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HomeMy WebLinkAbout2018-1512.Sandborn.20-06-02 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB# 2018-1512 UNION# 2018-0497-0007 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Sandborn) Union - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEFORE Barry B. Fisher Arbitrator FOR THE UNION Andrew Mindszenthy Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Andrew Cogswell Liquor Control Board of Ontario Counsel HEARING September 9, 10, 11; October 21; December 2, 17, 18, 2019, January 22, and February 21, 2020. -2- Decision [1] This case involves two aspects; a ten-day suspension and a termination for just cause. Background: [2] The Grievor was employed as a Casual Customer Service Representative from May 3, 2010 to July 17, 2018. He worked in a variety of stores in the Kingston region. At the time of his termination, the Grievor was 61 years of age. Ten Day Suspension dated January 25, 2018: [3] There are two elements to this suspension. [4] The first incident occurred on December 24, 2017. The evidence shows that the day before Christmas was a busy day for the LCBO as people are stocking up for the holidays. The Manager (AL) in this store (Division St, Kingston) decided to provide a free lunch for staff on this day. The food was set out in the staff lunchroom. Each employee was assigned a specific lunch period. [5] On that day the Grievor was scheduled to have lunch at 2:30 pm. At about 1:20 the Manager saw the Grievor eating in the lunchroom. She told him that this was not his break time and that he must return to the sales floor. He did so. [6] However, at around 2:00 pm, the Manager again saw the Grievor again eating in the lunchroom, outside his break time. She told him that as he was eating his lunch at 2:00 instead of 2:30, then this was his lunch break. [7] Shortly after the Manager left the lunchroom, the Grievor said “Fuck off you controlling bitch”. The Manager did not hear the comment, but two co-workers did, one who was in the lunchroom beside the Grievor and another who was in the store by the beer fridge. [8] At around 2:25 the Grievor went to the Manager and spoke to her. He told her that she was not a good manager and in fact she should not be a manager as she did not know what she was doing. [9] All of the above evidence is not in dispute and conforms to the evidence of the Grievor given at the hearing. However, when the Grievor was first confronted on December 28, 2017 about the comment he made to the co-worker about the Manager, he denied it. At the arbitration hearing he admitted making the comment. [10] The second incident occurred on January 4, 2018. The Grievor went outside the store to put up some banners. He was not wearing a safety vest, contrary to -3- LCBO rules. A female co-worker (DP) noticed this and went outside and told the Grievor to put on a vest. He told her to “Fuck off”. Again, at the investigation stage the Grievor denied making that statement but fully admitted it at the hearing. He did not deny that he violated the rule about wearing a safety vest when outside the store. [11] I have no problem finding that both these actions were deserving of discipline as they show a flagrant disregard and contempt for both his co-workers and his Manager. As well it shows as an attitude that he believed that he did not have to follow LCBO rules which he personally disagreed with. [12] In order to determine whether the 10-day suspension was an appropriate penalty, we have to examine the Grievor’s relevant discipline history, which is as follows: April 27, 2015: Written reprimand for acting aggressively in a meeting with his manager and referring to his manager as a “bad manager”, “demotivator” and “useless”. August 10, 2015: One day suspension for inappropriate, unprofessional and offensive comments. December 18, 2015: Three-day suspension for leaving before his shift without permission, failure to follow proper cashiering procedures, inappropriate and unprofessional comments to a manager, and failing to follow proper call in procedures. August 2, 2016: Five-day suspension for insubordination, insolence, and inappropriate conduct towards a manager. September 26, 2016: Five-day suspension for breaching the rule of keeping an investigation confidential and inappropriate and intimidating behavior to a manager. [13] I find that the ten-day suspension was warranted for the following reasons: 1) The behavior in question in the present grievance is almost identical to that in the past disciplines. 2) There were two separate incidents, both of which would easily be worthy of a five-day suspension. 3) His discipline record is quite lengthy and properly progressive. 4) His initial denials of misconduct in the investigation shows a complete lack of responsibility and /or remorse for his conduct. -4- The Termination: [14] The reason for the termination was that the Grievor placed unpurchased beer in the staff fridge. [15] Beer is normally kept in two places in a store; either on the shelves in the back or in the beer fridge on the sales floor. [16] The Grievor likes his beer really cold, colder than the LCBO beer fridge. For his entire career at the LCBO he has followed the following routine. About an hour before his shift ends, he takes beer from the beer fridge (usually 6 tall boys) and places them in the freezer section of the staff fridge. At the end his shift he takes the beer out of the staff fridge/ freezer, pays for it like a regular customer at the cash and goes home to drink his six beers nice and cold. [17] The LCBO claims that in doing so he violated the Staff Purchase Policy and that on numerous occasions he was told not to put any beer in the staff fridge. [18] There is no dispute that on the day in question the Grievor did put unpurchased beer in the staff fridge/freezer. [19] Let us first examine the relevant provisions of the Staff Purchase Policy. LCBO RO-0310-01 Retail Operations Manual Section: Sales Subject: Staff Purchases Summary LCBO staff members are not allowed to process their own purchase orders, except in a one-person store. The purchase must be made in the presence of the Store Manager / Designate. Payment may be made by any of the available methods. LCBO store staff members are permitted to collect Air Miles Reward Miles on their purchases. Note: Staff may purchase marked down, bad label, and delisted stock only after five business days from the date the products have been marked down and offered for sale. Procedures for Staff Purchases The procedure for handling Staff Purchases is as follows: 1. The staff member must request the Store Manager / Designate to observe the transaction 2. The Store Manager / Designate must obtain the requested items from stock 3. The cashier must select customer type Employee on the cash register, enter the items, and process payment -5- 4. The package of purchased products must be sealed 5. The Store Manager / Designate must sign and attach the cash register receipt to the package 6. The staff member’s name bust be recorded on the package 7. The package must be kept in the store office until the staff member has completed their shift for the day. Policy Violation Failure to comply with this policy may result in disciplinary action up to and including dismissal. [20] There is an additional aspect of the policy which, although not directly referred to in the above policy, seems to be applicable. Once an employee’s shift is over, the policy does not apply anymore and from that point on the employee can make a purchase in the same manner as any member of the public. [21] The Grievor’s interpretation was that as he was not actually purchasing the beer until after his shift, the policy was not applicable to him. Furthermore, the policy does not deal with the issue of whether or not he was permitted to put unpurchased beer in the staff fridge. [22] On a literal reading of the Policy, I agree with the Grievor. [23] I therefore find that the Grievor did not violate the Staff Purchase Policy. [24] However, not everything has to be contained in a policy. A lawful order given by a manager must also be obeyed, and the failure to so is insubordination. Furthermore, the employee must know of the rule for the failure to follow that rule to constitute insubordination. [25] So, the first issue is whether a prohibition against storing unpurchased beer in the staff fridge is a lawful order. [26] The fridge belongs to the LCBO, not the Grievor. The beer belonged to the LCBO, not the Grievor. There is clearly nothing illegal about a property owner deciding on the proper use and storage of its own property. [27] Furthermore, it is an entirely reasonable rule. Theft of product is a significant issue at the LCBO, both from customers and staff. There are many terminations of employment for staff theft from the LCBO. It is perfectly reasonable for the LCBO to strictly regulate where product can be kept and where it cannot be kept. The actual rule may vary from store to store and from manager to manager. [28] The second issue is whether the Grievor was advised of the rule that he was not to store unpurchased beer in the staff fridge. -6- [29] From 2010 until 2018, the Grievor worked in stores where apparently there was no such prohibition as he testified that he openly and consistently put his unpurchased beer in the staff fridge with no comments from management. [30] However, on February 7, 2018 the Grievor was moved to a new store (#154 at Midland Ave in Kingston) with a new manager (SA). On February 24th, the Manager observed the Grievor putting 4 cans of beer in the staff freezer. The Manager asked the Grievor if he had purchased the beer. When the Grievor said no, but that he intended to purchase the beer at the end of his shift and he liked it cold, the Manager told him that he could only put the beer in the freezer if he paid for it, bagged it and attached a receipt. The Grievor returned the beer to the store fridge. [31] Then on March 19, the Manager discovered that the Grievor had again put unpurchased beer in the staff fridge. [32] On March 20th, the Grievor was asked to review and acknowledge that he had read and understood the Staff Purchase Policy. [33] On April 27th a letter was sent to the Grievor which stated that he was being investigated for insubordination as a result of his failure to comply with the Staff Purchase Policy. The Grievor responded in writing saying that “none of the staff leaders at store 154 have been compliant with their role in the policy, consistently advising staff to bring purchases to the front themselves.” [34] A few days later, the Grievor was transferred to a new store (#351 Brockville) with a new manager. [35] On May 7th, he was issued a Meeting Notice to deal with the issue on April 25th, which again referred to his insubordination as a result of a failure to comply with to the Staff Purchase Policy. [36] The Grievor did not attend the meeting. [37] On May 14, 2018 he was issued a written reprimand with respect to his failure to follow the Staff Purchase Policy. This discipline was not grieved. [38] The Grievor’s position is that he believed that he was being disciplined because when he took the beer out the staff fridge to bring it to the cash, and that he did not ask a manager to get it for him. He denied that he knew he was being disciplined for putting unpurchased beer in the staff fridge. This is why he referred in his April 27th letter to the fact that managers were not complying with policy of bringing the staff purchase to the cash. [39] For some inexplicable reason, all the LCBO correspondence at this time makes general references to the Staff Purchase Policy, rather than simply stating that the Grievor was not permitted to put unpurchased product in the staff fridge. -7- [40] As the Grievor failed to attend the pre-disciplinary meeting, this apparent miscommunication was not cleared up. [41] Now the Grievor was transferred to the Brockville store. [42] On May 4th he asked the Assistant Manager (TD) if he could put beer in the staff fridge. He was told he could not. The Grievor testified that the Assistant Manager said “I prefer that you not” when he asked her if he could put beer in the fridge. He thought that this was simply “her personal preference for the day”. [43] On May 7th he again confirmed that he had read the Staff Purchase policy and he also asked to have a meeting about it. [44] On or about May 9th he had a meeting with the Store Manager (LS). The Grievor asked if he purchased product after his shift, did he need a manager to bring the product to the cash. The Store Manager confirmed that if the purchase was made after his shift, he could bring the product to cash himself. [45] Then they spoke of the use of the staff fridge. The Store Manager told him that he was not to put staff purchases in the fridge, only in her office. She also made it clear that he was not allowed to put any product, purchased or not, in the staff fridge. The only product allowed in the staff fridge was for same day staff tasting. [46] On May 11th, he asked the Shift Leader (LM) about the staff purchase policy. He also asked her if he could put product in the staff fridge. She told him no, he could not either before or after purchase. The Grievor claims that all she told him was that he could not put purchased beer in the staff fridge but made no reference to pre-purchase beer. [47] On June 27th, he again put beers in the fridge. This was done in front of the Acting Manager/ Shift Leader (SS). The Grievor claims that she said nothing. The Acting Manager testified that when she saw that he was about to put beer in the staff fridge she told him “You are not allowed to do that.” She claims that he made no response and proceeded to put the beers in the fridge. She took a picture of the beers in the fridge and reported the incident to her Assistant Manager. It was this incident that led to the Grievor’s termination. [48] In summary, the Grievor’s position is that he was never told that he could not put pre-purchased beer in the staff fridge. He kept on insisting that the only thing they talked about was whether a manager had to bring the product to the front if the purchase were made during his shift. When confronted with evidence from witnesses who said that they clearly told him that he couldn’t do it, he either accused them of lying or at best stated that it was their “personal preference” which did not constitute a lawful order, thus his non-compliance was not insubordination. -8- [49] On the issue of credibility, there is actually not a big difference between most of the evidence of the Employer’s witnesses and that of the Grievor. I found that the Employer witness testified in an honest and straightforward manner. They did not purport to remember every little detail and often made either contemporaneous notes or testified with the assistance of emails and memos that were made at the time. [50] The Grievor on the other hand was not so inclined. He was extremely defensive and often when confronted with contradictory evidence from other witnesses would simply say they were lying and/or were part of the master conspiracy to get him fired. Even when he admitted the actions in question (like telling his female co-worker to “fuck off”) he sought to justify his actions by indicating that other people provoked him. While admitting that he called his Manager “a controlling bitch” he commented that he did not think it was appropriate that a fellow co-worker reported this to management as this was simply his legitimate reaction to her “outrageous behavior” of telling him twice to eat his lunch at the designated time. [51] Therefore, where there are material differences between witnesses, I prefer the testimony of the Employer witnesses over that of the Grievor. The Union did not call any other witnesses. [52] Certainly, the employer could have made their position clearer. There was very clear evidence in the Brockville store that not only was the Grievor asking various managers (Acting, Assistant and Store Managers) about the relevant policies but also that he continued to put beer in the staff fridge. A simple memo to the Grievor stating “Under no circumstances are you put any product in the staff fridge unless it is for staff tasting “would have been extremely useful. [53] On the other hand, I believe that the Grievor was deliberately looking for ways to avoid this rule as it frustrated his ability to leave his shift with super cold beers. In the past he had no compunction in breaking rules that he thought were stupid or which he viewed as being enforced only against him. He was, in my opinion, being too cute by half in making the minor distinction between not putting purchased beer in the staff fridge as opposed to putting pre-purchased beer in the staff fridge. [54] If he were truly concerned about following the rules, he could have simply asked his Manager or asked for clarification of the policy in writing by asking the question “Am I allowed to put beer that I intend to purchase or have purchased in the staff fridge?” His failure to do indicates that he did not want to ask such a straightforward question because he was pretty confident that the answer would have been a definite “NO!” [55] On the balance of probabilities, I find that the Grievor knew or ought to have known that he was not permitted to put beer that either he intended to buy or had bought in the staff fridge and despite that knowledge, he did it anyways. -9- [56] Why would he do such a thing? [57] The Grievor testified that the reason he put the beer in the freezer was so that when he got home after a 45-minute commute, the beer would be nice and cold. He also testified that his practice was to drink all six of those cold beers in one session. When asked why he didn’t simply buy a few cases of beer and store them at home in his own fridge, he said that if he had that much beer in the house at one time he would simply drink more. He said that once he was drunk, he had no willpower. In other words, his practice of buying only six beers at a time was his own way of controlling his beer intake. When asked if he was an alcoholic, he said no, he only had a drinking habit. [58] It should be noted that at no time did either the Union or the Grievor claim that the Grievor’s ‘drinking habit ‘was a disability that required accommodation. I therefore have not done a human rights analysis of this case. If I had been asked to do so, the result of this grievance may have been quite different. [59] I therefore find that the Grievor did break the rule about putting beer in the staff fridge and that this action is reserving of discipline. Was Termination the Appropriate Penalty: [60] At first blush it seems harsh that an employee of over 8 years’ service could be fired over an apparently minor issue of putting beer in the wrong fridge. He was never accused of theft and therefore this is not a case of dishonesty. He was fired for breaching a rule that apparently was specific to some LCBO’s but not all. Rather, he was terminated for insubordination, which is the refusal to obey the lawful order of a person in authority. [61] It is important to remember this final incident of putting beer in the staff fridge was a culminating incident and therefore the incident in itself need not be so serious as to justify termination, it just has to an incident worthy of some discipline. [62] On the other hand, he has a terrible discipline record with little evidence of reformation. He has never accepted responsibility for his misdeeds, rather he actively saw his extensive record of discipline as evidence of a conspiracy by a series of LCBO managers and district managers to get him fired. He testified that he considered himself to be an exemplary employee and that he should have been made a manager. He said that the manager who succeeded in getting him fired would get big credit, having grabbed the “brass ring “that would surely give rise to a promotion for that manager. [63] Moreover his claim that he was not told that putting any beer in the staff fridge was prohibited is contradicted by his testimony that at the Brockville store he did not put beer in the staff fridge that often because, in part, management was checking the fridge and taking pictures. This would seem to confirm that he was -10- aware of the “no beer in the staff fridge “rule. He said that he put beer in the staff fridge while at Brockville less than 5 times. Furthermore in both his examination in chief and under cross examination he admitted that two managers in two different stores and a shift leader (Midland Ave, Kingston and Brockville) told him not to put unpurchased beer in the staff fridge, but as it was told to him “casually”, he did not consider it a rule that he had to obey. [64] The Grievor claimed that there was a long history of managers and district managers who worked to get him fired. This history went back to shortly after he first joined the LCBO. He even gave this conspiracy a name “the Get Rich Movement”. He believed that ambitious people at the LCBO would act negatively towards him in order to advance their own career. [65] In reviewing the usual factors in determining the appropriateness of the discharge penalty, I find as follows: 1. He had a serious discipline record, including multiple incidents of insubordination. 2. His service of 8 years is moderate. 3. The culminating incident was not an isolated one as the Grievor admitted even while at the Brockville store for only 2.5 months, he put unpurchased beer in the staff fridge on multiple occasions. 4. There was no provocation. 5. It was premeditated. 6. No special circumstances were claimed, nor was any disability relied upon. 7. There is no evidence that he was treated more harshly than other employees in similar circumstances. 8. There was absolutely no remorse expressed or apology offered. In fact, the opposite is true. 9. The Employer in this case has followed the doctrine of progressive discipline quite properly. The only possible criticism is that when he was disciplined on May 14, 2018 for putting beer in the staff fridge at the Midland Ave store in Kingston, instead of a further suspension he was given a written warning because, as the letter stated, he was moving to a new store. However, this letter also was warned that a repeat of his insubordination “will result … in further disciplinary action, up to and most likely the termination of your employment.” 10. Although on the surface, one could say his breach was of a trivial nature and could never be deserving of termination, in reality this rule was part and parcel of the LCBO’s anti-theft policy, which is anything but trivial. [66] In all the circumstances, I find that the Grievor was both disciplined and terminated for just cause. [67] As a final note, I should comment on the issue of whether the Grievor should have been given compensation in lieu of reinstatement. I raise this issue -11- because I asked both parties to cover this issue in their closing arguments as an alternative remedy. I should emphasize that the Employer’s primary position was that the discharge should be upheld, and the Union’s primary position was that the Grievor should be reinstated with compensation with at best a short suspension for the final incident. [68] However, pay in lieu of reinstatement is only a consideration where the arbitrator finds that termination was an excessive penalty. I did not so find. It is not to be used as a method to achieve a compromised settlement. That is what mediation is for. [69] The grievances are therefore dismissed. Dated at Toronto, Ontario this 2nd day of June, 2020. “Barry B. Fisher” ________________________ Barry B. Fisher, Arbitrator