HomeMy WebLinkAbout1982-0191.Brown.82-09-10 DecisionMil ONTARIO
CROWN EMPLOYEES
GRIEVANCE
III SETTLEMENT
BOARD
180 OUNDAS STREET WEST. TORONTO. ONTARIO. M5G 1Z8 - SUITE 2100 TELEPHONE , 416/598- 0688
191/82
IN TEE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between: OLBEU (George Brown)
Grievor
and
The Crown in Right of Ontario
(Liquor Control Board of Ontario)
Employer
Before:
For the Grievor:
For the Employer:
Hearings:
Mr. R.L. Verity,Q.C. Vice Chairman
Prof. P. Craven Member
Mr. E.R. O'Kelly Member
Mr. A.E. Golden, Counsel
Golden, Levinson
Barristers dc Solicitors
Ms. C.F. Murray, Counsel
Hicks, Morley, Hamilton, Stewart & Stone
Barristers & Solicitors
July 14 and 19, 1982
AWARD
This matter involves the discharge of George H. Brown
effective April 2nd, 1982, for his alleged participation "in an
attempted theft of stock" from Liquor Store 164 on March 22nd,
1982. The Grievor seeks reinstatement with full compensation and
denies the allegation of attempted theft. Prior to termination,
the Grievor was classified as a Liquor Store Clerk 4, and his
seniority dated back to June of 1973. The Grievor was first
employed at Store 164 on December 1st, 1981. That Store is located
at 812 Eglinton Avenue East, in Metropolitan Toronto.
On March 22nd, 1982, at approximately 2:24 p.m., the
Grievor was apprehended by two L.C.B.O. Security Officers near the
rear of Liquor Store 164, after having completed the placement of
6 full cartons of assorted liquor in the back of a hatch-back
automobile owned by Nick Gianopoulos. Mr. Gianopoulos is one of
two owners of the Onassis Pizzaria and Restaurant which is located
immediately adjacent to the Liquor Store, and he was in the company
of the Grievor at the time of the apprehension. The Liquor Store
Security Officers witnessed liquor being taken from the rear door
of Store 164 by both the Grievor and Mr. Gianopoulos and placed by
both men in the Gianopoulos vehicle, which in turn was parked at the
rear of the restaurant. Store 164 is a conventional Liquor Store.
When confronted by the investigating Officers, the Grievor was unable
3
to produce either an order slip known as a "multiple slip" for
the liquor, or a cheque signed by Mr. Gianopoulos for the alleged
purchase. When questioned by L.C.B.O. Senior Advisor Security
Services, Brian Andrews, the Grievor admitted that he had not
followed the proper store procedure, but insisted that Mr. Gianopoulos
was going to pay for the liquor. Investigator Andrews enquired of
Mr. Brown whether there was an invoice or purchase order. The Grievor
replied "yes, in the office". The Grievor was subsequently unable
to produce any documentation in the office, and thereupon began to
prepare a multiple order (form S-23M) in pencil (Exhibit 2).
Subsequently, the L.C.B.O. Security .Investigators prepared an
inventory of the liquor found in the Gianopoulos vehicle. That
inventory is as follows (Exhibit 3):
"6 (Six). cartons containing:-
12 Campari Aperitivo 750 ml. 11168 @ $10.80 129.60
12 Baileys Irish Cream 700 ml. 16668 @ 13.90 166.80
12 Smirnoff Vodka 1136 ml. 475A @ 16.25 195.00
12 Triple Crown Rye 1136 ml. 91A @ 15.40 187.80
12 - Costieres du Gard Red
Wine 750 ml. 19578 @ 5.10 61.20
8 - Jordan Ramatuelle
Carte d'Or 750 ml. 14978 @ 3.25 26.00
4 - Grand Marnier 700 ml. 3988 @ 21.10 84.40
4 - Chivas Regal 40 oz. 116A @ 31.35 125.40
(1136 ml.)
$973.20"
4
_ The Police were then called to investigate, and
eventually both Messrs. Brown and Gianopoulos were taken to
Police Station 53 Division, where a police investigation was
conducted in the presence of the two L.C.B.O. Security Officers.
Later the same day, Mr. Brown was formally charged with theft
over $200.00 under the Criminal Code of Canada. Mr. Gianopoulos
was not charged.
On April 21st, 1982, a preliminary Hearing on the
theft charge was held before Provincial Court Judge Scott.
Charges of theft were dismissed at that preliminary Hearing and
the Grievor was discharged.
At this Arbitration Hearing, Liquor Store Manager Michael
Sokoluk testified that he was Manager of Store 164 at the relevant
time, having assumed his responsibilities as Manager on November
9th, 1981. The Liquor Store in question is a "C" Store which is
located in Leaside and employs a small staff of 5 persons including
the Manager, with 2 part-time staff as needed. Mr. Sokoluk was
obviously concerned about monthly "shortages" which had existed for
a considerable period of time prior to his appointment. It was
natural that the Manager was concerned about these shortages in
view of the relatively small sales volume at the Store. The
Manager resolved to reduce these shortages to under $50.00 per
month. On the recommendation of his Supervisor, the Manager
introduced a new inventory system to attempt to correct the shortage
problem, together with an internal procedure for filing stock
- 5 -
control slips for the purchase of each bottle of liquor. In
spite of these procedures, shortages continued to occur and in
fact increased in dollar value. In December of 1981, the records
for fiscal period 9 indicated that the shortages amounted to $668.15
(inventory taken on December 5th).
In 1982, the following shortages were ascertained (Exhibit
7):
$485.50 shortage for fiscal period 10 (dated January 18th, 1982)
$2,131.85 shortage for fiscal period 11 (dated February 16th, 1982)
$892.75 shortage for fiscal period 12 (dated March 12th, 1982)
$2,083.10 shortage for fiscal period 13 (dated April 17th, 1982)
(This figure includes the $970.00 recorded in the
alleged attempted theft)
Subsequent to the Grievor's suspension and termination,
the shortage/overage reports were as follows:
$13.05 shortage for fiscal period 1 (dated May 18th, 1982)
$207.55 shortage for fiscal period 2 (dated June 5th, 1982)
$107.00 overage for fiscal period 3 (dated July 6th, 1982)
The Store Manager was unable to ascertain the cause of
these shortages, and as a result of his own suspicions he contacted
the Security Division of the L.C.B.O. for assistance. Security
Advisors, Brian Andrews and James Ramsay were assigned by the L.C.B.O.
Security Division to establish a surveillance of the rear of Store
164 in March of 1982. The first surveillance took place on the
Manager's day off on March 11th and no unusual occurrence happened
6
on that date. Both Officers repeated the same exercise on the
Manager's day off on Thursday, March 22nd.
The Grievor's evidence, supported in most respects by
the evidence of Mr. Gianopoulos, was that he had lunch at the
Onassis Restaurant between 12:00 and 1:00 on March 22nd. Mr.
Gianopoulos advised the Grievor in the restaurant that he wished
to purchase liquor for his home use and that he was having a family
birthday party. According to the Grievor's testimony, the Grievor
wrote the Liquor Store phone number on a piece of paper, gave it
to Mr. Gianopoulos, asked the restaurant owner to call the Liquor
Store at approximately 2:00 and that he would prepare the order.
The Grievor subsequently received a telephone call at the appointed
hour, wrote down the sizable order on a "scratch pad" and advised
Mr. Gianopoulos that the order would be ready in approximately 15
to 20 minutes. At Mr. Gianopoulos' request, the Grievor delivered
the liquor in question to Mr. Gianopoulos' car.
.The evidence with regard to payment for the liquor was
somewhat vague. According to the Grievor's evidence, Mr. Gianopoulos
said he would pay "by cheque". According to Mr. Gianopoulos' evidence,
he was willing to pay either by cheque or cash, and would do so when
advised by the Grievor of the price of the order. The evidence is
clear that at the time of the Grievor's apprehension by the L.C.B.O.
Officers at 2:24 p.m., Mr. Gianopoulos had not been advised by the
Grievor of the total price of the liquor. It is also clear that at
the time of the apprehension arrangements had not then been made for
7
payment. Mr. Gianopoulos testified "I knew I had to pay for
it''.
The Employer's Counsel, Miss Muri-ay argued that the
Grievor had been apprehended by L.C.B.O. Security Officers under
suspicious circumstances, which when viewed in their entirety
were more consistent with attempted theft than with failure to
follow procedures. She argued that the Grievor's written explanation
of the occurrence on March 22nd (prepared by a lawyer - Exhibit 9)
differed substantially from the Grievor's explanation at the Hearing.
Alternatively, it was argued that if the Board was unable to charac-
terize the fact situation as attempted theft, the Board should uphold
the discharge in any event.
On behalf of the Grievor, Mr. Golden argued that the
Grievor's explanation was totally credible in the circumstances,
and that since the Employer framed the discharge on the sole basis
of attempted theft, that he should be reinstated forthwith with
compensation. It was Mr. Golden's position that the Employer had
failed to discharge the onus of establishing clear and convincing
evidence of attempted theft. He referred to several incidents in
the evidence whereby the "element of fairness" was absent in the
Employer's actions.
8
The Employer is required to establish that there was
just cause for the discharge. Previous Awards of the Grievance
Settlement Board have considered the standard of proof required
in cases where criminal acts are alleged. * In those Awards, the
Board has required proof by way of clear and convincing evidence.
That test is a higher onus upon the Employer than the standard
civil test of proof upon the balance of probabilities. See
Bernardi and'L.C.B.O. 102/79 (Pritchard); Tsialtas and L.C.B.O.
282/79 (Eberts); and R6 Douglas and The Crown in the Right of
Ontario (Liquor Control Board of Ontario), (1981) 28 L.A.C. (2d)
332 (Swinton).
In a review of all the evidence in its totality, we are
unable to conclude that the Employer has established the attempted
theft by clear and convincing evidence. Admittedly, the Grievor
violated a fundamental rule of the Employer, which rule when simply
stated requires the receipt of cash prior to the delivery of liquor.
On the evidence, we find that the Grievor's actions of March 22nd
are more consistent with a violation of the Employer's procedures
than the allegation of theft. We accept the evidence of Mr. McPherson
who was on duty with the Grievor on March 22nd at the relevant time,
that the Grievor stated to him "I have a big order from Nick" -- "he
is going to give me a cheque". We also accept Mr. McPherson's
evidence that delivery of liquor had preceded payment "on occasion"
9
at Store 164. It should be noted that this was the
evidence of Mr. McPherson, both at the preliminary
Hearing before Judge Scott and also at this Arbitration
Hearing.
In retrospect, it may well be that the appre-
hension of the Grievor and Mr. Gianopoulos by L.C.B.O.
Security OfficersIbdrews and Ramsay was premature in the
circumstances. However, it is difficult to believe that
attempted theft was in the process of being committed on
a bright sunny day at 2:24 in the afternoon. It is also
difficult to believe .that anyone in the process of
committing theft would place the liquor in the.rear of a
hatch-back automobile surrounded as it was by car windows,
or inform the cashier concerning the order and anticipated
payment for that order.
This Board is concerned about the propriety of
the actions taken by L.C.B.O. Area Manager Albert Brady
in his attempt to discredit the evidence presented by
Mr.McPherson at the preliminary Hearing, subsequent to
that Hearing and prior to this Arbitration. In our
opinion, there was nothing wrong with Mr. Brady obtaining
a transcript of the McPherson testimony at the preliminary
Hearing and being concerned with the contents of that
testimony. On the other hand, it was improper for
Mr. Brady to have obtained a signed statement from
Mr. McPherson as he did on May 28th, 1982 (Exhibit 8),
the effect of which was to attagot to discredit 2.1cPherson's previous
- 10 -
sworn testimony -- a fact which was neither fully appreciated
nor understood by Mr. McPherson. Any attempt by Management in
these circumstances to influence a witness prior to an Arbitration
is highly improper.
The evidence of the Grievor's admitted breach of L.C.B.O.
procedures merits comment by this Board. It is difficult to imagine
that any rule of the L.C.B.O. is more clearly understood by L.C.B.O.
Employees than the rule to receive cash or a certified cheque prior
to liquor being removed from a store. The Store Manager, Mr. Sokoluk
clearly re-emphasized the procedure to his employees including the
Grievor, when Mr. Sokoluk introduced the new inventory procedures
and in particular the procedure to use and initial stock control
slips for each bottle of liquor purchased. The Grievor candidly
admitted at the Hearing that he knowingly violated procedures the
afternoon of March 22nd. That breach of procedure is a fundamental
dereliction of duty which was the cause of the problem and which
cannot be tolerated by the Employer.
Although it is true that the Employer, in its letter of
termination to the Grievor dated April 7th, 1982, relied solely upon
the allegation of "attempted theft of stock" as the reason for
discharge, we are of the opinion that the Grievor's admitted pro-
cedural omission of delivery of stock prior to the payment is a related
issue. The Grievor was candid in admitting this procedural error
- 11
and had every opportunity at the Hearing to explain his reasons
for that error.
This Board is of the opinion that the Grievance Settlement
Board's powers are broad enough pursuant to Section 19(3) of the
Crown Employees Collective Bargaining Act to substitute a lesser
penalty which we consider "just and reasonable in all the circumstances"
Section 19(3) of the act reads as follows:
"Where the Grievance Settlement Board determines
that a disciplinary penalty or dismissal of an
employee is excessive, it may substitute such
other penalty for the discipline or dismissal
as it considers just and reasonable in all the
circumstances.".
Accordingly, the Grievor will be forthwith reinstated
to his former position as a Liquor Store Clerk 4 with the Employer,
but shall receive, as a result of his actions on March 22nd, a three
month suspension dating from April 2nd, 1982 to and including July
2nd, 1982. Further, the Grievor shall be compensated for all loss
of wages from July 2nd to the date of his reinstatement with no
loss of benefits. In the event that there are no further similar
procedural violations by the Grievor during a period of two years
from the date of the Grievor's reinstatement, all references to the
incident of March 22nd, 1982, shall be removed from the Grievor's
employment record. This Board will retain jurisdiction in the event
that there are any difficulties between the Parties regarding the
calculation of compensation or in the interpretation or implementation
of this Award.
DATED at Brantford, Ontario, this 10th day of September,
1982.
R. L. Verity Vice Chairman
(See addendum attached)
P. Craven Member
(See addendum attached)
E.R. O'Kelly. Member
ADDENDUM
I cast these remarks in the form of an addendum rather than a dissent in
order to emphasize my agreement with the rest of this Board on the main
question at issue between the parties: Was the Liquor Control Board justi-
fied in dismissing Mr. Brown for an attempted theft? I have no hesitation
in joining with my colleagues on this Board in finding that the employer
has failed to establish the attempted theft by clear and convincing evi-
dence, and that Mr. Brown's actions on March 22 were more consistent with a
violation of LCBO procedure than with the allegation of theft (page 7).
My colleagues on this Board proceed, however, to assess a heavy
disciplinary penalty on Mr. Brown for the admitted procedural error which
e committed on March 229 in permitting the delivery of stock before recei-
ving payment for it. In my respectful submission, the majority is quite
wrong in this decision. In my view, they have erred in three respects:
1.They have misconstrued the "substitution of penalty" provision
of Section 19 (3) of the Crown Employees Collective Bargaining Act, and in
so doing have exceeded the jurisdiction of this Board.
2.Even were this not so, they have made an error in natural
justice in failing to afford Mr. Brown the opportunity to produce evidence
and make argument in connection with the breach for which they have pena-
lized him.
3.And even if I am wrong on both these counts, I am satisfied
that in all the circumstances the disciplinary penalty they have assessed
is excessive.
I deal with these points seriatim below. Before turning to that,
however, I should stress that Mr. Brown was clearly involved in a breach of
Liquor Control Board procedure, as he has openly admitted. Nothing in what
I shall say should be construed as sanctioning his actions in that respect.
By his actions Mr. Brown may well have laid himself open to discipline. My
lument shall be that the Liquor Control Board failed to exercise its
discretion to discipline him for breach of procedure, and thAit it is conse-
quently not open to the Grievance Settlement Board to undertake to do so on
the LCBO's behalf.
1. Section 19 (3) of the Crown Employees Collective Bargaining Act
provides as follows:
Where the Grievance Settlement Board determines
that a disciplinary penalty or dismissal of an
employee is excessive, it may substitute such
other penalty for the discipline or dismissal
as it considers just and reasonable in all the
circumstances.
The parallel provision of the Ontario Labour Relations Act (formerly
Section 37 (8)), provides:
Where an arbitrator or arbitration board
determines that an employee has been discharged
or otherwise disciplined by an employer for
cause and the collective agreement does not
contain a specific penalty for the infraction
that is the subject-matter of the arbitration,
the arbitrator or arbitration board may
substitute such other penalty for the discharge
or discipline as to the arbitrator or
arbitration board seems just and reasonable in
all the circumstances.
In my submission, the chief differences between the provision in CECBA and
that in the °CRP -- namely, the inclusion in the latter of the words "for
cause" and the qualification concerning specific penalties in the collec-
tive agreement -- flow from the statutory provisions of the former
respecting discipline and the requirement for just cause. Section le (2)
(c) 04 the CECBA confers a right to grieve upon every employee who claims
"that he has been disciplined or dismissed or suspended from his employment
without just cause." In my submission this provision rendered it unnece-
ssary to include in this Act the words of the OLRA concerning cause and
-oecific penalties in collective agreements. In every other respect the.
two provisions are identical, and read in the context of the whole statutes
of which they are respectively parts, their effects are identical.
In my respectful submission, the power conferred upon the Grievance
Settlement Board and upon a board of arbitration under the OLIM by these
sections is the power to supply a lesser penalty in circumstances where the
employer has alleged conduct attracting discipline and assessed a penalty.
The task of the arbitrators is twofold. First, they must determine whether
the employer had just cause for the imposition of discipline. This means
that they must first test the employer's allegation of conduct attracting
discipline against the facts, to determine whether what the employer said
occurred did occur, and then determine whether that conduct attracts disci-
pline. Only when they have -Found that there was just cause for the disci-
line may the arbitrators proceed to their second task, determining
whether, "in all the circumstances," the disciplinary action taken by the
employer was excessive. If they find that it was they may substitute a
lesser penalty. But they may only embark upon the second of these tasks
once they have determined that the employer had just cause for assessing
discipline. Put in very simple terms, arbitrators must first ask, "Did the
griever do what the employer alleges he did (and if he did it, is that
cause for discipline)?" Only when the answer to this threshold question is
"yes" can they go on to ask, "Is the penalty imposed by the employer
excessive in all the circumstances?"
In the instant case, the employer has been forthright and con-
sistent in its allegation of what conduct gave rise to the discipline. On
April 7, 1982, J.E. Jennings, Director of Store Operations for the LOBO,
wrote to the grievor in the following terms: "It has now been concluded
that you participated in an attempted theft of stock from Store #164.
?cause of this it has been decided that your employment is terminated
effective April 2, .1982." [Exhibit 113 Throughout the hearing before this
Board, the employer consistently maintained that the grounds upon which it
relied in dismissing Mr. Brown were that he had participated in an
attempted theft on March 22. The threshold question before this Board is,
"Did Mr. Brown participate in an attempted theft on March 22?" If the
answer to this question is "no" -- and of course we have determined that
the answer is "no" -- the question of substitution of penalty simply does
not arise. Having found that Mr. Brown did not engage in the conduct for
which the employer dismissed him, there is nothing left for us to do but to
uphold the grievance and make the grievor whole.
But this is not what the majority have done in this case. They
have determined that while Mr. Brown was not guilty of an attempted theft,
tie was guilty of a very different form of wrongdoing: breach of Liquor
Control Board procedures in delivering stock before payment was received.
This is not a matter of substituting one penalty for another, but of
substituting one allegation of wrongdoing for another. It was no part of
the employer's submission that it had disciplined Mr. Brown for delivering
stock before receiving payment, so the question whether he did or not is
not properly before this Board. The Grievance Settlement Board lacks the
jurisdiction to substitute its own grounds for discipline for those advan-
ced and relied upon by the employer.
As authority for this proposition, I refer first of all to Brown
and Beatty, Canadian Labour Arbitration, at 103, where it is stated: "Al-
though it has been stated that the arbitrator should seek to entertain and
determine the real, as opposed to the ostensible, grievance, where its
meaning is clear, there is no authority in the arbitrator alter a
^rievance or other submission to arbitration in the absence of the mutual
agreement of the parties. That is, the arbitrator's jurisdiction in each
case is determined by the submission to arbitration, and he has no
authority to decide any question not submitted to him" [emphasis supplied7.
The power to substitute a penalty once the arbitrator is satisfied that the
grounds advanced by the employer constitute just cause for discipline does
not expand the jurisdiction of the arbitrator with respect to the grounds
for discipline themselves. Having found that the employer did not have
just cause to assess discipline on the grounds it brought forward, this
Board has no jurisdiction to substitute grounds for discipline other than
those put forward by the employer.
In this connection I re4er to the judgment of the Divisional Court
in Canadian Steelmorkers Union, Atlas Division v. Atlas Steels Company, 76
!LC at para. 14,037 (pp. 225-8). This was an application for judicial
review of the award of an arbitration board (constituted under the OLRA) in
a discipline grievance. The employer disciplined the grievor for his
negligence or misconduct in ignoring standing instructions about which
materials were to be used in a certain operation. The board of arbitration
found that the grievor had been negligent in not checking whether his
foreman was present, despite the fact that the employer had not alleged
that such conduct amounted to negligence. The Court determined that, "In
our view, the Board in this case, based its finding of negligence on an
alleged act on the part of the employee, that the Company did not allege
was negligence nor the basis for the action it took against the employee.
In so doing, it exceeded its jurisdiction by substituting its own views as
to why the employee was disciplined and as to what constituted negligence."
(O'Leary, J., at 227-87 The award of the board of arbitration was set
aside. I have argued above that the jurisdiction of the arbitrator under
?ction 19 (3) of the CECBR is subject to the same limits as those in the
parallel provision of the OLRa.
In sum, my submission is that while this Board is empowered to
substitute a lesser penalty for that imposed by the employer when it is
satisfied that the employer's grounds for disciplining the employee consti-
tute just cause for discipline, it has no jurisdiction to substitute its
version of the grounds for discipline for those advanced and relied upon by
the employer. Having found the employer's specific allegation of miscon-
duct to have been unsupported by the facts, this Board has no alternative
but to uphold the grievance and make the grievor whole.
2. Even if I am wrong in my submission that this Board was without
jurisdiction to substitute its own grounds for discipline for those relied
upon by the employer, there is a second reason for the view that what it
did was wrong. In failing to afford the grievor the opportunity to put the
evidence of his wrongdoing -- the breach of procedure -- to the test, to
introduce evidence on his own behalf, and to attempt to mitigate the seve-
rity of the breach and the disciplinary penalties that flowed from it this
Board denied natural justice.
The parties came to the hearing prepared to supply evidence and
argument concerning the alleged attempted theft. The grievor's position
was a very simple one: he said, "I didn't do it," and this Board has
agreed with him. He did not come prepared to answer a charge of having
been in breach of procedure or to argue what disciplinary penalties should
flow from such a breach, for this was not the grounds upon which the em-
ployer relied in disciplining him. It was of course open to the employer
at the time discipline was imposed to have supplied breach of procedure as
4-he grounds, but the employer chose not to do this.
What would have happened had the employer appeared before this
Board seeking to amend the grounds of discipline to include breach of
procedure? Once again, Brown and Beatty supply-a useful digest of arbitral
practice (at 104):
The arbitral principle that a party is not
entitled to raise new grounds for its decision
at the arbitration stage has arisen most
frequently in discharge and discipline cases.
In such circumstances, although the employer
may have uncovered new and different evidence
or reasons to support its decision, there is a
general reluctance to permit the new bases for
decision to be presented. Indeed, even in
those circumstances where the arbitrator may
permit the employer to alter the grounds on
which it supports its decision, if that would
cause unfair surprise, then he can reasonably
be expected to grant an adjournment.
Since the employer was clearly in a position at the time the discipline was
Imposed to include breach of procedure among the grounds -- there was no
subsequent discovery of new information giving rise to these grounds -- the
Board would likely have denied the employer's application to vary the
grounds at the time of hearing. In any event, it would surely have acqui-
esced in a request by the grievor for an adjournment to prepare a case in
response to the new grounds.
If this is true of an employer attempt to vary the grounds, which
would have led either to the denial .a4 the attempt or to affording an
opportunity for a full hearing on the new grounds, surely the requirements
must be even more stringent when the employer declines to amend the grounds
and chooses to proceed on the basis of its original allegation alone. For
it was only at the close of the hearing, when all the evidence was in, that
the Board decided to assess discipline for grounds other than those to
which the grievor's evidence and argument were directed. Even if the Board
has the right to substitute grounds -- and I have argued that it has no
such right -- surely it is required to give the same opportunity for a full
hearing on those grounds when they are introduced on its own initiative as
when they are introduced on an employer's application to vary the original
grounds.
It might be argued in response that the grievor admitted that he
was in breach of procedure, and that the Board therefore did not need to
hear anything more in order to make a finding of fact that procedure had
been breached. But leaving aside the absence of any formal evidence as to
the existence or promulgation of the company rule that was broken, the
grievor may well have wished to introduce evidence and argument on such
matters as the employer's prior condonation of the practice, the severity
of the breach, any special mitigating circumstances, the employer's general
isciplinary practices, and so forth: evidence that would at the least
have had to be considered by this Board in assessing what penalty to
supply, if not in determining whether the admitted breach even amounted to
just cause for discipline in the first place. But the grievor has had no
such opportunity, and for this reason natural justice has been denied.
To hold that this Board is empowered to substitute its own grounds
for discipline for those advanced by the employer is to run the risk of
authorizing fishing expeditions (although I do not consider such an impro—
per purpose to have motivated the majority's decision in this case): to
hold that it can do so without affording the grievor the opportunity to
meet the case against him is surely to fly in the face of the provisions of
Section 19 (1) of the Cromn Employees Collective Bargaining Pct from which
this Board derives its statutory powers -- " ... the Board after giving
full opportunity to the parties to present their evidence and to make their
submissions, shall decide the matter ... " Cemphasis supplied] -- with the
Bsult, as well, that natural justice is denied.
3. But even if I am wrong on all these counts, even if this Board
has the jurisdiction to substitute its grounds for discipline for those
advanced by the employer, and even if it can do so without affording the
grievor full opportunity to present evidence on the new grounds and make
submissions, I should still find that in all the circumstances of the
present case the penalty assessed by this Board is excessive.
The majority considers the breach of procedures to which the grie—
vor.has admitted not only to be just cause for discipline, but to merit an
extremely heavy penalty (and this despite the grievor's previous unblem—
ished record). As I- have already suggested, I do not think the Board has
before it evidence or submissions upon which this decision could reasonably
Je based. The majority states (at 9) that the breach of procedure "is a
fundamental dereliction of duty which was the cause of the problem. and
which cannot be tolerated by the Employer.' The majority clearly wishes
to provide a serious disincentive to this grievor to engage in such a
breach again, and seeks as well to make an example of him so that other
employees will be dissuaded from similar breaches in future.
In my submission, the grievor has already suffered a very serious
penalty and one, moreover, from which we could never realistically make him
entirely whole. Apart from his termination and the consequent loss of
income -- for which we can and should make him whole -- he has been
subjected to interrogations by security officers and the police, to the
laying of criminal charges, to continued suspicion of having committed a
serious crime (amounting in fact to a continued conviction on the em-
ployer's part that he was guilty) despite his discharge at the preliminary
hearing, and to all the social and psychological consequences of these. In
.y view, it is extremely unlikely that this grievor will ever again
knowingly place himself in circumstances that might give rise to a repe-
tition of this experience. He has surely suffered enough, and for what he
has suffered no real remedy can be supplied. Similarly, it seems to me
that other employees who have been familiar with the grievor's circum-
stances (and it is only such other employees who could be influenced by
whatever penalty the grievor receives now) will have learned that employees
who act as the grievor did run the risk of incurring some extremely
unpleasant consequences.
It might be said that the grievor„ by his breach of procedure,
invited the unpleasant results. That is as it may be, but in any event
they surely served whatever disciplinary purpose might be sought. As
'lave said, we really can give him no relief for most of them in any event.
The purposes of discipline would be fully served by simply noting in the
award that the grievor admitted having violated procedure, that this Board
in no way condones that breach, and noticing that it was the sort f
behaviour that could well attract discipline. Even were this Board in a
position to discipline the grievor for breach of procedure, then, it would
have been sufficient in all the circumstances to have reinstated him with
full back pay, and to have stated unequivocally that the grievor's conduct
was such as to lay him open to disciplinary action, so that neither he nor
others should expect that in other circumstances an additional penalty
would not be forthcoming. The lengthy suspension imposed by the majority
is unnecessary on any generally-accepted arbitral theory of discipline, and
especially in view of what this grievor has been through already.
In conclusion, then, I submit that this Board erred in law in
assuming jurisdiction to substitute grounds for discipline for those relied
upon by the employer. In the alternative, I submit that this Board erred
in law in failing to afford the grievor the full opportunity to respond to
the case it made against him. Finally, I find the penalty imposed to have
been excessive and unnecessary.
I would have upheld the grievance by finding that the employer did
not have just cause for disciplining Mr. Brown because its grounds for the
discipline, participation in an attempted theft, are unsupported by the
evidence. I would have sought to make the grievor whole by reinstating him
with full back pay. I would have recognized in the award that this remedy
could not fully compensate him for all that he had been through, but I
would have noted his admitted breach of procedure and suggested that to
'hat extent he may have brought some at least of his experiences upon
himself.
(Prof.) Paul Craven ember
ADDENDUM
It is with some reluctance I join in the award
in this case. It is only because the evidence adduced
falls short of proving, in a clear and _convincing way, the
charge of attempted theft. The very large losses experienced
at store #164 could hardly have occurred without collusion.
The act of removing liquor from the premises without any
documentation or payment can be the final step in an attempted
theft. That is why the employer must consider a breach of the
a
procedure requiringiswritten order and payment prior to delivery
extremely important.
The suspension of three months in place of discharge
is fully justified in this case.
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