HomeMy WebLinkAboutStanton 11-10-26IN THE MATTER OF ANARBITRATION
B E T W E E N:
COMPASS GROUP CANADA (BEAVER) LTD.
AT HURON COLLEGE (FOOD SERVICE)
(the Company)
³´
-and-
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
ON BEHALF OF ITS LOCAL 144
(the Union)
³´
AND IN THE MATTER OFTHE
GRIEVANCE OF WILLIAM (BILL) STANTON
OPSEU #2010-0144-0019
Randy L. Levinson
Arbitrator:
Michael P.Fitzgibbon-Counsel
For the Company:
Kate Dearden-Counsel
Julia Simpson-Senior Manager Labour Relations
Maria Jorgensen-AssistantManager
Sharon Gordon-Food Services Director
Mihad Fahmy-Counsel
For the Union:
Gwen George-Local Steward
Bill Stanton-Grievor
Introduction
1.On January26, 1998, Bill Stanton commenced employment with the
Company.By letter dated November 30, 2010 ³1RYHPEHU´
, his employment was
terminated.The stated reason was his failure to follow proper company policy, and his
involvement in theunauthorized removal of company products. At the time of his
termination, Mr.Stanton was employed as a Cook 1.There is no dispute thatMr.
Stantonengaged in culpable misconduct.Theonly issue is whether it is just and
reasonable in all the circumstances to substitute another penalty for the discharge. The
parties made submissions in support of their respective positions about whether I should
exercise my discretion to do so. ,ZLOOEULHIO\VXPPDUL]HWKHWKUXVWRIWKHSDUWLHV¶
submissions.
2.,QVXSSRUWRIVXVWDLQLQJ0U6WDQWRQ¶VGLVFKDUJHWKH&RPSDQ\VXEPLWWHG
that he engaged in serious premeditated misconduct, that he tried to resile from his
admission at the investigative meeting that he had engaged in theft of Company product,
and that he did not accept full responsibility for his actions,QVXSSRUWRI0U6WDQWRQ¶V
UHLQVWDWHPHQWWKH8QLRQVXEPLWWHGWKDWFRQVLGHUDWLRQPXVWEHJLYHQWR0U6WDQWRQ¶V
motivation for acting as he did, the spur-of-the-moment nature of his actions, his frank
acknowledgment of wrongdoing, the humiliation and embarrassment of returning to
work, his years of service, his past record, and his economic circumstances. Having
consideredthe evidence adduced, and the parties¶submissions,Iam compelled to
concludethat it isnot just and reasonable in all the circumstances to substitute another
penalty for the dischargeandtoreinstate Mr.Stanton.
2
Thefacts
3.The case proceededbyan agreed statement of fact and twowitnesses
testified.The Company called Maria Jorgensen, Assistant Managerand the Union called
Mr. Stanton. TheCompanycarries on business as a food services provider operating a
residential dining hall that services the faculty and students at Huron College of the
Universit\RI:HVWHUQ2QWDULRLQ/RQGRQ2QWDULR ³+XURQ&ROOHJH´RUWKH³'LQLQJ
+DOO´
TheCompanyoperates a service line selling hot meals, grill, stir-fry, pizza,
salads, deli, and beverage and breakfast area.At all times relevant to the grievance, the
Companyemployed approximately 17 full-time employees at the Huron College
location.TheCompanyalso employs three non-unionized employees working at Huron
College,namely the Food Service Director (working Monday to Friday, starting at 7:15
a.m.), Chef Manager(working Monday to Friday, from 11 a.m.until 8:30 p.m.) and
Assistant Manager (working Monday to Friday, from 8:00 until 5:30 p.m.).
4.Employees in the bargaining unit hold a variety of positions,including two
Cook 1 (the highest rated classification and responsible for preparation and production
of lunch or production of dinner depending on the shift worked),four Cook 2, one
cleanerandone shipper/receiver. The balanceare employed as food service attendants.
The days and hours of operation of the food court at Huron College are Monday to
Thursday from 7:30 a.m.until 8:00 p.m., Friday from 7:30 a.m.until 7:00 p.m., and
Saturday and Sunday from 10:00 a.m.until 7:00 p.m.
5.The business conducted at Huron College is cyclical,andistied to the
academic calendar.As such, employees are laidoff and recalled throughout the year.
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Employees do not work 12 months in any year.In a typical year, and as a general
comment, employees are laid off at the latest on April 30 and remain on lay-off through
the summer (save for some opportunities for work being offered through the summer for
conferences, camps, seminars and other events).Employees are recalled on the Thursday
prior to Labour Day for an orientation and training session.Employees are recalled on or
about Labour Day and work until Christmas,when they are laid off.They are recalled in
January and work through to reading week in February,and are recalled at the end of
reading week and workthrough to the end of April.
6.Perishable and non-perishable food is ordered by the Companyand stored
on site in a one of four walk-in fridges and a walk-in freezer.These are locked and are
opened at the start of the day (6:00 a.m.) by a Cook 2 (baker and breakfast cook) and are
left unlocked throughout the day.Only employees have access to the fridges and freezer.
The Cooks will retrieve the product from the fridges based upon the menu.The product
is brought to the food preparation area and used in the preparation of predetermined
menu items and sold to customers for cash or as part ofa pre-paid meal plan,with a
declining balance meal card.
7.TheCompanymaintains various policies,including the Compass Group
Canada Food/Beverage Policy effective May 8, 2010 and Associate Guidelines.Mr.
Stanton attended at the September 2010 orientation and was aware of these policies,
including that he was not to remove any company or client property from the work
premises,without the written authorization of the manager.
8.Theevents giving rise to the dischargeare as follows. Mr. Stanton was
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scheduled to work on Monday, November 29, 2010 ³1RYHPEHU ´
from 7:30 a.m.
until 4:00 p.m. The only supervisor on duty prior to 8:00 a.m.that day wasSharon
.
Gordon,theCompany¶s Food Services Director at Huron CollegeAccording to Mr.
Stanton, he arrived at work around 7:30a.m.As he was in the change room, he testified
that he received a phone call from his wife. Mr. Stantonis married. He has two step-
children. They are four and seven. They attendkindergartenand grade two.According to
Mr. Stanton, his wife told him that the biological father of his two step-children dropped
themoff in the morningwithouttheir lunch, which he is supposed to provide. The
biologicalfather drives atruck,and would not returnuntil Thursday. Mr.and Mrs.
Stantonprovide othernecessariesfor the children.Mr. Stanton described his wife as
being upset and not knowing what to do. Mr. Stanton testified that theydid not have
³lunch stuff´for the week, as they had just paid the rent and thebills. They had food, but
he did not consider it appropriate for the children. Mr. Stanton testified that he literally
had a couple of dollars in his bank account.At that time, Mrs. Stanton was off work on
maternity leave. Mr. Stanton further testified that he called the Company¶s EAP line the
previous day because of their financial difficulties. He was told to get a bank loan. Mr.
Stantondid not consider it practical, and believed that it would set him further behind.
9.After Mr. Stanton got off the phone with his wife, he turned to go back to
work. He thought about what he was going to do,and what would happen with the
children.In what he characterized as a lapse of judgment or desperation,Mr. Stanton
went into the fridgeand grabbed some salami and cheese. At the hearing, he pointed out
that the salami was the slowest selling meat item. Mr. Stanton put the salami and cheese
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into a cardboard box. It is a normal part of his job to take out cardboard torecycle. At
approximately 8:00 a.m.,Ms.Jorgensen, Assistant Managerwas being dropped off for
work by her daughters Jennifer and Melissa (who are also employed by the Companyat
Huron College) in the parkinglot beside the Huron College Dining Hall. At 8:00 a.m.,
Ms. Jorgensen¶sshift commences. Her daughter, Jennifer had been involved in a car
accident,and was driving a rental vehicle,pending repairs to her car. Ms. Jorgensen,
Jennifer and Melissa saw Mr.Stanton exit the back door of the Dining Hall with broken
down cardboard boxes in his hands,as well as with a box that was not broken down. Mr.
Stanton made his way to the cardboard recycle bin that was located a short distance
away from the exit from thebuilding. Mr.Stanton tossed the broken down cardboard
into the bin, then walked over to an unused wooden shed located about 10 feet away
from the cardboard recycle bin and entered the shed.In contradicting the agreed
statement of facts, Mr. Stanton testified that as he took the product to the shed, he saw
Ms. Jorgensen and her daughters, but continued doing what he was doing, although he
did not know why at the time. Thinking back, Mr. Stanton said it may have been that he
wanted to get caught, so he could get help.
10.The Jorgensens observed Mr.Stanton carrying a cardboard box that had
not been broken down and enter into the shed carrying the box. At the hearing, Mr.
Stantontestified about what he was thinking, when he took the product outside tothe
shed.According to Mr. Stanton, he was unsure what he was going to dowith the salami
and cheese. Several options were in his head. He testified that the possibility of theft was
³definitely there´, which he could not deny. Hewas also considering talking to a
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managerlater and discreetlypointingout what was there,and asking if he could take it,
andreimburse afterwards, or just leave itand notreturn it to the fridge. He testified he
was scared,andthat he really was not sure what he was going todo.In cross-
examination, Mr. Fitzgibbon challenged Mr. Stanton on this testimony. He put to Mr.
Stanton that he chose to steal. Mr. Stanton replied that his choice was to set the product
aside, that he had not resolved on what action 100% at that point, and that theft was a
possibility he was going to consider.
11.Mr.Stanton was in the shed for a brief period and was observed by Ms.
Jorgensen, Jennifer and Melissa exiting the shed without the box.At this time, Mr.
Stanton noticed the Jorgensens in the parked car that was located some 10 feet away
from the shed, and he walked over to the car. He appeared to the Jorgensens to be
QHUYRXVDQGVDLG³+DSS\0RQGD\´Ms. Jorgensen said that it would only be a happy
Monday if all staff showed up and Mr.6WDQWRQUHVSRQGHGZLWK³EUUUUULW¶VFROG´DQG
returned to the Dining Hall through the back door.Hecontinued working.
12.Ms.Jorgensenimmediately got out of the car, went into the shed and
located the box underneath anold wooden desk that had been stored in the shed.She
opened the box and saw that it contained an unopened package of salami and two
unopened packages ofreal cheddar cheese.These products are stored in fridge 3.The
product is used to make sandwiches and other prepared foods in the restaurant for sale to
customers.Ms.Jorgensen showed the box and the contents to Jennifer and Melissa.Ms.
Jorgensenclosed the box, walked around the front of the Dining Hall and went straight
to the office to locate her supervisor, Ms.Gordon.
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13.Ms.Gordon and Ms.Jorgensen went into the office, closed the door, and
opened the box that she had retrieved from the shed.They discussed what had transpired
andMs.Jorgensen took a photograph of the product, which was observed as being in
SHUIHFWFRQGLWLRQVDODEOHDQGQRWSDVWWKH³EHVWEHIRUH´GDWHThe cost of the product that
had been removed from the workplace by Stanton was $7.01 for the salami and $4.84
per package for the cheese (2 packages = $9.68).The total cost of the product was
$16.69.The removed product would have been incorporated into sandwiches and other
prepared meals and sold to customers.The total projected lost sales resulting from the
theft of product was $197.79. The product that Mr.Stanton removed from the workplace
could no longer be used by the Companyor sold to customers,as it had been outside of
the premises and was therefore thrown out and discarded.
14.A couple of hours later, theCompanyconvened a meeting in the office
withMr.Stanton and his Union Representative, Gwen George to discuss the events
described above.When confronted, Mr.Stanton denied any knowledge of the events and
denied having stolen Companyproduct.TheCompanyinformed Mr. Stanton that, based
on the information it had, he had the option of either being terminated for cause or resign
his employment.Ms.George asked to speak with Mr.Stanton alone,and the Company
gave them permission to do so.They went to the Food Court, and returned to the
meeting after about 10 to 15 minutes.Upon his return to the meeting, Mr.Stanton
admitted to taking the product without permission and acknowledged that he had
engaged in theft of Companyproduct.He explained that the biological father of his two
step-children had not paid childsupport, and that he needed food for the kids¶lunches.
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TheCompanyasked if he had thought of calling the employee assistance number, and
Mr.Stanton responded that he had done so on other occasions, but that it was not
helpful.
15.Mr.Stantonproposed that he receive a 10-day suspension and 2 months
probation.TheCompanyadvised that it would investigate,but that it was not optimistic
thatitwould provide him with anything other than the option of resigning or being
terminated for cause.The Companycommitted to get back to him that afternoon.Ms.
Gordon contacted Mr.Stanton on the afternoon of November 29 to inform him that the
Companywas not prepared to entertain any other options regarding the disposition of his
employment, but that he could resign or be terminated for just cause.On the morning of
November 30, Mr.Stanton informed the Companythat he was not prepared to resign.
TheCompanythen issued the termination letter. At the time of his discharge, Mr.
Stanton had a disciplinary record consisting of a warning dated November 18, 2010for
work performance related issues.At the hearing, Mr. Stanton testified that he lost control
out of desperation.He said he was sorry for what he did, he was deeply regretful,and
thathewanted another opportunity to do his best and rebuild the trust with the
Company.He offered to repay the Company for the total cost of the product of $16.69.
Hedid not offer to repay the Company for the total projected lost sales of $197.79
resulting from the theft of product.Mr. Stanton has not found work since his
termination.
9
The decision
16.In the present circumstances, Mr. Stanton has engagedin serious
misconduct that calls into question his trustworthiness, a foundational cornerstone for a
continuing employment relationship. His misconduct arises in an employment context
where supervision is limited at times.At all material points in time, Mr. Stanton was not
operatingunderany true misapprehension about the impropriety and seriousness of his
actions. His conduct had elements of impulse and premeditation. Objectively, it seems
evident that his decision to steal Company product was triggeredby the phone call from
hiswife,advising that the children were dropped off in the morning without their lunch,
and that their biological father would not return until Thursday. As I understand it, this
arose in circumstances where the family did not have ³OXQFKVWXII´IRUWKHZHHNor food
that Mr. Stanton considered to be appropriate for the children, andMr. Stanton had a
couple of dollars in his bank account.After that, Mr. Stanton¶s actions had the hallmarks
of calculation and premeditation. He carefully gathered the ³VORZPRYLQJ´salami and
cheese. He concealed the productin a box. He tookthat box outside with broken down
cardboard boxes in his hands. He tossed the broken down cardboard into the recycle bin,
then went to the shed, and put the box of product underneath an old wooden desk.
17.Regrettably, Mr. Stanton at the hearing tried to downplay his culpability
and the seriousness of his misconduct,on a recurring basis. In totality, hisrepeated
attempts to do so undermine and outweigh any positive inferences about his
rehabilitative potential that one could possibly draw from the factorsthe Union relied
uponin its submissions,on a principled basis.0U6WDQWRQ¶Vrepeated attempts to
10
downplay his culpability and the seriousness of his misconduct tip the scales against
reinstatement. They do so, given their negative impact on his rehabilitative potential, and
having regard to the serious nature of his misconduct, tothe level of supervision,and to
the attendant need for deterrence at this workplace.
18.Acore issue involves the assessment of Mr. Stanton¶s rehabilitative
potential. In doing so, one must first carefully examinethe veracity of Mr. Stanton¶s
stated motivation for his actions.This involves looking beyond Mr. Stanton¶s words.
One must consider these words in the objective context of the actual situation thathe
was facing. Upon objective review, I find 0U6WDQWRQ¶Vtestimony to the effect that he
was acting out of desperation to strain credulity. As I understand it, Mr. Stanton¶s stated
motivation wasbasedontheostensible urgency of what I will call family need.
However,I find that Mr. Stanton overstatedthe urgency of the actual situation that he
was facing. The stated urgency would not befor the entire week, as he asserted. Rather,
theimmediate and real concern would be lunch for the children for the following day
only. After that,the need to provide lunch for the children would arise daily.After
speaking with his wife onthe morning of November 29,Mr. Stanton had the rest of the
day to tryto find a solution to providing lunch for the children for the following day.
However, from the outset, Mr. Stanton did not make any effort to inquire about other
possible sources of providing foodfor lunch, such as food or money from family,or
from neighbours. Nor was there any apparent discussion with Mrs. Stanton about
canvassing such alternatives, and about her makingsuch inquiries on the family¶s behalf
duringthe day.
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19.After initially denying that he stole the product atthe investigative meeting
on November 29, Mr. Stanton admitted to taking the product without permission and
acknowledged that he had engaged in theft of Company product, at that meeting. At the
hearing, Mr. Stanton said he was sorry for what he did, he was deeply regretful,and that
he wanted another opportunity to do his best and rebuild the trust with the Company.
However, the probative value of this testimony in support of establishing the necessary
foundation of sufficient rehabilitative prospects must be viewed in its full and proper
context, and is undermined by the following evidence.
20.At the hearing, Mr. Stanton testified about what he was thinking,when he
took the product outside to the shed. He testified that he was unsure what he was going
to do with the salami and cheese. According to Mr. Stanton, several options were in his
head. He testified that the possibility of tKHIWZDV³GHILQLWHO\WKHUH´ZKLFKKHFRXOGQRW
deny. Hewas also considering talking to a manager later and discreetly pointing out
what was there, and asking if he could take it, and reimburse afterwards, or just leave it
andnot return it to the fridge.He testified he was scared,and that he really was not sure
what he was going to do. In cross-examination,when Mr. Fitzgibbon put to Mr. Stanton
that he chose to steal,Mr. Stanton replied that his choice was to set the product aside,
that he had not resolved on what action 100% at that point, and that theft was a
possibility he was going to consider.I find theforegoing notions tostrain credulity.
Viewing his conduct objectively, I find that Mr. Stantonformed an intention to steal
productafter speaking with his wife on the morning of November 29. He carried that
intentioninto effect whenhecarefully selectedthe salami and cheese, concealed itand
12
took the product to the shed. There is no ambiguity in thetotalityof his actions. If Mr.
Stanton was truly interested in seeking permission from the Company to take some of its
product to feedhis family, at a minimum, one would reasonably expect him to canvass
thatwith management before putting his job at risk, as he did, by his surreptitious
actions.
21.Ialsofind the following evidence from Mr. Stantonto be troubling.He
testified that he saw Ms. Jorgensen and her daughters, but continued doing what he was
doing, although he did not know why at the time. Thinking back, Mr. Stanton said it may
have been that he wanted to get caught, so he could get help. I find this notion to strain
credulity. If Mr. Stanton was truly interested in seeking help, at a minimum, one would
reasonably expect him to canvass that with management before putting his job at risk, as
KHGLGE\KLVVXUUHSWLWLRXVDFWLRQV0RUHRYHU0U6WDQWRQ¶VHYLGHQFHLQWKLVUHJDUG
contradicted the agreed statement of factsfound in paragraph 11of this award. There,
the parties agreed that:³Mr.Stanton was in the shed for a brief period and was observed
At this time,
by Ms. Jorgensen, Jennifer and Melissa exiting the shed without the box.
Mr. Stanton noticed the Jorgensens
in the parked car that was located some 10 feet
away from the shed, and he walked over to the car.´[emphasis added] Mr. Stanton¶s
³RIIHU´WRPDNHUHVWLWXWLRQraises further concern. This is not a trivial matter. While the
cost of the product was $16.69,the total projected lost sales resulting from the theft of
productwas$197.79. Surprisingly, Mr. Stanton didnot offer to repay the Company for
thelatter amount. In so doing, Mr. Stanton is effectively attempting to trivialize the
financialimpact of his misconduct.This is similar to his description of the salami as
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³VORZPRYLQJ´.I find theseefforts by Mr. Stanton torepresent continuing attemptsto
downplay the seriousness of his misconduct.They heighten, rather than allay concerns
about his trustworthiness.Given the foregoing, I do not consider thepossiblehumiliation
and embarrassment that Mr. Stanton may experience upon returning to workto be a
sufficiently probative factor to neutralize or outweigh the factors tipping the scales
against reinstatement. I reach the same conclusion aboutthefact thatMr. Stanton has not
found work since his termination.
22.To summarize, Iam compelled toconclude that it isnotjust and
reasonablein all the circumstances to substitute another penalty for the dischargeandto
reinstateMr.Stanton.I do not considerthe result here to be inconsistent with the cited
authorities, which turn on their own facts,that materially differ from the present matter.
Before concluding, I would like to thankMs.Fahmyand Mr. Fitzgibbon for ably
presenting this matter most thoughtfully and expeditiously.
DATED at Ancaster, this 26thday of October,2011.
_______________________________________________
RANDY L. LEVINSON, ARBITRATOR
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