HomeMy WebLinkAbout1979-0277.Knudson et al.80-08-07277179 I
IN THE MATTER OF AN ARBITRATION
Under The
CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between: Mr. R. D. Knudsen et al
And
Liquor Control Board of Ontario
Before: Professor M. Eberts Vice-Chairman
Mr. Y.P. Harris Member
Mr. I.K. Levack Member
For the Grievor:
Mr. W. R. Angus
Administrator, Ontario Liquor Boards Employees'
Union
i
For the Employer:
Mr. R. J. Drmaj, Counsel
Hicks, Morley, Hamilton
Hearing:
December 19, 1979
Suite 2100, lB0 Dundas St. West
Toronto, Ontario
.,F-- -.
This grievance has been brought by R. D'. Knudsen, T. R. Dempsey,
H. B. Slade and R. E. Zimmerman, all employed as liquor licence inspectors
by the Liquor Licence Board of Ontario. All were charged on April 4 or
5, 1979* by the Ontario Provincial Police on a number of counts of
uttering a forged document contrary to section326(l)(a) of The Criminal
Code of Canada and of accepting benefits contrary to section 110(l)(c)
of the Criminal Code. On April 5, 1979 the Minister'of Consumer and
Commercial .Relations, The Honourable Frank Drea, announced in the
Legislature of Ontario that the men would be suspended without pay pend-
ing disposition by the court of the charges (Exhibit A). On April 9, 1979,
by registered mail, the grievors were advised that they were suspended
without pay as of April 5, 1979, pending disposition of the criminal
charges against them. At the hearing of this grievance, we were advised
that the charges related to accepting benefits had been withdrawn by the
Crown. The other charges were still pending, with an estimated trial
date of fall 1980.
The four inspectors grieve their suspension without pay. The
parties agreed that disposition of the grievance of Mr. Knudsen would
be determinative of the other three grievances.
At the outset of the hearing, counsel for the grievors sought to
have Mr. Knudsen testify regarding the circumstances giving rise to the
charges, not to try and,establish his innocence, but to give the Board
an idea of what facts were alleged to have precipitated the charges.
* The date of the information is April 4, but the parties' agreed
statement oft facts stipulates April 5 as the date of the charge.
i_ -.
Counsel for the employer argued .that this testimony should not be
allowed, and that the informations should be taken,at face value.
A sample of a'count in the information relating to the uttering
charge is as follows, alleging that Mr. Knudsen,
between the 2nd day of December in the year 1976
and the 20th day of December in the year 1976 at
the Township of Gloucester in the Judicial District
of Ottawa-Carleton and elsewhere in the Province of
Ontario knowing that a document to wit: a Liquor
Licence Board of Ontario, Licensed Establishment
Inspection Report, Form 220(5-76) dated December 2,
1976 in respect of the licensed premises known as
Maxi-Plate Tavern and located at 320 McArthur Road,
Vanier, Ontario was forged, unlawfully did use or
deal with it, as if it were genuine, contrary to
Section 326(1)(a) of the Criminal Code of Canada.
(Count #l)
A sample.~of a count in the information relating to benefits is as follows,
alleging that Mr. Knudsen
on or about the 30th day of May in the year 1978
at the Township of Gloucester in'the Judicial District
of Ottawa-Carleton in the Province of Ontario,
unlawfully did, being an official of the Liquor Licence
Board of Ontario, a branch of the Government of Ontario,
accept directly or indirectly from Kareem Beshara, the
owner of the licensed premises known as Gerry's Tavern,
located at 2679 Bank Street, Gloucester Township, Ontario,
a person who had dealings with the Liquor Licence Board
of Ontario, a branch of the Government of Ontario, a
benefit, to wit: free food and beverage, without the
consent in writing of the head of the branch of government
that employed him, contrary to Section 110(l)(c) of the
Criminal code of Canada. (Count #26)
The argument of counsel for the employer amounted to asserting
that we should evaluate the correctness of the suspension solely on
the basis of material like the above.
It may well be that the most effective way of enlightening a
tribunal about the events leading up to the laying of charges would be
testimony of the investigating or arresting officer. This was the
approach taken in, for example;ne Phillips Cables Ltd. and u.s.w.,
.* -.
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vocal 7276 (1974), 5 L.A.C. (2d) 274 (Adams). Re Treasury Board and
Guenot (1974), 6 L.A.C. (2d) 400 (Simmons), Re Goodyear Tire and
Rubber (1976), 11 L.A.C. (2d) 46 (Adams).
This method provides the Board with information about the
factors which might have been present in the employer's mind when
t&decision tb suspend was made, without inviti~ng the employee,'in
effect, to testify before the Board on his own behalf about the merits
of the pending criminal charges.
In'this case, no police evidence was called. The face of the
information did not seem to us to present enough information to evalu-
ate the position of the parties. Although the employer may be entitled
to rely only on the face of the information to support its suspension
of the.grievors, that is a decision which the employer must make
primarily for itself. It seems inappropriate to allow the employer's
decisions about what it will make part of its case to rule out
absolutely certain arguments the employee might wish to make.
Accordingly, we allowed the testimony of Mr. Knudsen to illuminate
the contents of the information, but no questions or answers touching
upon his possible innocence or guilt were permitted.
Mr. Knudsen was charged with four counts of accepting a benefit
under section 110(l)(c) of the Code. He testified that count number 24
of his information, relating to the Parthenon Steak House, was said
to be in respect of accepting a free drink of whiskey there; count 25,
referring to the Four Sisters Restaurant, was said to involve accepting
two pints of Molson Light; count 26, involving Gerry's Tavern, concerned
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alleged acceptance of a hot chicken sandwich, and count 27, concern-
ing the Carlingwood Restaurant, was based upon his alleged receipt
there of a free chicken sandwich and glass of milk.
The majority of counts related to the false documents charges.
Form 220 was the document at issue. We heard evidence on the nature
and purpose of this form from Mr. Wally Malkiewich, an inspector
with the L.L.B.O. holding the top rank for an inspector and acting
as a "swing" inspector - able to go into any area and help any
inspector.
Mr. Malkiewich told us that the Form 220 was introduced as an
all-purpose reporting form for the use of inspectors. An inspector
would fill out one such form for each visit to a licensed establishment,
outlining what he found there. The form was designed to replace a
variety of other forms previously in use. It is made up so that an
original and four copies are produced when the inspector fills,it out.
Apparently, this is to permit the inspector to keep one copy for his
own records and leave one at the inspected premises, in addition to
ensuring that the Director of Inspection and other Board officials
receive copies.
In his brief description of the background to the criminal charges
involving uttering, Mr. Knudsen advised that none of the charges involved
him signing the Form 220's using someone else's name. It would appear
that the Forms in question are alleged to have been improperly signed
by persons at the licensed premises, other than persons in charge there
or authorized so to sign.
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The matters which must be inquired into before a suspension can
be found justifiable are set out with admirable clarity in one or two
fairly recent decisions. What now must be taken as the definitive
statement on the issue is the test put forth in me Phillips cables
Ltd. and U.S.W.; Local 7276 (1974), 5 L.A.C. (2d) 274 (Adams).
At pp. 282-3 of that decision, the following conclusions of principle
are elaborated:
In the first place, the board accepts the general
principle that in some circumstances a company can
suspend an employee charged with a criminal offence
pending its outcome in the criminal Courts. The
presumption of innocence has its purpose and rele-
vance grounded in the substantive area of criminal
law. It is not a doctrine that can be unqualifiedly
transported to the context of labour relations.
Many situations can be envisaged where a work-related
criminal Charge against an employee will substantially
undermine his effectiveness in the work environment.
And in these same circumstances it may not be fair to
impose any financial obligation upon an employer whether
the employee eventually either escapes the charges or does
not.
Secondly, while recognizing this inter&t of an employer,
the board is also conscious of the competing interests of
the innocent employee who is tragically and mistakenly the
victim of a criminal charge. TO await the outcome of a
criminal charge in the Courts without benefit of employment
in the interim can often render a subsequent acquittal quite
meaningless.
Thirdly, the board believes that this interest of the
innocent employee is the basis to the principle that the
company must not have played a substantial role in the
investigation.leading to tie criminal charge. If it has,
it presumably possesses sufficient evidence to discharge
the employee immediately without waiting for the deternina-
tion of the criminal Courts. In choosing not to do this,
it has subjected the employee to an unnecessary financial
penalty and must therefore compensate him when that process
fails to convict.
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Finally, it is this same employee interest which
requires that the existence of the criminal charges
must reasonably give rise to a legitimate fear for the
safety of other employees, or of property, or of
substantial adverse effects upon business. It is not
enough that the charges be sufficiently work-related
so that if proven they will support the discharge of
the employee. This cannot be the test because the
Charges have not yet been proven. The employee cannot
be treated as if he has connnitted the offence. Rather,
he is 1abOUring under the risk of his guilt, and so
may be his employer and fellow employees. Accordingly,
the company must establish that this risk of guilt
presents a substantial and immediate hardship to itself
OI‘ to its workers, and that this hardship cannot
practicably be met by anthing other than the suspension
of the employee. This requirement accommodates situa-
tions where workers or customers refuse justifiably to
deal with the employee, OI where he cannot be transferred
or watched more closely pending an official determination
of his status.
To meet.this requirement the company will have to investi-
gate the criminal charges to the best of its abilities in
order to assess the extent of this risk of conviction and
thereby assess what can be reasonably done in the circumstances.
Therefore, to this degree, the board agrees with Mr. Fitz-
patrick's suggestion that an employer has an Obligation to
investigate the charge. The substantial business detriment
can only be established by assessing the risks of conviction,
and this assessment requires an investigation into the
circumstances surrounding the charge.
This approach has been approved of in me ~ominon stores Ltd.
and Retail, Wholesale and Department Store Union, Local 414 (1974).
6 L.A.C. (Zd) 373 (Johnston) and Re Treasury Board and Guenot (1974),
(Simmons). It was reiterated in Re Goodyear Tire and Rubber Co. of
Canada and United Rubber Workers, Local 232 (1976) 11 L.A.C. (2d) 161
(Adams). the Board pointing out at p. 166 that the fourth drinciple
in phillips~ is mandatory and requires the best evidence available.
Iii Re Ontario Jockey Club and Mutuel Employees' Association
(1977), 17 L.A.C. (2d) 176, (KHUE&) these and other cases were
reviewed, and the Board affirmed the following princples; at pp. 178-79:
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1. The issue in a grievance of this nature is not whether
the griever is guilty or innocent, but rather whether the
presence of the griever as an employee of the company can
be considered to present a reasonably serious and immediate
risk to the legitimate concerns of the employer.
2. The onus is on the company to satisfy the board of the
existence of such a risk and the simple fact that a criminal
charge has been laid is not sufficient to comply with that
onus. The company must also establish that the nature of
the charge is such as to be potentially harmful or detrimental
or adverse in effect to the company's reputation or product or
that it will render the employee unable properly to perform his
duties or that iti will have a harmful effect on other employees
of the company'or its customers or will harm the general reputa-
tion of the company.
3. The company must show that it did, in fact, investigate
the criminal charge to the best of its abilities in a genuine
attempt to assess the risk of continued employment. The burden,
in this area, on the company is significantly less in the case
where the police have investigated the matter and have acquired
the evidence to lay the charge than in the situation where the
company has initiated proceedings.
4. There is a further onus on the company to show that it
has taken reasonable steps to ascertain whether the risk of
continued employment might be mitigated through such techniques
as closer supervision or transfer to another position.
5. There is a continued onus on the part of the company during
the period of suspension to consider objectively the possibility
of reinstatement within a reasonable period of time following
suspension in light of new facts or circumstances which may
come to the attention of the company during the course of the
suspension. These matters, again, must be evaluated in the
light of the existence of a reasonable risk to the legitimate
interests of the company.
The employer here has argued that the charges here "must reasonably
give rise to a legitimate fear... of substantial adverse effects upon
business," to use the phraseology of me Phillips Cables. To turn to
the Jockey Club case, the employer's argument is that "the presence of
the griever as an employee... can be considered to present a reasonably
serious and immediate risk to the legitimate concerns of the employer,"
or that it can establish
. ..that the nature
of one charge is such as to be potentially harmful
or detrimental or adverse in effect to the company's
reputation or product or that it will render the
&ployee unable to perform his duties or that it will
have a harmful effect on other employees of the company
or its customers or will harm the general reputation of
the company.
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The Board is in the business, if you like, of licensing, and
of inspecting licensed premises, in accordance with the applicable
statute law and regulations. The job description of the Licence
Inspector 1, filed as Exhibit G, describes the typical duties of
someone in the grievor's position:
Duties include regular inspection and enforcement of
the Acts pertaining to licenced establishments and
premises, preparing written reports, issuing work
orders and maintaining written records on all licences
and assisting the public with applications (i.e. new
licence applications and special licence permits), and
informing them of the Acts and any ChangeS to the Acts,
and responding to telephone or verbal enquiries. Duties
also include assisting other departments and public
agencies with functions related to the administration
of the Acts. Also, reports violations to the Public
Health Act and the Fire Safety by-laws for restaurants,-
clubs and taverns.
The job description further states that the inspector must
exercise v . ..judgment and tact in the interpretation and enforcement
of the ACTS pertaining to licensed establishments," and that this
work is performed under "general supervision". Contacts with the
public and other government.agencies form part of the job:
Contacts are made with licenses, public agencies such as
the Fire, Police and Public Health departments, other
LCBO/LLBO departments and occasionally with the general
public. Requests for unusual information are referred
to the appropriate person.
The Board's position is, basically, that a licence inspector,
like Caesar's wife, must be above suspicion. Foran inspector to
be doing his work under a cloud of criminal charges is to bring the
authority of the inspector and the Board needlessly into question.
His ability to ~insist upon compliance with the law would be impaired,
and he would thus jeopardize the Board's "presence" in his area.
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Admittedly, this argument has appeal. The maxim "@is
custodet ipsos custodet?" - who will watch the watchers - springs
to mind, as do more extreme analogies to the case of a~police officer
being ,suspended pending investigation and resolution of criminals
charges.
Yet, we must remember the onus requirements in a case of this
nature, and we think, consider more fully the circumstances related
to the charges in question.
This case has a number of singular aspects to it. One is that
the employer, although fixed with the onus of justifying the suspension,
called no evidence beyond the documentary exhibits submitted. This
leaves us with the essentially uncontradicted evidence introduced by
the grievor concerning the background of the charges.
Mr. Malkiewich testified regarding Board policy and practice
regarding both acceptance of benefits and the Form 220's. At a Board
informational seminar held at the Harbour Castle Hotel sometime prior
to the laying of the charges against Mr. Knudsen and the others,
Mr. Cooper, Executive Director of the Board, apparently advised those
present that accepting a meal or whiskey at licensed premises was
acceptable. Eber Rice, Chairman of the Board, was also apparently
asked about the same issue, and told those present that if an inspector -
.in the company of a hotel operator were offered dinner or a coffee, it
would be acceptable to take it. Mr. Malkiewich said that this was the
situation up until the charges were laid, but that the Board now will
not let its employees accept this type of courtesy from an operator.
. . A
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The Board's policy respecting Form 220's seems to have
exhibited a similar tolerance of what the inspectors were later
charged with doing. Mr. Malkiewich testified that it had been his
understanding that up until around June 1978, the Form 220 did not
have to be signed by the manager or other person in charge of
the inspected premises. He testified that if there were "someone
around" to sign the form, that was "OK", but if not, that was "OK"
too. Apparently around June of 1978, a directive was issued by
Mr. Pakeris at the Board that as long as someone in the inspected
premises signed the form, it was acceptable to the Board. Neither
party to the grievance produced a copy of this memo.
Mr. Malkiewich testified that about 50% of the Form 220's
which he issues are signed by non-owners, and it would seem from
his remarks that this is a resonably common practice among inspectors.
He expressed the view that "just about all the inspectors can be
charged" if what Mr. Knudsen allegedly did were found to be illegal.
After the charges were laid against Mr. Knudsen and the other Ottawa
area inspectors, the other inspectors in the province apparently tried
to get some cl,arification from the Board about what they should do,
and found that "nobody could give them a definite answer."
It is difficult to see how a Board with such ambiguous policy
directives to its inspectors can complain that its operations would
be seriously prejudiced by retaining them in employment pending
disposition of the charges. Certainly, that aspect of the Board's
"official personality" which tolerated acceptance by the inspectors
of minor courtesies, or which.left unclear the inspector's obligations
concerning the Form 220's;would not be prejudiced.
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The only prejudice that might arise is public dismay that such practices
had gone on. In light of the evidence, the inspectors here cannot be
burdened with that responsibility, as it is seems that what they
did was not their own deviation from strict rules, but was condoned
by the Board. If there is another, more rigorous and clear-cut aspect
of the Board's "official personality" which would be prejudiced, then
there was no evidence before this Board as to its existence, or as to
whether the charged inspectors knew of it.
From the evidence before us, it seems as if the charges against
these men were either occasioned by a' shift in policy, or brought because
of a desire dramatically to shift or to clarify policy. It is not up
to the inspectors to bear alone the burden of the Board's decision
that it might have been wrong to let things go on in uncertainty as
long as they seem to have done.
The Board argued that suitable alternate employment could not
be found for the inspectors because of the structure of the work force
imposed by the collective agreement. Nothing before us showed that
the Board had explored the question of having the,inspectors work
under supervision pending disposition of the charges. One of the
Exhibits showed the job description of a Licence Inspector 2 to include
assisting in the training of junior inspectors. Mr. Malkiewich testified
that as a "swing inspector" he can go into any area in the.province and
help another inspector. There seem to be ways, then, of having some
personal supervision of the inspectors on their rounds, from time to
time, to ensure that they are observing the requirements of the job
with meticulous attention. Although this might have stretched the
resources of the Board it does not seem unreasonable to require that
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its resources rather than those of the inspectors be stretched in these
circumstances. This alternative not, apparently, having been canvassed,
the L.L.B.O. cannot claim that, in the words of the ontiario Jockey Club
case, "it has taken reasonable steps to ascertain whether the risk of
continued employment might be mitigated through such techniques as
closer supervision or transfer to another position."
The employer is required to investigate the circumtances surrounding
the charge to ascertain "The risk of conviction" (Phillips Cables) and
"The risk of continued employment (Jockey Club). In this case, the
suspension was publicly announced the day after (or the same day) the
charges were laid, and before the employees were officially notified
of the suspension. The employer adduced no evidence to show what investi-
gation it did to ascertain the risk factor. Nor did it advise the Board
that it considered that such an investigation was not necessary because
it had been involved in the police investigation.. As mentioned above,
the charges related to accepting benefits were dropped sometime after
the men had been suspended. The employer did not indicate that this -
or any other circumstance - had caused it to reevaluation the position
of the grievors. In our view, there was an obligation on the part of
the employer to do this, and its conduct in simply sending brief
letters at intervals confirming the suspension does not discharge the
obligation.
In conclusion, we do not think that the suspension
of the grievors is proper in the circumstances of this case.
Inadequate attention was given to~the question of continued
employment under supervision.
.
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We think that the grievors should be reinstated. Between the time
of ~reinstatement and trial, they could work under the supervision of a
swing inspector or other Inspector 2, or be transferred to less sensitive
duties.at their regular rate of pay.
At the hearing of this matter the Board stipulated that in the event
the grievors were found not guilty by the Courts of their criminal charges
they would as a result be reimbursed for all loss of earnings as a result of
their suspensions. We agree with this stipulation and so order as an integral
part of our award in this matter.
Dated at,Toronto this 7th day of August 1980.
ProfessM M. Eberts Vice-Chairman
I concur
Mr. V. P. Harris
I concur
Mr. I. K. Levack
Member
Member