HomeMy WebLinkAbout1977-0031.Splonick.77-06-09CROWN EMPLOYEES
GRIEVANCESETTLEMENT
BOARD
410” 964-6426 Suite 405
77 Bloor Street Yesi
TO.RONTO, CnL&O
MS.5 lM2
IN THE MATTER OF AN AR@ITRATION
Under The
Between:
CROWN EMPLOYEES COLLECTIVE BARGAIUIPIG ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Mr. G. Splonick
.And
Liquor Control Board of Ontario
Before: ~13. M. Beatty Chairman
V. P. Harris Member
I. K. Levack Member
For the Grievor:
P. J. J. Cavalluzzo, Golden-Levinson
For the Employer:
Ms. Janice Baker
Hicks, llorl@y, Hamilton
Hearing:
May 26th, 1977
Suite 405, 77 Bloor St. W., Toronto, Ontario
., * . :,
2.
The grievance of Flr. G. H. Splonick raises the rather
narrow issue of whether, for having stolen a case of liquor, valued
at $144, from his employer, the latter had just and reasonable
cause to terminate him from his employment. Set in the context
of s. 18(3) of the Crown Employees Collective Bargaining F.ct,
and against the admission of the grievor that he did in fact commit
such an offence on November 29, 1976, (and-to which he subsequently
entered a plea of guilty in Provincial Court), the sole issue to be
resolved by this Board is whether the sanction of dismissal is
.excessive in the circumstances.
The resolution of that issue can in turn be further
telescoped.That is to say this Board has, on several previous
occasions expressed its views as to the general mode of analysis that
we would invoke inreviewing the dismissal of an employee who.has
engaged in an act of theft of his employer's or the public's property.
SW me Haight 23/75, Re Cranley and,staunton 48 & 49/76 and Re Arsenault
69/?6. Ultimately, as we have indicated in Re Cranky and Staunton,
in such cases, the Board must:
. . . ..weigh and assess, on the particular facts
of each case, the prejudice and harm that has
been occasioned to the employer's business,
reputation, integrity and other l'egitimate
interests against the claims of the employee
that on the criteria and principles described
above, he is capable of reforming his behaviour,
of fully and satisfactorily discharging his
employment responsibilities in the future, and
of regaining the trust and confidence of his
employer, his fellow employees and the public.
3.
Moreover, in pursuing that analysis , it is evident from those awards
that a critical and motivating factor which has induced this Board,
on occasion,to alleviate against the severi~ty and finality of a
disciplinary dismissal has been a determination that the grievor's
behaviour was an isolated act, a momentary aberration, a solitary
error of judgement in what otherwise has been a satisfactory and
productive employment relationship. Thus for example, in
Re Cranley and Staunton another panel of this Board after noting
.(at pages 4, 6 and 9) the ambivalent nature of their misconduct, .. ..~
"the isolated and uncharacteristic nature" of the incident in question
and the "circumstances negativing an intent to steal",:came ,to the
conclusion that it was not:
. ..reasonable or proper~to assume that by a single
act of indiscretion these two persons are incapable
of responc2i'iig to SOM lesser form of discipline and
of rehabilitating themselves so as to conform to the
accepted norme of the employment relationship. Such
an assumption has, as noted above, no basis in law,
-.logic or eguity. Indeed, such a characterization of
these griewrs would offend against and not permit
of any correctional purpose to the system of in-
dustrial discipline.
Succinctly then, it is precisely in those circumstances, when the
Act complained of can be characterized as being in the nature of an
isolated act of indiscretion or an anomalous example of poor judge-
ment that the corrective and rehabilitative approach to disciplinary
sanctions that has been espoused by this Board has its most obvious
and tenable application. That is, on the basis of such a finding this
Board has available to it reasonable grounds for perceiving the
,
4.
offender as being capable of reforming his behaviour and of regaining
the trust and confidence of his employer and fellow employees.
After reviewing the evidence adduced before us in the
instant case, we are of the conviction that the incident of ilovember
29 can not be so characterized. Specifically, and for the reasons
described below, we are not satisfied that the act of theft, to which
the grievor has admitted, can properly be regarded as either an
isolated or as a momentary and uncharacteristic lapse of judgement.
Put shortly, and the grievor's denials notwithstanding, we are of the
..bel.,ief that the theft of the case of liquor was a calculated, in-
tentional and deliberate act on the grievor's part. In reaching this
conclusion we begin from the premise that there had been, for a period
of almost a year immediately preceding the incident in question, a
methodical and deliberate effort to steal substantial quantities of
liquor from Store+47 in St. Catharines where the grievor was last
employed. From the evidence of Messrs. Jennings and Briggs-Jude,
which,was corroborated in this respect by Nr. Underhill, the
Association's representative in the immediate area, the only tenable
and rational explanation for the continuous:shortages in stock, of
the magnitude that were being experienced by the employer in that
store, is that one or more persons have, on an on going and regular
basis being misappropriating the employer's product for their
own use. In addition we share the perception of Mr. Splonick's
counsel that it was only in the latter part of October or early
5.
November 1976, when Mr. Briggs-Jude reinstituted some form of
inventory or "bin' control, that this epidemic was arrested. As
well, it was at that time, according to the grievor's own evidence,
that Mr. Briggs-Jude did discuss the matter of shortages with his
employees. From the latter's evidence we have no doubt that in
reintroducing a system of "bin" control and in advising his employees
of the seriousness with which the employer regarded the situation in
Store 847, every employee,of that store must have been aware that as
a matter of presumption no one in the store was at that time beyond
.suspicion or reproach
Put in that context and assessed in light of those
circumstances, we can not accept as a credible or honest assertion
the claim by the grievor that his act of November 29 was a "spur
of the moment" or "stupid" act, the consequences of which he did
not consider at the time that he did it. Such an assertion simply
fliesin the face of the events which occurred in the month im-
mediately preceding his stealing the case of liquor during which
the employer had re-introduced a system of inventory control and
Mr. Briggs-Jude had specifically forewarnedithe employees of the
seriousness with which the employer regarded the persistent
shortages that appeared in its stock. Those events,.as the
record of shortages eloquently reveals:must have had a profound
impact on the employees. That record shows that as early as period
9 (November 7 to December 4) the shortages had been arrested. And yet,
and that evidence notwithstanding, Mr. Splonick would have us believe
6.
that his conduct of November 29 was simply an unthinking and spur
of the moment act of foolishness. In our view and in the context
described, Mr. Splonick's behaviour on that day more accurately
should be regarded as a brazen and calculated effort to misappropriate
his employer's property. No employee in our view could have been so
insensitive to the events of the preceding month that they could,
"without thinking about it" have cavalierly passed a full case of
liquor over the counter to a friend to have it taken to his home.
To the contrary and against the magnitude and duration of the losses ._ .:'
that had been suffered by this store, such conduct can only be
regarded as a deliberate, albeit reckless, attempt to steal a
substantial quantity of liquor from his employer.
So characterized, the grievor's misconduct is in our view
clearly.distinguishable from the behaviour which this Board had
occasion to assess in me craniey and staunton. Necessarily in our
view,behaviour which is motivated by a deliberate and calculated
attempt to misappropriate property must be regarded as being more
serious and more reprehensible than an equi:vocal, unintentional,
albeit wrongful conversion of some other person's property. In
essence, we are merely acknowledging the generally accepted
distinction between intentionally and unwittingly converting another's
property to one's own use. That distinction parallels the difference
reflected in various contexts of our legal system between the treatment
afforded to someone who carelessly rather than deliberately impairs
7.
the use and enjoyment of certain property by its owner. And, in
the context of the present analyses, it is a distinction which directly
impinges upon our assessment of whether this grievor is capable of
rehabilitating and reforming his behaviour-and of regaining the trust
and confidence of his employer. That is to say, and assuming all
other factors to be equal, this Board is more inclined to believe
that persons such as Mr. Cranley and Mr. Staunton, who were found to
have had no intention to steal the property in question and whose
offence could therefore be regarded as an isolated and un-
characteristic error in judgement are more likely to respond to
corrective sanctions and rehabilitative initiatives than some one such
as Mr. Splonick whose offense, in our opinion, was a deliberate and
intentional attempt to steal his employer's property. The latter
circumstances by definition cut more deeply into the heart of the
employment relattonship and make more problematical the question of
whether it can ever be fully revived. In addition when one adds to
that the realization that Mr. Splonick has, by his own admission,
engaged in petty pilfering at other stores in the past, the distinction
between his circumstances and that of Messrs. Cranley and Staunton
becomes manifest.
As well, the conclusion that the grievor's behaviour on _.
November 29, 1976 was something far more serious than a simple
and uncharacteristic error in judgement undermines his credibility
as a witness before this Board. In turn having jeopardized
his status as an honest and forthright witness raises real'doubts in
a.
the minds of this Board as to the truthfulness of his claim that,
in this store at least, he had never participated in what the
evidence unequivocally demonstrated to be a systematic and deliberate
scheme to steal this employer's property. Moreover, and as we have
noted in several earlier awards, such behaviour, particularly in
the context where it has been alleged that an employee has acted
dishonestly in his employment relationship, has tended to induce
this Board to accept the employer's judgement as to that person's
ability and resolve to rehabilitate themselves. me Arsenault (supra)
There are, as well, other reasons for our skepticism as
to this grievor's rehabilitative prospects. In the first place
and in sharp contrast with the circumstances prevailing in
RCZ Haiqht (supra), there is simply no basis, such as a long and
unblemished employment record, which would suggest that this grievor
is likely to be able to so rehabilitate himself as to conform to the
accepted and expected norms of the work place. Thus and while
it is true that there are no disciplinary warnings on his record,
his employment history does not inspire confidence. Thus,of the
three annual rating reports he lhas received since coming on the
employer's full time staff, one of them, dated June 9, 1976, reveals
a sufficiently derelict attitude as to.yarrant his manager and his
supervisor recommending against a merit increase. Nor in
our view can this appraisal be explained away on the basis
of some personality clash he was experiencing with Fir. Briggs-Jude.
To the contrary that appraisal was also signed by Mr. L. A. Nann,
the grievor's supervisor,who has shown a proclivity, when he was
9.
so inclined, to disagree with and overrule other negative assessments
made by other managers who had appraised the grievor.
Not only does his past employment experience fail to
reveal any solid or objective basis on which one could positively
forecast as to the grievor's future employment prospects with this
employer, but as well, his behaviour immediately following being
confronted by the police similarly does notconform to that which
has, in the past, induced other panels of this Board to reinstate
persons who had engaged in acts, of theft. Thus and in sharp
.. .:'
contrast with the grievors in R.= cranley and Staunton (~upra) and
Re Haight (supra) Mr. Splonick did not immediately admit to his
transgression when he was confronted by the authorities with respect
to his activities on November 29. To the contrary, from his own
evidence, throughquu~ the entire investigation by the police, he
simply denied any involvement in that theft. Moreover and more
importantly,this Board simply has no evidence before it, as it did i.
in me might, that Mr. Splonick in any way cooperated with or
assisted the authorities in their investigatjon of this on-going and
systematic theft of the employer's property.! A review of the analysis
in me Raight (~~pral will reveal that it was precisely because the
grievor in the case had immediately admitted to his misconduct, and
had cooperated with his Ministry and the authorities in their in-
vestigation of his misconduct that that panel of this Board could
justify and support its conclusion that Mr. Haight was likely to
respond positively to corrective discipline and be able to regain
the trust and confidence of his employer.Particularly in the context
of the wholesale theft of liquor that had been practised in Store 47
over the preceding year, evidence that Mr. Splonick had cooperated with
the authorities and had made himself available to assist in the in-
vestigation of those shortages would have afforded this Board with some
basis that Mr. Splonick had in fact recognized the seriousness of his
misconduct and that he was anxious and willing to work at regaining
the trust and confidence of his employer. Inthe absence of such
evidence, this Board has no objective evidence which could
support.such a conclusion in the case of Mr. Splonick.
In the result this Board is simply not possessed of any ._ _
objective evidence on which it has traditionally relied in reaching the
conclusion that a particular employee is capable and desirous of reform-
ing his behaviour. To the contrary and as we noted at the outset, given
the intentional and deliberate nature of his act, what evidence is before this
Board would tend toconfirm the employer's assessment that Mr. Splonick's
prospects for successfully reforming himself are slim indeed. In those
circumstances and given the employer's real and legitimate interest in
deterring conduct,which we have elsewhere noted cuts at the very roots of
the employment relationship, we are not inclined to exercise our discretion
and substitute some lesser penalty. Accordingly, and for the reasons given,
this grievance must be denied.
Dated at Toronto this 9th qcJmal ,,
TM. Beatty
Chai tman
I concur
V. P. Harris
Member
I concur
I. K. Levack
Member