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HomeMy WebLinkAbout1980-0108.Douglas.81-02-05 Decisionle DI.VOAS STREET WEST. TORONTO. ONTARIO M5G 118 -4,‘1111. 2100 hg VMi' SETTLEMENT BOARD 108/80 TELEPHONE! 416/598- 0688 IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: Mr. W. Douglas - And - The Crown in Right of Ontario Liquor Control Board of Ontario Prof. K. Swinton Vice Chairman Mrs. M. Gibb Member Ms. E. McIntyre Member For the Grievor: Mr. P. Cavaluzzo, Counsel Golden-Levinson, Barristers and Solicitors For the Employer: Mr. R. J. Drmaj, Counsel Hicks, Morley, Hamilton and Storey Barristers and Solicitors Hearing: November 7th, 1980 December 19th, 1980 Suite 2100 180 Dundas Street West Toronto M5G 1Z8 2 This is a case in which William Douglas grieves that he has been unjustly dismissed by his employer, the Liquor Control Board of Ontario. Up until his discharge on March 5, 1980, the grievor had been employed as a Clerk with the LCB0 for five years. The incidents leading to his discharge occurred on February 12 and 14, 1980 while he was employed as a cashier at Store 5, a self- service store located at 1656 Queen Street East in Toronto. The grounds for dismissal were irregularities with regard to cash re- gister operation and untrustworthiness. More specifically, the employer focussed on the grievor's failure to provide cash register receipts to customers, the unauthorize0 practice which he used in ringing up multiple sales of bottles, the excessive number of "No Sale" ring ups on his cash register tapes, and the number of small items on his tapes for which thee were no items in the store. The employer led evidence with regard to these items, plus some other incidents which seem to have affected the decision to discharge. This evidence will be discussed, followed by the Board's conclusions as to its significance. A telegram was sent to the parties on December 31, 1980 stating that the grievance was allowed and that the grievor was to be reinstated forthwith. The reasons for that decision and our order as to compensation and substituted penalty now follow. The first incident with regard to which the employer pre- sented evidence occurred on February 12, 1980. The grievor started on cash at 11:00 a.m. and sometime between 11:00 and noon, Willard Brown, the Acting Manager, observed a woman customer buy a bottle of Alberta Vodka priced $12.10. Brown said that he saw the grievor 3 punch up a transaction, but not put the cash register receipt in the customer's bag. The policy regarding Cash and Security contained in the Store Operating Manual (Exhibit 9) states: "13. The cashier must provide a receipt to every customer." When the grievor went to lunch at noon, Brown took a reading on the cash register. Such readings are taken every two hours to indicate transactions and money received in that period. Brown also took the grievor's wastebasket to the store office and checked it for a $12.10 receipt. He found no $12.10 receipt, although he found what he felt were a large .number of "No Sale" receipts for that period of time. He gathered them and other receipts found in the garbage and put them away. The grievor came into the office during this time and asked what Brown was doing and whether he was under suspi- cion. No explanation was provided. At the end of the day, the grievor left work at about 5:25 or 5:30 p.m. Brown and three other employees - Robert Capistrand, Assistant Manager; Ron Mitchell; and Pat Colangelo - removed the cash register tape from the grievor's machine and examined it. They found no item for $12.10 in the period before the noon ring- off. They also found 17 No Sales and several small items, such as a 20t ring up at Transaction 280. There were no items at that price in the store. The grievor's cash was over $7.00. The other cashier that day, Colangelo, had three No Sales. The grievor was not on cash on Wednesday, February 13th, but he was on cash on February 14th. Pat Colangelo testified that he was keeping an eye on the grievor from the floor. He says that he did this an his own volition, although Robert Capistrand testified that he told Colangelo to do so. Colangelo reported on two incidents. He said that at 2:00 p.m. he saw the grievor remove money directly from the till and place it in his pocket. He told Mitchell, who told the Manager, Bert Doody, who said to keep an eye on the grievor. About 2:30 p.m., Colangelo said that he saw a man, who was a regular customer, bring two 40 oz. bottles of Melcher's Very Mild rye to Douglas' cash. The price of a bottle of this rye was then $12.15, but Colangelo said that Douglas rang in $4.30, instead of $24.30. When Robert Capistrand came in at about 2:40 p.m., early for his 3:00 shift, Colangelo informed him of the incident. Colangelo had seen the customer leave in a taxi, and Capistrand traced the custaner. Colangelo and Capistrand then went to the customer's house to see if they could find a receipt. They searched the customer's garbage unsuccessfully. Colangelo said that when he returned to the store, Dougla.; said that he thought he had rung up an earlier transaction incorrectly - as $4.30 instead of $24.30. On balancing at the end of the day, the grievor was $20.00 over. The grievor testified that he had rung up the Melcher's sale improperly. Instead of following Board procedure with regard to multiple sales, which would require him to ring "2" and the price of the bottle or to ring the price up twice, he used mental arithme- tic to total the amount owing because he was faced with a lineup of about seven customers and wanted to save time. The grievor testified that he had a sensation, when ringing up the total, that something was wrong. Shortly thereafter, he thought that he might have missed the "2" button when ringing up $24.30. Therefore, he spoke to Colangelo about the possible mistake. After the grievor left work that night, Mitchell, Capistrand and Colangelo went through his garbage, seeking a receipt for $4.30. Brown, who was on his day off, was telephoned and he came to the office from his home. The group checked the grievor's tapes for the day. Again, there were several small items which did not corre- spond with prices on any goods in the store. As well, there was a significant number of No Sales. There were no steps taken to terminate the grievor until Monday, February 18. Robert Ford, the District Supervisor, met with Capistrand, who told him of the missing $20.00, the receipts In the garbage, and the number of No Sales. After looking at the grievor's tapes for February 12 and 14, he called the Area Manager, who ordered him to suspend the grievor for one day, as provided in the collective agreement, on the grounds of failure to follow Liquor Board procedures.. The grievor was suspended and asked to give an explanation. He did so, and returned to work at the Eglinton Square store to which he had been transferred at the end of the previous week (February 16) on his own request, as it was nearer his home. Subsequently, he was discharged, effective March 5, for "cash hand- ling irregularities". The issue in this case is whether the grievor was unjustly discharged for cash handling irregularities and failure tofollw Liquor Board procedures. Apparently there were three principal sources of concern, although this is not altogether clear from the letter of dismissal: 6 the failure to provide cash register receipts to customers, the number of No Sale ringups, and the number of small items which were for amounts not referable to merchandise in the store. Overall, Mr. Drmaj for the employer argued that these irregularities showed untrustworthiness by the grievor and, therefore, warranted discharge. If we look at each item separately, we find that there is a Liquor Board procedure which has not been followed only with regard to cash register receipts. There is no doubt that the Store Operating Manual specifies that customers must be given cash re- gister receipts. It is also clear that the grievor failed to do so several times on February 12 and 14. His explanation for this was the frequent refusal of customers to take receipts. The store is close to Greenwood Race track, and customers buying a mickey to take to the track, for example, do not wish to be encumbered by a bag or receipt. Other customers also reject receipts for personal reasons. The grievor's story was corroborated by other witnesses, such as Colangelo, Brown and Capistrand. All admitted that customers refuse receipts. This being true, it would be unjust and unreason- able for the employer to discipline an employee for failure to provide receipts, so long as there is no deliberate plan of deception behind the retention of the receipts. From the evidence, as outlined later, such a deliberate plan was not proven here. The second basis for discipline was the number of No Sales. It is true that the grievor appears to have opened his cash drawer frequently - 17 times on February 12 and 11 times on February 14. He explained that he might be making change for a customer or someone accompanying the customer or even for himself before lunch. Further- 7 more, he said that he frequently checked his cash, because he was concerned about building up large sums or running out of small bills for change. He would also ring No Sale when making deposits during the day. Mr. Capistrand, who was instrumental in the investigation of the grievor, said that he had watched the grievor for a year and was suspicious of the number of times that the grievor was counting his cash. This suspicion, plus the employer's action on the basis of the No Sales, is troublesome. There is no Board rule about No Sales or the number of times a till should be open, so the grievor broke no rules with this action. In addition, it is somewhat dis- tressing that Mr. Capistrand never mentioned his concerns about cash counting and open drawers to the grievor, for an innocent explanation might well have been possible and this hearing avoided. The third concern of the employer was the small cash items - 40t, 50t, etc. The grievor explained these as either gratuities, which he rang back in because the acceptance of gratuities is for- bidden, or possibly a ringing in of the difference between the value of a bottle returned by a customer and that taken in exchange. Some small items did match individual bottles of beer in the store. Again, these small items are not proven to be a violation of Liquor Board procedures or irregularities. What we have here, overall, is really a suspected irregularity in handling cash, for which the employer does not accept the grievor's explanation. It would seem that the decision to discharge has also been affected by the other incidents mentioned above, namely the Alberta Vodka incident (about which the grievor had heard nothing until the arbitration hearing) and the taking of money from the till (again, newly revealed at the hearing). It seems that the employer has looked at a series of apparently suspicious actions, and decided that they give rise to an inference of untrustworthiness on the part of the grievor. Counsel for the employer insisted that he was not alleging theft by the grievor, and therefore, the employer should only be held to the ordinary standard of proof operative in civil cases - that is, the balance of probabilities. He argued, in the alternative, that if this Board held otherwise and required a higher standard of proof, then that standard had also been met by the employer. In deciding the appropriate standard, it is necessary to discuss the nature of an "untrustworthiness" charge generally and then in the context of this case. What we have here is a charge of untrustworthiness in handling cash. That term can have several meanings, with various implications for the arbitral process in terms of what must be proven to show blameworthy conduct, the standardof proof, and the proper disciplinary action. In trying to assess what is meant by 'Untrustworthiness", one must first look at the conduct giving rise to the charge. In some circumstances, a person on cash may be said to be untrustworthy because he or she is careless or incompetent in handling cash and, therefore, unsuited to cashier's duties. An allegation of untrust- worthiness in such circumstances might then be subject to a civil standard of proof, for there is no allegation of dishonesty nor possible slur on the employee's reputation. In other circumstances, "untrustworthiness" may well mean something quite different and potentially much more derogatory. It may mean that an employee is knowingly failing to follow cash register procedures. In such circum- stances, his honesty may or may not be in doubt. In such cases, though, the allegation of untrustworthiness carries implicationsof theft or dis- honesty, and consequently, the standard of proof should be higher than the civil standard. The employer must show by clear and convincing evidence that the employee has knowingly broken rules and so harmed the employer's interests. It should be noted, however, that in such cases, where there has been deliberate misconduct and, therefore, untrustwor- thiness, the conduct may or may not justify discharge. Where there has been breach of rules without proof of actual "dishonesty" (i.e. theft), the employee may be subject to discipline, but not necessarily discharge. The penalty will no doubt vary with the importance of the rule, the number of violations, and the employee's record. Past cases of this Board of arbitration have dealt with the correct standard of proof in cases such as these. Starting with Bernardi and the Liquor Control Board of Ontario, 102/79 (at p. 11) and continuing with Pfeffer and The Liquor Control Board of Ontario, 148/79 (at p. 5) and Taialtas and Liquor Control Board of Ontario, 282/79 (at p. 10), this Board has required proof on a "clear and convincing" basis when there are allegations of theft in the employer's reasons for discharge. In this particular case, even though Mr. Drmaj arguedthat the employer was not alleging theft, but rather "dis- honesty", the inference that comes from the dismissal and the evidence lead, is that the grievor was dishonest, and probably stealing. This was clear from the evidence of Mr. Capistrand, who stated that the shortages in the store fell after the grievor left, implying that he felt that the grievor was responsible. Because of this inference of quasi-criminal or criminal conduct, the employer must prove its case on a "clear and convincing" standard. After reviewing the evidence, we do not feel that the employer has established grounds for discharge on this basis. There are only two Liquor Board procedures with which the grievor failed to comply. The provision with regard to cash register receipts has been discussed. The other procedure was that used to ring in multiple sales (specifically, the two bottles of Melcher's rye). Instead of using the multiple button or ringing in the amount twice, he added the total in his head. Not only does this interfere with the Liquor Board's record system, which requires a total of transactions each day, but it also creates a risk of error, such as occurred here. Therefore, this action warrants discipline, although by no means discharge. The other actions which caused concern to the employer - the No Sales and small items - are not in themselves wrong. The employer would have us uphold the discharge because, taken together, they show "dishonesty". The case, however, has not been made out. Admit- tedly, we have difficulty in accepting the grievor's explanation about gratuities to explain the small items, for gratuities are not a common occurrence, as Brown and Colangelo testified. However, the employer has not proved wrongdoing. It is difficult to believe that the grievor was doing something dishonest on February 12 and 14, for he testified that he knew that he was under surveillance by the other employees. He caught Brown scavenging through his garbage, and he said that he felt the others were watching him. He was so angry at the treatment that he approached the Manager, Doody, on Saturday, February 16 for an explanation. It is hard to believe that he would try to take money from the till or engage in deliberate malpractice under such dangerous circumstances. Furthermore, we are not prepared to draw the inference which Capistrand drew from the reduction in shortages after the grievor's discharge. As Professor Prichard men- tioned in Bernardi (above), it may well be that shortages are reduced after a discharge because the real wrongdoer is either frightened or given a chance to stop his theft, while throwing suspicion elsewhere. In addition, it would be difficult to blame the grievor for all the store's shortages. Those shortages remained high while the grievor was absent due to illness from July 25 to September 5, 1979. As well, he was only on cash about two or three days per week, and yet the shortages were often over $1,000 per month. Finally, the Alberta Vodka incident and the money from the till incident are troublesome, and largely because of the way in which the employer treated them. Again, there was no charge of theft, just "irregularity". That seems to be an invitation to this arbitration Board to be suspicious of the grievor, without insisting on proof of wrongdoing by the employee. The grievor had no prior knowledge of these incidents and the employer did not refer to them in its letter of discharge. Counsel for the employer conceded that the Vodka incident would not alone warrant discharge. Therefore, we are not prepared to give these incidents weight. The grievor might well have had an explanation, if confronted at the time of discharge. Overall, then the evidence does not prove dishonesty on the grievor's part - whether on a balance of probabilities or on a clear - - and convincing standard. The most that is proven is suspicion, but that is not enough to justify discharge of an employee. In reaching the decision that the employer can not discharge the grievor for either cash register irregularities nor untrust- worthiness, reference has been made to the cases of this Board referred to earlier. The employer relied on Pfeffer, where the employee was disciplined for "untrustworthiness", a charge founded on a consistent failure to follow Liquor Board procedures with regard to voids. There, the employee took credit for five voids, knowing that he had failed to follow the proper procedure for ringing them in. The void policy is very important to the employer's cash control system, and a deliberate and consistent failure to follow such a procedure is serious misconduct for which the employer is justified in disciplining the employee. The conduct can be de- scribed as "untrustworthy", in the sense that it jeopardizes the cash control system. However, that does not necessarily mean that the conduct is dishonest, in the sense that theft has been alleged or proved. Earlier in this award, we referred to the variety of mean- ings attached to "untrustworthiness." The Board in Pfeffer, chaired by the present Vice-Chairman, may have created some confusion by using the term in two ways. On p. 13, it was stated that Pfeffer could not be discharged for "untrustworthiness", because dishonesty was not proved - that is, theft was not proved. Nevertheless, on p. 14, Pfeffer was stated to be "untrustworthy" because he breached an important rule. The implication is that Pfeffer's conduct consti- tuted a serious and knowing violation of the employer's rule. The motive may or may not have been dishonest, but dishonesty was not -13- proved. Nevertheless, the grievor was deserving of discipline because of the gravity of such misconduct by a cashier and the inference that he could not be trusted on cash because of that. misconduct. In Bernardi, there was also a form of "untrustworthiness" proven, in that the grievor, who was the Manager of the store, was directly responsible for the failure to implement Liquor Board policy with regard to separate cash drawers, thus preventing the employer from determining who was responsible for falsifying records regarding store productivity. ' Finally, in Tsialtas, a panel of the Grievance Settlement Board refused to uphold a discharge for failure to follow cash procedures by failing to follow the void procedure in one transac- tion, which involved "forgetting" to ring in one transaction. It was held that the penalty was excessive for one failure to follow procedures, when there was no proof of dishonesty. In the present case, there is no basis in the evidence for finding that the grievor was dishonest, nor is there a deliber- ate and serious violation of employer rules which are integral to the operation of the cash system. All that is proven is some possibly suspicious conduct and one proven violation of employer rules pertaining to the ringing in of multiple transactions. On this basis, discharge is clearly an excessive penalty. The other employees who instigated this investigation and the supervisors who accepted their findings acted precipitously. To discharge an employee on the bases alleged is to do so only because of suspicion of wrong- doing, not proof thereof. The grievor has violated one Liquor Board procedure, which warrants some discipline. He has no prior disciplinary record, and was regarded as a good cashier. Therefore, a penalty of a five-day suspension will be substituted pursuant to Section 18(3) of the Crown Employees Collective Bargaining Act, S.O. 1972, c. 67, as amended. This should be adequate to convey the import- ance of following Liquor Board procedures with regard to multiple sales. Those procedures permit the keeping of records of sales and help avoid mathematical errors. The grievance is allowed, as stated in our telegram, and a five-day suspension is substituted. The grievor is to be re- instated without loss of seniority or credits. We will retain jurisdiction to deal with problems arising out of the implementa- tion of this award, including disputes as to compensation. . DATED at Toronto this 5th day of February, 1981. • Prof. K. Swinton Vice Chairman "M. Gibb - I concur" Hrs. M. Gibb Member "E. McIntyre - I concur" /lb Ms. E. McIntyre Member