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Home My WebLink About2019-1934.LeBlanc.21-03-26 DecisionCrown 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# 2019-1934 UNION# 2019-0499-0064 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (LeBlanc) Union - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEFORE Brian P. Sheehan Arbitrator FOR THE UNION Erin Thorson Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Laura Chartrand Liquor Control Board of Ontario HR Manager HEARING March 23, 2021 -2- DECISION [1] The Employer and the Union at the Liquor Control Board of Ontario, Eastern Region, agreed to participate in the Expedited Mediation/Arbitration process in accordance with the negotiated Protocol. It is not necessary to reproduce the entire Protocol. Suffice to say that the parties have agreed to a True Mediation/Arbitration process wherein each party provides the Arbitrator with their submissions setting out the facts and the authorities they respectively will rely upon. This decision is issued in accordance with Appendix 2 – Memorandum of Agreement of the collective agreement, and it is without prejudice or precedent. [2] Terri LeBlanc (the "grievor") is employed as a casual Customer Service Representative (CSR). She has been employed with the Employer for over nine years. [3] On August 8, 2019, a significant physical altercation involving a young customer took place at the store where the grievor was working. [4] Upon being requested to produce ID, the customer proceeded to use racial epitaphs and profanity towards the LCBO employee who had asked for the ID. The situation then escalated as the customer punched the employee, which resulted in the employee and another employee physically wrestling the customer to the ground. During the course of the altercation, an Assistant Manager also became involved in the efforts to restrain and subdue the customer. [5] The grievor's involvement in the altercation centred on the customer's hat. While her co-workers were trying to restrain the customer, the grievor retrieved the customer's hat that had fallen to the floor. During a brief lull in the activity, the customer reached -3- out to grab his hat from the grievor; almost coincidentally thereafter, the skirmish broke out again, which ultimately led to the grievor falling to the ground. [6] Once the altercation ended, the customer was ordered to leave the store. Upon exiting the store, the customer smashed one of the store's glass front doors. The grievor subsequently followed the customer out of the store. She asserted that she did not do so in pursuit of the customer but to deal with the broken glass at the front of the store so it would not constitute a safety hazard for other customers. The customer remained outside the store for a while, yelling profanities and threats back towards those in the store. [7] On September 4, 2019, after investigating the matter, including a review of the video evidence and the grievor’s statement regarding the incident, the Employer imposed a 10-day suspension upon the grievor. The Employer's rationale for the issued penalty is captured in the following excerpt from the suspension letter: After careful review of all of the facts and information, including video evidence, it is clear that the statement your provided is not entirely accurate. More specifically you are found to have used physical force against this individual, participating in the physical altercation that began with your fellow employees. You did not keep a safe distance from the altercation and after the individual attempted to retrieve his hat from your grasp you began to physically engage him, leading to your fall. Your actions during the altercation were in direct contravention LCBO policies and procedures, on which you have been trained. You have been specifically trained to keep a safe distance from potential shop thefts and to never physically engage or detain an individual. The policies and training in this regard are focused on preventing injuries to yourself and customers. Your actions contributed to creating an unsafe and violent interaction with a member of the public, leading to a physical altercation that involved multiple employees and other customers. By not properly evaluating the customer interaction you put the health and safety of yourself, your co- workers and customers at a significant and unnecessary risk. Additionally, you are expected to remain in the store after a violent or shop theft incident. The video evidence is clear that you followed the individual out of the store and went beyond the area of broken glass in the vestibule. This is directly contrary to LCBO policy and training you have received. -4- [8] The two other bargaining unit members involved in the altercation received lengthier suspensions than the ten-day suspension issued to the grievor. [9] Upon reviewing the relevant evidence, including a video of the altercation in the store, it is my determination that the penalty issued to the grievor was excessive in nature. In reaching that conclusion, no issue whatsoever is taken with the Employer's Stop Theft Policy. That Policy directs employees not to become physically involved with, or pursue customers suspected of committing theft. It is imperative in terms of the safety of its employees and customers, that employees refrain from taking action against or following an individual exiting the store who is suspected of committing theft or otherwise acting in an inappropriate manner on Employer property. At the same time, while the Employer can legitimately seek to strictly enforce that Policy, in furtherance of achieving compliance, it must act reasonably with respect to an alleged breach of the Policy and assess all the relevant circumstances associated with an incident in order to issue a disciplinary penalty that is commensurate with the relevant facts. In the case at hand, the grievor's involvement in the altercation in the store was ostensibly that of a bystander. In particular, for the bulk of the incident, she was not physically involved in any manner whatsoever with the efforts to restrain or subdue the customer. The grievor's actions, however, were not entirely without some degree of blame. In particular, while the video is far from definitively clear as to the exact nature of the interaction between the grievor and the customer, it is not understood why the grievor did not immediately let go of the customer's hat rather than continuing to grasp it after the customer had grabbed it. Additionally, it is clear that the grievor violated the Employer's Stop Theft Policy by following the customer out of the store. Even if the grievor’s stated rationale for exiting the store at that juncture is accepted and happened -5- with the best of intentions, she violated the Policy and potentially left herself in a potentially vulnerable scenario as the customer had remained outside the store, still acting in an agitated and angry manner towards the LCBO personnel in the store. [10] Weighing all the relevant considerations, it is my view that the ten-day suspension should be reduced to a one-day suspension. [11] There was a lack of clarity as to whether the grievor had served the ten-day suspension. If she has, she is entitled to be made whole with respect to the lost nine days of pay. If the suspension has not been imposed, she will be required to serve the one-day suspension. [12] I remain seized to address any issue with respect to the implementation or interpretation of this Award. Dated at Toronto, Ontario this 26th day of March, 2021. “Brian P. Sheehan” ______________________ Brian P. Sheehan, Arbitrator