HomeMy WebLinkAbout2018-3576.Martinez.22-05-27 Decision
Crown Employees Grievance Settlement
Board
Suite 600
180 Dundas St. West
Toronto, Ontario M5G 1Z8
Tel. (416) 326-1388
Commission de
règlement des griefs
des employés de la
Couronne
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
GSB# 2018-3576
UNION# 2019-5107-0001
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Martinez) Union
- and -
The Crown in Right of Ontario
(Liquor Control Board of Ontario) Employer
BEFORE Diane Gee Arbitrator
FOR THE UNION Matthew Appignanesi
Ontario Public Service Employees Union
Grievance Officer
FOR THE EMPLOYER Andrew Cogswell
Liquor Control Board of Ontario
Counsel
HEARING DATE March 3, 2020; April 9 and 30, June 14,
August 12 and 13, September 21, 2021;
February 23, April 5 and May 5, 2022
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Decision
[1] This matter is a grievance filed by OPSEU on behalf of Giovanni (Gio) Martinez. Mr.
Martinez was terminated from his employment with the LCBO for violation of the Shop
Theft Policy.
[2] Mr. Martinez had 20 years of service as a Casual Customer Service Representative
(“CSR”) at the time of termination. The Employer alleges Mr. Martinez initiated a
physical altercation with a person he suspected was about to shop lift and, during such
altercation, held a box cutter in his hand close to the man’s neck. It is alleged, Mr.
Martinez then bragged about the incident to co-workers, was dishonest when he
reported the incident to the Store Manager and has not accepted responsibility for the
incident or demonstrated an understanding as to the severity of what he did.
[3] The LCBO called Nelson Tavares, then District Manager, Moe Benarroch, then Store
Manager, and Cassandra, Lyn and Jeanne, CSRs. Mr. Martinez testified, and the facts
set out in a suspension letter, given to an employee who will be referred to as Robin,
were stipulated by the parties.
The Shop Theft Policy
[4] The current version of the Shop Theft Policy (the “Policy”) has been in effect since
September 27, 2016. All new hires must receive shop theft training within 10 days of
their first shift worked. Further, all employees must take shop theft refresher training at
least once a year. Mr. Martinez testified, due to the fact he had transferred stores, he
had recently received the refresher training more frequently than once a year. Mr.
Martinez was aware of the Policy and had been thoroughly trained.
[5] The Policy begins with a section entitled “Summary” which reads as follows:
The objective of the LCBO’s Shop Theft Policy is to manage shop
theft situations in a manner that does not endanger employees or
customers.
The LCBO’s objective is to create an environment that deters shop
theft before it occurs. However, when shop theft occurs, employees
must not attempt to detain or arrest the shop theft suspect.
Employees are advised never to physically touch, control, detain,
apprehend or arrest any person for the purpose of managing a shop
theft situation.
Employees must not place themselves or others at risk by leaving the
store to pursue an individual in an effort to retrieve stolen product(s).
Note: Leaving the confines of the store places employees,
colleagues, customers and the community at risk.
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[6] A section of the Policy titled “Employee and Customer Safety” reads as follows:
LCBO's paramount concern in shop theft situations is employee and customer
safety, which is given the highest priority at all times.
Further on in the Policy, under the heading “Responsibilities of all LCBO Retail Store
Staff,” is a section setting out what employees should do in the event of a suspected
shop theft. This section details how an employee should go about observing and
reporting a shop theft incident and provides an employee may ask the shop theft
suspect for a concealed product, but only if the employee is comfortable doing so and is
confident they can do so safely. It is further provided, when asking for the concealed
product, the employee is to remain at a safe distance, never block or stop the suspect
from leaving the store and remain calm and focused. In the case of an employee
witnessing a shop theft, the policy requires an incident report to be completed prior to
the completion of the employee’s shift.
The Policy contains the following provisions regarding shop theft training and the
imposition of discipline in the event of a violation of the policy:
Responsibilities of LCBO Store Manager Shift Leaders.
The Store Manager / Shift Leaders must ensure that:
• All new hires (permanent full time, casual, fixed term)
receive “Play It Safe” training within 10 days of commencing
first shift worked
• All employees comply with this policy
• Appropriate action (including remedial action and / or disciplinary
action, as appropriate) is taken when this policy is contravened.
• “Play It Safe” & “Taking Care” is reviewed with all staff semi-annually.
• Sign-off process is followed to verify compliance.
Responsibilities of LCBO District Offices
LCBO District Offices must maintain a record of employee attendance
at required training and review sessions, and of successful completion
of this program testing, as required.
Policy Violation
Failure to comply with this policy may result in disciplinary action up
to and including dismissal.
[bold emphasis in the original]
[7] The Play it Safe Participant Guide, provided to employees during their shop theft
training contains the following information:
The objectives for this program are:
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• Your personal safety is paramount for you, your colleagues and customers
• Demonstrate the correct way to safely manage shop theft situations
• Recognize how your body language can directly affect others
• Define the consequences of mismanaging shop theft suspects
• Develop awareness of the important aspects of detection
• Increase awareness on how to deter shop theft
• Formulate a plan to use back on the job
Why ‘Shop Theft: Play It Safe’?
The LCBO’s ‘Shop Theft: Play It Safe’ program was designed to emphasize our
Shop Theft Policy. The program’s number one mandate is the safety of LCBO
staff and customers. The LCBO does not expect you to put yourself at risk.
This program will provide you with information to make safe business decisions,
protecting you, your colleagues and customers.
The LCBO cares about its employees and customers above and beyond the
cost of any stock/bottle on our shelves.
Our goal today is to help you,
PLAY IT SAFE
Important Points to Remember:
AVOID the following:
1. Being confrontational/aggressive
2. Attempting to block the exit path out of our store
Once you decide to block the exit path of a suspect YOU have now
decided which option between “Flight or Flight” – you have decided
that the “Flight” option is no longer available. One word…..DON’T
3. Chasing a suspect
Chasing a suspect is not recommended because it is not safe and
you don’t know what you’ll be faced with once your outside the
store
4. Detaining an individual
Detaining an individual, even if you ask them politely to wait, is an
arrest. The law states that "a person who arrests shall forthwith
deliver the person to a peace officer". Arrests of any kind are NOT
part of your job.
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DO the following:
1. Present a professional, friendly tone, and body language
2. Stand at a safe distance, not blocking their exit path
3. Be courteous and friendly always
4. Provide options…”Do you want to pay for them now or should I put them
back on the shelf?”
5. You could mention the store has cameras
6. Communicate with your team
7. Always complete an incident report. This document is used to record I
witness statements to incidents such break and enters damage to LCBO
property. Customer injury alarm calls outside of business hours, etc.
[8] Mr. Tavares testified as to the reasons for the Policy. The LCBO has a statutory
obligation to take all precautions reasonable for the safety of its employees. If an
employee were to attempt to take product from a suspected shoplifter and the shoplifter
resisted or fought back, the employee would be in danger of suffering an injury. Mr.
Tavares told of a situation in the past where a suspected shop lifter, when confronted by
an employee, hit the employee across the head with a bottle. Further, should an
altercation occur, the safety of other employees and customers in the vicinity would be
jeopardized.
[9] Mr. Tavares further testified that the Policy is not a zero-tolerance policy. Each instance
of an alleged violation of the Policy is considered on its own and the penalty is
determined based on what is alleged to have occurred.
The Evidence
[10] The incident that led to the Mr. Martinez’s termination occurred on December 21, 2018.
Five separate video clips were put into evidence. The first clip is of two men entering the
store. A second clip shows the two men taking product from a shelf and putting it into a
bag. Mr. Martinez can be seen walking down the aisle and speaking to them. The men
are then seen walking past Mr. Martinez and up the aisle towards the front of the store.
Another clip is footage of the office area and shows one of the men exiting and then
returning. A fourth clip shows Mr. Martinez, after the incident, walking down the aisle
and returning product to the shelf. The main footage, which I review below, is of the
area immediately in front of the cash registers.
[11] The cameras only take one snapshot per second and thus the video jumps like a flip
book from frame to frame. The video shows the frame numbers as well as the date and
the time with hour, minute and second. Because the video is only showing one
snapshot per second, the video is shorter than the actual time over which the events
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occurred. For example, the length of time Mr. Martinez was engaged in a physical
altercation with one of the men, according to the clock on the video tape, was 16
seconds. The video of the incident, however, takes only 3- 4 seconds to view.
[12] From the video, I have no doubt that Mr. Martinez had a physical altercation with a man
who was carrying a bag containing bottles of alcohol. Mr. Martinez testified that the
man was falling, and he grabbed the bag containing the bottles to assist him, following
which the man turned it into an altercation. Mr. Martinez denies he was trying to stop
the individual from exiting the store with merchandise that had not been paid for.
[13] The termination of a 20-year employee with a clean disciplinary record is severe
discipline. Mr. Martinez is entitled to have his version of what occurred carefully and
thoroughly considered. Below, I set out an overview of each frame of the video and, in
some cases, where Mr. Martinez gave testimony concerning that frame, I also set out
his testimony. Following this review of the video evidence, I consider the evidence of
the store manager and co-workers who wrote statements following the incident and
testified in this proceeding. Next, I review Mr. Martinez’s evidence followed by an
overview of the parties’ submissions. Lastly, I set out my analysis and reasons for
dismissing the grievance, upholding Mr. Martinez’s dismissal.
[14] Employees by the names of Alex and Angela wrote statements and were interviewed by
Mr. Tavares who took notes. Even though they did not testify, their statements and Mr.
Tavares’ notes were put into evidence. There was no objection to the documents being
admitted and each of the parties referred to them in argument.
[15] There is no dispute, and the video footage shows that the matter began when a CSR by
the name of Cassandra sees two men putting bottles of alcohol into a cloth bag.
Cassandra is a term employee who has very short service with the Employer.
Cassandra goes and tells Mr. Martinez who walks down the aisle and asks the men if
they need any help. The men turn and walk past Mr. Martinez up the aisle towards the
front of the store. The first man is in the front carrying a single bottle (“Suspect 2”); the
second man follows carrying the cloth bag full of bottles (“Suspect 1”). According to Mr.
Martinez, the two men were intoxicated and one of them had what looked like a joint in
his mouth. Mr. Martinez testified that he followed the men, as per the Shop Theft
Policy, to observe and report. Mr. Martinez also testified that he followed them to make
sure they were leaving the store as intoxicated persons can cause trouble.
[16] The following is a description of the footage, referenced by the hour:minute:second
marker on the footage, beginning a few seconds before and ending a few seconds after
the incident.
20:43:41
Suspects 1 and 2 are about to exit the product aisle and are heading towards the
registers at the front of the store. There is a customer being served at the register on
the left of the screen. There is no customer or CSR at the register to the right of the
screen leaving an unobstructed aisle between the two registers leading to the exit.
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20:43:42
Suspects 1 and 2 have stepped forward into the open area in front of the cash registers.
20:43:43
The Suspects have moved forward but have not passed the point of sale. Mr. Martinez’s
legs can be seen down the product aisle. Suspect 2 is standing upright. Suspect 1 is
hunched over holding the bag in front of him.
20:43:44
The Suspects are now facing one another. Suspect 2 is standing upright and Suspect
1, while still slightly hunched, is more erect. Mr. Martinez’s legs can now be seen at the
end of the product aisle.
20:43:45
The two Suspects have not moved. They remain standing facing one another. They are
both looking down at the bag held by Suspect 1. The bag is close to the floor. Mr.
Martinez can be seen walking towards them. Mr. Martinez is approaching Suspect 1’s
left side.
Mr. Martinez testified that it is at the point that the bag starts to slip out of the hands of
Suspect 1.
20:43:46
No frame to view.
20:43:47
Suspect 2 is approaching the open aisle between the two registers with a bottle in his
hand. Behind him, Suspect 1 does not appear to have moved and is very slightly bent
over. From the prior frames we know the bag is in front of Suspect 1. Mr. Martinez is
approaching slightly behind and to the left of Suspect 1. The store security guard can
be seen, on the opposite side of the registers, walking towards the end of the aisle
between the two registers where the Suspects would walk to exit the store.
20:43:48
Suspect 1 is slightly bent over with Mr. Martinez up against his left shoulder. Mr.
Martinez has his left arm over the left shoulder of Suspect 1 and is reaching down and
in front of Suspect 1. Suspect 2 has moved forward and is now walking down the aisle
between the two registers. The security guard has placed himself in proximity to the
end of the aisle.
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20:43:49
Mr. Martinez and Suspect 1 have moved backwards a step. Their bodies remain in
contact. Suspect 1 is bent over with the bag in front of him and Mr. Martinez is leaning
over Suspect 1 with one hand on his back and the other hand holding onto the bag.
Suspect 2 has reached the end of the aisle between the registers and has put the bottle
he was holding down. The security guard remains at the end of the aisle looking up
towards the Suspects and Mr. Martinez.
Mr. Martinez testified, he is holding onto the bag with his left hand and, with his right
hand, is “grabbing” onto the back of Suspect 1’s shirt to stop him from falling
backwards. Mr. Martinez testified that Suspect 1 immediately yanked back on the bag
and told Mr. Martinez to let go of it. Mr. Martinez testified Suspect 1 thought Mr.
Martinez was trying to take the bag away from him.
20:43:50
In the background, Mr. Martinez and Suspect 1 remain generally in the same position
except they have moved back one step. Mr. Martinez remains to the rear of Suspect 1
bending over him. Suspect 2 appears to be engaged with the security guard.
20:43:51
The position of Mr. Martinez and Suspect 1 remain the same except they have moved
backwards one more step. Suspect 2 is no longer in view. The security guard remains
at the end of the aisle between the two registers.
20:43:52
Suspect 2 is remains out of view. The security guard remains at the end of the aisle
between the two registers. Suspect 1 is now very bent over with Mr. Martinez bent right
over top of him. Mr. Martinez now has his right arm up over Suspect 1’s right shoulder
with his hand to the side of his neck.
Mr. Martinez testified that he had his hand over the shoulder of Suspect 1 because he
was going to fall forward. At the investigation meeting, Mr. Martinez stated that he
grabbed Suspect 1 by the shirt collar with the hand containing the box cutter. The end
of the box cutter where the blade comes out was pointed towards Suspect 1.
20:43:53
Suspect 1 is a bit more upright. A bottle has fallen out of the bag and is on the floor.
Mr. Martinez remains behind him with his right arm up over his shoulder and his hand to
the side of his neck. Mr. Martinez continues to hold onto the bag. The security guard
remains at the end of the aisle between the registers. The customer and CSR at the
register are looking as is another customer who is standing about 1.5 metres away.
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20:43:54
Suspect 1 is upright holding the bag in one hand. Mr. Martinez remains behind him with
his right arm over the right shoulder of Suspect 1 and Mr. Martinez’s hand, in which he
holds the box cutter, can be seen in the vicinity of Suspect 1’s neck.
20:43:55
Suspect 1 one is now standing completely erect. He is holding the bag in front of him.
Mr. Martinez remains behind him with his right arm over Suspect 1’s right shoulder. Mr.
Martinez’s face can be seen over Suspect 1’s left shoulder. Mr. Martinez is reaching
with his left arm around to the front of Suspect #1 and is holding onto the bag. The
security guard has started walking towards Mr. Martinez and Suspect 1.
20:43:56
Mr. Martinez is behind but slightly to the left of Suspect 1, with his right hand, in which
he held the box cutter, over Suspect 1’s right shoulder and his left hand reaching
around to the front of Suspect 1. Mr. Martinez appears to be holding onto the bag. The
security guard continues to walk toward them.
20:43:57
Mr. Martinez remains behind Suspect 1. Mr. Martinez’s right arm can still be seen over
the right shoulder of Suspect 1. And Mr. Martinez’s face can be seen over the left
shoulder of Suspect 1. Mr. Martinez’s left arm is reaching around the front of Suspect 1
holding onto the bag. Suspect 2 has returned and is re-entering the aisle between the
two registers from the exit side. The security guard is in the aisle looking towards Mr.
Martinez.
20:43:58
Mr. Martinez and Suspect 1 are now turned 45 degrees and slightly more bent over.
Mr. Martinez remains behind Suspect 1 with his right arm over Suspect 1’s shoulder
with his hand in the area of Suspect 1’s neck. The security guard is right in front of
them with Suspect 2 at his back.
20:43:59
Suspect 2 has grabbed onto Suspect 1 and is pulling him in the direction of the aisle
between the registers towards the exit. Mr. Martinez is standing, knees bent, arm over
the right shoulder of Suspect 1 pulling him the opposite direction. The security guard is
in front of Suspect 1 and appears to be pulling on the bag.
20:44:00
Suspect 2 is walking backwards down the aisle between the registers towards the exit
pulling Suspect 1. Suspect 1 is facing Suspect 2. Mr. Martinez is behind Suspect 1
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with his right arm over the shoulder of Suspect 1. The security guard is standing to the
left of Mr. Martinez holding the bag.
20:44:01
Suspect 2 is still walking backwards tugging Suspect 1. Mr. Martinez has let go of
Suspect 1 and is standing with his arms by his sides. The altercation between Mr.
Martinez and Suspect 1 lasted 16 seconds. Mr. Martinez testified that Suspect 1 said to
him, “I know who you are Gio.”
20:44:02
No frame to view.
20:44:03
The two Suspects are standing in the aisle between the registers with their backs to the
camera. The security guard is talking to them. Mr. Martinez stands to the right of the
security guard with a bottle in his hand and one at his feet.
[17] After the incident was over, Mr. Martinez showed the video to three employees:
Cassandra, Lyn and Alex. No incident report was filed. When he was asked why he
showed the video to Cassandra, Lyn and Alex, Mr. Martinez spoke of how unsafe it was
for the LCBO to have accepted a late delivery which resulted the back door being open
at night in an unsafe area. He recounted how a number of employees were in the back
dealing with the delivery when the store was getting “jacked.” Mr. Martinez testified he
showed the video to Lyn because “we do not have enough staff.” In cross-examination,
Mr. Martinez made a point of saying that the store was understaffed and “we should not
have taken the load, it was late and put us all in danger.” He went on to talk about how
it was unsafe to have the back door open at night and that he had told them that in the
past.
[18] The next day, on December 22, 2018, Mr. Martinez came in early for his shift to talk to
Mr. Benarroch. There is a dispute as to what Mr. Martinez said to Mr. Benarroch.
According to Mr. Benarroch, Mr. Martinez told him he had stopped someone from falling
and hurting themselves by grabbing their bag. Mr. Martinez testified that he told Mr.
Benarroch that there had been an altercation, he had grabbed a man and had a box
cutter in his hand. According to Mr. Martinez, Mr. Benarroch replied: “be more careful
next time.”
[19] Both Lyn and Mr. Benarroch testified that, on December 24, 2018, Lyn approached Mr.
Benarroch and told him that Mr. Martinez had told her that he had stopped a theft and
that he had put a box cutter to the man’s throat. Lyn and Mr. Benarroch then went into
the office and watched the video and Mr. Benarroch asked Lyn to write a statement.
Lyn testified that Mr. Benarroch was not aware of the severity of the incident until she
told him, and they watched the video.
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[20] It is the evidence of both Mr. Benarroch and Mr. Tavares that, that same day, Mr.
Benarroch told Mr. Tavares of the incident and was instructed to speak to all the
employees who were working the day of the incident and ask them to write a witness
statement. Mr. Benarroch was also instructed to review and archive the video. That
same day, Mr. Benarroch wrote his own statement, collected the employee statements,
and sent them, along with the video, to Mr. Tavares.
[21] Mr. Benarroch’s statement reads as follows:
On Saturday, Dec 22, upon arriving for his shift, Gio Martinez approached me to
tell me about something that had happened the night before.
He said that he had stopped somebody from falling and hurting themselves by
grabbing their bag. The bag contained 8 bottles of Jägermeister 1.14 l bottles.
I asked him if that is what happened, or if he grabbed the bag to stop a theft? He
said that no, he was concerned about the customer, and didn't want the customer
to get hurt.
I asked him that he knows we are not to get in the way of Suspects, or to do
anything that might put anyone in harms way? He said he did, and wouldn't do
anything like that.
Today, Dec 24, Lyn approached me to tell me about something that happened on
Dec 21, Friday.
She told me that after finishing the load, Gio approached her to tell her about a
shoplifting incident that had happened. I asked Lynn to write up a statement of
what happened (attached).
Other statements from CSRs are also attached.
[22] Mr. Benarroch testified that he asked Mr. Martinez if the incident involved a theft
because, given Mr. Martinez had come in early to tell him about it, Mr. Benarroch
thought it must have been more serious than what Mr. Martinez was describing.
[23] Cassandra, one of the three employees Mr. Martinez showed the video to after the
incident, also witnessed the incident. Her written statement, prepared on December 23,
2018, reads:
2 Black middle aged men came into store as I was facing in the aisles near the
coolers (left backside of store). They asked how I was doing. They continued to
walk to the middle of the aisle and look at the more expensive alcohol. They
started to put the biggest size of Jager bottles in their reusable bags. Can't
remember if anything else was included. 2 full bags. I suspected something was
abnormal and told Gio. Gio walked over and asked if they needed a basket.
They refused and began to run. One of the men dropped the bottles and ran out
of the store empty handed. While other got into altercation with Gio because he
refused to drop the other full bag. He threatened to hurt Gio while he was
restrained to floor by Gio. Other man ran back inside to try and convince the
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other man to leave the bag. He ended up getting away with only two bottles.
Leaving the rest with Gio.
Happened around 8:45 PM.
Few customers in store.
Gio said that he had used a knife he had in his pocket in self-defence to scare the
man because, he said, “I'm going to do something.”
Gio showed the surveillance cameras to me, but I could not see directly the knife.
[24] Lyn, another of the three employees Mr. Martinez showed the video to immediately after
the incident, did not witness the incident. Her recounting of the incident is based on
what she was told by Mr. Martinez or saw on the video. Her written statement, dated
December 24, 2018, reads:
My name is Lyn and I was the shift runner at Store 182 on Friday, December, the
21st, 2018 in the evening.
At approximately 8:40 p.m., I had just finished unloading the truck when I was
advised by my Co-worker, Gio, that he had an altercation with a thief on the sales
floor.
He told me that he was told by a Christmas Help, Cassandra, that the thief was
putting 9- 1.14 bottles of Jägermeister into a bag. Gio followed the man to the
cash where he was proceeding to walk out of the door with the bag. Gio grabbed
the bag and there was a struggle. He told me that the man said “Let go of my bag
or I will fucking kill you.” Gio said “Oh yeah, How do you like this?” and he
preceded to put his box cutter to the man’s throat. An accomplice to the man,
said “Buddy, Let go of the bag and let's get out of here.” The guy let go of the bag
and had one of the bottles in his hand. Upon leaving he turned and said “I'll be
seeing you again. Gio.”
After the incident, Gio brought us into the office and showed myself, Cassandra
and Alex the camera footage of what had occurred. In addition to what he told
everyone on shift what had happened.
On Sunday afternoon, CSR. Jeanne approached me to tell me that Gio had also
told her about the incident.
[25] Alex, the third person to view the video with Mr. Martinez after the incident, also
prepared a handwritten statement, Alex did not witness the incident. His recounting of
the incident is what he was told by Mr. Martinez or saw on the video. His handwritten
statement reads as follows:
2 men enter the store with a bag and head straight to the spirits section and start
grabbing Jager bottles and Grand Marnier. Gio notices them and approaches
them asking “Do you need any help? “At this point I am entering the backroom,
and am unable to hear the rest of what was said. The men start quickly walking
for the front door. Right in front of the tills, one of the men seems to fall and Gio
catches him and the bag. The other thief decides to leave his stolen merchandise
on the counter and starts to ask his friend to give up his as well, the man with Gio
decides to ditch the bag, but on the way out takes one bottle with him and yells
something at Gio. They then run out the front door.
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Afterwards, Lynn, Gio, Cassandra and I are in the back room. Recounting what
was stolen and what occurred. Gio says he verbally threatened the man, claiming
he had a knife (one of the safety knives we are equipped with) after the thief
threatened him from the ground following his fall.
[26] Statements were also written by two individuals who were not in the store when the
incident occurred. The first statement, written by Jeanne on December 24, 2018, reads
as follows:
Regarding Sat, I was about to leave (finish shift) Gio was starting his shift. He
mentioned to me. Jeanne [surname omitted] that he pull a Blade (knife) to a
person throat. After he mentioned this I walk away.
[27] The final statement, written by Angelo on December 24, 2018, reads:
On Saturday, Dec 22/18 Gio passed me by and asked if I heard about when he
“stopped a thief from falling”, I told him I did not hear about that.
[28] Mr. Tavares testified, upon reviewing the statements and video, he sent a letter to Mr.
Martinez advising him that he was relieved of duty with pay pending an investigation of
his conduct on December 21, 2018. The letter further advised that Mr. Martinez was to
attend a meeting scheduled for January 4, 2019, to discuss the matter. Unfortunately,
the letter was delayed in its delivery to Mr. Martinez, and he attended at work for his
next shift at which time he was verbally told he was not to report to work. Mr. Martinez
ended up getting a copy of the letter through the Union. He had the letter four days in
advance of the investigation meeting.
[29] Mr. Tavares interviewed a number of the employees who had provided written
statements. Cassandra was interviewed by Mr. Tavares on January 3, 2019. Mr.
Tavares’ notes of his conversation with Cassandra are as follows:
Was on the floor when incident happened. Was on cash. Was on the register
when it happened.
Was in the aisle when suspect were stealing. Then walked to cash. Told Gio
about suspects stealing and then went to cash.
Was on cash, 2 suspects walking quickly towards cash. 1 suspect leaves store.
Gio was after him. Gio stops him from leaving by grabbed from suspect back.
Suspect was saying. “I'm going to do something.”
Threatening Gio.
Didn't see this, but Gio told her after that he put his box cutter to suspects throat.
He said he did it in self defence. From hurting him.
Gio was on his back. His arms were around him (but can't specify) He was low to
the ground. Gio let go. Left bag. Left with 2 bottle, first suspect waiting in the
store for other suspect. Suspect said he was going to be waiting outside.
Gio came into office when she was ringing off in office. Lynn and Alex was there
as well.
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Showing them the camera. Explaining to them what happened step by step. And
why he did what he did?
She thinks he told them in case they were questioned.
He was talking in a way, as if he was protecting everyone. A bit cocky.
He said he wasn't going to report it. He wanted to keep it down low. Cassandra
know what he did was 100% wrong.
[30] Lyn was also interviewed by Mr. Tavares. The notes are lengthy and touch on issues
other than the main incident. What follows are excerpts of Mr. Tavares’ notes I find the
most relevant:
I did not officially see it. Was in warehouse when it happened.
Gio showed me the camera.
He showed me that day along with two other associates Cassandra and Alex.
I was in the office doing a deposit for Cassandra. Gio pulled Alex in. Went on the
camera and showed all three of them.
He had a pompous attitude. He was boasting about it.
He was saying he did it to “have their back.”
He went to Moe about but didn't tell Moe the truth. Moe + Lyn spoke, + Moe said
he already know about it. Lynn said. Do you really know what happened. Lyn
explained to Moe that, Gio said he put his box cutter to the throat. Moe was
unaware of that what happened.”
Gio didn't seem upset of what happened at all
He said that he had grabbed the suspect bag and the suspect threatened him to
let go of the bag saying he would have fucking kill him. Gio said he said, “Oh
yeah, how do you like this?” and he said he grabbed him and put his box cutter to
the suspect throat.
[31] Mr. Tavares interviewed Alex and took the following notes:
Just came into office. Was watching from the office. – (the altercation)
What he saw was the guys came in + went to Spirit section. Hard liquors/
Jägermeister
Started grabbing things. Gio asked them if he can help them. @ that point, he
was heading to the office.
They started to leave
Gio Follow them
1 guy leaves
2nd guy goes down.
Unclear why he went down from his perspective.
Gio has his hand on him. (Maybe shoulder) (can't remember).
- 15 -
Didn't see a knife in hand. Couldn't see it from where he was.
The guy ditches the stuff with Gio. Runs out w/ 1 product.
There was yelling but couldn't make out.
Lynn Gio + Cassandra came to office to figure out what was stolen
Gio describe what happened
Gio said he threatened the suspect w/ a knife
I was frustrated in what he did. Should have let him go.
Gio said he would take the trouble for it.
He said. Don't worry, we are in this together. (While touching Lyn + Cassandra
shoulder)
Put on a strong face. In front of us
Showed video. He was describing to them what happened, Gio said. He caught
the bottles/ grabbed. Said he threatened him with a knife while describing video.
Don't remember what part of video.
[32] Andrea was present in the store working on the second cash that night. She was
interviewed by Mr. Tavares on January 3, 2019. Mr. Tavares notes of their discussion
reads as follows:
Was serving customer. When I turned, heard suspect say, leave it alone, let's go
- suspect.
On the second cache
Didn't see anything/cash was in the way
Gio said to [security guard]- you should have been doing this.
I was busy w/ customer
[33] Jeanne was interviewed by Mr. Tavares on January 4, 2019. Mr. Tavares’ notes of this
interview read as follows:
Was not there on the day of incident
Next day when she was leaving + he (Gio) came in he mentioned it to her.
Made comments that he “(Something”) to the throat. (Can't remember the word)
Don't know why he told me
It was just a conversation.
[34] On January 4, 2019, a meeting took place with Mr. Tavares, Mr. Benarroch,
Shelley McIntyre from Human Resources, Colleen MacLeod, OPSEU LBEU,
and Mr. Martinez in attendance. At the meeting Mr. Martinez remarked:
He professed ignorance of the letter he had accessed through the Union.
He reported to the manager the next day what had happened.
One fellow almost fell because the bag was so heavy. When he almost fell he
almost dropped the bag and that’s when Mr. Martinez grabbed the bag and said:
“can I help you with it.” Suspect 1 started pulling. Suspect 1 said: “let go” and
took a step forward. He was about to wipe out. Mr. Martinez said “listen you are
going to get hurt.” He said “let go, let go, I’m going to hurt you.”
He was not trying to stop the man from stealing.
He did not grab him. He was about to drop the bag.
Mr. Martinez had his box cutter in his hands. He did not put it to the throat of
Suspect 1. Mr. Martinez grabbed Suspect 1 by his shirt collar. The knife was in
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the hand Mr. Martinez used to grab him, his right hand, and Mr. Martinez was
holding onto the bag with his left hand.
He denies saying to Suspect 1 “Ok, how do you like this?”
He agrees he told the security guard “this is not my job it is yours.”
He agrees he showed the video to Cassandra, Lyn and Alex
He denies saying he does not care if he gets transferred or that head office
knows he does not respond to threats.
Mr. Martinez stated: “Did I brag about stopping two black guys from stealing the
product – yes” then, when Collen asked if he was bragging or just telling people
about it and answering their questions, he said he was just answering questions.
Denies he said he was not going to report the incident; that they were all in it
together; or to keep it on the low down.
Ended the meeting by asking if the next letter would be sent to the correct
address.
[35] Cassandra was employed by the LCBO at the time of the incident as a fixed-term
employee. She is no longer working for the LCBO. Cassandra testified she witnessed
the incident. She testified the suspect was restrained by Mr. Martinez but not to the
floor as she had written in her statement. Cassandra stated, Mr. Martinez stopped
Suspect 1 from leaving by grabbing his back. She also testified Mr. Martinez told her he
had put his box cutter to the suspect’s throat and said he did it in self-defence.
Cassandra testified Mr. Martinez seemed proud of what he had done. She does not
recall the suspect saying he would “fucking kill Gio and Gio responding ‘“Oh yeah. How
do you like this?’” Cassandra stated Mr. Martinez saying the words “I did it to have your
back” rings a bell. She tried not to be anywhere close. She did not want to be in arms
reach or closer where she could be in danger. She recalls Mr. Martinez saying “we are
all in this together.” After the incident Mr. Martinez showed her, Lyn and Alex the video
explaining what had occurred frame by frame.
[36] Lyn also testified about the night of December 18, 2018. Lyn was working that night but
did not see the incident as she was in the back room. Lyn testified as to what Mr.
Martinez told her had happened. She testified, Mr. Martinez told her the bag was
breaking and he grabbed the bag. He said there was a struggle; the man said: “let go of
my fucking bag or I will kill you” and Mr. Martinez replied “oh ya how do you like this”
putting the box cutter to his throat. Lyn further testified that Mr. Martinez told them he
had grabbed the suspect’s back and later, as the suspect was leaving, he said to Mr.
Martinez, “I will be seeing you again.” Lyn testified Mr. Martinez showed them the video
frame by frame explaining what was happening and saying he had their backs, he was
protecting them. Lyn described Mr. Martinez as pompous and boasting and he said
things such as he had their backs; he didn’t care if he got transferred.
[37] Jeanne testified that she was present at the store on December 18, 2018. She
identified her statement and said that she recalls Mr. Martinez having said he put a
blade, or some other word with a similar meaning, to a person’s throat. She testified
that she most likely told Lyn about it but could not recall. Jeanne lacked recall on
whether she had spoken to Mr. Tavares about the incident but the statement about
holding a blade to a person’s throat is clear in her mind.
- 17 -
[38] Mr. Martinez testified that the staff at the store where the incident took place do not like
him. He had been transferred to the store that September and he had more seniority
than most of the existing employees which would cause them to worry about their hours
and their acting pay. He also testified that he had a bad relationship with the manager
as he had come from a bigger store and Mr. Martinez had more product knowledge than
the manager.
[39] Mr. Martinez testified, on December 21, 2018, he was working 4:00 to 11:00 p.m. He
was approached by Cassandra, who informed him that there were two men who were
about to steal product. Mr. Martinez testified he approached the men and asked if he
could help them find something. One of the men responded: “no we are cool.” Mr.
Martinez believed the men to be intoxicated and one of the men had a joint in his
mouth. They were putting product in a bag. The men then passed by him and
proceeded up the aisle. The bag was getting heavy and Suspect 1 was going to drop
the bag. As Mr. Martinez got closer, he said: “can I help you” and reached out for the
bag. The man grabbed back, and Mr. Martinez tried to hold him by his shirt. Mr.
Martinez said: “Relax, calm down.” Mr. Martinez testified that, from there, it turned into
an altercation. Suspect 1 said: “Let go of the bag” and that he was going to hurt Mr.
Martinez.
[40] In chief, Mr. Martinez testified that he followed the men because he smelled alcohol on
one of them and intoxicated customers break bottles, they fall and slip. Mr. Martinez
testified that, at the point he grabbed the bag, he did not even think the man was going
to steal as the other man had placed the bottle he had been holding on the counter and
walked out. Mr. Martinez recalls Suspect 1 saying: “let go or I am going to hurt you” and
testified that Suspect 1 kept yanking on the bag. Mr. Martinez testified that he did have
his box cutter in his hand but did not say “oh ya how do you like this?” He was holding
the knife end of the box cutter towards Suspect 1 although it was retracted. Mr. Martinez
testified that the altercation ended when security came along, and the man left the bag.
Later in his evidence Mr. Martinez said he let go when the man was able to leave. Mr.
Martinez testified that this contact is not consistent with the Shop Theft Policy and “he
should have let him fall” but it was a quick second reaction to help someone.
[41] Mr. Martinez testified, at the end of the incident, he said to the security guard that “it
was his job to walk around not mine”. He agrees he showed the video to Lyn,
Cassandra and Alex and told them that he had a box cutter in his hand. He denies
saying to Lyn, Cassandra and Alex to “keep it on the down low”, that he “had their
back”, “don’t cross me” or “we are all in this together.” Mr. Martinez agrees he told
others about the incident and says that is normal, everyone talks about incidents, but he
was not bragging. He disputes that he said, during the January 4, 2019, investigation
meeting that he had been bragging; he states that he misunderstood the question until
Collen clarified it for him.
[42] Mr. Martinez testified that the next day he went into work and told Mr. Benarroch that he
had put his hands around Suspect 1 and tried to help him out and that he had had a box
cutter in his hand. He described the incident to Mr. Benarroch as an “altercation.” Mr.
Martinez did not file an incident report because, during the three to four months he had
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been at the store, he had observed that the filing of incident reports was not done
consistently.
[43] Mr. Martinez testified he attended the January 4, 2019, investigation meeting after
having worked a full shift at Canada Post Corporation (“CPC”). He was tired. He was
also stressed about the meeting. When he was asked for his response to the
allegations set out in the December 27, 2018 letter, he responded “what letter” because
he had not received the letter mailed to him. He got a copy from the Union after
reporting to work and being told he was relieved from duty. At the end of the meeting,
when he was told that the investigation would be wrapped up and a decision made, his
last comment was “Am I going to get the letter at the correct address?” He made the
comment because he had not received the earlier letter. Mr. Martinez was annoyed
about not having received the December 27, 2018, letter in a timely manner from the
LCBO.
[44] Concerning the incident, he said the man appeared intoxicated and off balance and he
had grabbed the bag. It was his intention to stop the man from falling; he was not trying
to prevent a theft. Mr. Martinez was not given an opportunity to view the video at the
investigation meeting.
[45] At the conclusion of his evidence-in-chief, Mr. Martinez stated that he was sorry it
turned out the way it did, it was not supposed to be what happened. It had been his
intention to stop a customer from falling and not to stop a theft. Mr. Martinez stated, for
all he knew, the man intended to pay. Mr. Martinez stated he should not have tried to
help him; he should have let him fall. He wants to go back to the LCBO and loves
customer service. If he is reinstated, he will not touch anyone and will observe from a
distance.
[46] In cross-examination, Mr. Martinez was questioned about his knowledge of the Shop
Theft Policy and it was clearly established that he had a thorough knowledge of the
Policy and had been more frequently trained on the policy than was required.
[47] Mr. Martinez became aware of the two men because of Cassandra telling him she had
observed them and suspected they were going to steal product. Mr. Martinez had
himself observed the men placing bottles of alcohol into a bag. Mr. Martinez stated he
followed them to the front of the store as he was observing them as directed by the
Shop Theft Policy and he wanted to make sure they left the store as intoxicated
customers can cause problems.
[48] During cross-examination Mr. Martinez stated that the bag started to slip at the 45
second mark of the video. At the 46 second mark, Mr. Martinez is behind Suspect 1
with his left arm reaching around to the front and holding onto the bag. Mr. Martinez’s
right hand is on the man’s back. Mr. Martinez testified that he was grabbing the bag as
the man was falling and he had his hand on the man’s back because he was falling
backwards. Mr. Martinez agreed that the man was bent over with the heavy bag in front
of him. He further agreed that he outweighed the man by about 100 pounds. He did
not agree that, given the man was bent forward holding a heavy bag in front of him, and
- 19 -
had Mr. Martinez’s much heavier bulk pressed up behind him, that it was unlikely the
man was falling backwards. Later, Mr. Martinez stated that Suspect 1 was going to fall
forward, so he grabbed the bag, and then Suspect 1 started to fall backwards. Mr.
Martinez denied that the two of them moved backwards a step because Mr. Martinez
was behind the man and pulling on the bag.
[49] At the point where Mr. Martinez has his right hand up over the man’s shoulder, Mr.
Martinez states he was now trying to keep the man from falling forwards. When asked
why he was trying to take the bag, Mr. Martinez stated that he was about to fall and
bottles were dropping.
[50] According to Mr. Martinez the “altercation” started as soon as he grabbed the bag which
occurred at the 46 second mark. Suspect 1 was tugging on the bag and telling Mr.
Martinez to let go and Mr. Martinez was hanging on to the bag. Mr. Martinez continued
to hold the bag after the risk of falling had passed. Mr. Martinez agreed Suspect 1 was
agitated and told Mr. Martinez he was going to hurt him. Mr. Martinez agreed an
accident could have occurred.
[51] Immediately after the incident Mr. Martinez told the security guard “this is your job.” In
cross-examination Mr. Martinez stated that he felt like he was doing security’s job and
he felt his stopping a theft was part of what the security guard was supposed to be
doing. Mr. Martinez testified that he was not planning on stopping the men and then
stated: “I felt like I was doing security’s job.”
[52] Concerning the box cutter, he testified that he could have put it in his pocket, but he did
not do so. He normally does put the box cutter in his pocket when he is not using it. He
testified, the dangerous end of the box cutter, where the blade comes out, was towards
the suspect’s neck and he did not have time to think about how to hold it during the
altercation. Mr. Martinez also testified that his hand could have slipped causing the
knife to come out during the altercation. Mr. Martinez states that, when he told Mr.
Benarroch about grabbing the man with a box cutter in his hand Mr. Benarroch simply
said to be careful next time.
[53] Mr. Martinez agreed that he had viewed the main video of the incident the night the
incident occurred. Mr. Martinez agreed he was not apologetic at the Investigation
meeting and explained he did not see this meeting as an opportunity to express regret
and he was upset because he had not received the December 27, 2018 letter.
[54] In re-examination Mr. Martinez stated that he had only seen the video at regular speed
the night of the incident and had not seen it again until it was put into evidence at the
hearing. It was not until he saw the video in slow motion that he thought he may have
done something wrong.
The Employer’s Submissions
[55] The Employer submits that the outcome of cases involving discipline imposed for
engaging in an act of violence in the workplace, is heavily dependent on the facts of the
- 20 -
case; no two cases are identical. It is the Employer’s position that Mr. Martinez’s
actions warrant immediate dismissal for cause, and such is the case even without
consideration of the aggravating factors that are present.
[56] The Employer argues Mr. Martinez’s action of physically assaulting Suspect 1 was in
breach of the Shop Theft Policy and the Workplace Violence Prevention Policy and is
sufficiently serious to warrant dismissal for just cause. There are admittedly few acts of
misconduct that would warrant the jump to termination of a longstanding employee with
a clean disciplinary record, but the Employer submits that violence against a customer
fits within that narrow category. The cases establish that it is completely contrary to the
expectations of a customer service representative to initiate a physical confrontation
with a member of the public while in a retail setting.
[57] The Employer begins by highlighting the few facts that are not in dispute. The first
undisputed fact is Mr. Martinez grabbed a suspected shoplifter in a physically
aggressive manner as the suspect tried to head towards the point of sale. Further, Mr.
Martinez held a box cutter to his throat. The Employer argues it is important to
remember the suspect had not stolen anything at the point where Mr. Martinez initiated
contact. Second, what Mr. Martinez did is a violation of the Shop Theft Policy and the
Workplace Violence Prevention Policy. These policies, in respect of which Mr. Martinez
received extensive training, require employees to maintain a safe distance. Thirdly, the
seriousness of Mr. Martinez's actions, and the inevitability of retail theft, are two of the
reasons the LCBO provides direction to its employees through its Shop Theft Policy and
the associated training.
[58] The Employer relies on the provisions of the Shop Theft Policy and the Workplace
Violence Prevention Policy to establish that Mr. Martinez failed to conduct himself as
required. It is pointed out that Mr. Martinez has been trained on this specific policy on
more than one occasion at various stores. The objective of the policy is to manage
shop theft situations in a manner that does not endanger employees or customers and
to create an environment that stops a theft before it occurs. When shop theft occurs,
employees must not attempt to detain a suspect. Employees are never to physically
touch any person for the purpose of managing a shop theft situation. Employees are
not to place themselves or others at risk. Mr. Martinez admitted he is aware of the
policy and further admitted he did not follow said policy.
[59] While the Employer submits the facts of this case warrant dismissal even in the
absence of aggravating factors, the Employer argues a number of aggravating factors
are present. The first aggravating factor is that Mr. Martinez was holding a weapon at
the time of the incident and admitted that he was holding it in the hand that was near
Suspect 1’s neck. The Employer states that, while it is undisputed that the knife was
retracted, Mr. Martinez admitted that the end from which the knife comes out was
pointed at Suspect 1’s neck and he further admitted the knife could become engaged
during a struggle of this nature.
[60] Next, the Employer submits that the evidence establishes Mr. Martinez retrieved the box
cutter from his pocket immediately prior to the altercation. The Employer relies on the
- 21 -
video tape evidence and argues that it shows Mr. Martinez did not have the box cutter in
his hand when he was walking down the aisle towards the Suspects when they were
placing bottles in the bag and that he could be seen, when approaching the Suspects at
the front of the store, reaching into his pocket, and from that point on had it in his hand.
The Employer also relies on Cassandra’s evidence that Mr. Martinez “said that he had
used a knife he had in his pocket in self-defence to scare the man” because, he said,
‘I'm going to do something.’”
[61] The Employer submits, not only did Mr. Martinez take the box cutter from his pocket
immediately prior to the altercation, he used it to threaten Suspect 1. The Employer
relies on Cassandra’s statement above as well as the following statements from Lyn
and Alex respectively:
Lyn: He told me that the man said “Let go of my bag or I will fucking kill you.” Gio
said “Oh yeah, How do you like this?” and he preceded to put his box cutter to
the man’s throat.
Alex: Gio says he verbally threatened the man, claiming he had a knife
[62] All three of the people Mr. Martinez spoke to after the incident wrote statements that say
Mr. Martinez used the box cutter to intimidate Suspect 1.
[63] The Employer submits the second aggravating factor is that the Suspects were
impaired. This makes Mr. Martinez’ actions even more dangerous as it increased the
risk of injury to Mr. Martinez, the Suspects, and those around them. Impairment
generally causes more unpredictable actions.
[64] The third aggravating factor is that Mr. Martinez bragged about his actions to other
employees immediately after the incident, which speaks to his lack of accountability.
Statements from Cassandra, Lyn and Jeanne respectively state:
Cassandra: [Mr. Martinez] was talking in a way as if he was protecting everyone
a bit cocky
Lyn: boasting/bragging about it.
Jeanne: Regarding Sat, I was about to leave (finish shift) Gio was starting his
shift. He mentioned to me. Jeanne [surname omitted] that he pull a Blade (knife)
to a person throat. After he mentioned this I walk away.
[65] The Employer relies on Mr. Tavares notes taken during his interview with Lyn. Those
notes indicate Lyn had said: “he had a pompous attitude he was boasting about it” and
then later “he wouldn't stop talking about it talking to other people off shift about it
boasting bragging about it”. The Employer also relies on Lyn’s evidence given during
direct examination: “I just found his whole attitude really pompous”.
- 22 -
[66] The Employer further relies on notes taken by Shelly McIntyre during the investigation
meeting. Mr. Martinez was asked during the meeting; “I've been told that after the
incident you wouldn't stop talking about it and seemed to be pompous and boasting
about it. What is your response to this?” Mr. Martinez responded “did I brag about
stopping two black guys from stealing the product yes.” The Employer submits that
each of these pieces of evidence heard together, in addition to the consistency among
statements from different employees, prove the accuracy of the aggravating factor.
[67] The fourth aggravating factor is that Mr. Martinez made remarks to other employees
encouraging them to conceal what he had done. Notes from the meeting between Mr.
Tavares and Cassandra state Cassandra believes Mr. Martinez told them what
happened “in case they were questioned.” The notes also indicate that Mr. Martinez
said he wasn’t going to report the incident and wanted to “keep [the incident] on the
downlow.” Lyn additionally states to Mr. Tavares that Mr. Martinez told them he
approached the Suspects to “have their back.” However, Mr. Tavares’ notes
additionally indicate that “Lyn was uncomfortable” and Mr. Martinez told her “I’m your
friend, don’t cross me.” The notes taken by Mr. Tavares state that Lyn told him she
“was afraid to come forward because of Gio.” The Employer stresses that this final note
is of particular importance as an aggravating factor because Mr. Martinez is causing
individuals to feel uncomfortable about coming forward and reporting incidents of
violence in the workplace.
[68] The Employer submits a fifth aggravating factor being Mr. Martinez’s dishonesty with his
store manager. From Mr. Benarroch’s statement, written shortly after his interaction
with Lyn where the truth about the incident was discovered, it is clear that Mr. Martinez
told Mr. Benarroch that he was only trying to stop Suspect 1 from falling down. Mr.
Benarroch was cross-examined vigorously on this statement and at no point did he
waiver.
[69] Lyn further confirmed Mr. Benarroch’s evidence. She stated during her interview with
Mr. Tavares, as well as during her testimony, that she informed Mr. Benarroch of what
had happened, and he had been surprised. This is consistent with Cassandra’s
evidence that Mr. Martinez was not going to report the incident as well as the fact that
an investigation did not begin until after Lyn met with Mr. Benarroch.
[70] A sixth aggravating factor the Employer submits, is that Mr. Martinez was evasive
during the investigation meeting by denying knowledge of the letter the Employer had
sent to him. He knew what letter they were referring to as he had been given a copy of
the letter from a union representative four days prior. When told that the letter had been
mailed to him, Mr. Martinez states: “That's funny because I was home that day and I
didn't get it.” Mr. Martinez wanted to ensure that it was known that they failed to
successfully mail him the letter.
[71] The final aggravating factor relied upon by the Employer is Mr. Martinez’s lack of
accountability and remorse. Prior to the hearing, an investigation meeting was held.
This meeting took place two weeks after the incident and four days after Mr. Martinez
had been provided with the letter containing the allegations. Yet at the meeting Mr.
- 23 -
Martinez did not apologize or acknowledge his mishandling of the situation. The
Employer submits Mr. Martinez does not understand the seriousness of his misconduct.
Mr. Martinez maintains the story that he was helping Suspect 1 to stop him from falling.
Mr. Martinez was asked if he apologized during said meeting and he answered “no.”
When asked if he felt any remorse or why he had not apologized for his actions, Mr.
Martinez states that he had not been asked to do so. The Employer submits that
anyone who must be prompted to feel remorse or present an apology clearly does not
feel that they have done anything wrong.
[72] Mr. Martinez will admit that he “violated the policy I shouldn't have gotten that close to
the individual.” Under direct examination, Mr. Martinez was questioned “what would you
do if you found yourself in this position again?” He stated that “I wouldn't touch him
again I would let him fall and we would have another issue to deal with.” The Employer
submits that this does not sound like an individual who understands his misconduct and
that Mr. Martinez continues to defend his version of events and his actions. It is
presented that Mr. Martinez is framing this incident as him having to choose between
two terrible outcomes - either an altercation begins, or a person falls to the ground
where serious alleged injuries could be sustained.
[73] The Union relies on discipline imposed on an employee by the name of Robin for a
violation of the shop theft policy to argue the discipline imposed on Mr. Martinez was too
severe. It is the Employer’s position that Robin’s discipline establishes two factors in
favour of their position. The first is that the Employer takes violations of the Shop Theft
Policy seriously. The second is that the LCBO considers the relevant circumstances of
the violation when determining the appropriate disciplinary response. It's helpful to
review what Robin did and compare it to the facts. In Robin’s incident, she obstructed
the shoplifter from taking a cart with product in it by standing in the cash lane and when
the shoplifter moved to exit through another lane, she stood in front of the shopping cart
the suspect was pushing and proceeded to place her foot and hand on the cart. During
the investigation meeting Robin took ownership of the mistake. She received a three-
day suspension which is a serious jump on the progressive discipline scale. The
discipline was short of termination because Robin did not make physical contact with
the suspect, she was apologetic after the fact and took accountability for her actions.
The incident Robin was involved in is not nearly as violent as the incident Mr. Martinez
was involved in. Mr. Martinez came up behind a suspect, initiated a physical assault
while holding a weapon, and took no accountability for his actions.
[74] The Employer relies on the case of Dominion Glass Co. v. U.G.C.W., Local 203, 1975
CarswellOnt 1469 (Linden) in which it was stated that the following factors are to be
considered in a case involving violence:
1. Who was attacked?
2. Was it a momentary flare-up or a premeditated attack?
3. How serious was the attack?
4. Was there any provocation?
5. What was the employment and disciplinary record of the employee?
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6. What was the length of service?
7. What are the economic conditions?
8. What about an apology?
[75] The Employer submits that Mr. Martinez attacked a customer, which is very concerning,
and goes to the core of the Employer’s business. With respect to the second factor, the
Employer does not suggest that the attack was pre-meditated but does argue that there
is no evidence of provocation. Mr. Martinez has a clean disciplinary record and 20
years of service. With respect to the economic conditions, the Employer points to the
fact that Mr. Martinez has a full-time position at Canada Post Corporation with pension
and benefits and continues to hold that position. The Employer further points out that
Mr. Martinez had recently reduced his hours with the LCBO to less than the casual
minimum requirements so that he could work at his regular job with Canada Post
Corporation. Finally, he did not apologize or take accountability for his actions.
[76] The Employer also relies on Worthington Cylinders v. U.W.W.A., Local 9143, 2006
CarswellOnt 5608 (Roberts), in which two employees got into a fight at work. The
decision sets out the following summary of principles applicable to cases involving
violence in the workplace:
(1) In cases of violence in the workplace or threats of violence in the workplace,
employees are being held to higher standards of conduct than in the past. This
development has resulted from highly publicized real life tragedies that have
occurred in workplaces in recent times and the consequent magnification of the
degree of importance of the employer's statutory duty to take every reasonable
precaution for the protection of the health and safety of its workers.
See the discussion of the Canadian National and Grant Forest Products cases,
supra.
(2) In such cases, the most critical issues for an arbitrator to examine are (a)
whether the violence or threat of violence may be characterized as malicious,
deliberate or premeditated; (b) whether the misconduct may instead be
characterized as an impulsive act or momentary flare-up in response to
provocation; and, (c) whether the grievor has expressed genuine remorse for his
or her misconduct. These are the factors that are most relevant to predicting the
effect of reinstating the grievor. See the TNT case, supra, at 119 where Arbitrator
Davie described these factors as perhaps the most critical to examine in cases of
violence in the workplace.
(3) Violent acts or threats of violence that are malicious, deliberate or
premeditated in nature are of the most serious order and often will result in a
termination being upheld at arbitration. Absent compelling psychiatric or medical
evidence in mitigation, the deliberateness of the misconduct significantly
increases the risk that similar acts will be committed should reinstatement be
made, thereby burdening management and others in the workforce with
persistent and intolerable discomfort, disturbance and fear for their own safety. In
the Canadian National case, the grievor essentially admitted that he deliberately
made death threats to gain a psychological advantage over co-workers. In Grant
Forest Products, the grievor was found to have deliberately made a death threat
to get what he wanted, his "day in court."
- 25 -
(4) Acts of violence that seem impulsive but were not provoked, such as the
unprovoked attack on Mr. Cook in the TNT case, supra, may also result in
termination being upheld at arbitration, particularly in the absence of genuine
remorse, because of the lack of assurance that the misconduct will not be
repeated after reinstatement.
(5)(a) Acts of violence that can be characterized as impulsive acts or momentary
flare-ups in response to provocation are most often found to be unlikely to recur,
leaving the arbitrator with greater latitude to give weight to other factors, both
aggravating and mitigating, in deciding whether to substitute lesser discipline for
termination.
(b) Aggravating factors would include, inter alia, the prior reputation of the grievor
for engaging in belligerence, violence, threats of violence, or similar unstable
conduct (see Grant Forest Products, supra); the level of violence involved or
threatened in the incident in question (see TNT, Canadian National and Grant
Forest Products); whether the grievor had to be restrained to prevent an
escalation in the level of his or her violence (see TNT, supra); whether the target
of the violence or threat was a person with supervisory authority, thereby
undermining with a serious act of insubordination the employer's authority to
maintain order in the workplace (see generally, TNT, supra, at 118-19; Grant
Forest Products, at 164); and, the employer's obligation to take reasonable steps
to protect the health and safety of workers by deterring other employees from
engaging in similar misconduct (see TNT, supra, at 118, and the relevant
sections of the Occupational Health and Safety Act, supra).
(c) Mitigating factors would include, inter alia, willingness on the part of line
supervisors and co-workers to see the grievor return to work; a relatively clean
disciplinary record; lengthy and exemplary prior service to the employer; medical,
psychiatric or personal circumstances that caused or contributed to the
aggressiveness of the grievor; and, personal or financial hardship that resulted
from the termination. (See generally, TNT, supra, at 117-18.)
(6) The unilateral adoption by an employer of policy of zero tolerance does not
mean that a claim for the substitution of lesser discipline will be dismissed at
arbitration. A guarantee that employees who engage in specific types of
misconduct will always have their terminations upheld car only be acquired by
negotiating a specific penalty provision into the collective agreement. Specific
penalty provisions require employees to be automatically terminated for the
misconduct in question. They foreclose arbitral review of the severity of the
discipline. This was briefly noted in TNT, supra, at 116-17.
[77] As is highlighted in the above quote, in cases of violence in the workplace or threats of
violence in the workplace, employees are being held to a higher standard of conduct
than in the past. Employers have a statutory duty to protect their workers.
[78] As stated in the second principle set out in the foregoing quote, “most critical” to
examine are three factors: whether the conduct was malicious, deliberate or
premeditated; whether it was an impulsive act or a momentary flare-up in response to
provocation; and whether the grievor has expressed remorse. The Employer argues
that Mr. Martinez’ conduct was deliberate, was not in response to provocation, and he
- 26 -
has expressed no remorse. The Employer refers to the fourth principle where it is
stated that acts of violence that seem impulsive but were not provoked “may also result
in termination upheld at arbitration particularly in the absence of genuine remorse
because of the lack of assurance that the misconduct will not be repeated after
reinstatement”
[79] The Employer relies on Kingston (City) v. C.U.P.E, Local 109, 2011 CarswellOnt 9046
(Newman) in which an employee with 28 years of service made a death threat and the
dismissal was upheld. At paragraph 257 of the decision, Arbitrator Newman states “Bill
168 amendments have impact upon the manner in which an arbitrator might assess the
reasonableness of termination as an appropriate form of discipline when a threat is
found to have been made.” After setting out the list of factors to be considered from
Dominion Glass, supra, Arbitrator Newman states as follows:
258 But the amendments, in my view, should be interpreted to provide
instruction on the weight given to one of these factors— the seriousness of the
incident.
…
261 Fourth, and finally, I interpret the Bill 168 amendments to cause on
additional factor to be added to the list of those usually considered when
assessing the reasonability and proportionality of the discipline. That factor is
workplace safety.
[80] The Employer argues the fact that the individual did not suffer serious injury is not
determinative. Rather, consideration should be given to what could have happened.
Discipline cannot be imposed purely on whether we get lucky that no one's injured. The
Employer submits, Mr. Martinez’s unprovoked physical assault, while holding a weapon
that he admits could have discharged during the struggle, with someone who was
impaired, could have resulted in serious injury. The potential for someone stopping a
shop lifter to be injured is one of the reasons the Employer created its policies and
provides employees with specific instruction as to what to do in these shop theft
situations.
[81] In TRW Canada Ltd. v. T.P.E.A., 2002 CarswellOnt 3853, the grievor got into an
altercation with a more senior employee and chest butted him. The grievor was
terminated despite nine years of service and a clean record. At paragraph 46 – 47,
Arbitrator Barrett states:
46 This is not the type of behaviour anyone should have to put up with in his
workplace. The Employer has a legal duty to provide a safe, harassment-free
workplace. It can't permit the type of behaviour Mr. Caroselli engaged in on
August 9th. If it has appeared to condone it in the past with light penalties, it is
time to stop. The Company recognized this fact with the introduction of the code
of conduct in August 2000. While termination is not intended to be the only
penalty for acts of harassment and violence, it is most probably the penalty. Each
case must be decided on its own facts.
- 27 -
47 If I exercised my remedial jurisdiction in this case to impose a lesser penalty
than discharge for Mr. Caroselli, I would be re-introducing into the workplace a
man who plays by his own rules, lies when it suits him, and uses his size,
strength and Union status to intimidate others. That would be unfair to the
Employer and to the other employees. I find that Mr. Caroselli was justly
terminated. The grievance is dismissed.
[82] The Employer argues no one should have to put up with this type of violence in the
workplace and, if Mr. Martinez were to be returned to work, a man who lies and
intimidates others so violence won’t be reported would be re-introduced to the workforce
and that would be unfair to the customers and other employees.
[83] The Employer relies on Walker Exhausts v. U.S.W., Local 2894, 2012 CarswellOnt
9298, for the importance placed on an apology:
25 One of the factors arbitrators consider in cases of this sort is whether the
grievor has expressed remorse for his misconduct to those adversely affected
by it and, if so, how promptly and apparently genuinely that was done. One
looks for recognition by the grievor that his wrongdoing has adversely affected
others as well as himself and that he has some concern about, or at least
understanding of, the impact it had on those others. Implicit in this is a rational
belief that early and genuine expression of remorse for his wrongdoing is some
evidence that a penchant for such wrongdoing is not characteristic of the
grievor.
26 A failure to apologize or otherwise express remorse is not fatal to a plea for a
lesser penalty, but it weighs against it. In this case I am left puzzled why the
grievor made no effort in this regard, directly or indirectly, not even at the
hearing. I am also troubled by the absence of any explanation by the grievor of
his aggressive approaches to his supervisor, any specific acknowledgement
that that conduct and the glove throwing were wrong and, perhaps most
importantly, any evidence that he understands why they were wrong.
[84] The Employer relies on Serco Canada Inc. and USW, Local 9511 (Clough-Steele), 2020
CarswellOnt 12456 (Luborsky) for the following statement of principles that apply to
someone who is working in the service industry:
21 The arbitration awards referred to by the parties, indicate that even in the
face of extreme rudeness by a customer, a person working as a customer
service agent (or comparable position) in retail or a service environment is
expected to act professionally by appropriately diffusing situations of conflict
that can otherwise spiral out of control resulting in danger to the employee and
bystanders. An employee's failure to satisfy that expectation typically results in
some form of discipline, the severity of which depends upon all of the
surrounding circumstances that may include termination.
22 But it is also clear from the arbitral jurisprudence that in order to reduce the
penalty or reinstate a customer service agent to his or her position, sometimes
even with compensation, the evidence must show that the employee has
recognized the seriousness of his or her misconduct to support the conclusion
- 28 -
that the employee is unlikely to reoffend if returned to working with the public,
leading to the redemption of the employment relationship.
[85] The Employer argues it is clear from the jurisprudence that to reinstate a customer
service representative “the evidence must show that the employee has recognized the
seriousness of their misconduct.” The Employer submits that it is important to note, at
the point Mr. Martinez initiated contact with the suspect, nothing had been stolen; the
suspect had not passed the cash desks. Mr. Martinez had recently received training on
the Shop Theft Policy and there is security stationed after the point of sale.
[86] In Toronto Transit Commission v. A.T.U., Local 113, 2006 CarswellOnt 5324 (Johnston)
a streetcar driver had an altercation with a customer and was terminated as a result. At
arbitration, after considering that the grievor faced extreme provocation; it was not a
calculated or premeditated attack but a response to an attack by another and the
grievor suffered economic hardship he was reinstated. The Employer submits none of
the mitigating factors at play in Toronto Transit Commission (Johnston) are present in
this case.
[87] In Toronto Transit Commission v. A.T.U., 2009 CarswellOnt 3814, (Shime) a driver
allowed the doors to close on a customer and he was terminated as a result. At
arbitration, discharge was upheld. The Employer relies on this case for the Arbitrator’s
finding, at paragraph 71: “There is a high standard expected of persons who are
employed to serve the public.” The Arbitrator further finds the grievor was clearly
angered by the customer rushing the doors and noted, rushing the doors was not an
unusual occurrence, and was one in which the grievor was trained to properly deal with.
The Employer submits the facts of the current matter are analogous; Mr. Martinez was
angered by someone who was trying to steal, which is not an unusual occurrence in
retail, and he was trained on how to properly deal with it. The Employer further relies on
the Arbitrator’s finding at paragraph 73: “I also find that this type of conduct, given the
nature of the Commission’s operations, must be dealt with in a manner that deters
similar unsafe and unprofessional conduct by other employees.” The Employer submits
it is important that there be a strong message of deterrence.
[88] Via Rail Canada and UNIFOR 2014 CanLII 41694 (CALA) (Picher) is relied upon by the
Employer for the Arbitrator’s finding, at page 6: “in a service industry it is difficult to
imagine a more egregious form of misconduct than the assault of a customer” and at
page 7: “It is difficult to imagine a course of conduct more calculated to undermine the
Corporation’s image and goodwill with the public.” The Employer submits it is an
important consideration that Mr. Martinez was a Customer Service Representative who
the cases say is to be held to a high standard and his actions were an assault on a
customer.
[89] Brampton (City) v. Canadian Union of Public Employees (Davis Grievance) 2019
CarswellOnt 21155 (Newman) involved the termination of an employee for an act of
violence towards a patron. The grievor was reinstated. The Employer points to the
Arbitrator’s statement at paragraph 58, “where there is a dishonest account of a violent
incident, and no acceptance of responsibility on the part of the perpetrator, termination
will be an appropriate response.” In addition, the Employer points to paragraph 59
- 29 -
where the fact that the grievor exposed the City to public ire and to liability was cited as
a significant factor that would have supported the decision to terminate. At paragraph
76, Arbitrator Newman states:
76 The analysis, since the amendment to the Occupational Health and Safety
Act, R.S.O. 1990, Chapter 0.1, Part III.O.1, that was intended to prevent
workplace violence, must include consideration of the obligation upon an
Employer to ensure that the workplace will be safe for all employees. The
likelihood of reoccurrence, and the Employer's ability to maintain a safe
workplace, is a critical factor to be considered in any case in which the reason for
the discipline is an act of workplace violence, as in this case. The employment
relationship will not be considered reparable if the offending employee is likely to
render the employer incapable of fulfilling its obligation to provide a safe
workplace.
…
78 The case comes down to the question of whether this employment
relationship is capable of repair. That depends upon the grievor's acceptance of
responsibility for the misconduct, and the degree to which he can satisfy this
Board that he will not repeat this misconduct.
[90] The Employer asserts that the most important factor when determining whether the
employment relationship was capable of repair was the grievor’s acceptance of his
responsibility for the misconduct. In the instant matter, Mr. Martinez, has not accepted
responsibility for his conduct and hence the employment relationship is not capable of
repair. Mr. Martinez’s statement that he would not make contact with a shop theft
suspect in the course of his testimony comes far too late and it always comes with a
caveat. Mr. Martinez continues to say he was simply helping Suspect 1 because he
was falling and lied to his manager about what occurred.
[91] The Employer relies on the following cases for the importance of genuine remorse being
expressed by an employee who has committed an act of workplace violence: Humber
River Regional Hospital v. Ontario Workers Union (Ghrairi Grievance), 2013
CarswellOnt 13854 (Herman); Ontario Public Service Employees Union v. Ontario
(Liquor Control Board of Ontario), [2008] O.G.S.B.A. No 227 (Watters); Grand & Toy
and U.S.W.A., Local 9197, 1997 CarswellOnt 6480 (Solomentenko).
[92] Mr. Martinez received extensive training that specifically directed him to avoid physical
confrontation. Mr. Martinez did not follow his training, boasts about the encounter,
shows the video to several coworkers while delivering the message that they should
remain quiet about the incident. Mr. Martinez then makes time to meet with the Store
Manager the following day and lies about the incident claiming he was only helping the
individual. When investigated, he offers no apology or accountability, no commitment to
reform or act differently. Mr. Martinez didn't see the seriousness of his misconduct
during that meeting, instead, he bragged about stopping two black guys. The Employer
submits he failed to show any genuine remorse because he still doesn't admit to what's
clearly on the video. He maintains that he was trying to help the individual from falling
and it was his evidence when asked what he would do differently if he were to be
reinstated and encountered a shop theft suspect in the future, he said “I wouldn't touch
- 30 -
him, I would let him fall and we would have another issue to deal with.” The case law
provided supports the Employers submission that discharge should be upheld in this
instance.
The Union’s Submissions
[93] The Union rightfully acknowledges that discipline is warranted in the circumstances but
argues that discharge is too severe. The Union points to the grievor’s 20 years of
discipline-free service as a strong indicator that the incident was an aberration and
would not happen again.
[94] The Union submits, Mr. Martinez did not approach the suspects with the intent of
stopping them from stealing; had such been his intention, he easily could have stopped
the suspects when they passed him in the product aisle immediately after placing the
bottles in their bag. But he didn’t, he conducted himself completely in keeping with the
Shop Theft Policy by speaking to them and asking them if they wanted a basket.
Suspect 1 was a slender man who was intoxicated. He was carrying a bag full of heavy
bottles. When Mr. Martinez saw Suspect 1 begin to stumble, in a split second, he made
an honest error in judgement and reached out to help him. He grabbed the bag with
one hand and placed the other hand on the Suspect’s back. The man pulled back on
the bag and told Mr. Martinez to let go. Mr. Martinez did not let go of the bag and, it is
at that point, an altercation began.
[95] The LCBO has raised the factors set out in Dominion Glass Co. supra. The Union
responds to the application of those factors as follows. The target of the incident was
not someone Mr. Martinez would have contact with if he were to be returned to work. It
is highly unlikely Mr. Martinez will encounter the suspects again. While it is true the
incident involved a customer, and thus goes to the core of the Employer’s business, he
was motivated by a desire to help. While the incident could have led to a serious injury,
it did not. Suspect 1 left the premises without injury and no criminal charges were laid
or civil actions commenced. The Union argues a discharge case cannot turn on the
ghost of “what might have been.” The box cutter adds a serious element to the incident,
but the blade was retracted, Mr. Martinez did not have it in his hand with an intention to
inflict injury and, but for Mr. Martinez’s own candour, the presence of the box cutter
would not be known.
[96] Mr. Martinez has a clean disciplinary record that can be used as a track record from
which to judge the likeliness of further violations of this kind. His record supports a
finding he can be reformed and returned to work. Mr. Martinez has over 20 years of
service and has received positive performance ratings. He has built a considerable
bank of trust with this Employer. The Union argues the length of Mr. Martinez’s service
is the most important factor to be considered.
[97] Mr. Martinez is the sole provider for his wife, two children and mother. Mr. Martinez will
not be able to find another part-time job that he will be able to do in combination with his
full-time job at CPC. The fact that he has considerable seniority at this Employer allows
him to use that seniority to get the hours that fit with his job at CPC.
- 31 -
[98] The Union does not contest that Mr. Martinez’s recognition of wrongdoing came late,
but he testified he knows what he did was wrong and if he were presented with the
same situation today, he would not make contact with a shop theft suspect. He testified
that this is not how he wanted things to happen; it was not his intention to get into a fight
with the suspect. He's willing to amend his behavior and he understands with crystal
clarity what is expected of him should you return him to work. Concerning his conduct
at the investigation meeting, the Union states he attended the meeting after having
worked a full shift at Canada Post. He was frustrated by not having received the letter
from the Employer.
[99] The Union submits this was a momentary flareup with no premeditation. Mr. Martinez
did not intend to have an altercation with Suspect 1. Suspect 1 was intoxicated and
carrying heavy bottles of liquor. The Union submits it is not outside the realm of
possibility that Suspect 1 was stumbling back into Mr. Martinez and Mr. Martinez was
simply trying to stabilize the man. There was no provocation.
[100] The Union disputes the picture painted by the Employer of Mr. Martinez being a loose
cannon who was intent on stopping the shop theft. Mr. Martinez has maintained
throughout that he did not intend to make contact with the suspects. The Union
disputes the Employer’s submission that Mr. Martinez took the box cutter out of his
pocket as he was walking towards the suspects at the front of the store. The Union
submits he had the box cutter in his hand throughout as it had been his intention to
return to his work of opening boxes and stocking shelves. The Union submits the box
cutter being in Mr. Martinez’s hand is indicative of split-second reaction as opposed to
premeditation.
[101] The Union suggests that the Employer could have established the facts of this matter
more solidly by calling the security guard and Andrea as witnesses as they were both
present and could have helped us determine what truly happened. It is not implausible
that Suspect 1 stumbled and Mr. Martinez was trying to stabilize him, and the security
guard and Andrea may have been able to shed light on that issue.
[102] Concerning the witness statements, the Union notes that the statements do not align on
all points. Comments attributed to Mr. Martinez vary from statement to statement.
Each of the three people Mr. Martinez showed the video to after the event gave a
different accounting of what was said. The Union disputes Mr. Martinez was being
boastful or bragging.
[103] The Union relies on the fact that Robin was given a 3-day suspension for a violation of
the shop theft policy. The Union does not suggest that Mr. Martinez should have
received a 3-day suspension but argues there was a serious possibility of harm in the
other case and termination did not result. Hence, the possibility of serious risk does not
automatically result in discharge.
[104] Dominion Glass, supra, stated that, while a serious offence, discharge is not the only
alternative when an employee commits an act of violence in the workplace.
- 32 -
[105] In Toronto Parking Authority, supra, a grievor with 20 years of service who stabbed a
co-worker with keys was reinstated. The incident was found to be a momentary flareup
for which the grievor had apologized. The grievor had been unable to find re-
employment and suffered significant financial hardship. The Union argues that, even in
a case involving bloodshed, there is still room to examine the factors and determine if
the employment relationship can be safely re-established.
[106] The Union relies on Toronto Transit Commission (E.M.), supra, for the following
statement at page 23:
Not every act of workplace violence leads to automatic discharge. Even with the
passage of Bill 168 upon which the employer relies arbitrators must continue to
consider and balance various factors in assessing the appropriateness of
discipline imposed upon an employee who has committed an act of violence in
the workplace. Workplace violence and harassment policies should not
automatically be deemed to be zero tolerance policies so that any infraction will
automatically lead to dismissal.
[107] The Union submits it cannot be found that discharge is appropriate without a thorough
canvassing of the factors to determine if the restoration of the employment relationship
is possible.
[108] The Union relies on City of Brampton, supra, wherein an employee with 19 years of
service and a clear disciplinary record assaulted a 14-year-old patron and was
reinstated. At paragraph 59, Arbitrator Newman refers to the jurisdiction granted to
arbitrators pursuant to section 48(17) of the Labour Relations Act, 1995, to exercise
their discretion to substitute a lesser penalty where it seems just and reasonable to do
so. She goes on the state that the granting of such jurisdiction imposes an obligation on
the arbitrator to carefully examine all the circumstances on a case-by-case basis, and to
exercise the discretion granted in a manner that is determined by the facts. Arbitrator
Newman further states: “Not every case of workplace violence must automatically result
in termination. The key question in such a case, as referred to in the Toronto Transit
Commission case, is whether the employment relationship is reparable.”
[109] The Union submits, on the facts of this case, the relationship is reparable and asks that
Mr. Martinez be returned to work.
Decision
[110] Regrettably, there are several instances where I find Mr. Martinez to have been untruthful
during the course of his testimony.
[111] Mr. Martinez testified, at the point he initiated contact with Suspect 1, he did not know if
Suspect 1 intended to shop lift as he had not yet passed the point of sale. According to
Mr. Martinez, Suspect 2 had put the bottle he was holding down on the counter as he
passed the point of sale, leading Mr. Martinez to believe Suspect 1 would do the same.
Mr. Martinez offers this information to support a finding he did not act out of a desire to
stop shop lifting but rather to come to the aid of Suspect 1. I find this evidence
- 33 -
disingenuous. First, frame 48 of the video shows Mr. Martinez grabbing Suspect 1 before
Suspect 2 puts the bottle down. Further, Cassandra went to Mr. Martinez because she
suspected the men were going to shop lift. Mr. Martinez went and spoke to them for that
very reason. He saw the men putting product into their own bag and then heading to the
front of the store. He followed them for the purpose of observing them. The men were
standing proximate to the open aisle between the two registers. All signs suggested they
intended to shop lift. Further, Mr. Martinez grabbed onto the bag and did not let go. He
held onto the bag throughout a 16 second skirmish and continued to hold on to Suspect
1 even after Suspect 1 had let go of the bag. Lastly, the first thing Mr. Martinez said after
the skirmish ended was to the security guard. He said words to the effect that it was the
security guard’s job to stop shoplifting not his. Mr. Martinez’s actions and words are not
consistent with his oral testimony that at the time he first made contact he did not know if
Suspect 1 was going to shop lift. I find that he did believe a shop theft was about to occur.
[112] I also find it incredible that Mr. Martinez first grabbed onto the bag and the back of
Suspect 1’s shirt to be helpful. Mr. Martinez’s evidence on this point alternated between
he was helping Suspect 1 because he was falling, and he was helping Suspect 1
because the bag was dropping. At first Mr. Martinez stressed he needed to grab the
bag because he was concerned the bottles would break and someone could get injured.
Mr. Martinez’s own actions resulted in bottles falling on the floor presenting a danger
and yet, even in the face of that danger, which Mr. Martinez would have us believe he
was trying to prevent, he continued to struggle with Suspect 1. Bottles falling to the
floor were clearly not his concern.
[113] At other times in his evidence, Mr. Martinez explained he grabbed the bag and the back
of Suspect 1’s shirt to stop him from falling. Cassandra, who was the only person to
testify who was an eyewitness to the event, wrote in her statement “Gio stops him from
leaving by grabbed the suspect back.” She testified that Mr. Martinez “grabbed” Suspect
1’s back. Lyn testified that Mr. Martinez told her that he had grabbed the man’s back.
Cassandra and Lyn’s testimony on this point is consistent. I simply cannot accept that
Mr. Martinez would grab a stranger by the shirt to stop him from falling. It simply does
not ring true. It is more probable, as Cassandra wrote in her statement, he grabbed the
shirt of Suspect 1 to stop him from leaving. I find, when Mr. Martinez grabbed the bag
and the shirt of Suspect 1, he was trying to prevent a shop theft.
[114] Mr. Martinez testified that he told Mr. Benarroch about the incident the next day and
included the fact that he had been holding a box cutter. Mr. Benarroch, who is now
retired, testified that Mr. Martinez told him he had assisted a customer who was falling
and made no mention of a box cutter. Lyn testified that when she spoke to Mr.
Benarroch about the incident, he was surprised about the box cutter was not aware of
the seriousness of the incident. Immediately after talking to Lyn and viewing the video,
Mr. Benarroch contacted Mr. Tavares and an investigation was commenced. Lyn’s
evidence supports the evidence of Mr. Benarroch that Mr. Martinez did not tell him
about the box cutter. The fact that Mr. Benarroch did not contact Mr. Tavares after
speaking with Mr. Martinez but did contact Mr. Tavares after speaking to Lyn, is
consistent with his evidence that Mr. Martinez did not tell him about the box cutter. I do
- 34 -
not find Mr. Martinez’s evidence that he told Mr. Benarroch about the box cutter to be
credible. I find he failed to inform Mr. Benarroch of the real nature of the incident.
[115] Mr. Martinez denies that, following the incident, he was boastful or bragging. The notes
from Mr. Tavares’ interview with Cassandra include this comment: “he was talking in a
way as if he was protecting everyone a bit cocky.” Mr. Tavares’ notes from his interview
with Lyn indicate she said: “boasting/bragging about it” and “he had a pompous attitude
he was boasting about it” and then later “he wouldn't stop talking about it, talking to
other people off shift about it, boasting bragging about it.” During direct examination
Lyn stated: “I just found his whole attitude really pompous.” The statement written by
Jeanne indicates that Mr. Martinez told her he “pull [sic] a blade (knife) to a person
throat.” Further, Mr. Martinez confirmed notes taken by Shelly McIntyre during the
investigation meeting were accurate. Those notes indicate Mr. Martinez was asked:
“I've been told that after the incident you wouldn't stop talking about it and seemed to be
pompous and boasting about it. What is your response to this?” He responded: “Did I
brag about stopping two black guys from stealing the product yes.” It was only after his
union representative interjected that Mr. Martinez changed his response. Lyn and
Cassandra’s evidence is consistent with one another’s and with Mr. Martinez’s own
response at the investigation meeting. The statement he made at that meeting is clear.
He begins by stating the question: “did I brag about stopping two black guys from
stealing product” and he answers his own question: “yes.” Jeanne’s statement further
suggests Mr. Martinez was bragging about the incident to others. The Union suggests
that Mr. Martinez was simply engaged in “shop talk” but that is clearly not how it was
perceived by those he spoke to and is not consistent with his admission at the
investigation meeting. I do not accept Mr. Martinez evidence that he did not brag about
the incident to other employees. I find that he did.
[116] Mr. Martinez states that he had the box cutter in his hand simply because he had been
opening boxes. The Employer alleges the video shows Mr. Martinez’s hands were
empty when he approached the suspects in the product aisle and Mr. Martinez
retrieving the box cutter from his pocket as he was approaching the suspects at the
front of the store. The video is not sufficiently clear to determine whether Mr. Martinez
always had the box cutter in his hands or to determine if he retrieved it from his pocket.
[117] All three of the individuals who Mr. Martinez showed the video to after the incident wrote
statements that contain a reference to the box cutter and how Mr. Martinez stated he
used it during the altercation. Cassandra’s statement says: “Gio said that he had used a
knife he had in his pocket in self-defence to scare the man because, he said, ‘I'm going
to do something.’” Lyn’s statement says: “He told me that the man said ‘Let go of my
bag or I will fucking kill you.’ Gio said ‘Oh yeah, How do you like this?’ and he preceded
to put his box cutter to the man’s throat.” Finally, Alex’s statement says: “Gio says he
verbally threatened the man, claiming he had a knife (one of the safety knives we are
equipped with) after the thief threatened him from the ground following his fall.” Thus,
immediately after the altercation Mr. Martinez told Alex, Cassandra and Lyn he used the
box cutter to threaten, intimidate and scare Suspect 1. He further told Jeanne the next
day that he had put a knife to a man’s throat. I find that Mr. Martinez used the box
cutter to threaten and intimidate Suspect 1.
- 35 -
[118] Each of Alex, Cassandra and Lyn made a comment to Mr. Tavares that the Employer
relies as evidence that Mr. Martinez tried to intimidate them into not reporting the
incident. The notes of the interview with Cassandra indicate Mr. Martinez said he was
not going to report the incident as he wanted to keep it on the “downlow”. In her
evidence, Cassandra testified she also recalls him saying “we are all in this together.”
Cassandra also testified Mr. Martinez saying the words “I did it to have your back” rings
a bell. The notes of Mr. Tavares’ interview with Lyn, as well as her oral testimony,
indicate Mr. Martinez said he did it “to have their backs” suggesting he was protecting
them. The notes of Mr. Tavares’ interview with Alex, indicate Alex recalls Mr. Martinez
saying: “Don’t worry we are in this together.” While the comments reported by
Cassandra, Lyn and Alex all have a similar ring; I do not find the comments to be
sufficiently clear or consistent to make a finding that Mr. Martinez was trying to
intimidate them into not reporting the incident. While Lyn did testify she did not report
the incident as she was intimidated by Mr. Martinez, I understood her to mean she was
generally intimidated by him as she found him to be a bully.
[119] I find Mr. Martinez grabbed the bag and the shirt of Suspect 1 to prevent a shop theft.
For the next 16 seconds he engaged in a struggle with the man to get the bag out of his
hands. Suspect 1 was agitated, resisted Mr. Martinez’s efforts to get the bag out of his
hands, and verbally threatened Mr. Martinez and yet Mr. Martinez continued to hold
onto the bag. Mr. Martinez next grabbed the man’s shirt collar and held a box cutter to
his throat to threaten and intimidate him. He was proud of having stopped “two black
men” from stealing and bragged about it to his colleagues. He did not report the
incident and misled Mr. Benarroch as to what happened. At the investigation meeting,
which took place after he had viewed the video, he was not contrite or apologetic; nor
did he acknowledge he had done anything wrong.
[120] The Union acknowledges that Mr. Martinez’s recognition of wrongdoing came late, but
submits that Mr. Martinez testified he knows what he did was wrong and if he were
presented with the same situation today, he would not make contact with a shop theft
suspect. He testified that this is not how he wanted things to happen; it was not his
intention to get into a fight with the suspect. He's willing to amend his behavior and he
understands with crystal clarity what is expected of him should he be returned to work.
Concerning his conduct at the investigation meeting, the Union states he attended the
meeting after having worked a full shift at Canada Post. He was frustrated by not having
received the letter from the Employer.
[121] During examination in chief, Mr. Martinez described the reason for his termination
thusly: I was terminated for a violation of the Shop Theft Policy; I touched someone, and
this is why they terminated me.” He held on to his story that he was not trying to stop a
shop theft throughout his testimony. He maintained that he was only trying to prevent
Suspect 1 from falling even in the face of the video evidence to the contrary. When
recounting what he did wrong he stated on a few occasions: “It was a mistake. I would
let him fall if I found myself in this situation again.”
[122] At no point in his evidence did he acknowledge what occurred and accept
accountability. He blamed the store getting “jacked” on the fact that management had
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accepted a late delivery that required the back door to be open at night creating a safety
issue. He criticized the store staffing and indicated he was upset as the store was
understaffed. His demeanour at the investigation meeting was blamed, in part, on the
fact that he was frustrated because he had not received the letter the LCBO had mailed
to him, and he had to get a copy from the Union. Mr. Martinez saw fault with everyone
but himself. Any time he apologized he couched it in a way that signalled he was not
truly sorry and thought the fact that the Employer takes the position that he should have
let the man fall, ridiculous. Never once did Mr. Martinez acknowledge his part in a very
serious incident.
[123] Mr. Martinez’s attitude presents a grave problem. As the cases relied upon by the
Employer indicate misconduct that creates a safety hazard is a significant matter. The
Occupational Health and Safety Act mandates the Employer to take every precaution
reasonable in the circumstances to keep its employees safe. This Employer has
reasonably determined that, if an employee were to try and stop a shop lifter, the safety
of that employee, as well as the safety of other employees and customers, would be
jeopardized. The safety of the employees, being statutorily mandated, outweighs the
recovery of any stolen product. The Policy thus mandates that no steps be taken to
physically stop a shop lifter; employees are to remain out of harm’s way.
[124] Cases that deal with employees who have committed a safety violation stress that the
most important factor when determining whether to return the employee to work is
whether the individual has taken responsibility for their actions, understands that what
they did was wrong, and has committed, unconditionally, to not committing the safety
violation again. Absent such acknowledgment and commitment, an obvious risk exists
that the employee will commit the violation again; putting other employees and
customers at risk. Such an individual cannot be returned to work.
[125] The Employer thoroughly reviewed the case law in this area in its submissions
summarized above thus I will be brief. As far back as 1975, when Arbitrator Linden
wrote Dominion Glass, supra, an apology was a factor to be considered. Since
Dominion Glass, the importance of workplace safety has taken on enhanced importance
and focus. Worthington Cylinders, supra, contains an excellent summary of principles
applicable to cases involving violence in the workplace. The second principle states
that the critical issues for determination are whether the act was malicious, deliberate or
premeditated; whether it was a momentary flare-up in response to provocation; and
whether the grievor has expressed genuine remorse. In this case, I have found the act
to be deliberate, there was no provocation and the grievor has not expressed genuine
remorse. The fourth principle expressed in Worthington Cylinders is that acts of
violence that seem impulsive but were not provoked, may result in termination being
upheld “particularly in the absence of genuine remorse, because of the lack of
assurance that the misconduct will not be repeated after reinstatement.”
[126] Walker Exhausts, supra, similarly provides that one of the factors to consider in cases
involving violence is the expression of remorse:
One of the factors arbitrators consider in cases of this sort is whether the grievor
has expressed remorse for his misconduct to those adversely affected and by it
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and, if so, how promptly and apparently genuinely that was done. One looks for
recognition by the grievor that his wrongdoing has adversely affected others as
well as himself and that he has some concern about, or at least understanding of,
the impact it had on those others. Implicit in this is a rational belief that early and
genuine expression of remorse for his wrongdoing is some evidence that a
penchant for such wrongdoing is not characteristic of the grievor.
And further in Serco Canada Inc. supra:
But it is also clear from the arbitral jurisprudence that in order to reduce the
penalty or reinstate a customer service agent to his or her position, sometimes
even with compensation, the evidence must show that the employee has
recognized the seriousness of his or her misconduct to support the conclusion
that the employee is unlikely to reoffend if returned to working with the public,
leading to the redemption of the employment relationship.
And similarly in Brampton (City), supra:
76 The analysis, since the amendment to the Occupational Health and Safety
Act, RSO. 1990, Chapter 0. 1, Part III.0.1, that was intended to prevent workplace
violence, must include consideration of the obligation on the employer to ensure
that the workplace will be safe for all of its employees. The likelihood of
recurrence, and the Employer’s ability to maintain a safe workplace, is a critical
factor to be considered in any case in which the reason for discipline is an act of
workplace violence, as in this case. The employment relationship will not be
considered reparable if the offending employee is likely to render the employer
incapable of fulfilling its obligation to provide a safe workspace
…
78 The case comes down to the question of whether this employment
relationship is capable of repair that depends upon the grievor’s acceptance of
responsibility for the misconduct and the degree to which he can satisfy this
Board that he will not repeat this misconduct
[127] This is not to say that mitigating factors ought not to be considered. It is relevant that
Mr. Martinez has 20 years of discipline-free service with the LCBO as a casual
employee. He has built up a considerable amount of trust equity. The fact that he has
not engaged in similar behaviour for over 20 years certainly weighs heavily in his favour.
I do not find that the financial hardship suffered from the termination to be a mitigating
factor. Mr. Martinez has a full-time job elsewhere with a pension and benefits. He had
restricted his availability to work at the LCBO below the minimum requirements that
generally apply. There is no evidence of economic harm suffered by Mr. Martinez
following his termination.
[128] I have a very real concern about returning Mr. Martinez to work. He maintained, over
the past three years, a story as to what occurred that I have found to be untrue. During
the hearing, he insisted his wrongdoing was touching someone to prevent them from
falling. He lied to his manager, was disrespectful at the investigation meeting, and he is
described by a co-worker as a bully. During his testimony he directed the blame at the
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Employer for accepting a late delivery and understaffing the store. He couched his
commitment not to touch a shop lifter again with the caveat: “I would let them fall and
that would lead to another issue.” Mr. Martinez has not taken responsibility for what
occurred. He has expressed no true understanding of the reasons behind the Policy.
He does not seem to recognize the danger his conduct created to himself, his co-
workers or customers.
[129] The Union mounted a skilled defence on behalf of Mr. Martinez as well as a well-
constructed and thoughtful argument. Mr. Martinez was well represented in this matter.
He alone is responsible for the outcome. It is very difficult to uphold the termination of a
20-year employee with a clean record. However, the safety of the workplace is very
important. Employees are entitled to be able to attend at work confident that their fellow
employees will uphold the Employer’s safety policies and not act to put them in danger.
Mr. Martinez did not give me those assurances.
[130] The grievance is dismissed.
Dated at Toronto, Ontario this 27th day of May 2022.
“Diane Gee”
_________________
Diane Gee, Arbitrator