marlJuana Moreover, Mr Higgins received a NOID for his role In this incident In his response to the NOID dated August 1, 2003, Mr Higgins wrote, " he mentioned to me that he was interested in purchasing some marlJuana for a friend of his " However, I do find that the grlevor was persistent with Mr Higgins The first time the grlevor asked Mr Higgins to buy some marlJuana, Mr Higgins said, "It's stupid" , and did not agree It was when the grlevor asked for the third time that Mr Higgins finally agreed Even accepting that the grlevor did not obtain the marlJuana for his personal use, it was still a serlOUS misconduct on his part to use his influence on a casual employee to purchase an illicit drug on his behal f, and to bring such illicit drug into LCBO premlses Such conduct was totally incompatible with his status as an employee of the LCBO, particularly one who for all intents was In charge of the store Just cause for discipline was certainly warranted by the grievor's conduct The alcohol incident The grlevor, as well as a number of employer witnesses, testified about this incident However, all of that detailed evidence need not be reviewed here The evidence lS that on or 12 about May 29, 2003 a 3-man crew from a contracted company, Briteway Building Maintenance, had come to the Morrisburg LCBO store to strip and wax the floor The grlevor was the manager of the store The work was done after the store closed for the day The grlevor remained on duty In order to supervlse the Briteway crew The crew consisted of Mr Scott Bertrand (Briteway owner's son) , Mr Cole Eden and Mr Ron Hutt Mr Bertrand and Mr Eden were approximately 20 years old The grlevor admits that he served the three crewmembers beer that night and that he joined In the drinking He also admits that when LCBO employee, Mr Cam Maclennan dropped In to bring a fan to help with the drying of the floor, he offered beer to him and that he declined The maln conflict between the grlevor and the employer witnesses was about the amount of alcohol consumed that night Mr Bertrand testified that while waiting for the floor to dry between coats of wax, he personally consumed 8 to 12 cans of beer between 11 30 P m and 1 30 am, and that the grlevor and Mr Eden probably had the same quantity, because "we kept up with each other" According to Mr Bertrand, Mr Hutt had left with the truck around 12 30 a m because he had too much to drink Mr Bertrand testified that around 1 30 a m the grlevor, Mr Eden and himself went to Nick's Sports Bar across 13 the street At Nick's each of them had a couple of more beers while playing pool Then they returned to the store The grlevor came up with a "mickey" of Fireball, a 33 percent proof spirit The three of them had 3 shots of fireball each Mr Bertrand testified that by the time his mother picked him up around 4 00 am, each of them (himself, Mr Eden and the grievor) had consumed 15 to 16 beers and 3 shots of Fireball Mr Bertrand testified that he felt more comfortable drinking because he was In the company of the store manager He testified that all three were intoxicated During cross-examination Mr Bertrand was questioned about the drinking However, his evidence as to the quantity consumed was not challenged He agreed that the Fireball may have been a 200 ml bottle While confirming that all three were intoxicated, Mr Bertrand agreed with counsel that they were not severely intoxicated He reiterated that each had consumed 15 to 16 beers and 3 shots of Fireball The grievor's evidence as to the amount of alcohol consumed was dramatically different He testified that he had purchased a 24-pack of beer earlier In the day He plugged In the store wine-cooler and put a 6-pack of beer to chill After the crew had applied the first coat of wax, they sat In the back 14 waiting for the floor to dry At that time, the grlevor offered the three workers a beer He explained that from past experlence he believed that a "little hospitality helps to get a better job done " At about 9 15 P m the 4 of them had one can of beer each Then they each had another beer while eating some sandwiches According to the grlevor the Fireball was consumed at this time Thus it was shared between the four, with each getting 50 ml In a little sampling glass He explained that Fireball was a new product and each had "a little taste" of it Then Mr Hutt left After the 3d coat of wax had been applied, they had another beer each The grlevor testified that each had a beer for every coat of wax Thus by the time, the 3d coat of wax was completed around midnight, the grlevor, Mr Bertrand and Mr Eden had each consumed 3 beers Mr Hutt had left after having two beers Then the 4th coat of wax was applied While waiting for that to dry, the three of them decided to go over to Nick's Sport Bar to play pool The grlevor testified that while playing two games of pool he had one beer but did not even finish it However, Mr Bertrand and Mr Eden had no alcohol at Nicks because they were asked for identification and they had none They returned to the LeBO store and a fifth coat of wax was applied, after 15 which the crew packed up Around 3 30 a m Mr Bertrand called his mother for a ride home According to the grlevor, out of the 24-pack, between the four of them, 17 to 18 cans of beer had been consumed by 3 30 a m In addition, each had approximately 50 ml of Fireball The grlevor denied that anyone was intoxicated because each had at most 4 or 5 beers plus the taste of Fireball over a long period from 9 30 P m to 3 30 a m There are many conflicts between the grievor's testimony and that of Mr Bertrand Most significantly, Mr Bertrand testified that he, the grlevor and Mr Eden had consumed 15 to 16 beers each According to the grlevor the four of them In total consumed only 17 to 18 beers that night Mr Bertrand testified that at the time the Fireball was served Mr Hutt had already left, and that the remalnlng three had 3 shots of Fireball each Also Mr Bertrand testified that he and Mr Eden did have beer at Nick's Sports Bar Finally Mr Bertrand testified that he, Mr Eden as well as the grlevor were intoxicated During cross-examination the grlevor stated that In the past, he had seen other store managers and assistant managers 16 provide hospitality as he did, and added, "The difference lS they didn't get caught I guess I did " He stated that he got caught because someone "squealed" on him He explained that his hospitality In fact benefited the LeBO because it got 5 coatings of wax when the contract required only 4 Employer counsel asked if In his mind what he did was "fine" The grlevor replied, "yes and no Yes because it was a hospitality and shouldn't have exploded as it did As for the 'no' , I was drinking on company premlses " At first he disagreed that he was on company time, but agreed later that he was being paid during the time In question The grlevor was confronted with Mr Bertrand's testimony as to the amount of alcohol consumed and asked if Mr Bertrand was lying The grlevor replied "yes" He also replied "yes" when asked if Mr Bertrand was wrong when he said that all of them were drunk I find on the evidence that on the night in question the amounts consumed were as described by Mr Bertrand He was an uninterested witness, who had not met the grlevor prlor to or Slnce the night In question and testified under summons During his cross-examination his testimony as to the quantity of alcohol consumed was not challenged He could not have had any motive to lie about the amount of alcohol, unlike the grlevor who had much to by . . . . the amount of consumption galn mlnlmlzlng 17 Besides, Mr Bertrand's mother, Mrs Heather Bertrand, also testifying under summons as an uninterested third party, clearly contradicted the grievor's testimony She testified that all three (the two crew members and the grievor) were drunk when she came to take her son home around 4 00 a m She testified that she could smell alcohol on them, that their speech was slurred and they were acting silly She had no doubts about the fact that they were drunk and was quite upset with her son I find that the grlevor served alcohol to the crew In LeBO premises and while he was on duty He himself participated In the drinking and was In a state of intoxication Even though the store was closed to the public at the time, his conduct was clearly culpable and contrary to policy His conduct was even more unbecoming because he was the store manager In summary, I have concluded that just cause for discipline has been established with regard to each of the three incidents relied upon by the employer I agree with the employer that In each incident the grlevor engaged In serlOUS misconduct Sexual harassment, even if only verbal, has no place In the workplace The employer's published policies made that clear Similarly, particularly considering the position of authority the grlevor held as Store Manager or Senior Full-time 18 CSR runnlng the store, his conduct In relation to the purchase of marlJuana and the consumption of alcohol was also serlOUS This lS more so considering the business the LCBO lS engaged In The lssue lS whether In all of the circumstances, his misconduct was sufficient cause for the ultimate penalty of discharge Prior to considering that lssue, I observe that the unlon appeared to suggest that the trauma the grlevor had suffered when he was held at gun-point during the robbery of a LCBO store may have caused, or contributed to the grievor's misconduct I find no merit In that suggestion which lS not substantiated by any evidence Similarly, I find the grievor's implication that Ms Urquhart had fabricated or exaggerated allegations of sexual harassment because of her dispute with him about the split shift lssue to be totally unfounded An uninterested witness, the sales representative from Bacardi clearly corroborated Ms Urquhart's testimony with regard to the glow-stick comment Mr Maclennan corroborated the "You look like trash" comment While the grlevor did not directly assert this, there was some insinuation that the grlevor may be addicted to alcohol and that this addiction may have contributed to some or all of the grievor's misconduct I find no evidence to support any such conclusion The evidence does not establish that the grlevor was an alcoholic, or that any addiction 19 contributed to any of the incidents In question Specifically I find that there lS no evidence, medical or otherwise, indicating that the grlevor was entitled to accommodation by the employer On the other hand, the unfounded claims by the grlevor of lmproper motivation - such as people trying to run him out of town, and others building a case against him - causes me to doubt the grievor's credibility and honesty generally The union's prlmary position was that the discharge imposed on the grlevor should be declared void on the grounds that the employer had unreasonably delayed confronting the grievor with the allegations against him Union counsel pointed out that the first alleged sexual comment attributed to the grlevor occurred on May 17, 2003 He was confronted only on July 9, 2003 The marlJuana incident occurred In February 2003 and came to the employer's attention in April 2003 The grlevor was first confronted on August 11, 2003 The alcohol incident was in May 2003 The grlevor was confronted only on August 11, 2003 Citing Re AGF Industries Ltd , (1998) , 75 LAC (4th) 336 (Herlich) and Re Delta Chelsea Hotel, (2002 ) 111 LAC ( 4th) 22 (Surdykowski) counsel submitted that the employer's delay In confronting the grlevor with the allegations "prejudiced his ability to provide a full answer to the allegations" 20 Re Delta Chelsea Hotel (supra) lS distinguishable from the case before me There article 12 01 of the collective agreement specifically provided that after the employer becomes aware of an incident it "has a reasonable period of time to investigate the matter" Not surprisingly, the arbitrator held that the provlslon gave employees a substantive right, and observed at p 32 "The question In this case lS whether the hotel took more than a reasonable period of time to investigate the alleged misconduct on January 18, 2002, such that the grlevor was denied her substantive rights under clause 12 01" In the present case, no similar substantive right under the collective agreement exists Nevertheless, there lS general arbitral authority supporting principle that undue delay . . discipline a In lmposlng may In certain circumstances render the discipline voidable See, Re AFG Industries Ltd (Supra) However, before that principle lS applied a number of factors must be considered Thus, arbitrator Herlich, after revlewlng a number of authorities concludes at p 34 "Thus, and described more broadly, the factors to be considered include the length of delay, the reasons for delay and its prejudicial effect 21 A reVlew of the evidence indicates that there was some reasonable explanation for at least some of the delay For example, with regard to the marlJuana incident, the evidence lS that Ms Cardill took some time to decide whether she should bring her observations to the employer's attention As soon as she did so, she went off sick over an extended period The evidence lS that the employer attempted several times to meet with her, but could not because she was still away In any event, even if the employer had no reasonable excuse for the delay, this lS not an appropriate case to void the discipline imposed In Re AGF Industries, the delay lssue was argued as a preliminary motion before any evidence on the grlevance had been received Arbitrator Herlich held as a matter of principle that even In the absence of evidence of actual prejudice, prejudice resulting from the delay can be inferred or presumed I agree that In certain cases that lS so Indeed arbitrator Herlich quotes from two such cases In Re Via Rail Inc (M G Picher, October 14, 2988 ) the arbitrator wrote It lS, In my vlew, prlma facie, inconsistent with the exerClse of an employer's authority to lmpose discipline to delay any communication whatever respecting the incident .. . to glvlng rlse the discipline to the employee concerned for a period of close to three months From a practical standpoint the employee lS put at a 22 severe disadvantage, as he or she may have no recall of an event to which the employee attached no particular significance at the time but for which the Corporation as retained a documented negative report from the outset In Re Manitoba Pool Elevator Brandon Stockyards, (1993 ) 35 LAC (4th) 276 at p 287, the arbitrator observed I accept that reasonably expeditious discipline lS a matter of general arbitral principle In the present case, despite the absence of evidence from the grlevor as to actual prejudice, I would, if necessary, be prepared to find prejudice, under the over-all circumstances of this case Yard recelvlng workers at the Brandon pool must deal with numerous customers and numerous deliveries on a daily basis To confront an employee with the specifics of a single, brief encounter with a customer eight and a half months after the fact lS inherently unfair and prejudicial In Re AFG Industries itself, arbitrator Herlich was prepared to infer prejudice with regard to some of the allegations against the grlevor At p 344-45 he wrote Turning then to the final general heading what lS the impact of the delay In this case? For various reasons the grlevor was advised, In excess of four months after the fact, that on two particular occaSlons he was observed improperly smashing good glass and yelling (allegations which his counsel advises us are denied) The grievor's job involves separating good glass from bad and placing the former on 23 pallets and . . that the latter lnsurlng lS directed to the cullet system The grlevor spends his entire day "picking-off" sheets of glass Bad glass lS regularly required to be broken Notwithstanding Mr McFadden's forceful and able argument to the contrary, it appears to me that the nature of the allegations against the grlevor are, by analogy and for the purposes of this portion of the lnqulry, similar to those In the Air Canada case Essentially, it lS alleged that the grlevor has performed an impropriety In relation to the manner In which he has conducted his duties - it lS asserted that one (or In this case two) of a serles of similar transactions has been deliberately mishandled by the grlevor I have no hesitation In concluding that to ask the grlevor, over four months after the fact, to recall the two specific transactions out of the many In the interim, to ask him, for example, to recall whether the breakage involved bad or, as alleged, good glass lS simply unfair and prejudicial However, he immediately went on to distinguish between different kinds of allegations as follows In arrlvlng at this conclusion, I have considered the nature of the allegations from a very specific perspective If we ask someone "were you hit by the truck four moths ago?" or "did you rob the bank four months ago?", we do not anticipate a response such as "I might have, I don't recall - why didn't you ask me sooner?" There are some events one simply does not forget Similarly, as In the National 24 Grocers case, even when memory lS otherwise faulty or unreliable, technology, such as video, may provide a useful prod, or even proxy, for faded recollection But where, as here and In the Air Canada case, the stale allegations relate to a variant of a function which an employee regularly performs over and over both daily and from day to day, it should come as no surprlse that a prolonged delay In bringing a specific and impugned transaction to the employee's attention will have a growlng negative impact on the employee's ability to recollect what transpired at the relevant time With regard to the allegations of sexual comments, apart from the glow-stick incident, it may have been understandable if the grlevor had testified that he had no recollection whether or not he made the particular sexual comments However, the same cannot be said with regard to the allegations relating to the marlJuana and alcohol incidents Those are not routine events The grlevor ought to be able to recall those events despite the passage of time However, In light of the grievor's own testimony, I cannot infer prejudice with regard to any of the allegations In the case before me, including the sexual comments As arbitrator Herlich observed "obviously there lS a difference between a case where there lS no actual evidence of prejudice and one where it lS affirmatively established that no prejudice 25 has resulted from the delay" The present case falls into the latter category As noted, at the time the delay lssue was argued before me, I had received all of the evidence relating to the grlevance, including the evidence of the grlevor The uncontradicted evidence lS that the lssue of delay was not raised by the grlevor or the unlon any time prlor to arbitration With one exception, the grlevor had not claimed that he had difficulty recalling any of the events In question The one exception was In relation to alleged inappropriate comments he made to a customer In his response to the NOID the grlevor had indicated an inability to recall However, on the stand In relation to the same event, the grlevor testified that he clearly recalled the event In fact, he was cross-examined as to how his memory was so vivid during testimony, when some months earlier he had stated that he could not recall In relation to each of three allegations - the sexual comments, the marlJuana incident and the alcohol incident - the grlevor did not indicate any difficulty recalling during his evidence In chief He proceeded to testify, either denying the allegations or glvlng his own verSlon of what occurred, with no apparent difficulty In recalling events Moreover, during cross-examination, with regard to each allegation, he was asked explicitly how sure he was or how clear his recollection was 26 with regard to the marlJuana incident, the grlevor insisted that he asked Mr Higgins only once (not three times as Mr Higgins had testified) and denied that Mr Higgins had said, "No, it's stupid " Then the following ensued Q Your recollection is clear on that? A Yes Q This lS some 2~ years later, but your recollection is clear? A On this, yes Q Your memory lS clear on what happened that night? A Yes Q Except that you may have told Kyle Higgins why you wanted the marijuana? A Yes Similarly he clearly denied the glow-stick comment as well as the other alleged comments about which Ms Urquhart had made notes and testified about At no time did he say that due to passage of time he had difficulty recalling He not only denied making the comments, but he claimed that all of those allegations were a result of the desire by those making them, to drive him out of town He asserted that Ms Urquhart had fabricated the allegations In order to retaliate against him because he had turned down her claimed hours of work In relation to the alcohol incident, the grlevor clearly disagreed with many aspects of the testimony of the employer 27 witnesses, some of which have been reviewed above During his cross-examination, counsel pointed out that Mr Bertrand had testified that that all three were drunk and that his mother had also testified to the same effect Then the following exchange occurred Q So Mrs Bertrand lS also trying to run you out of town? A Who knows Q It could be? A Could be Q There are many other conflicts between your evidence and that of our witnesses - are you sure your recollection lS clear about that night? Y Yes Q Crystal clear? Y Yes Employer counsel ended his cross-examination by pointing out to the grlevor that he had testified that his recollection about the glow-stick incident and the alcohol incident was very clear It was suggested to the grlevor that if his recollection was so clear now, his recollection would have been just as clear or better when he was first confronted with the allegations In August 2003 and at the discipline meeting in November 2003 The grievor agreed It lS clearly established from the evidence, specifically from the grievor's own testimony, that any delay on 28 the part of the employer has had no prejudicial effect on the grievor's ability to respond to the allegations levelled against him during the investigation stage or at arbitration Therefore, on that basis alone, there lS no justification for voiding the discipline Now I turn to the union's alternate position that In all of the circumstances the penalty of discharge was exceSSlve This requlres an examination of the serlousness of the grievor's culpable conduct and any mitigating factors The grlevor was a long serVlce employee with just under 23 years of serVlce with the LCBO The evidence lS that his performance has been satisfactory or better, except In the last two years when he had ratings of "needs improvement" His past record of discipline (which is subject to a 3 year sunset clause) lS as follows - A written reprimand dated September 18, 2001 for failure to report for a scheduled shift without notice - A written reprimand dated December 11, 2001 for tendering a transaction In violation of LCBO policy - A one-day suspenSlon without pay on August 27, 2002 for a further failure to report for a scheduled shift without notice - A written reprimand dated January 22, 2003 for failure to provide appropriate documentation with respect to an absence from work to attend court 29 It lS to be noted that none of the prlor instances of discipline relate to the type of misconduct found In this case, l e sexual comments, alcohol or drugs While there lS evidence that he was counselled about inappropriate comments made to a customer, no discipline had been imposed As mitigating factors his long serVlce clearly favours the grlevor While he does not have a clean discipline record, the discipline he had In the past has been relatively mlnor Three written reprimands and a one-day suspenSlon, none of which involved the types of culpable conduct established In the present case On the other hand, I find militating against the grlevor, his lack of true remorse and his lack of candour at arbitration He denied wrongdoing In the face of overwhelming and convlnclng evidence of his wrongdoing He was quick to attribute ulterior motives - most of which I found to be totally incredible - to those complaining against him When he did admit wrongdoing, he attempted to mlnlmlze the gravity of his conduct with untrue assertions and explanations Not once did he acknowledge unqualified wrongdoing on his part 30 Union counsel submitted that the employer had engaged In a bad faith attempt to justify the grievor's discharge by delaying a decision and then "bundling up" three unrelated incidents "Bad faith" implies an intentional strategy I have no evidence that the employer intentionally delayed imposition of discipline In order to accumulate a record which would justify the grievor's discharge Nevertheless, it lS clear that delay occurred The three incidents of misconduct happened over a period of time Discipline was not imposed as the events occurred Instead they were allowed to accumulate over a period of time The principle of "progressive discipline" or "corrective discipline", lS based on the theory that an employee must be glven a chance to learn from and change his ways after suffering the paln of discipline Had the grlevor been disciplined promptly as the misconduct occurred, he would have had that opportunity Even though the delay In imposition of prompt discipline was not intentional, and mostly a result of reasons beyond the control of the employer - I find that the way the grievor's conduct was allowed to continue to accumulate without any disciplinary sanction for a period of several months, offends the logic behind the principle of progresslve discipline 31 I do not find that the incidents of misconduct, taken In isolation, justify the discharge of an employee with 23 years of serVlce, who has had a prlor disciplinary record of three written reprimands and a one day suspenSlon - all for unrelated types of misconduct The fact lS that the grlevor had never been previously disciplined for the types of misconduct established In this case The most severe penalty he had received lS a one-day suspenslon I find that the grlevor, In these circumstances, has not received the benefit of progresslve discipline Having said that, I am In total agreement with employer counsel, that the grlevor did not demonstrate true remorse for his misconduct Nor was he truthful and honest at arbitration However, despite the serlOUS concern I have as to whether or not the grlevor has fully realized that he had engaged In serlOUS misconduct, In all of the circumstances I find that discharge was an exceSSlve penalty The grlevor should realize that any further misconduct on his part would likely leave him with no recourse It lS up to him to take responsibility If he feels that his drinking lS affecting his conduct adversely as he appeared to suggest, it is up to him to seek assistance 32 I wish to emphasize that my decision should not In any way be seen as detracting from the serlousness of the grievor's misconduct However, even In the face of a lack of true remorse, I have considered the grievor's long serVlce of almost 23 years, the fact that his discipline record lS not significant, that he has never been previously discipline for the type of misconduct In lssue here, and most importantly that the grlevor had not properly had the benefit of learning from the receipt of progresslve discipline In those circumstances, and still with some hesitation, I have decided to glve the grlevor one last opportunity to salvage his career with the LeBO, but on extremely strict terms Accordingly I order that the grievor be reinstated in his employment forthwith subject to the following conditions 1 The grievor's period of absence from the date of his discharge to the date of his reinstatement pursuant to this decision shall be noted on his record as a period of suspenSlon without pay 2 That period of suspension will be without accrual of seniority and without compensation for wages and any benefits lost 33 3 The grlevor must maintain a discipline-free record for a period of two years from the date of his reinstatement Should he engage In misconduct In that period which glves cause for any discipline, he shall be subject to immediate discharge At any arbitration the only lssue would be whether or not he engaged in misconduct that glve just cause for any discipline I remaln seized with regard to the interpretation and implementation of this decision Dated this 11th day of August, 2005 at Toronto, Ontario