Loading...
HomeMy WebLinkAbout1980-0187.Dallas.80-12-11 DecisionONTARIO CROWN EMPLOYEES GRIEVANCE SETTLEMENT BOARD 18 DEC. 1980 180 DUNDAS STREET WEST. TORONTO, ONTARIO. M5G 1Z8 - SUITE 2100 TELEPHONE: 416/598 - 0688 Between: Before: 187/80 IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Ms. D. Dallas and The Crown in Right of Ontario Liquor Control Board of Ontario Professor K. P. Swan Vice-Chairman Mr. F. T. Collict Member Mr. G. Beaulieu Member For the Grievor: Mr. A. Heisey, Counsel W. Ross Hitch Associates Barristers & Solicitors For the Employer: Ms. J. Baker, Counsel Hicks, Morley, Hamilton & Storey Hearing: October 14, 1980 - 2 - This grievance relates to action taken against Mrs. Doris Dallas, a part time cashier at the Employer's Liquor Store No. 444 in Agincourt, Ontario in December, 1979 which, in all the circumstances, amounted to her discharge for a refusal to pay her share of a cash shortage of $105.00 which occurred on November 30, 1979. In fact, part-time cashiers are scheduled to work on a weekly basis, and the action taken was simply to cease to schedule the griever for work. The informality of this procedure caused some difficulty in this case, but both parties agreed that it was properly characterized as a discharge. Discharge grievances by part-time employees are processed and arbitrated under the applicable collective agreement as for full-time employees, by virtue of Article 30 thereof. The Employer raised, but waived any objection in respect of, a considerable delay in the processing of this grievance to arbitration, without prejudice to its right to insist on such an objection in future cases. The events which resulted in this discharge may be briefly described. On November 30, 1979, the griever was working a 3:00 p.m. to 10:00 p.m. shift as a cashier. During the shift, she made deposits from the till from time to time in the normal way. Each of those deposits was checked in accordance with the LCB0 cash control procedures, and then deposited into a safe under the control of Brinks, the private security company. When she ultimately was "rung off" her till at about 9:20 p.m., it was discovered that there was a cash shortage of $105.00, an amount which all witnesses described as an unusually high shortage. Mr. Paul Little, the Assistant Store Manager, began the usual checks to try to locate the cause of the shortage. The deposit slips were rechecked, but not the deposit envelopes, which had been irrevocably inserted into the Brinks safe. The cash register tape was studied, the petty cash counted and the cash balances of the other cashiers verified. No solution was found, except that one transaction totalling $104.95 led Mr. Little to suggest that the grievor might simply have forgotten to collect for it. The grievor denied that possibility and continued to deny it at the hearing, giving details of the transaction which convinced her that it could not have been the cause of the shortage. In the end, the grievor remained adamant that a mistake must have been made, and Mr. Little passed the matter on to the Manager, Mr. Kenneth Fletcher, whose shift on the next day, Saturday, December 1, overlapped with the grievor's hours of work. That Saturday morning Mi... Fletcher found the documents relating to the shortage and a note from Mr. Little awaiting him, and proceeded to review the documents and carry out the usual checks. He also found nothing to suggest an accounting error, and was also attracted to the theory that Mrs. Dallas had failed to collect on the $104.95 sale. Mr. Fletcher found Mrs. Dallas when she came in to work, told her of the negative results of his efforts, and ,told her that she would be required to pay her share of the shortage in accordance with Article 25.2, which provides: -4- 25.2 All daily cash shortages of two dollars ($2.00) or less shall be absorbed by the Board. All daily cash shortages in excess of two dollars ($2.00) shall be the responsibility of the cashier and he/ she shall reimburse the Board for fifty perCent (50%) of such cash shortages in excess of two dollars ($2.00) but not including the two dollars. All overages shall be retained by the Board. Her share would be, therefore, $51.50. Mrs. Dallas remained adamant that she had not made an error; Mr. Fletcher's designation of her attitude was "indignant". It is a reasonable inference from the evidence of the two participants that this conversation became heated and obstinate. In the end, Mrs. Dallas said she would not pay; Mr. Fletcher informed her that she had to pay, that this was "a serious matter", and that he would give her until 6:00 p.m. to "think it over". There is a divergence in evidence as to whether this constituted a demand to pay, or to undertake to pay. He also testified that he told her she would have to "pay it or else", an expression which both of them clearly understood to involve disciplinary action. Mrs. Dallas testified that she had asked for a "recount" of the money in the deposit envelopes, and there was evidence from Mr. Michael Sullivan, a book-keeper in the LCBO's employ who was called for the union, that envelopes can be opened when the Brinks employees come to open the safe in order to double-check their contents. Mr. Fletcher, recalled as a rebuttal witness, did not expressly deny the request for a "recount", but said that such a procedure was contrary to LCB0 policy, although he did not know if such a policy had been reduced to writing. In the result, 'Mrs. Dallas neither paid nor agreed to pay the money by 6:00 p.m., and she was simply never scheduled to work again, - 5 - without any notice of a formal nature of her change in status. By Wednesday or Thursday of the following week, December 5 or 6, she had learned informally that she would no longer be employed at the store; she had also been informed by Mr. Little that no overages had been reported by the bank from the deposit of the Brinks deposit envelopes which might have explained her shortage on December 1. She ultimately lodged a grievance alleging dismissal "without just and sufficient cause" on December 13, 1979. There was one final encounter between Mr. Fletcher and the grievor, on December 22 when she came to collect her final pay cheque. Mr. Fletcher had taken pains to ensure that he would hand Mrs. Dallas her cheque, and had prepared a question to ask her. At the hearing, he read to us his verbatim record of that encounter which was uncontradicted and which we reproduce here because of the nature of the arguments based on it: "I asked her if she was going to do anything about the $51.50 she owed the Board {the LCBO}. She shook her head 'no' and said 'talk to the Union rep.'." Having set out the evidence on which we consider this matter must be decided, we must dispose of two other kinds of evidence adduced by the Union. First, there was evidence that, in another store, a casIvregister of the same model as that used by the grievor had turned out spurious calculations on occasion because of a mechanical failure. There is no evidence that anything like this sort of failure happened in the present case, and this evidence is thus irrelevant to our deliberations. In the same category are a number of letters in the - 6 - form of testimonials to the grievor's skill, courtesy and personality In her job. While these may undoubtedly be a source of considerable satisfaction to Mrs. Dallas, they are irrelevant to the question of whether her admitted refusal to pay $51.50 on December 1, 1980 was just cause for discharge. We turn now to that central question. The starting point in our deliberations is the Employer's characterization of this discharge as based solely on the refusal to pay $51.50 in accordance with the collective agreement. There is no allegation of incompetence or dishonesty, and indeed the Employer's position is that Article 25.2 is designed to avoid any findings of fault by allocating loss on an equitable basis to the LCB0 and the employee. Because of the importance of this provision in a system where mistakes inevitably occur, the Employer asserts that a refusal to comply with it is just cause for discharge. We have searched the arbitral jurisprudence on insubordination in vain for any assistance in this regard, and it is significant that counsel argued the matter without reference to any authority. As a starting point, we might observe that the learned authors of Brown and Beatty; Canadian Labour Arbitration (1977) conclude (at para 7:3610) that the general rule, that an employee must obey orders promptly and test their impropriety subsequently through the grievance procedure, is designed to protect the efficient operation and production of the enterprise and to preserve the symbolic authority of the employer. Is either of those interests at stake here? It is important to observe that Mrs. Dallas now admits her liability to pay $51.50, because she "must accept" the bank's statement that there had been no error in the Brinks deposits. 7 Thus there is now no dispute about the obligation to pay. The question is whether she was entitled, on Saturday, December 1, 1979, to refuse to pay or to undertake to pay the money by 6:00 p.m. As to the obligation actually to pay money, there is no doubt that a demand to pay backed by a threat of disciplinary action would have been wholly unreasonable and unsupportable in the tircumstances. Mrs. Dallas is a widow, aged 55, in part-time employment. The shortage dccurred after 9:00 p.m. on a Friday evening, and the demand was made on Saturday about noon. Mrs. Dallas says she simply did not have the money, which given her personal circumstances we can readily accept, but we consider that no employee should be expected to produce a substantial sum of money on demand in such circumstances. An inference of a reasonable time to pay does not in any way offend against the provisions of Article 25.2. But we are also of the view that, even if the ultimatum presented by Mr. Fletcher was only an order to undertake to pay the grievor's share of the shortage, it was premature and, in the circumstances, unwarranted. Whether or not Mr. Fletcher is correct that no check of the deposit envelopes is permitted by Board policy, we see no reason why such a rule should prevail over the common sense riOt of an employee to have reasonable inquiries made into possible causes of an unusual shortage which might turn up an alternative explanation or even a recovery of the money. It is reasonable, at least where a substantial loss is involved, to permit some subsequent check of the deposit envelopes, whether by opening them under controlled conditions or by asking the bank to verify their contents. Until such reasonable procedures had been carried out (and in this context we note the uncontradicted evidence of the grievor that some attention was paid to the possibility that - 8 - the bank might disclose an error) any demand for payment would be premature. We have some considerable difficulty, in any event, with the use of threats of disciplinary action, especially dismissal, to collect what are essentially debts owing to the Employer. We note that the Employment Standards Act, S.O. 1974, C. 112, s.8 forbids the use of a set off against wages of private sector employees as a debt collective device. Is the use of disciplinary sanctions any less acceptable a means of enforcing debts under the concept of public policy expressed in such legislation? This matter is not before us, however, since our decision is based entirely on the prematurity of the demand for payment under Article 25.2 before all reasonable checks to recover the shortage had been carried out. As to the main issue in insubordination cases, whether the grievor should have complied with the order and subsequently grieved, we can see no reason to uphold the discharge on this basis. The circumstances of this case constituted a simple dispute as to liability to pay; no danger to efficiency nor any affront to symbolic managerial authority arose from a case which could, and in our view ought to have been dealt with in a measured, formal way, in writing if necessary, with reasonable opportunity for the grievor to take advice and reflect on her position. This is not a case of insubordination but one of disputed facts at a stage when further investigation was possible and warranted. To allow a supervisor to foreclose a reasonable dispute of facts by the exercise of some imputed symobolic authority is, frankly, repungant. A final matter for consideration is the interview on December 22, of which we have Mr. Fletcher's useful transcript. The 9 - Employer's view of this event was that it was just another refusal to pay at a time when all possible checks had confirmed the grievor's liability. With respect, this is not a reasonable inference from the circumstances. By that date Mrs. Dallas had been discharged, had grieved and had consulted the Union. She was within her rights to refer the manager to the Union representative for resolution of a matter intimately involved with her discharge. There is, moreover, no inkling of a suggestion in Mr. Fletcher's own evidence that he was prepared to accept payment and to begin again to schedule the grievor for work as a sort of settlement of the affair. He was clearly still standing by the discharge, and Mrs. Dallas can hardly be faulted for sheltering behind her Union representative. In the result, the grievance is allowed. Mrs. Dallas was entitled to a reasonable time to consider her position and to await final confirmation of the shortage before her obligation to pay arose. As to the liability to discipline for a refusal to pay after that time, we have come to no conclusion. In the present case, having been given an unreasonable and premature order in circumstances not attracting the doctrine of insubordination and the "obey now and grieve later" rule, she is not liable to discipline for a refusal to comply. The matter of compensation causes some difficulty. For a number of legitimate reasons, part-time employment at Store No. 444 dimini- shed after December 31, 1979, the last part-time employee having worked there on January 12, 1980. As a consequence, what remedy would place Mrs. Dallas in "a monetary position as near as possible to that in which {she} would have been" had she not been discharged is not easy to determine: see -10- Re Canadian Johns-Manville Co. Ltd.(1971), 22 L.A.C. 396 (Weiler). We accept the Employer's argumeht'that a simple order to reinstate with damages would overcompensate her for the loss of a job which was about to disappear, without wrongful action by the Employer, in any event. She would, however, have reasonably expected to work some share of the scheduled part-time hours from December 1, 1979 to January 12, 1980, and we therefore begin with an order for compensation for the wages lost due to the decision not to schedule her for work during this period. In addition, there is a "Letter of Agreement" appended to the collective agreement in the following terms: It is the policy of the Board that before hiring additional part-time stOre cashiers, to give priority' T the work available to those already employed in that capacity who meet the requirements of the Board. We have no argument about what this might cover, nor any evidence as to practice under this policy. If it involves any priority in hiring for one store for part-time employees made redundant at another store, the grievor is entitled to benefit from this provision on the same basis as the other part-time cashiers who were employed at Store No. 444, and to be paid damages for any wages she may have lost by reason of not being so considered under the policy by means of the discharge. This entitlement may also, on one interpretation of the "Letter of Agreement", entitle the grievor to future employment at another store. It is obvious that the discharge, having been improper, cannot be considered to affect her ability to "meet the requirements of the Board". Any remedy must, in our view of the positions of the parties, be conditional on the payment of the sum of $51.50 by the grievor to the LCBO. Apart from that specific sum, however, no accurate assess- ment of liabilities is possible. We therefore remit the matter of compensa- tion to the parties for settlement, retaining jurisdiction to resolve any issues outstanding should agreement prove impossible. Dated at Toronto this 11th day of December 1980. Professor K: P. Swan, Vice-Chairman I concur Mr. F. T. Collict, Member I concur Mr. G. Beaulieu, Member