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HomeMy WebLinkAbout1980-0307.Penner.81-03-09 DecisionONTARIO CROWN EMPLOYEES GRIEVANCE SETTLEMENT BOARD • 180 DUNDAS STREET WEST, TORONTO, ONTARIO. M5G 1Z8 - SUITE 2100 TELEPHONE: 416/598- 0688 307/80 IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Mr. N. Penner -And- Crown in Right of Ontario (Liquor Control Board of Ontario) Before: Prof. P. Barton Vice Chairman Mr. F. Collict Member Prof. F. Collom Member For the Grievor: Mr. A. Heisey, Counsel W. Ross Hitch & Associates For the Employer: Ms. J. Baker, Counsel Hicks, Morley, Hamilton & Storey Hearing: January 20th, 1981 2 The grievance in this matter was dated April 30th, 1980 in which the grievor, Mr. Penner grieved the discharge from his position as manager of store #492 in Callendar, Ontario. Juris- diction in this Board is found in Article 22.1 of the collective agreement between the LCBO and LLBO, and Ontario Liquor Boards Em- ployees' Union. Article 3.2 of the same agreement provides for the determination by this Board of the question of whether or not dismissal has been with or without just cause. At the time of his discharge on April 30th, 1980, the grievor Was 35 years of age. He had been employed by the Liquor Control Board of Ontario since 1968. Since 1973 he had been the manager of the Callendar store which is a "C" store. This means that the volume of business per year is approximately $850,000. At the time of his discharge the store employed one full-time employee, a Mr. Betteridge and one part-time employee. Mr. Penner had been appraised yearly by Mr. Adamson, the Area Manager for Northern Ontario and had always been found to be satisfactory. This in fact was the first incident of any kind on his disciplinary record as far as we are aware. On or about April 2, 1980 the grievor arranged with a company called General Key and Repair to change two lock cylinders and issue keys. These locks were on a premises adjacent to the liquor store.leased by the grievor's wife. The locksmith from General Key brought the bill into the liquor store where Mr. Betteridge, the part-time employee Mr. Sabourin, and the grievor were to be found. The grievor had just finished unloading a shipment of beer andwas having 3 coffee, and directed Mr. Betteridge to put the bill into the till and to pay the lockman from petty cash, indicating he would straighten the matter up later. He apparently forgot about the matter until the next morning when he was doing his daily sales report for the day before. On the daily sales report is a space for petty cash disbursements in which normal minor expenditures for such things as cleaning, replacement of glass and windows, locksmith work, etc. are entered. He decided at that time to charge the cost of the lock repairs to his wife's store to the Liquor Control Board and entered into the daily sales report for April 2nd, 1980 the amount of $25.47. This same sum was also entered into the petty cash ledger under the date of April 3rd. At the end of each week the manager of the store prepares a weekly summary in the form of a consolidated report for the Toronto head office. Daily sales reports are not sent in to Toronto but weekly ones are. This report for the week in question, probably prepared about three or four days after April 2nd, also shows a petty cash disbursement of $25.47. That is where matters stood until April 15th, 1980. On that day, H. Adamson, the Area Manager and a Mr. Solomon arrived at the Callendar store in a normal course of events. While checking the petty cash ledger Mr. Adamson noted the entry of $25.47 and questioned the grievor about it. The grievor was unable to satisfactorily justify the expense and Mr. Adamson picked up the telephone to call General Key and Repair. When the conversation was concluded Mr. Adamson was told by the grievor that he had done something wrong. The grievor who was considerably embarrassed and 4 upset indicated that the work had not been done on the Liquor Control Board premises and was told that he was to be suspended for one day. The grievor offered to make restitution and in fact did pay back the money on the same afternoon, as well as apologize profusely to Mr. Adamson and Mr. Solomon. When questioned by these two as to why he would have done such an act given his 12 years of service without a blemish, he was unable to come up with an explanation of any kind. According to the normal procedure the grievor wrote a letter to Mr. McLeod, the Directorof Store Operations in Toronto explaining the incident. In his letter he fully admits having been guilty of mismanagement of Board funds, indicates that he had never done anything like that before and never would again, indi- cates that he has no explanation as to why he did it but that he is very sorry about it. The letter continues with a plea for leniency. The Discipline Committee of the Board, made up of six Supervisors considered the matter of Mr. Penner's default at a formal hearing, in the absence of the grievor, and recommended to the General Manager that he be dismissed. As a result on April 30, 1980 a letter was sent to the grievor terminating his services. Although no explanation was offered prior to termination as to why the grievor would have done such a thing, certain additional evidence was offered at the hearing concerning the grievor's state of mind at the time. The grievor indicated that he was taking a considerable amount of codeine and valium for phantom pain arising from the amputation of his right leg following 5 an accident in January of 1977. He had apparently been on this medication from January, 1977 until the date of the default and stated that his personality and behaviour were somewhat abnormal as a result. In particular, he stated that his memory was poor, that he had done some things which he considered to be out of character at the time. He indicated that his general attitude toward life at the time was "nothing was any consequence, every- thing was relaxed". The fact that he may have been doing things which are out of character was confirmed by the part-time employee, Mr. Sabourin who indicated that before the accident he was a normal average person and that he had changed after it. He also indicated that he could not believe that the grievor would have done such a thing. At the time of the hearing the grievor indicated that he has substantially reduced his dependence upon codeine and does not take a great deal of medication at present. We might make the observation here that at the hearing the grievor seemed to us to be or to have been under a considerable amount of stress and was showing, as he had showed on April 15th 1980, considerable remorse. This is a case which has given us a considerable amount of difficulty. On the one hand we have an admitted act of conver- sion of property by a person in a position of trust and responsibility. On the other hand we have the fact that it was an isolated incident in a 12 year career, that the grievor may not have been himself at the time, and that because of his age and physical incapacity, he 6 is virtually unemployable. We say that he may not have been himself at the time because we do not have any medical evidence to indicate whether or not the taking of excessive amounts of codeine and valium would have affected his ability to carry out the requirements of his position. We certainly did not see any evidence that his ability to function as a manager was impaired in any way. What happened could be characterized as a momentary aberration, albeit an exceedingly serious one, in which the grievor on April 3rd, 1980 chose to divert funds and having a few days to reconsider the matter, carried on with the plan after April 5th, 1980. We looked very anxiously at cases decided by this Board on other occasions and at cases in the private sector concerning similar facts. It is safe to say that there is a presumption thatdischarge is an appropriate remedy incases of this sort. (See General Bakeries and Teamsters, Local 141, Adam's grievance (May 28, 1980 Rayner)). It is certainly the case that until a few years ago a discharge would be automatic in a case of this Sort. A general approach that seems to have been taken by this Board is described in the grievance of CranZey and Staunton, #48 and 49/76. In that case it was considered that this Board should: "weigh and assess, on the particular facts of each case, the prejudice and harm that has been occasioned to the employer's business, reputa- tion, integrity and other legitimate interests against the claims of the employee that on the criteria and principles applied above, he is capable of reforming his behaviour, of fully and satisfactorily discharging his employment responsibilities in the future, and of regaining the trust and confidence of his employer, his fellow employees and the public." 7 This approach was considered in the case of Splonick and the Liquor Control Board #31/77 (Beatty). In this case the grievor had pleaded guilty to theft in criminal court of a case of liquor. It appears as well that this theft was one of a series of thefts and was described as "calculated intentional and deliberate." The Board in that case considered that it was very significant if "it is an isolated act, a momentary aberration, a solitary error of judgment in what otherwise has been a satisfactory and productive employment relationship." In the case of Bernardi and the LCB0 #102/79 (J.R.S. Prichard) a pattern of deliberate falsification of records was found. In a decision to uphold the discharge of the grievor, the Board having considered the directions of Section 18 of CECBA, indicated "our decisions should not compromise the principle that all members of the Public Service of Ontario, both bargaining unit employees and supervisory personnel, should be held to high standards of integrity in all their actions." It was significant in that case that Bernardi had been a manager, it was not a "momentary aberration", and there was some measure of self interest in what the employee had done. H. Weisbach dissented on the ground that reinstatement in a lower position would not have compromised the principle of integrity referred to. A more recent case concerning the LCBO is a case of Pfeffer #148/79 (Swinton). That case involved apparent mishandling of "void" sales receipts, and in it the Board refers to the lessening in the rigidity of the l automatic grounds for discharge' approach (P. 7). 8 We have considered the various factors relevant to the exercise of our discretion to mitigate the penalty as we are required to do by Section 18 of the CECBA and as discussed in the case of Steele Equipment Limited (1964), 14 L.A.C. 356. Although the matter has not been easy, on balance we have decided that, given the unique situation of the grievor, justice requires that we temper the discipline. Although the grievor was a Manager as was the above mentioned Mr. Bernardi, this was clearly a momentary aberration on the part of the grievor and one for which he has shown considerable remorse. Were it not for the direction in Section 18(3)(2) to consider whether a penalty is excessive and substitute such other penalty as we consider "just and reasonable in all the circumstances", we might well have refused to interfere. We feel that it is very important that we not undermine the confidence of the Board in its Managers, which confidence is bound to have been badly shaken in the case of Mr. Penner. Accordingly we feel it an appropriate remedy in part would be to demote the grievor from the position of Manager to the highest non- managerial position, Clerk 4. We also feel that a suspension with- out pay for five months is an appropriate sanction. Seniority is not tote affected. We also feel that if the grievor is able to stay out of trouble for two years following the date of this award, in the sense of not being disciplined by receiving a valid suspension, this disciplinary action should be removed from his employment record. In the result the grievance is allowed in part. 9 We indicated at the hearing that we would remain seized with the matter of compensation and are prepared to meet on the matter should it become necessary. Dated at London this 9th day of March 1981. Prof. P. G. Barton Vice Chairman "I dissent" (See attached) Mr. F. Collict Member "I concur" Mr. F. Collom Member /lb March 2, 1981. RE: 307/80 I dissent with the majority award. The action of the grievor in this case cannot be characterized as a "momentary aberration" as stated in the majority award at pages 6, 7 and 8. This was not a situation in which an employee was faced with an opportunity to take petty cash impulsively, in effect, a "momentary aberration". It was not something as simple as the theft of a case of liquor, whereby in Splonick and the L.C.B.O. #31/77 (Beatty) the Board stated that it is very significant if, "it is an isolated act, a momentary aberration, a solitary error of judgment in what otherwise has been a satisfactory and productive employ- ment relationship". Rather, this was a case in which a manager of an L.C.B.O. store paid a personal bill from the cash register in an L.C.B.O. store. He initially recorded this transaction as a disbursement on April 3, 1980, in the amount of $25.47, in the petty cash book for the store for which he was responsible. Undisputed evidence was advanced by the grievor's Manager that this entry had not been "scratched out" on April 15th when he examined the petty cash book. The grievor, charged the cost of the lock repairs to his wife's store to the Liquor Control Board and en- tered into the daily sales report for April 2nd, 1980, the amount of $25.47. This same sum was also entered into the petty cash ledger under the date of April 3rd." (Quoted from page 3 of majority award.) Moreover, a consolidated weekly summary report is presented to Head Office. As stated once again in the majority position at page 3, "This report for the week in question, probably prepared about three or four days after April 2nd, also shows a petty cash disbursement of $25.47". 2. It was only on April 15, 1980, that the grievor admitted he had done "something wrong". In fact, he only made this admission to his Manager when the latter made a phone call to determine the nature of the petty cash disbursement of $25.47 - in effect, only when he, seemingly, was found out. Surely this cannot be characterized as a situation involving a "momentary aberration" as set out on page 6 of the majority award. Mr. Penner, the grievor, was a Manager of an L.C.B.O. store. He had the opportunity over a period of approximately two weeks to either adjust his records or discuss the matter with his Manager. He did not do so. Clearly, therefore, this situation cannot be characterized as a "momentary aberration"! Mr. Penner only admitted to the act when he believed the fraudulent action had been revealed. At page 7 of the majority award, a summary comment is made with reference to the case of Bernardi and the L.C.B.O. #102/79 (J.R.S. Pritchard). "It was significant in that case that Bernardi had been a manager, it was not a "momentary aberration", and there was some measure of self interest in what the employee had done". Very clearly these same issues are very apparent in the subject case; and the discharge of Mr. Bernardi was upheld in #102/79. In addition, at page 6 of the majority award the following state- ment is made: "It is safe to say that there is a presumption that discharge is appropriate remedy in cases of this sort. (See General Bakeries and Teamsters, Local 141, Adam's Grievance (May 28, 1980, Raynor)". Mr. Penner, as Manager of the Callander L.C.B.O. store was in a position of trust. He willfully caused L.C.B.O. monies to be paid to cover his own (or those of his wife) financial liabili- ties. He subsequently prepared daily and weekly reports which 3. were designed to cover the fact that he had fraudulently paid the $25.47 from L.C.B.O. funds. He had a period of approxi- mately two weeks during which he could have effected some adjustment to the improper charge he had made. When questioned by his Manager on April 15, 1980, he informed him that the petty cash disbursement in question was for the purpose of some work performed by a locksmith on the L.C.B.O. store for which he was responsible. It was only when his Manager telephoned the locksmith in North Bay that Mr. Penner admitted to the fraudulent act he had committed. It is significant to note that Mr. H. Adamson, the Area Manager, did not immediately discharge the grievor on April 15, 1980. The action taken was a suspension pending a review of his case. As stated in the majority award at page 4, "The Discipline Committee of the Board, made up of six Supervisors considered the matter of Mr. Penner's default at a formal hearing, in the absence of the grievor, and recommended to the General Manager that he be dismissed. As a result on April 30, 1980, a letter was sent to the grievor terminating his services". The action taken in this case, therefore, was not hasty, "unreason- able, capricious or arbitrary", or demonstrating an "abuse of discretion", standards of review of similar cases often stated. Rather, it was a case which was reviewed before an L.C.B.O. Discipline Committee of six Supervisors plus a referral to a "General Manager". Inasmuch as the action taken is not incon- sistent with that taken in other like cases, the Board should not substitute its judgment for that of Management. In view of the circumstances of the subject case, therefore, the only reasonable conclusion to be reached is that the action of Management in discharging grievor Penner was appropriate. Accordingly, it is the minority position that the subject griev- ance should be dismissed. 4. Notwithstanding the above, the minority position is cognizant of the circumstance in which the grievor has placed himself. He is a relatively young man living in a small community and he does have a severe physical disability. He will, therefore, have difficulty finding alternative employment. For this reason the minority position is not opposed to Mr. Penner being rein- stated to the employ of the L.C.B.O. will full seniority to a non-managerial position. However, (1) The minority position is opposed to a five month suspension. The grievor engaged in a fraudulent act. It was not a "momentary aberration". A momentary act of poor judgment it might have been •MIP even impulsive; but he had a period of approxi- mately two weeks in which to change his mind, to inform his Manager, to even confide in him on April 15, 1980, prior to the fatal phone call. These are the things that Mr. Penner might have done - but did not. These actions do not warrant a five month suspension. A more appropriate remedy is that the suspension should extend for the period between the date of discharge and the date when the grievor is returned to a non- managerial position. In the case of Aberilla and the Ministry of Health, G.S.B. #298/80 (J.B.S. Pritchard) at page 16,the following position was taken, "By denying the grievor compensation for the time he has been off work, we are making it quite clear that based on the evidence as we found it his conduct was utterly unacceptable and that it was a very serious breach of the professional standards which all nurses must live up to. This presumably will serve as notice not only to the grievor (we have no doubt he has al- ready learned his lesson) but also to all other per- sons in similar circumstances and to the public of Ontario whose confidence in the quality of psychiatric care must be maintained. Although we recognize the harsh economic consequences for the grievor, we believe a lengthly suspension is required in order to signal 5. clearly this Board's attitude towards conduct of the kind, described in this decision". (underscoring added) The conduct referred to above involved a 30 second "momentary aberration" on March 26, 1980. Although Mr. G. Aberilla in this case was a nurse, Mr. Penner in the subject case was a Manager of an L.C.B.O. store; and as stated in Bernardi and the L.C.B.O., G.S.B.4102/79 (J.R.S. Prichard), "our decision (the Board's) should not compromise the principle that all members of the Public Ser- vice of Ontario, both bargaining unit employees and supervisory personnel, should be held to high standards of integrity in all their actions". (p. 19) (2)It is also the minority position that the grievor should not be demoted " from the position of Manager to the highest non-managerial position, Clerk 4". Rather, he should be demoted to a "non- managerial" position, offered to him within one week from the date of receipt of this award. (3)Finally, the minority position is opposed to the majority award to the effect that, "this disciplinary action should be removed from his employment record", - " if the grievor is able to stay out of trouble for two years following the date of this award, in the sense of not being disciplined by receiving a valid suspension". The significance of this incident will erode from the grievor's record through time. The removal of such an incident is to state that it never happened. The application of disciplinary action upon the re- cord of an employee therefore should be left to the normal practices of the employer in its regular employee relations. "F. Collict" F. Collict