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HomeMy WebLinkAbout1979-0259.Kaufman.80-08-29.IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: S. Kaufman - Grievor and Liquor Control Board of Ontario - Employer Before: Ross L. Kennedy - Vice-Chairman A. Reistetter - Member D. Anderson - Member APPEARANCES: for the Grievor: A. Heisey, Counsel For the Employer: Pat Moran, Counsel Hearinq: August 18th. 1980 Suite 2100, 180 Dundas Street West Toronto, Ontario -l- AWARD .: By letter dated September 4th, 1979, the employer discharged the grievor as a result of's specific incident that occurred August 22nd, 1979, together with a general review of the griever's record. The substantive facts of the August 22nd incident were admitted by the grievor and are, therefore, not in dispute. The grievor's regular hours of employment were from 3:00 p;m. to 11:OO p.m. and he was employed as a Back-up Men and Watchman at .the employer's main premises on Lakeshore Boulevard. On the day : in question~,.namely August 22nd, 1979, for reasons which were not -m&e knownto .the Board the grievor was apparently working a . . .2:~0~'~p.m.~.to lO:OO,p.m; sh.i.ft and'the time sheet filed pn the: :. ,:. ...;.. . : ';,. lieariny indicates that he, in fact; arrived at +ork"at 2:'OO p.m. This discrepancy was noticed by the Watchman responsible for. keeping the time sheet'and he made a notation at that time on the sheet that the actual time of departure had been 9:00 o'tilock. The Watchman at the end of his shift also left a note for his Supervisor stating what had happened. The Watchman, who as of August 22nd had been employed by the employer for about six weeks, testified that the grievor had on two or three prior occasions also signed out indicating a later hour than the actual time of departure. In his testimony the grievor indicated that he did not recall whether it had ever happened before. The argument on behalf of,the employer is that the incident itself, namely the falsification of the time record constitutes -2- grounds.for discharge. It is argued that such an offence is tantamount to theft of.the employer's property and merits the stiffest of~penalties. Support for the employer's position can be found in Palmer, Collective Agreement Arbitration in Canada, page 286, Brown & Beatty, Canadian Labour Arbitration ai page 316 and Re Eastern Provincial Airlines (1963)Limited (1979) 24 L.A.C. (2d) .31 (Barry). In the alternative the em- ployer argued that in view oft the grievor's employment record the incident,of August 22nd as a culminating incident justified the disciplinary response of discharge by reason of the grievor's prior poor record. It was argued on behalf of the Union that the,grievor's record was not as bad as alleged by,the Company in ,:.that ..of the,.numerous notes relied .uponby.the Co@anynone couid properly be clas,si,fied as disciplinary and that there had not been proper adhe~rence'on the'partof the employer to."the.principies'.of progressive discipline in its sudden decision to discharge. 'With respect to the incident itself it was argued on behalf of the grievor that it had been admitted, as an error and that on the evidence it was essentially a negligent.act. In the alternative, it was argued on behalf of the grievor that this was a case in which the Board should exercise its discretion to mitigate the penalty imposed on the grievor and reliance was placed on health problems which the grievor had been encountering at the time in question, his concern as to the 'health of his mother who sub- sequently passed away, and the serious hardship that the discharge would represent to the grievor in view of his age and lack of potential to obtain alternative employment. The employment record of the grievor may be briefly sum- marized as follows: ; .,. ‘, : Z’.‘~ June 21st, 1976 - Written note with respect to improper cleaning of bronze; July 21st, 1976 - Written note with respect to improper cleaning of bronze; February 2.&h, 1977 - Written note with respect to improper cleaning of bronze: April 6th, 1977 - Written note with respect to improper cleaning of bronze; May 26th, 1977 - Final warning note with respect to improper cleaning of bronze; August 26th,1977 - Written note with respect to improper cleaning procedures and leaving dusters in the lobby; October 3rd,1977 - Written note with respect to~improper checking procedures in making certain _,_, .taps,.lights'and..machines.have-been turned off; : .,: April 13th. 1978 - Letter with respect to'failure to adhere to proper reporting:.in:procedures when. absent by reasonof illness; May 24th, 1978 .- One-day suspension for being away from his post without reason: August 24th,1979 - Three-day suspension for failure to report in when absent from work and.failure properly to report the reason for absence. With respect to the foregoing record somegeneral comments would appear appropriates. With the exception of the two suspen- sions the various notes referred to do not contain any specific warnings with respect to any anticipated disciplinary action on behalf of the Company.. The grievor in his testimony indicated that he did not recall receiving any of.them, but it is to be noted that the grievor's recollection of most events, either recent or past, was anything but clear. On the evidence each of the notes -4- was handed to the grievor by his Supervisor and we would so find. We would further find that the notes are disciplinary in nature in that the only reasonable conclusion that the grievor could reach from those notes would be that the employer was dissatisfied with his performance and that his performance would have to im- prove. Indeed, in his testimony the grievor acknowledged that that would be what would have to be taken from the notes. It is to be noted that the first five of the notes deal exclusively with one problem, namely the cleaning of bronze. The fifth note indicates that it is a final warning and it would, therefore, appear since the problem of bronze was not further pursued by the employer that the situation must have been corrected subsequent to May 26th, 1977. .~' .,:; .,-There lfollow two notes dealing-generally~with cleaning practices, : the last one of which is dated October 3rd, 1977. It would, there- .~. ,>.' li': ',.:,. -: :;, forei,appear.that .duringthe almost two-years subsequent ~to October 3rd, 1977, .no~ further action was required on the part of the em- ployer with respect to the basic work performance of the grievor. The two suspensions of April 3rd, 1976, and August 24th, 1979, re- late to a'different type of problemn, namely, the failure-to com- ply,with call-in procedures and being away from his work station. It is to be noted that with respect to the August 24th suspension the grievor would not, in the sense of progressive discipline, have received that suspension at the time of the August 22nd in- cident for which he was ultimately discharged. The employer uses a system of discipline review which involves a consideration of discipline matters as important as suspensions and discharges by -5-. a discipline committee and, therefore, the August 24th. discipline would, in fact, have been set in motion some time previously and the grievor would, in any event, presumably have anticipated as of August 22nd that something would be coming from that source. It is clear on the evidence that the employer has established an offence on the part of the grievor for which the imposition of discipline is justified. It is a serious offence and may be con- sidered to be analogous to many of the petty,theft situations which have been considered by arbitrators. At one time the offence of theft almost universally resulted in discharge, but in many of the more ,recent authorities and based on a more careful analysis of the rationale behind disciplinary procedures alternate remedies 'have become~more.usual. .:Thi&general~ area,of arbitral authority is well canvassed in the decision re Phillips Cables Ltd. (1974) ,, '. 6 ,L.A.C.' (2d) 35 (Adams) ,and:theconsiderations' thereinset out are, in our view, material to the matter which is before us. We agree that the offence of the grievor was a serious one, but we cannot accept that it should automatically lead to the penalty of discharge. It must be reviewed in light of the grievor's record and in light of the traditional factors to be relied upon by arbitrators in considering whether or not it is appropriate to mitigate a penalty, which factors are, again, set out by Professor Adams at page 40 and 41 of the above referenced Phillips .Cables case. We would note from the grievor's record that there apparently was a positive response to the various notes with re- spect to work performance and that portion of the record appears to end October 3rd, 1977. ,The one-day suspension of May 24th, -6- 1978, did not prevent the recurrence of a similar type of prob- lem in August of 1979, but there would appear to be some fourteen months until problems again occurred. The record in.general is not that of a satisfactory employee and yet there appears to have been some response to remedial actions in the past and it may be reasonably anticipated that the present state of things would most certainly bring home to the grievor the seriousness of his 'conduct. On the aspect of~mitigation the grievor is 64 years of age and, while he is apparently~ skilled as a furrier, the Company for whom he worked closed down in ~1970. and there is a serious shortage of employment in his ,area of skill. He indicated that he has had health problems:in the past which he has now apparently ,. ', I. overcome and he indicated on the Hearing a strong desire to re- turn to his job and to function in it properly. : In considering%.all of the ~foregoing:matters and factors, it is our conclusion thatdiscipline was, justified on the part of the employer by reason of the incident of August 22nd, but in view of the actual nature of the grievor's record and in pursuance of our jurisdiction with respect to mitigation of penalty, we would substitute for the penalty of discharge a suspension to the date of the release, of this Award. In the result it is our con- clusion that the grievance is to be allowed to the extent that the grievor is to be reinstated to his employment as of. the dates of this Award with seniority, but otherwise without compensation - l- ~for any wages or benefits lost. DATED at Toronto this 29th day of I concur :~ .I c&cur ~ August 1980. ; "A. Reistetter" A. Reistetter - Member "D. Anderson" D. Anderson - Member ,.