HomeMy WebLinkAbout1980-0108.Douglas.81-02-05.108/80
IN THE MATTER OF AN ARBITRATION
Under The
CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between:
Before:
For the Grievor:
For the Employer:
._.. _ .,.. :..
Hearinq;'~'
Mr. W. Douglas
- And -
The Crown in Right.of Ontario
Liquor Control Board of Ontario
Prof. K. Swinton Vice Chairman
Mrs. M. Gibb Member
Ms. E.. McIntyre+~.~.-. Member
Mr. P. Cavaluzzo, Counsel
Golden-Levinson, Barristers and Solicitors
Mr. R. J. Ormaj, Counsel
Hicks, Morley, Hamilton and Storey
Barristers and Solicitors
November 7th, 1980
December 19th, 1980
Suite 2100
180 Dundas Street West
Toronto MSG 128
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This is a case in which William Douglas grieves that he
has been unjustly dismissed by his employer, the Liquor Control
Board of Ontario. Up until his discharge on March 5, 1980, the
grievor had been employed as a Clerk with the LCBO for five years.
The incidents leading to his discharge occurred on February 12 and
14, 1980 while he was employed as a cashier at Store 5, a self-
service store located at 1656 Queen Street East in Toronto. The
grounds for dismissal were irregularities with regard to cash re-
gister operation and untrustworthiness. More specifically, the
employer focussed on the gcievor's failure to provide cash register
receipts to customers, the unauthorized practice which he used in
.ringing up multiple sales of bottles, the excessive number of "No
Sale" ring ups on his cash register tapes, and the number of small
items on his tapes for which there were no items in the store.
The employer led evidence with regard to these items, plus
some other incidents which seem to have affected the decision to
discharge. This evidence will be discussed, followed by the Board's
conclusions as to its significance. A telegram was sent to the
parties on December 31, 1980 stating that the grievance was allowed
and that the griever was to be reinstated forthwith. The reasons
for that decision and our order as to compensation and substituted
penalty now follow.
The first incident with regard to which the employer pre-
sented evidence occurred on February 12. 1980. The grievor started ,.i ..,
oncash at 11:00 a.m. and sometime between 11:00 and noon, Willard
Brown, the Acting Manager, observed a woman customer buy a bottle of
.
Alberta Vodka priced $12.10. Brown said that he saw the grievor
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7$
7.
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punch up a transaction, but not put the cash register receipt in the
customer's bag. The policy regarding Cash and Security contained in
the Store Operating Manual (E&&t 9) states:
"13.
172e cashier must provide a receipt to every
customer. ”
When the grievor went to lunch at noon, Brown took a reading on the
cash register. Such readings are taken every two hours to indicate
transactions and money received in that period. Brown also took
the grievor's wastebasket to the store affice and checked it for a
$12.10 receipt. He found no $12.10 receipt, although he found what
he felt were a Targe=number of "No Sale" receipts for that period
of time. He gathered them and other receipts found in the garbage -,
and put them away. The grievor came into the office during this "
time and~asked what Brown was doing and whether he was under suspi-
cion. No explanation was provided. ._
At the end of the day, the grievor left work at about 5:25
or 5:30 p.m.. Brown and three other employees - Robert Capistrand,
Assistant Manager; Ron Mitchell; and Pat Colangelo - removed the.
cash register tape from the grievor's machine and examined it.
They,found no item for $12.10 in the period before the noon ring-~
off. They also found 17 No Sales and several small items, such as
a 20k ring up at Transaction 280. There were no items at that
price in the store. The grievor's cash was over $7.00; The other
cashier that day, Colangelo, had three No Sales.
The grievor was not on cash on Wednesday; February 13th,
but he was on cash on February 14th. Pat Colangelo testified that he
was keeping an eye on the grievor from the floor. He'says that he
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did thisonhis own volition, although Robert Capistrand testified that
he told Colangelo to do so. Colangelo reported on two incidents.
We said that at 2:00 p.m. he saw the grievor remove money directly
from the till and place it in his pocket. He told Mitchell, who
told the Manager, Bert Doody, who said to keep an eye on the griever.
About'2:30 p.m., Colangelo said that he saw a man, who was
a regular customer, bring two 40 oz. bottles of Melcher's Very Mild
rye to Douglas' cash. The price of a bottle of this rye was then
SlZ.15, but Colangelo said that Douglas rang in 54.30, instead of
$24.30. When Robert Capistrand came inat about 2:40 p.m., early
for his 3:00 shift, Colangelo informed him of the incident. Colangelo had
seen the customer leave in a taxi, and Capistrand traced the custanar.
Colangelo and Capistrand then went to the customer's house to see if
they could find a receipt.' They searched the customer's garbage
unsuccessfully. Colangelo said that when he returned to the store,
Douglas said that he thought he had rung up an earlier transaction
incorrectly - as $4.30 instead of $24.30. On balancing at the end
of the day; the grievor was $20.00 over.~
The grievor testified that he had rung up the Melcher's
sale improperly. Instead of following Board procedure with regard
to multiple sales, which would require him to ring "2" and the price
of the bottle or to ring the price up twice, he used mental arithme-
tic to total the amount owing because he was faced with a lineup of
about seven customers'and wanted to save time. The grievor testified I
-that he had a sensation, when ringing up the total, that something
was wrong. Shortly thereafter, he thought that he might have missed
the "2" button when ringing up $24.30. Therefore, he spoke to
Colangelo about the possible mistake.
After the grievor left work that night, Mitchell, Capistrand
'and Colangelo went through his garbage, seeking a receipt for $4.30.
Brown, who was on his day off, was telephoned and he came to the
office from his home. The group checked the grievor's tapes for
the day. 'Again, there were several small items which did not corre-
spond with prices on any goods in the store. As well, there was a
significant number of No Sales.
There were no steps taken to terminate the grievor until
Monday, February 18. Robert Ford, the District Supervisor, met
with Capistrand, who told him of the missing $20.00, the receipts
in the garbage, and the number of No Sales. After looking at the
griever's tapes for February 12 and 14, he called the Area Manager,
who ordered him to suspend the grievor for one day, as provided in
the collective agreement, on the grounds of failure to follow Liquor
Board procedures. The grievor was suspended and'asked to give an
explanation., He did so, and.returned to work at the Eglinton Square
store-to-which he had been transferred at the end of the previous
week (February'16) on his own request, as it was nearer his home.
Subsequently, he was discharged, effective March 5, for "cash hand-
ling irregularities".
The issue in this case is whether the grievor was unjustly
discharged for'cash handling irregularities and failure.tofolti Liquor
Board procedures. Apparently there were three principal sources of concern,
although.this is not altogether clear from the letter of dismissal:
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the failure to provide cash register receipts to customers, the
number of No Sale ringups, and the number of small items which were
for amounts not referable to merchandise in the store. Overall,
Mr; Drmaj for the employer~argued that these irregularities showed
untrustworthiness by the grievor an&therefore, warranted discharge.
If we look at each item separately, we find that there is a . . .
Liquor Board procedure which>has not been followed only with regard
to cash register receipts. There is no doubt that the Store
Operating Manual specifies that customers must be given cash re-
gister receipts. It is also clear that the grievor failed to do
so several times on February 12 and 14. His explanation for this
was the frequent refusal of customers to take receipts. The store
is close to Greenwood Race track, and customers buying a mickey to
take to the track, for example, do not wish td be encumbered by a
bag or receipt. Other customers also reject receipts for personal
reasons. The griever's story was corroborated by other witnesses,
such as Colangelo, Brown and Capistrand. All admitted that customers
refuse receipts. This being true, it would be unjust and unreason-
able for the employer to discipline an employee for failure to provide
receipts, so long,as there is no deliberate plan of deception behind
the retention of the receipts. From the evidence, as outlined later,
such a deliberate plan was not proven here.
The second basis for discipline was the number of No Sales.
It is true thatthe grievor appears to have opened his.cash drawer
frequently - 17 times on February 12 and 11 times on February 14.
He explained that he might be making change for a customer or someone
accompanying the customer or even for himself before lunch. Further-
more, he said that he frequently checked his cash, because he was
concerned about building up large sums or running out of small bills
for change. He would also ring No Sale when making deposits during
the day.
Mr. Capistrand, who was instrumental in the investigation
of the grievor, said that he had watched the grievor for a year and
was suspicious of the number of times that the grievor was counting
his cash. This suspicion, plus the employer's action on the basis
of the No Sales, is troublesome.
Sales or the number of times a ti
broke no rules with this action.
There is no Board rule about No
1 should be open, so the grievor
In addition, it is somewhat dis-
tressing that Mr. Capistrand never mentioned his concerns about
cash counting and open drawers to the grievor, for an innocent
explanation might well have been possible and this hearing avoi.ded.
The third concern of the employer was the small cash items -
404, 50&, etc. The grievor explained these as either gratuities,
which he rang back in because the acceptance of gratuities is for-
bidden, or possibly a ringing in of the difference between the
value of a bottle returned by a~customer and that taken in exchange.
Some small items did match individual bottles of beer in the store.
Again, these small items are not proven to be a violation of Liquor
Board procedures -or irregularities;
What we ha&here, overall, is really a suspected irregularity
in handling cash, for which the employer does not accept the grievor's
explanation. It would seem that the decision to discharge has also
been affected by the other incidents mentioned above, namely the
Alberta Vodka incident (about which the grievor had heard nothing
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until the arbitration hearing) and the taking of money from the till
(again, newly revealed at the hearing). It seems that the employer
has looked at a series of apparently suspicious actions, and decided
that they give rise to an inference of untrustworthiness on the part
of the grievor.
Counsel for the employer insisted that he was not alleging
theft by the grievor,'and therefore, the~employer should only be held
to the ordinary standard of proof operative in civil cases - that.is,
the balance of probabilities. He argued, in the alternative, that if
this Board held otherwise and.required a higher standard of proof,
then that standard had also been met by the employer. In deciding
the appropriate standard, it is necessary to discuss the nature of
an "untrustworthiness" eharge generally and then in the context of
this case.
What we have here is a charge of untrustworthiness in
handling cash. That term can have several meanings, with various
implications for the arbitral process in tennsof what must be proven tom show
blameworthy conduct, the standardofproof, and the proper disciplinary
action. In trying to assess what is'meant by'bntrustworthiness",
one must first look at the conduct giving rise to the charge. In
-some circumstances, a person on cash may be said to be untrustworthy
because he or she is careless or incompetent in handling cash and,
therefore, unsuited to cashier's duties. An allegation of untrust-
worthiness in such circumstances might then be subject to.a civil
standard of proof, for there Is no allegation of dishonesty nor
possible slur on the employee's reputation. In other circumstances,
"untrustworthiness" may we77 mean something quite different and
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potentially much more derogatory. It may mean that an employee is
knowingly failing to follow cash register procedures. In such circum-
stances, his honesty may or may not be in doubt. In such cases, though,
the allegation of u,ntrustworthiness carries implicationsof theft or dis-
honesty, and consequently, the standard of proof should be higher than
the civil standard. The employer must show by clear and convincing
evidence that the employee has knowingly broken rules and so harmed the
employer's interests. It should be noted, however, that in such cases,
where there has been deliberate misconduct and, therefore, untrustwor-
thiness, the conduct may or may not justify discharge. Where there has
been breach of rules without proof of actual "dishonesty" (i.e. theft);'
the-employee may be subject to discipline, but not necessarily discharge.
The penalty will no doubt vary with the importance of the rule, the
number of violations, and the employee's record.
Past cases, of this Board of arbitration have dealt with the
correct standard of proof in cases such as these. Starting with
Bernard< rmd the Liquor Conk-02 Board of Ontario, 102179 (at p. 11)
and continuing with Pfeffir and 2% Liquor Cmh-01 Board of Gwta-ib,
148/79 (at p. 5) and Tsiu2ta.s m?d Liquor Conti02 Board of Ontario,
282/79 (at p. lo), this Board has required proof on a "clear and
convincing" basis when there are allegations of theft in the employer's
reasons for discharge. In this particular case, even though Mr. Drmaj
arguedthat the employer was not alleging theft, but rather "dis-
honesty", the inference that comes from the dismissal and the evidence
lead, is that the grievor was dishonest, and'probably stealing.. This
was clear from the evidence of Mr. Capistrand, who stated that the
shortages in the store fell afterthe griever left, implying that
he felt that the grievor was responsible. Because of this
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inference of quasi-criminal or criminal conduct, the employer must
prove its case on a "clear and convincing" standard.
After reviewing the evidence, we do not feel that the
employer has established grounds for discharge on this basis.
There are only two Liquor Board procedures with'which the grievor
failed to' comply. The provision with regard to cash register
receipts has been discussed. The other procedure was that used
to ring in multiple sales (specifically, the two bottles of
Melcher's rye). . Instead of using the multiple button or ringing
in the amount twice, he added the total ih his head. Not only does
this interfere with the Liquor Board's record system, which requires
a total of transactionseach day, bout it also creates a risk of error,
such as occurred here. Therefore, this action warrants discipline,
although by no means discharge.
,The other actions which caused.- concern to the employer - the
No Sales and small items - are not in themselves wrong. The employer
would have us uphold the discharge .because, taken together, they
show "dishonesty". The case, however, has not .been tide out. Admit-
tedly, we have difficulty fin accepting the grievor's explanation about
gratuities to explain the small items, for gratuities are not a ccnmon
occurrence, as Brown and Colangelo testified. However, the employer
has not proved wrongdoing. It is difficult to believe that the
grievor was doing something dishonest on February 12 and 14, for he
testified that he knew that he was under surveillance by the other
employees. He caught Brown scavenging through his garbage, and he'.
said that he felt the others were watching him. He was so angry.at
.the treatment that he approached the'Manager, Doody, on Saturday,
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February 16 for an explanation. It is hard to believe that he would
try to take money from the till or engage in deliberate malpractice
under such dangerous circumstances. Furthermore, we are not prepared
to dran the inference which Capistrand drew from the reduction in
shortages after the grievor's discharge. As Professor Prichard men-
tioned in Bermardi (above), it may well be that shortages are reduced
after a discharge because the real wrongdoer is either frightened or
given 'a chance to stop his theft, while throwing suspicion elsewhere.
In addition, it would be difficult to ,blame the grievor for all the ..A. ~.
store's shortages. Those shortages remained high while the grievor
was absent due to illness from July 25 to September 5, 1979. As well,
he was only on cash about two or three days per week, and yet the
~,.
shortages were often over Sl,OOO per month.
Finally, the Alberta Vodka incident and the money from the
till incident are troublesome, and largely because of the way in which
the employer treated them. Again, there was no charge of theft, just
"irregularity". That seems to be an invitation to this arbitration
Board to be suspicious of the grievor, without insisting on proof of
wrongdoing by the employee. The grievor had no prior knowledge of
these incidents and the employer did not refer to them in its letter
of discharge. Counsel for the employer conceded that the Vodka
incident would not alone warrant discharge. Therefore, we are not
prepared to give these incidents weight. The grievor might well
have had an explanation, if confronted at the time of di,scharge.
Overall, then the evidence does not prove dishonesty on the
grievor's part - whether on a balance of probabilities or on a clear
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and convincing standard. The most that is proven is suspicion, but
that is not enough to justify discharge of an employee.
In reaching the decision thatthe employer can not discharge
the grievor for either cash register irregularities nor untrust-
worthiness, reference has-been made to the cases of this Board
referred to earlier. The employer relied on, Pfeffer, where the
employee was disciplined for "untrustworthiness", a charge founded
on a consistent failure to follow Liquor Board procedures with
regard to voids. There, the employee.took credit for five voids,
knowing that he had failed to follow the Proper procedure.for
ringing them in. The void policy is very important to the employer's
cash control system, and a deliberate and consistent failure to
follow such a procedure is.serious misconduct for which the employer--
is justified in disciplining the employee. The conduct can be de-
scribed as "untrustworthy", in the sense that it jeopardizes the.cash
control system. However, that does not necessarily mean that the
conduct is dishonest, in the sense that theft has been alleged or
proved. Earlier in this award, we referred to the variety of mean-
ings attached to "untrustworthiness;" The Board in Pfeffer, chaired
by the present Vice-Chairman, may have created some.confusion by
using the term in two ways. On p. 13, it was stated that Pfeffer
could not be discharged for "untrustworthiness", because dishonesty
was not proved - . that is, theft was not proved. Nevertheless, on
p. 14, Pfeffer was stated to be "untrustworthy" because he breached
an important rule. The implication is that Pfeffer's conduct consti-
tuted a serious and knowing violation of the employer's rule. The
motive may or may not have been dishonest, but dishonesty was not
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proved. Nevertheless, the grievor was deserving of discipline
because of the gravity of such misconduct by a cashier and the
inference that he could not be trusted on cash because of that
misconduct.
In &ZTU.Z&, there was a~lso a form of "untrustworthiness"
proven, in that the grievor, who was the Manager of the store, was
directly responsible for the failure to implement Liquor Board
policy with regard to separate cash drawers, thus preventing the
employer from determining who was .responsible for falsifying
records regarding store productivity.
Finally, in Tsin'ltas, a panel of the Grievance Settlement
Board refused to uphold a discharge for failure to follow cash
procedures by failing to follow the void procedure in one transac- . .
tion, which involved "forgetting" to ring in one transaction. It
was held that the penalty was excessive for one failure to follow
procedures, when there was no proof of dishonesty.
In the present case, there is no basis in the evidence
for finding that the grievor was dishonest, nor is there a deliber-
ate and serious violation of employer rules which are integral to
the operation of the cash system. All that is proven is some
possibly suspicious conduct and one proven violation of employer
rules pertaining to the ringing in of multiple transactions. On
this basis, discharge is clearly an excessive penalty. The other
employees who instigated this investigation and the sunervisors who ':~'~,
accepted their findings acted precipitously. ~To discharge an employee.
on the bases alleged is to do so only because of suspicion of wrong-
doing, not proof thereof.
i? y”
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.
The grievor has violated one Liquor Board procedure,
which warrants some discipline. He has no prior disciplinary
record, and was, regarded as a good cashier. Therefore, a penalty
of a five-day suspension will be substituted pursuant 'to Section
18(3) of the Crown Employees Collective Bargaining Act, S.O. 1972,
c. 67, as amended. This should be adequate to convey the import-
ance of following Liquor Board procedures with regard to multiple
sales. Those procedures permit the keeping of records of sales
and help avoid mathematical errors.
The grievance is allowed, as stated in our telegram, and
a five-day suspension is substituted. The grievor is to be're-
instated without loss of seniority or credits. We will retain
jurisdiction to deal with problems arising out of the implementa-
.~/. tion of this award, including disputes as to compensation.
DATED at Toronto this 5th day of February, 1981.
/lb
Prof. K. Swinton Vice Chairman
"M. Gibb - I concur"
Mrs. M. Gibb Member
"E. McIntyre - I concur"
Ms. E. McIntyre Member