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HomeMy WebLinkAbout1975-0849.MacDonald.75-06-16 DecisionJilit 16136 GRIEVANCE NO. 849/75 Mr. S. P. MacDonald . Liquor Store Clerk 3 Liquor Control Board of Ontario HEARING - JUNE 3RD, 1975 Toronto, Ontario UNJUST DISMISSAL PRESENT Board Members Mr. E. A. Black - Acting Chairman Mr. F. E. Wood Mr. N. Phelps Others Mr. S. P. MacDonald - the Grievor Mr. M. Levinson - Counsel to Grievor Mr. W. Angus - Assistant Counsel to Grievor Mr. R. A. Ferguson - LCBO & LLBO Employees' Association Mr. C. G. Riggs - Hicks, Morley, Hamilton Ms. J. Baker - Hicks, Morley, Hamilton Mr. W. J. Evans - Assistant General Manager - LCBO Witnesses (Ministry)(Sworn) Mr. D. Gilbert - Store Manager - LCBO Mr. W. J. Evans - Assistant General Manager - LCBO 2 Witnesses (Grievor)(Sworn) Mr. Richard Goldman Mr. S. P. MacDonald Observers Mr. R. M. McDougall Mr. A. G. Edmunds Mr. P. Molloy Mr. N. Sweet Mr. W. G. Walters -Counsel -Liquor Store Clerk 3 - LCBO - Staff Relations Officer - LCBO President LCBO & LLBO Employees' Association Vice-President LCBO & LLBO Employees' Association Vice-President LCBO & LLBO Employees' Association -Administrative Assistant LCBO & LLBO Employees' Association * * * * * * * * * * * * * * * 3 Mr. S. P. MacDonald, before his dismissal on April 17th 1975, had been an employee of the Liquor Control Board of Ontario (L.C.B.0.) for three years. His grievance, which the Public Service Grievance Board was asked to consider on June 3rd 1975 was: Unjust Dismissal Mr. MacDonald's letter of dismissal is reproduced below: April 17, 1975 Mr. Steven P. MacDonald 4 Ellington Drive Scarborough, Ontario Dear Mr. MacDonald: We are obliged to terminate your services due to your failure to report for work for the period between March 29, 1975 and April 9, 1975 and to provide a satisfactory explanation for your absence. Yours truly, WDMcL:rr W. D. McLeod, Director of Store Operations Mr. MacDonald had been working at the Coxwell and O'Connor Drive store for 2 years and had been promoted to a Liquor Store Clerk 3. His supervisor had given him excellent ratings on his evaluation reports. The Coxwell and O'Connor Drive store was described at the Grievance Board hearing by Mr. D. GilbertI the store manager. It ts a self-serve store and is the largest of the L.C.B.O. stores in terms of floor area. - 4 - Mr. Gilbert has two assistant managers and nine clerks of which Mr. MacDonald was one. According to Mr. Gilbert the clerks in a self-serve store have a variety of duties. They warehouse the stock when it is delivered to the store. They price the bottles and maintain the stock on the store shelves. It is their responsibility to keep the bottles arranged neatly on the shelves and to maintain the clean and tidy appearance of the store in general. In the course of performing these duties the clerks direct the customers to the location of brands and offer advice on wines if questioned by the customers. The clerks also relieve, from time to time, on the cash registers. It was established at the Grievance Board hearing that Mr. MacDonald had worked on Saturday March 29th. He had volunteered to come in on Easter Monday March 31st to do pricing but he had not shown up. He did not appear on Tuesday morning and could not be contacted. Later, on Tuesday the store learned from a radio broadcast that Mr. MacDonald was in jail. He had been apprehended on Sunday and was being held on two charges; conspiracy to traffic in narcotics, and possession of narcotics for the purpose of trafficking. The narcotic involved was thought to be methanphetimine or speed. Mr. MacDonald's lawyer who had represented him at his bail hearings attended the Grievance Board hearing. He testified that he had been instructed by Mr. MacDonald when he saw him on Tuesday April 1st to 'phone Mr. Gilbert at the store to let him know that Mr. MacDonald could not come to work. He had also been asked to call Mr. MacDonald's wife. -5 The lawyer stated that he had called Mr. Gilbert twice on Wednesday April 2nd but was unable to talk to him. On the second call he had left word that he was Mr. MacDonald's lawyer and that Mr. MacDonald had asked him to let Mr. Gilbert know that he would not be in to work. Mr. Gilbert later testified that he had been unaware of these attempts to contact him. Mr. MacDonald was released on bail at 7:00 P.M. Tuesday April 8th. He 'phoned the store on Thursday April 10th to find out about his job. However, he was unable to reach Mr. Gilbert by 'phone to discuss the situation with him until Friday April 11th. Mr. Gilbert told Mr. MacDonald that he did not have any information for him and that his future with the L.C.B.O. would be determined by the head office. It was a week later on April 18th that Mr. MacDonald received his letter of dismissal from Mr. W. D. McLeod, Director of Store Operations. Mr. Riggs, the representative of the L.C.B.O. pointed out to the Grievance Board that the dismissal letter contained two separate reasons for Mr. MacDonald's discharge. It was the contention of the L.C.B.O. that either of these reasons was sufficient to warrant Mr. MacDonald's dismissal. And together they re-enforced each other. The first offence mentioned in the letter was "failure to report for work for the period between March 29th, 1975 and April 9th, 1975". The L.C.B.O. Store Operating Manual, said Mr. Riggs, stated that, "if an employee is unable to report for work for any reason, it will be her/his responsibility to notify the Manager prior to or at scheduled starting time". -6- In the view of the L.C.B.O., said Mr. Riggs, Mr. MacDonald's efforts to acquaint the store manager of his inability to report for work were below the standard an employer could reasonably expect. In the first place the vague instructions Mr. MacDonald gave to his lawyer about tele- phoning both his store manager and Mrs. MacDonald resulted in the failure of the lawyer to contact the manager in person. And as far as could be determined Mrs. MacDonald had not called Mr. McLeod, Director of Store Operations as she had been supposed to do. Furthermore, continued Mr. Riggs, Mr. MacDonald was released on bail at 7:00 P.M. on Tuesday April 8th. He failed to call the store that night and all the next day. In the opinion of the L.C.B.O. it was justified in dis- charging Mr. MacDonald because of his irresponsible behavior towards his job and his employer. Mr. Levinson, Mr. MacDonald's representative, disagreed with the L.C.B.O. He reminded the Grievance Board that Section 20 of the Public Service Act allowed an employee to be absent from duty without leave for a period of two weeks before he could be considered to have abandoned his position. Mr. MacDonald, according to Mr. Levinson, had failed to report in for work for only 10 days - April 1st to April 10th. Furthermore, said Mr. Levinson, Mr. MacDonald had made every effort he could have made under the circumstances to contact his employer about his predicament. He could not telephone from jail so he - 7 - had instructed his lawyer to contact his store manager, Mr. Gilbert, and Mrs. MacDonald to have her telephone the head office. Mr. MacDonald could not be blamed if his lawyer had not carried out his instructions as carefully as he should have. Also, continued Mr. Levinson, Mr. MacDonald could not have been expected to call his store manager upon his release at 7:00 P.M. on April 8th. He had been in jail for over a week and he was anxious to see his wife and young son. The following day, Mr. MacDonald was too upset to think of calling the store. He had had to clean up the mess left by the police when they had searched his house for drugs. Also, said Mr. Levinson, Mr. MacDonald was under the impression that the store manager had been personally notified of his circumstances by his lawyer. Mr. Levinson therefore Claimed that the L.C.B.O.,Was -ndt justift(WirAitmisstng Mr. MacDOnaldfotAlis failure_ to report Ibrrwork between March 29th and April 9th, 1975. The second reason given for Mr. MacDonald's discharge was his failure to provide a satisfactory explanation for his absence. The representative of the L.C.B.O., Mr. Riggs, stated that because of the serious nature of the offences for which Mr. MacDonald was charged, the L.C.B.O. could not consider his detention in jail to be an acceptable explanation of his absence. This should not in any way be interpreted to mean that the L.C.B.O. was prejudging the charges against Mr. MacDonald. But, said Mr. Riggs, because of the nature of his work, the L.C.B.O. could not afford to continue to employ Mr. MacDonald. Mr. Riggs reminded the Grievance Board that Mr. Gilbert, the store manager, had estimated that about one-third of Mr. MacDonald's - 8 - time in the store was spent in the office. The remaining two-thirds was taken up with the normal duties of clerk. In the course of performing these duties Mr. MacDonald was assisting in the sale of liquor to the public. This is a particularly sensitive area, said Mr. Riggs. And the L.C.B.O. had concluded that it simply could not risk its reputation by allowing a person who had been charged with trafficking in narcotics to continue to serve the public in one of its stores. Mr. Riggs referred the Grievance Board to a similar arbitration case, Re Dorr-Oliver-Long Ltd. and United Steel Workers Local 4697 (3 L.A.C. (2d) p. 193). The case involved a crane operator who had been suspended for trafficking in narcotics. The Arbitration Board in this case ruled that, as a crane operator, the grievor had no contact with the company's customers nor did he represent the company in its public dealings, so the operator had been reinstated. But, said Mr. Riggs, Mr. MacDonald, in the performance of his duties, was in contact with the customers of the L.C.B.O. and in the eyes of the public he represented the L.C.B.O. The L.C.B.O. had therefore found it imperative to dismiss Mr. MacDonald. Mr. Riggs contended that the Grievance Board should uphold the action of the L.C.B.O. and deny Mr. MacDonald's grievance. Mr. Levinson, Mr. MacDonald's representative, questioned some of the assertions made by the L.C.B.O. These statements, he said, left the impression that Mr. MacDonald was in constant contact with the public and was actively engaged in the sale of L.C.B.O. products. This was not the case said Mr. Levinson. He reminded the - 9 - Board that Mr. MacDonald had estimated that, prior to his dismissal, half of his time had been spent in the office. A good deal of the remainder of his time was spent doing work that did not bring him in contact with the customers. The shelves in the store are filled from the rear and the warehousing and pricing of the stock are done in areas remote from the public. Consequently, said Mr. Levinson, Mr. MacDonald's contacts with customers were infrequent. Mr. Levinson stated that testimony proved that at no time after the broadcast of the charges against Mr. MacDonald had the store or ' the head office received a complaint from the public about Mr. MacDonald working in the store. Nor had it been suggested by the L.C.B.O. that any of the staff at the store would have objected if Mr. MacDonald had returned to his job. In Mr. Levinson's opinion Mr. MacDonald's presence in the store after his release on bail could not possibly have been a threat to the reputation of the L.C.B.O. Mr. Levinson also referred to the Dorr-Oliver-Long arbitration case. He pointed out that another reason given by the arbitrator for reinstating the crane operator was that the mere conviction of the offence of possession of a narcotic for the purpose of trafficking did not establish just or reasonable cause to discipline the grievor. In the Dorr-Oliver-Long case there was no evidence to suggest that the crane operator had been traf- ficking on the company premises or that he had been a user himself and that his job performance had thtrefore been affected. Similarly, said Mr. Levinson, no testimony had been presented to the Grievance Board in the present case that indicated that Mr. MacDonald - '10 - had been engaged in trafficking at the store. Nor had there been any suggestion that Mr. MacDonald was a user of drugs. Mr. MacDonald had not been convicted of the possession of narcotics for the purpose of trafficking. He had only been charged with the offence. In Mr. Levinson's view the Grievance Board should order the L.C.B.O. to return Mr. MacDonald to his position just as the Arbitration Board had ruled that the crane operator be reinstated in the Dorr-Oliver-Long case. The Grievance Board has considered the arguments presented by the parties on the two counts for which Mr. MacDonald was dismissed. It does not agree with Mr. Levinson's remarks concerning Section 20 of the Public Service Act. The Act does not cover the members of the L.C.B.O. and L.L.B.O. Employees' Association. It therefore does not apply to Mr. MacDonald's situation. The first reason given for Mr. MacDonald's discharge was his failure to report for work. The Board has concluded that Mr. MacDonald did everything in his power to get in touch with his employer. He cannot be held responsible for the failure of his lawyer to carry out his instructions. In the opinion of the Board Mr. MacDonald should not have been dismissed for his failure to report for work. The second reason given by the L.C.B.O. for discharging Mr. MacDonald was that it could not, because of the serious nature of the charges against him, consider his detention in jail to be a satisfactory explanation for his absence. - 11 - The L.C.B.O. presented no evidence to the Grievance Board to prove that the offences with which Mr. MacDonald had been charged had occurred on the premises of the L.C.B.O. It was admitted that his record before his dismissal had been excellent. Furthermore, the Board believes that Mr. MacDonald's contacts with the customers were infrequent. The Board has therefore not been convinced that Mr. MacDonald's employment at the store after his release on bail would have been injurious to the reputation of the L.C.B.O. or to its employees. The Board has concluded that the L.C.B.O. was not justified in dismissing Mr. MacDonald on the grounds that, because of the seriousness of the charges that had been made against him, it could not accept his detention in jail as a satisfactory explanation for his absence from work. The Board finds that Mr. MacDonald was wrongfully dismissed by the Liquor Control Board on both counts. It directs that Mr. MacDonald be reinstated without loss of pay or credits for the period of his absence commencing April 11th 1975. Any money earned by him during this period will be deducted from the compensation to which he is entitled by reason of this decision. The grievance is upheld by the Board. E. A. Black, Acting Chairman, Public Service Grievance Board.