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HomeMy WebLinkAbout1979-0282.Tsialtas.80-04-29 Decision282/79 Between: IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Mr. Steve Tsialtas And The Crown in Right of Ontario Liquor Control Board of Ontario Before: Professor M. Eberts Vice-Chairman Mrs. M. Gibb - Member Mr. B. Switzman - Member For the Grievor: Mr. W. C. Bartlett Golden Levinson Barristers & Solicitors For the Employer: Mr. B. Brady Hicks, Morley, Hamilton and Storey Barristers & Solicitors Hearing: December 5th, 1979 Suite 2100, 180 Dundas St. West Toronto, Ontario Mr. Tsialtas grieves his discharge, which came about because of events of December 12, 1978, while he was acting as a relief cashier in the employer's number 511 store in the Dufferin Mall, Toronto. The employer cites as the reason for discharge Mr. Tsialtas's failure to observe proper procedures as a cashier. The requirements at issue are outlined as follows in the LCB0 Staff Manual, an extract from which was filed as Exhibit One. 01. Customers will be greeted courteously as bottles are placed on checkout counter. Each bottle will be rung up separately and the customer informed of the total. The money presented will remain on the cash register shelf until the change is counted to the customer. After the money is placed in the cash drawer the number of items will be checked with that shown on the receipt. The order will then be packaged with the receipt enclosed. No item will be packaged until the cash transaction is completed. 03. If errors occur or the customer has insufficient cash the Manager will be called. The Manager will verify the dis- crepancy in the presence of the customer and cashier and sign the receipt which the cashier will initial voiding the sale. The voided receipt will be retained by the cashier for balancing purposes. The order will then be processed in the normal manner. The Store Manager, Mr. Clements, testified that all employees were asked to read and sign this manual, but he could not recall whether he had seen Mr. Tsialtas' initials on the store copy. Mr. Tsialtas says he did not read the manual but admits being familiar with these procedures, and says he thought of himself as a competent, confident cashier. The assistant manager, Mr. Watford, trained Mr. Tsialtas and he too says the cashier was aware of these procedures and had used them before. He also says that the cashier had been told twice, during his two year employment with the Board at store 511, not to figure out sums with a pencil while working at the cash. Mr. Watford, who had delivered this instruction, said he told Mr. Tsialtas that use of a pencil at the cash was a "bad habit", and that the voiding procedure was the one to use -3-. if he got into difficulties with totalling a customer's transaction. The incident which led to discharge took place in the noon hour of December 12, 1978 while Mr. Tsialtas was relief cashier. Mr. Clements says he observed him with two customers, who were at his register together, with two bottles of liquor. The price of the first bottle - $8.60 - was apparently rung in, for it showed on the cash register "window" visible to Mr. Clement. The receipt and the bottle were put in a bag and given to the first customer of the couple - a woman. The man of the couple had a bottle of Scotch, priced at $14.45. Mr. Clement says this transaction was not rung in, although money was taken and put in the cash drawer. Mr. Clements says that Mr. Tsialtas did a sum in pencil on a bottle bag, adding the prices of the two bottles, to give the man the total price. Proper procedure if a cashier discovered too late that the second customer wanted to pay for both bottles would have been to void the first transaction and ring up a new total, or, (less desirable but still permissable) to take the money for the first, give change, close the register and ring in the second as a separate transaction. When Mr. Clements asked shortly following the departure of the couple what had happened, Mr. Tsialtas told him he had forgotten to ring in the second transaction, and rang it in, producing a receipt. The two men differ as to the form of Mr. Clement' query and the time needed for Mr. Tsialtas to reply, a difference to be discussed later in these reasons. Mr. Clements removed Mr. Tsialtas from his cash register shortly thereafter, and when Mr. Watford balanced the cash against the register tape, he found a surplus of $1.85 in the till. There was an apparently inconclusive interview of Mr. Tsialtas by Mr. Clements in the latter's office after this incident, and at the end of the day - 4 Mr. Tsialtas was indefinitely suspended, with a request that he come forward with an explanation of the incident within three days. In a letter of December 12, Mr. Tsialtas stated that the two customers had between them three bottles rather than two; that the first customer, the woman, presented an $8.60 bottle, had the purchase rung in, paid him, and received change, a receipt and her bottle; that the second, a man, tendered two bottles, one of which was identical to the woman's and the second of which was the $14.45 Scotch. Mr. Tsialtas wrote - and affirmed in his oral evidence - that he rang through the man's first ($8.60) bottle and forgot to ring through the second because the man asked him to give the first of his two bottles to the woman. His oral evidence, but not his letter, says that this action on the man's part confused him. His letter does not mention his use of a pencil to calculate the total. Evidence of the cash register tape for the time when Mr. Tsialtas was working on December 12 confirms Mr. Clements' evidence in an important particular. The manager's story involves one transaction for $8.60 and a subsequent one for $14.45. Mr. Tsialtas' involves two-transactions for $8.60, one right after another, and a later one for $14.45. The tape shows only one transaction for $8.60 during the time Mr. Tsialtas was on cash. Although Mr. Tsialtas' letter says he rang in both $8.60 transactions, his oral evidence and argument of counsel suggest that he forgot to ring through one $8.60 transaction as well as the $14.45 one. The reason for this advanced at the hearing was confusion caused by the man's peremptory behavior. The store during that lunch hour was, on Mr. Tsialtas' evidence, quite busy, and this impression was borne out in part by Mr. Clements' evidence. Mr. Tsialtas explained that he has been a nervous person since some very tragic events in his family a few years ago, but did not pursue energetically any suggestion of extreme nervousness on the day in question. - 5 - On these events, the employer discharged Mr. Tsialtas. At the hearing, counsel for the employer acknowledged that discharge is a "heavy" penalty for following improper procedures. Its argument that dismissal was just depends on the circumstances in which the improper procedure was employed. Store number 511 has, and is said to be known for having, a "shortage" problem. Cash dis- appears. Mr. Clements, who became manager just the August before the Tsialtas incident, said that staff at 511 had been alerted to this during their regular staff meetings and to his desire to alleviate it. He and Mr. Watford said that voiding procedures were reviewed at these meetings. We were told that employees were advised that they would be "observed" to promote efficiency at the cash register. The second circumstance stressed by counsel was the procedure used by cashiers for keeping low the number of large bills which stayed in their tills throughout their shifts. They can count their bills, and take some into the manager's office, periodically through their shift, without any supervision. These two circumstances, coupled with their opinion that a capable cashier would not use improper voiding procedures, are said to have given the employer reasonable and probable grounds to be suspicious of Mr. Tsialtas. The suspicion, needless to say, is that the cashier was preparing to abstract funds at some opportune moment. It is argued that the suspicion was enough to create an onus on the employee to explain his behavior. Absence of an adequate explan- ation in such a situation would justify discharge for the procedural irregularity. The employee challenges this contention in two ways. Firstly, he says that the circumstances creating the suspicion which supposedly created the onus were not clearly put to him at the time of the incident. Absent greater detail, his explanation about forgetting, given right at the time, was sufficient. 6 Secondly, on the law, the employee argues that "reasonable and probable grounds for suspicion" are not enough here to shift the onus to the employee; he argues that the employer still bears the onus of proving just dismissal and that the element of criminality in the employer's allegation means that clear and cogent evidence should be adduced to substantiate its claims. The theory behind the employee's position is well set out in Brown and Beatty: Although at one time, where the alleged misconduct might have involved a criminal offence, some arbi- trators required the employer to prove beyond a reasonable doubt, that is, on the criminal burden of proof, that the employee had engaged in such activities, that is clearly no longer the pre- vailing principle. Rather, the issue which now divides arbitrators is whether even in those circumstances the burden of proof borne by the employer is simply the civil burden, or whether some more rigorous burden, though less than the criminal burden, is required to be satis- fied. One school of thought holds that even in this context the em- ployer is only obliged to prove its case on the balance of probabili- ties. On the other hand, a significant number of recent decisions appear to require the employer to prove its case on some standard which falls between the criminal and civil burdens of proof. This school of thought subscribes and holds to the view that the more serious or reprehensible the alleged misconduct, the more stringent the standard of proof that is required to be satisfied. This, it is said that an allegation of criminal misconduct must be proven by "clear evidence" or on a standard of "reasonable probability". pp. 290-291 (footnote numbers omitted) In assessing the merits of the two arguments before us, we believe it useful to bear in mind the words of one arbitration panel which rejected the criminal standard of proof in a case where an emplcyee was found in improper possession of company property. In Re United Steelworkers of America and International Nickel Company of Canada Ltd. (1967), 18 L.A.C. 399, (Weatherill, Williams, Ferguson) the majority declared, at p. 402, ...we must bear in mind, of course, that an employee's dismissal is an extremely seriJus matter; that the "cause" - 7 - must be just in relation to the penalty -imposed; and that the case must be clearly made out. (emphasis supplied) There are, we think, three issues in the submissions raised by counsel. First of all, what standard of proof must be met by the employer in initially presenting its case, so that the onus of explanation shifts to the employee? Is it the ordinary civil standard, or the "clear and cogent" standard required when an allegation of criminality is present? Secondly, what must be shown? Thirdly, what is the position if the employer's initial onus is not met? We were referred by the employer to a number of cases dealing with the requirement of an explanation from the employee. Unfortunately, they do not explicitly discuss the standard of proof required to be met before the employer can call for an explanation and discharge in the absence of one. They do, by implication, suggest what standard must be met; importantly, they also show what must be established before the onus shifts. One of the cases relied upon by the employer is Re Polymer Corporation Limited and oil, Chemical and Atomic WorkerS, Local 9-14 (1973), 4 L.A.C. (2d) 148 (Palmer, Waddell, White). The majority states, at p.151,. .."once a person is found in possession of company property in circumstances consistent with their theft, as here, the onus swings to the grievor to provide an adequate explanation." In Polymer, the employee's truck, parked on the plant lot, was found to contain fifteen sheets of plywood belonging to the company. Two cases relied upon by the employer are reported only in headnote form, but are nonetheless helpful. In Re Retail, Wholesale and Department Store Union Local 414 and .pominion Stores Ltd. (1968), 20 L.A.C. 6, (Palmer, Reekie, Payette) discharge was upheld where the grievor was observed by a fellow employee loading a box of meat onto a delivery truck without the consent of the company, and this - 8 - evidence was not contradicted in any material points. In Re U.A.W. Local 397 and Brantford Cordage Co. (1969), 20 L.A.C. 412 (Hanrahan, Guest, Osier), the employee had in his car a flashlight belonging to his employer, had been "closely observed" putting it there by two fellow employees and was justly discharged when he provided no explanation. In the Polymer case, cited above, the report indicates at p. 400 that the grievor was "found in improper possession of company property under circumstances which clearly indicated his intention to remove it." (emphasis supplied). In Re U.E.W. and C.G.E. Ltd.(1958), 8 L.A.C. 238 (Little), cited as authority by the Board in polymer, discharge was upheld where the employee was, on his own admission, improperly in possession of nails belonging to the company (carried in his lunch bucket on leaving the plant), and did not provide an explanation. Two elements are significant in these cases. One is that the employee was found in possession of the goods in question. The second, closely allied to the first, is the apparent "clarity" of the evidence linking the employee with the property in questionable circumstances. The "possession" and "clarity" elements are affirmed in two other cases, one cited by the employer and the second used as authority by the board in Polymer. In the first of these, Re International Chemical Workers Local 279 and Rexall Drug Company (1967), 18 L.A.C. 343 (Weatherill, Bullock, Clark), the grievors had been discharged for failure to provide an explanation of the presence of company goods in the grievors' homes. With regard to both employees, the presence of the goods, verified by police investigation, was found to make an explanation "a reasonable requirement." With regard to one, who had only a few company items in his basement, the board held that he should not be discharged if he put - 9 - forward his explanation within a few days of the decision. A more immediate explanation was called for from the employee with substantial quantities of company goods on hand; its absence justified discharge. The most doubtful case of "possession" of company property in which failure to explain was held to justify discharge was International Alliance of Theatrical Stage Employees and C.B.C.(1960), 11 L.A.C. 229 (Arrell, Poolman, Campbell), also cited by the Board in Polymer. A security guard found the grievor taking four cans of company paint out an emergency exit of the company building to a parking lot. The grievor was dressed in his work clothes, his shift was not finished, and he did not have a car in the lot. Another studio of the employer was located on the other side of the lot. The majority concluded, at p. 232: There can be no doubt that the paint in question was found in the possession of the grievor and as in the doctrine of recent possession in criminal law, the possession of property which has been recently stolen requires an explanation which might reasonably be true. The employee told four persons shortly after his discovery that he had been removing the paint,that what he was doing was "foolish" and that he was doing painting at home. His final explanation was that he was removing the paint to the other studio for the admittedly unauthorized activity of mixing colour samples for his home work. Even in this case, although the facts about possession do not seem to be as clear as in the other, the majority of the Board seemed to be applying a clarity standard: it had "no doubt" that paint was in the grievor's possession (p.232), and said the circumstances pointed "strongly" to dishonesty. (p.233). We think that before the employer can call upon the employee for an explanation - absence of which will justify discharge - the employer should show clearly that the person is in possession of property in circumstances consistent with theft. This is, if you like, stronger than the 'ordinary' - 10 - civil standard of proof on a balance of probabilities. But even if the ordinary standard were enough to get the employer over this initial hurdle, it is hard to see how it has established sufficient "possession" to require an explanation. The money was at all times in the till, where it should have been. It was never on the person of Tsialtas. The tally when he was taken off verified that the money from the suspect transaction was on hand. There was no evidence of its having been segregated from other bills in the till. There was no evidence about what happened to the paper bag - a useful aide- memoire if it were intended later to remove the "proper" amount of money - once the suspect transaction was completed. Mr. Clements said that he had had no reason within his personal experience up until then to suspect that Mr. Tsialtas was involved in the shortages. The employer not being able to shift a legal onus to Mr. Tsialtas, what then is the position? The employer is still obliged to show just cause for the discharge, and we do not think it unreasonable to require that this be done on a "clear and convincing" civil standard, in light of the "possible theft" overtones to the employer's allegations. Given that the serious penalty is requested because of the theft possibility, and that any discharge would carry with it an unresolved allegation of Theft, we do not think that the employer can avoid the clear and convincing test by saying that the grounds for discharge are, in a formal sense, not "criminal". (see "zoo, quoted above).pp.6 &7. Even were the ordinary civil standard to prevail, we do not think that much difference would result: The Kajak and Re Dominion Store cases, cited and discussed below, show the elements of a case which in our view should be present for discharge, whatever the standard may be said to be. - 11 - This is not a case where the employee accepts that the need for discipline and challenges only the penalty, by arguing that it is "unreasonable" or should be mitigated because of extenuating circumstances. Were it such a case, the employee not the employer would bear the onus of proof. We are not satisfied on the evidence that the employer has made out its case for discharge. We think that the employer would have to show something more than failing to ring in in these circumstances. Proof of theft is not necessary for discharge, but it is not unreasonable to require of the employer what Reville C.C.J. outlined in Re International Union of Operating Engineers, Local 796, and General Mills Cereals (1964) 15 L.A.C. 116, at 118-119: ...The onus on the company in this case is to establish on the balance of probabilities that the grievor was guilty of conduct which, whether or not it contained elements of criminality, was inimical to the best interests of the employer and inconsistent with the loyal, honest and proper exercise of the grievor's duties as an employee. The precipitate action of the employer in taking Mr. Tsialtas away from his register before the end of his shift means that it was too premature to have really solid suspicions that the grievor's behaviour ..,••••••••••• was untrustworthy or contrary to company interests. Somewhat similar problems arising from precipitate "detective work" were raised in Communications Workers of Canada and Bell Canada; Grievance of Elmar Kajak C.L.R.B. Kates, May 1978) and Re Dominon Store Limited and Retail, Wholesale, Department Store Union, Local 1065 (1977) 16 L.A.C. (2d) 293 (Green, LeVert, Lannon). In the former case, a company auditor put marked coins in a pay phone in a routine test of security. The grievor, a repairman, was ri) -12- found with the coins in his jacket pocket, and a report on their discovery only partially made out. Proper procedure was to put any coins found in the course of repair back into the phone or into an adjoining phone after filling out a "trouble ticket" showing their denominations. The grievor protested his innocence. The auditor and another employee accompanying him left the employee in an interview room by himself with the coins and the ticket. They had also earlier not fully observed his actions in the phone booth in question. Even though the employee was found with the marked coins on his person, contrary to the rules, the majority of the Board held that discharge for misappropriation of funds was not established. It used an ordinary balance of probabilities standard, and stated: The Board simply does not know on the basis of the information adduced, what the grievor's intentions were. In so finding, it is impossible for the Board to determine that the company has discharged the burden imposed upon it to satisfy us of cause for Mr. Kajak's dismissal. It may very well be that had the company not approached the grievor at the time he started his truck, different results may have followed. It was simply too premature for the company to base a case for misappropriation of funds having regard to the inconclusive nature of evidence adduced at the stage of the process in which the grievor was interrupted. Moreover, had the company adduced before this Board the information brought forward in the very persuasive "Hawaiian Telephone Company" Case (1964) 43 LA 128 cited by counsel for the employer in arguement then the suspicions that triggered the assumptions made by the employer may very well (or may not) have been warranted. For example, in that case the grievor was observed and apprehended in the process of spending company monies taken from the coin telephone. (ppl9 -20) - 13 - The grievor was reinstated even though the Board stated it was "by no means entirely satisfied with the clarity and precision of the grievor's recollection of the events...." (p. 18). In Pe Dominion Store Limited, dismissal resulted from the findings of a security firm's "test" of the grievor while she was on duty as a cashier. Allegedly, the employee failed to -Ting in the sale of some § anned goods to the investigator, who posed as a customer. The cashier was later found to have in her, pocket a marked bill tendered for the goods. She claimed it was there because she had put eight quarters of her own into the till in its place. This explanation was not advanced in her interrcgation by the security guard firm after the incident. Discharge was sought to be justified on grounds of theft. The Board held that theft had not been proved, on what seems to be a "clear and convincing" civil standard. It criticized the action of the hired investigator in telling the employee that the cash register tape revealed theft when in fact no check was made of the tape, and it also faulted the company for not striking a cash balance, for Such a check would have disclosed whether or not the cash showed an excess of $2 over the tape or not, a fact which would have clearly established the guilt or innocence of the grievor. (p. 298) In the instant case, the employer could have resolved its immediate doubts by letting Mr. Tsialtas go to the end of his shift. It did not, and the cases referred to seem to suggest that it, and not the employee, should bear the consequences of the omission. The employer seemed to rely on the grievor's explanation - (:r lack of it - as one of its strongest reasons for dismissal. The near /1/d fflet44A-eembAi. boiv,h1 - 14 - impossibility of his version of events given the cash register tape, was said to contribute to the employer's reasonable grounds for suspicion. There were two occasions on which the grievor tendered an explanation to the employer. The first was right when he was asked by Mr. Clements about the transaction. Mr. Clements states that he inquired "what had occurred with the previous transaction," that Mr. Tsialtas had pondered for a while, then said "I forgot" and rang in $14.45. The implication is that the grievor was slow in coming up with an 'excuse', but tdentified without help the suspect transaction and rang in the correct amount. The grievor says Mr. Clements asked him specifically about the $14.45 transaction, and that he thought for only a moment before saying I forgot and ringing it in. The real significance in these two accounts is that the first explanation, according to both, was that the procedural irregularity was due to forgetfulness. The second explanation is the one in Mr. Tsialtas's letter of December 12, confirmed by him at the oral hearing. In essence, it repeats the forgetfulness theme, but adds the further element of confusion and the three-bottle . story. The odd feature of this case, compared with some others cited above, is that here the grievor's explanation gets progressively less plausible as he elaborates it, while in others the later justifications are more plausible. In the C.B.C. case, for example, the grievor's last explanation, of moving the paint to another studio, is more plausible than his first one. The grievor in Re Dominion Store offered her story about the eight quarters late in the process, after her interview with the Company. We think we must judge Mr. Tsialtas's explanations in light of our holding that he was not under an explicit onus to deliver one. Even were he under such an onus, the Rexall case states: There was clearly no onus on him to attempt to disprove any supposed guilt, and we do not surmise as to what sort of explanation would have been sufficient. page 345 We do not think that the progressive disintegration of the employee's explanation can itself form an element of the employer's case for discharge. The implausibility is not consistent only with guilt or improper behaviour. It could have been caused by nervousness or insecurity brought about by the employee's realization that his job was at stake. We think that the employer has not made its case for discharging the grievor. Discharge is not 'just' in relation to the behavior. We do find, however, that the employer has established that the employee failed to observe proper procedures, and that this is grounds for discipline. In Re Dominion Store, the employer failed to justify discharge for theft, but the Board substituted suspension for the breach of cashier procedure which was established. We think that a suspension without pay and benefits for ten days would be appropriate in the circumstances. This is the first time Mr. Tsialtas has been disciplined, but he has been spoken to twice before about not using a pencil at the cash desk. He knew what he was supposed to do in this type of situation and had in fact done it before. He also knew that the store manager was relatively new to the job, and even if he couldn't -16- remember ever being warned about observation or spoken to about shortages, ,we think that any employee at store 511 must at least have been aware of the general situation. We think that Mr. Tsialtas showed some ir- responsibility in using an unauthorized technique in these.circumstances, when an employee of his apparent intelligence must have known that, generally speaking, this sort of thing would cause worry to the manager. We can appreciate the manager's concern to reduce shortages and improve the store's performance, and think that after this case the supervision methods employed in this laudable effort are sure to be less open to the problem of prematurity and inconclusiveness. Therefore, we require that the employee be reinstated with ten days' loss of pay and benefits. Dated at Toronto this 29th day of April 1980. Professor Mary Eberts Vice-Chairman I concur Mrs. Mary Gibb Member I concur /et Mr. Brian Switzman Member