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HomeMy WebLinkAbout1981-0040.Vigneux.81-11-18 DecisionONTARIO CROWN EMPLOYEES GRIEVANCE SETTLEMENT BOARD 180 DUNDAS STREET WEST, TORONTO, ONTARIO. MSG 1Z8 - SUITE 2100 TELEPHONE: 416/598- 0688 40/81 238/81 264/81 Between: IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Mr. T. Vigneux Grievor - And - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer Before: Mr. P. Draper Vice Chairman Mr. F. T. Collict Member Mr. I. Thomson Member For the Grievor: Mr. D. Starkman, Counsel Golden-Levinson For the Employer: Mr. H. Beresford, Counsel Hicks, Morley, Hamilton, Stewart & Stone Hearings: September 9 & 16, 1981 - 2 - DECISION The grievor, Theodore Vigneux, grieves that he has been dismissed without just cause and seeks immediate reinstatement to his former position and restoration of applicable salary and benefits. The employer replies that the dismissal was for just cause. The grievor is 61 years old and was employed by the L.C.B.O. for some 18 years, most recently as Assistant Store Manager at Store 206 in Windsor. Store 206 is not a retail outlet available to the general public but is a warehouse and distribution centre serving licensees and permit holders and is the only such store in Windsor. Nine persons, including the manager, are employed there. It is a Class "A" store, the highest category, and has annual sales in excess of $5 million. On October 30, 1980, the grievor was suspended pending the outcome of a criminal charge laid against him on the preceding day and on April 10, 1981, his employment was terminated following his discharge at the preliminary hearing into the criminal charge. The charge was not re-laid and there are now no outstanding charges against the grievor. Constable N. Wentoniuk of the R.C.M.P., called as a witness by the employer, testified that as a result of information received from United States Customs sources, and earlier R.C.M.P. enquiries at the Windsor Raceway about a person said to be selling liquor bearing U.S. excise seals during which the grievor was named as a person who gave liquor away at the race track, he and a fellow officer went there on October 28, 1980 (a Tuesday). A security guard at the horsemen's entrance who said he knew the grievor was asked to point him out if he should appear and did so when the grievor arrived shortly after. The witness identified himself to the grievor and asked him what was in a paper bag he was carrying. The grievor showed the witness two bottles of 3 liquor and when asked if he had more liquor with him led the officers to his car and opened the trunk which contained eight bottles of liquor, some in paper bags and some not. The witness made note of the brands of liquors, the sizes of the ten bottles and the serial numbers on the excise tapes. The grievor was then asked why he was at the race track with so much liquor in his possession and replied that it was to give to horsemen in return for "favours". In answer to further questions the grievor said he worked at L.C.B.O. Store 206; that he had purchased some of the liquor and had received some as gifts from salesmen from three distilleries whom he named after some hesitation; that he had not stolen any of the liquor; and that he had about a case of liquor at his house. The grievor agreed to go to the house "ith the officers after first having suggested a delay until after work because he was on his lunch hour and wished to return to the store. Upon arrival at the house, the grievor voluntarily signed an Authority to Search form. In the basement of the house the officers found 33 bottles of liquor in cases and a few empty cases. The liquor was seized and was carried from the basement to the side of the house. The witness knew the grievor "was not their man" because of the Canadian excise tapes on the liquor bottles in his possession, but because of the amount of liquor involved, because the grievor was a L.C.B.O. employee and because he did not believe the grievor's explanations, his suspicions were aroused. The Windsor Police Department was called and when Constable D. Roberts arrived shortly after, the witness told him of his suspicions and gave his opinion that further investigation was called for. The liquor was placed in Constable Roberts' car, the R.C.M.P. officers followed him to No. 2 Precinct where the liquor was listed and marked and the R.C.M.P. officers then left. The witness testified at the preliminary hearing into the charge that had been laid against the grievor. He has not spoken to anyone at the L.C.B.O. about the grievor's case. - 4 - Constable D. Roberts of the Windsor Police Department, called as a witness by the employer, testified that on October 28, 1980, he was dispatched to an address that proved to be that of the grievor's house. The R.C.M.P. officers told him of their conversations with the grievor and their discoveries. The bottles of liquor were taken to the precinct where he made out the required report of his investigation. At this point in the hearing, counsel to the grievor objected to the filing in evidence of the witness' report. Following argument by counsel, the objection was overruled on the grounds that the report was relevant to the issue before the Board and that the Board was not aware of any precedent, and none was cited, that would support its exclusion. Resuming his testimony, the witness stated that he had questioned the grievor at his house as to where he had obtained the liquor found in his possession and was told that it was given to the grievor by the three salesmen already named and that he gave liquor to persons at the race track in return for favours such as tips. The grievor said he would sometimes "cash in" gift bottles that he did not want. The witness did not believe the grievor's explanations. The grievor said that the bottles given to him by the salesmen had no price stickers on them. The witness attached no importance to the presence or absence of price stickers on the bottles but believes some of the bottles seized did bear price stickers. The grievor was not taken to the precinct. At the precinct the witness tagged the seized bottles, entered them in the Seized Property book and made out a Seizure of Liquor form. The details of the brands and types of liquor, the bottle sizes and the excise tape serial numbers were recorded in his report. He discovered that one of the seized bottles was empty and changed the total from 43 to 42. Detective A. Oakley, whom he had contacted while at the grievor's house, took over the investigation and he had nothing further to do with it. He would normally have been a witness at the preliminary hearing into the charge laid against the grievor but was on leave at the time and was not informed of it. He has had no further contact with the grievor and none at any time with L.C.B.O. personnel. Detective A. Oakley of the Windsor Police Department, called as a witness by the employer, testified that when he was contacted by Constable Roberts on October 28, 1980, he told him to hold the liquor found in the grievor's possession and to tell the grievor that he would be investigating. The morning of the next day, October 29, 1980, he obtained a copy of Constable Roberts' report and checked the seized bottles against the list in the report. There were no price stickers on any of the bottles. He went to Store 206 and met with Mr. B. Bellemore, Store Manager, to whom he explained why he was there and from whom he obtained information about the grievor's employment. The grievor was called to the manager's office at his request and when the manager had left he told the grievor that he was investigating the possible possession of stolen goods, gave him the usual caution and asked him where the liquor found in his possession had come from. The grievor replied that he had received liquor as gifts from three salesmen, naming them, and sometimes traded, at Store 206, liquor so received for brands preferred by friends. When he did not have trades to make he took liquor from the store. He did not know how long he had been doing this. About half of the liquor found in his house had been gifts or had been trades for gifts and the rest he had stolen. He had taken three or four bottles from the store on the preceding day to give to -6 friends at the race track in exchange for tips. The witness told the grievor that trading was a matter for the L.C.B.O. but that to him it was the same as stealing. He then told the grievor he would be charged with possession of L.C.B.O. property and must accompany him to the precinct. At the grievor's request the witness agreed to have him attend at the precinct during his lunch hour. About this time one of the salesmen who had been named by the grievor arrived at the store and the witness took a statement from him. The witness told Mr. Bellemore that the circumstances warranted a charge being laid and in a later telephone conversation, Mr. W. Armstrong of the L.C.B.O. told the witness he wished the police to charge the grievor. The L.C.B.O. could have laid a private information. When the grievor appeared at the precinct he was arrested, charged with possession of property obtained by the commission of an indictable offence under the Criminal Code and given the customary caution. The grievor was locked in an interview room, according to procedure for an arrested person, while the witness fetched a fellow officer, Detective F. Chauvin, whom he had asked to assist in the interrogation of the grievor. The grievor made a statement which was typed by the witness and signed by the grievor. At this stage of the hearing, counsel to the grievor, while conceding that the statement could not be said to be inadmissible, requested that the Board require the employer to prove its voluntariness before it was received in evidence. After argument on the point the request was denied on the grounds that the Board was not convinced of the propriety of adopting a practice unique to criminal proceedings and that, in any event, the voluntariness or otherwise of the statement could be probed by the examination and cross- examination of witnesses who were present and able to testify concerning it. 7 Resuming his testimony, the witness stated that the grievor, having acknowledged that he understood the caution directed to what he might now say, made, read and signed as being true and correct the following statement: I removed from the premises at 79 Eugene Street approximately two bottles a month for about the last year. In the last six months to a year, I also removed the liquor seized by the police, from my car and my home. I would like to add further that I did not steal all the liquor seized. Aproximately half of it was gift that I received from persons over a period of time that I exchanged on my own at the store. The reason I changed it was that! and my friends preferred other brands of liquor. I realize I was wrong in doing so and it all got started by making exchanges in the past. I apologize for my stupidity and would like to make full restitution. I realize now that this was a serious mistake which at first seemed so simple, just to make a trade and I vow it will never happen again. The grievor was released at his own request and on his promise to appear when required. On the morning of the next day, October 30, 1980, the witness went to Store 206 and met with Mr. Bellemore, Mr. Armstrong and Mr. Leach, also of the L.C.B.O. He left and returned later in the day and with the help of a store employee assigned by the manager checked the excise tape serial numbers from the seized bottles against those on bottles of the same brands in stock in the store and recorded the results in his report. The witness drew attention to instances of serial numbers of bottles in the two groups which were either in sequence or in the same number series, including the following: Seized Bottles 804185 7696455 Store Stock 804180, 804184 7696452, 7696456, 7696458 A9312095, A9312113 A9312105 G0659599 G0659604 A8557889, A8557892 A8557895 B3078485 B3078516 096555646, 096555652 096555463, 096555481, 096555874 8 The witness obtained statements from the remaining two salesmen named by the grievor and otherwise continued to prepare the case for presentation in court. He was present at the preliminary hearing but was not called to give evidence, the "chain of events" having been broken because Constable Roberts' evidence was not available. The grievor was discharged, there being insufficient evidence either to dismiss the charge or to send the case to trial. The Crown Attorney decided not to proceed and the police discontinued the investigation. Mr. B. Bellemore, Manager of Store 206, called as a witness by the employer, testified that he has been manager of the store since January, 1980. On October 28, 1980, the grievor returned from a long lunch period and explained that he had run out of gasoline. On October 29, 1980 Detective Oakley came to the store, asked to see him privately, questioned him about the grievor and told him that the grievor had been "picked up" at the race track with a quantity of liquor he "couldn't account for" and that this could mean jail for him. After Detective Oakley met with the grievor he advised the witness to contact his superior for advice. Accordingly, the witness called Mr. W. Armstrong, District Supervisor of the L.C.B.O., who also spoke to Detective Oakley. Later the witness met the grievor alone and asked him what had happened the day before. The reply was that the grievor had won a bet from a friend which had only been partly paid and he was to receive the rest on October 28th. The witness understood from what was said that the grievor was also bringing a bottle of liquor to the friend. The grievor told him he had been questioned at the race track by the R.C.M.P. "who were there looking for hijackers" and said he was sorry he had implicated the three salesmen, whose names had just come to mind. He said he had left a case of 9 liquor in the basement of his home and had forgotten about it. He had not taken any liquor from the store but had made some exchanges and would find and show the witness the paper recording the last exchange. Employees are permitted to exchange purchased liquor for a cash refund or for other liquor provided that the value is equal or the price difference is made up. A purchase order is required. There have been no exchanges by employees recorded since he became manager. Employees are also permitted to purchase liquor provided that a purchase order is approved by the manager, the price is received by a third person and the liquor is held in the manager's office until the end of the shift. This procedure is not always strictly followed. A few purchases have been made by the grievor since he became manager. Detective Oakley telephoned in the afternoon to say that the grievor had been charged and spoke again of the charge to the witness, Mr. Armstrong and Mr. Leach when he came to the store the next day, October 30, 1980. Mr. Armstrong then gave a letter of suspension to the grievor. Detective Oakley returned later in the day to check the store stock. None of the bottles of liquor in stock at the store carry price stickers. With respect to the testimony of the three salesmen, Mr. R. Sansolito, Mr. K. Percy and Mr. N. Reaume, who were named by the grievor as sources of gifts of liquor, it suffices to record that each of them identified, read, and confirmed the statement made by him to Detective Oakley that he had made no gifts of liquor to the grievor, with the exception that Mr. Percy had given the grievor one bottle in June, 1980, when he was on vacation. - 10 - Mr. J. Noble, Director of Finance, L.C.B.O., subpoenaed by the employer to produce records maintained by his office, testified that Stock Value Perpetual inventory Reports are prepared for every L.C.B.O. store at four-week intervals. The reports for Store 206 for 1979 were prepared by the grievor and show a net inventory shortage of approximately $2,500.00. Two of 13 reports made in 1980 were prepared by the grievor. The net shortage for the year was approximately $800.00. For the first seven four-week periods in 1981, a net shortage of approximately $270.00 is shown. Annual net shortages of about one-tenth of one percent of L.C.B.O. gross sales are considered normal. There are variations in overages and shortages from store to store and from period to period in particular stores. Shortages could be caused by, for example, inaccurate bottle counts, incorrect recording of inventory or pilferage by customers or employees. Audits of store reports are made periodically and spot audits may be carried out if abnormal figures are reported. Mr. R. MacDougall, Staff Relations Officer, L.C.B.O., called as a witness by the employer, testified that he prepares material for and attends all meetings of the L.C.B.O. Discipline Committee which deals with employee dismissals. After the preliminary court hearing he obtained the evidence gathered by the police concerning the grievor, which was put before the committee along with a report from Mr. Armstrong. The committee also considered the grievor's service record and the possibility of placing him in a different position but concluded that the lack of trust in the grievor that now existed made a continuing employer-employee relationship impossible and recommended his dismissal. Detective F. Chauvin of the Windsor Police Department, subpoenaed as a witness by the grievor, testified that on October 29, 1980, at Detective Oakley's request, he assisted him in taking a statement from the grievor. He did not immediately recognize the grievor, who said they had known each other long ago. The grievor was nervous and worried. He told the witness he was glad to see him, asked what he should do and was advised to tell the truth. The grievor has made two visits to his home since the date of the preliminary court hearing and has said he was confused when he made the statement, denied any guilt and claimed that he had exchanged liquor at Store 206 but had not stolen any. The witness believes the grievor is not a dishonest man and is anxious to help him. The grievor, Theodore Vigneux, testified that he did not steal the liquor found in his car trunk and in his house, or any liquor at any time. He bought liquor at different L.C.B.O. stores and bottles of liquor were left in his car and at his house, some of which were received by his wife, and which he assumed were gifts from salesmen of the brands concerned. Gifts of liquor are commonly given to L.C.B.O. employees for giving good service. The liquor in his car trunk on October 28, 1980, was for a party to be held at the race track in a few days. He did not take any liquor from Store 206 on that date. On October 29, 1980, during their meeting at the store he told Detective Oakley he had bought or been given the seized liquor. Detective Oakley said he was lying, that the L.C.B.O. would not believe him and that exchanging liquor was stealing. He was frightened because his story was being disputed. He did not tell Detective Oakley at that meeting that he had stolen liquor. At the precinct, before Detective Chauvin joined them, Detective Oakley once again called him a liar and accused him of stealing the seized liquor. He accepted - 12 - Detective Chauvin's suggestion of using the word "removed" in his statement because he thought it meant he had not stolen. He was terrified of Detective Oakley 'and did not know what he was doing. He first saw the words of the statement in his lawyer's office at a later date. He received one or two bottles of liquor per month as gifts but never saw who made them and only assumed that they were from salesmen for the particular brands. He made purchases at many stores but did not make purchases at Store 206 because it is not open on Saturdays when he prefers to buy his liquor. He removed the price stickers from bottles purchased at self-service stores because he thought it was embarrassing to guests to be served from bottles with price stickers on them. He knows that an annual L.C.B.O. circular is published which prohibits the acceptance by employees of payments or gifts from liquor manufacturing sources but does not know if it is permissible to accept such gifts or whether the policy applies only at Christmas. He made exchanges only in the four weeks prior to October 28, 1980, and made a list of them in early November. He also made a list of trades made in the week prior to October 28, 1980, which he showed to Mr. Bellemore after his suspension. He can identify from the list of seized liquor only one bottle that he had exchanged at the store. Recalled to testify further, Mr. Bellemore stated that shortly after his suspension the grievor showed him a list of eight liquor brands which he said he had exchanged, four for four on the Friday prior to October 28, 1980. When he remarked that although an equal number of bottles had been exchanged the price totals did not match, the grievor crumpled the list and put it in his pocket. - 13 - We understand it to be well settled that where employee misconduct having the character of a criminal act is alleged in arbitration proceedings in support of employer disciplinary action, the standard of proof to be met is higher than the balance of probabilities test that would ordinarily apply. Accordingly, we accept that the onus borne by the employer here is to offer clear and cogent proof that the grievor was wrongfully in possession of property of the employer. That is not the burden of proof that would obtain in criminal proceedings and we are not, of course, called to determine the matter before us in accordance with the norms of criminal law, but rather in the context of the employment relationship between the grievor and the employer. In the same connection, it is our view that questions to do with the conduct or the outcome of the criminal proceedings taken by the public authorities against the grievor are not relevant to the issue here. The fact that the evidence before us is largely that gathered by police for use in those proceedings does not affect that view. We note, in passing, that the existence of that evidence relieved the employer of the normal obligation to make its own inquiry. We consider that we are required to take notice of the particular employment context in which the grievor's alleged misconduct took place - the type of endeavour in which the employer is engaged; the nature of the product, of which the employer is the sole purveyor; the necessity of ready access by employees to quantities of liquor and amounts of cash; and the consequent difficulty of designing and maintaining effective security measures. Given those factors, it is not too much to say that the integrity of the employer's operations is ultimately dependent on its ability to repose confidence and trust in its employees. It follows that where employee misconduct inimical to that - 14 - objective is discovered, the employer must have open to it - amongst other remedies - the option of reacting by taking disciplinary action that will serve as notice of the consequences of, and stand as a deterrent to, such misconduct. We have reached the conclusion that the grievor, quite simply, is not a credible witness. We find it impossible to give credence to any of the several contradictory explanations of the grievor as to the sources of the liquor in question. The grievor first told the investigating police officers that some of the liquor had been given to him by the three named salesmen. They have come forward to deny it and we are then asked to believe that anonymous donors left liquor in the grievor's car and at his house. We are asked to believe that some of the liquor was purchased by the grievor but little at the store where he worked because it was not open on Saturdays; and that when such purchases were made at self-service stores he removed the price stickers from the bottles so as not to embarrass his guests. We are asked to believe that some of the gifts said to have been received and some of the purchases said to have been made were exchanged by the grievor for preferred brands of liquor at the store where he worked, although there is no reliable record, official or otherwise, of any such exchanges; and that the grievor made a number of exchanges shortly before his suspension, although he was unable to identify more than one exchange said to have been so made. Apart from these material instances, there are the conflicting reasons given on different occasions by the grievor for his presence at the race track on October 28, 1980, the untruths and evasions in his conversations with Mr. Bellemore, and his professed ignorance of the L.C.B.O. policy statement. - 15 - We see no reason not to accept the written statement given by the grievor to the police as a confession of guilt. We do not believe that he was compelled or induced by the police officers present to make the statement or that, notwithstanding his anxiety about his predicament, it is anything but what he knew and meant it to be. There is nothing in the testimbny of Detective Chauvin, who frankly admitted his sympathy for the grievor, to suggest otherwise. The grievor's repudiation of the statement and his denial of guilt at the hearing we not only find unconvincing but see as further diminishing his credibility. We are satisfied that there is a preponderance of evidence going to show that liquor found in the possession of the grievor was wrongfully taken by him from his place of employment. The circumstances established in evidence are consistent with misappropriation and the grievor's various explanations do not lend support to the possibility of innocent possession. Speaking to the matter of mitigation, we understand the concept to be an appropriate consideration where guilt is not in dispute and where facts are proved by a grievor which support a reduction of the disciplinary penalty imposed by the employer. As well, there is the discretion bestowed by Section 19(3) of the Crown Employees Collective Bargaining Act, R.S.O. 1980, c. 108 which, we take it, may be exercised whether or not a plea of mitigation is made by a grievor. We are also aware that dismissal is no longer always and automatically held to be the proper disciplinary penalty for employee misconduct in the nature of a crime. - 16 - The grievor's age and length of service, the probable economic effects of his loss of employment and the likelihood that he would not resume his misconduct if reinstated, weigh in the grievor's favour. Against these considerations, however, must be set the fact that the grievor's misconduct was not an isolated act, not a momentary moral lapse, not an unwitting misdeed, not mere pilferage. It is also pertinent that while the grievor expressed remorse and spoke of making restitution to Detective Oakley, there is no evidence that either the sentiment or the intention was conveyed to anyone at the L.C.B.O. The grievor's appearance before the Board to renounce his earlier admission of guilt and to assert his innocence of any wrongdoing, is, we suggest, incompatible with the notion of mitigation. Finally, the grievor's gross abuse of a position of responsibility by a conscious and continuing breach of trust forecloses the possibility of reinstatement in employment with the victimized employer. In light of all the circumstances here present, we do not believe that - no matter in what capacity or under what conditions the grievor might be reinstated - a mutually beneficial employer-employee relationship would or could be re-established. In the result we find, on the evidence before us, that the employer has proved just cause for the dismissal of the grievor and that the dismissal was not an excessive disciplinary penalty. The grievance is dismissed. Both counsel referred us to a number of cases involving issues similar to those present in this case. They have greatly assisted us in our deliberations, notwithstanding that each turns largely on its own unique facts. )44 Mr. P. Draper, Vice Chairman - 17 - The grievor had filed two earlier applications for arbitration (40/81 and 238/81) to do with grievances arising from the same set of circumstances as did the present case. At the hearing, counsel to the grievor informed the Board that those grievances are not being pursued and they are hereby dismissed. DATED at Toronto, Ontario this 18th day of November 1981. Z:E4cf Mr. F.T. Collict, Member Mr. I. Thomson, Member fib