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HomeMy WebLinkAbout1981-0428.Diamonti.82-09-22 Decision180 DUNDAS STREET WEST TORONTO ONTARIO) AlSG 1Z8 - SUI7E 2100 IEL€PHONE' 416/598- 0688 4 2 8 / a 1 IN THE matter OF an ARBITRATION Under THE CROWN EiWLOYEES COLLSCTIVE bargaining ACT Before THE GRIEVANCE SETTLEmENT BOARD - Zetween: OLBEU (S. Diamonti before: - Gr i evo r and The Crown in Right of Ontario (Liquor Control Board of ontario) R.L. Verity, Q.C. - Vice-Chairman J. McManus Member M. Gibb member For the Grievor : A. Milliken Heisey Counsel Blake, Cassels & Graydon Barristers & Solicitors For the Enployer: Fearing: R. J. Drmaj Counsel Hicks, Morley Hamilton, Barristers & Solicitcrs September 10, 1982 employer Stewart & Storie -"!- AWARD The sole issue in this matter was the severity of the penalty imposed upon the Grievor. The facts are not in dispute. The Grievor, aged 25, is presently classified as a Liquor Store Clerk 3 and has been employed by the Liquor Control Board of Ontario for approximately 3½ years on a full time basis. - On Monday, July 13th, 1981, the Grievor was acting as a relief cashier at Liquor Store 456 between the hours of 12:00 and 1:00 p.m. During that time, the Grievor failed to ring up a cash sale of $7.00, and failed to give the customer a receipt for that purchase. The L.C.B.O. Store Operating Manual (Exhibit 2) states the procedure to be followed for cash receipts in paragraphs 12 and 13: "12. On all cash registers equipped with change computation features the cashier must, for every customer, enter the full cash ring up for purchases, the amount tendered, and change, if any, owing to the customer. every customer." 13. The cashier must provide a receipt to In the instant case, the Grievor testified at the Hearing to his failure to ring up the $7.00 transaction and issue a receipt which he admitted were violations of the L.C.B.O. procedures. As a result, the Grievor was given a throe day suspension without pay. In addition, he lost sick time and vacation time credi ts. The only evidence presented at the Hearing was the Grievor's testimony. His evidence was to the effect that he became "confused" during a relatively short period in processing five customers purchases and "threw everything into the ti ll The difficulty began by an "elderly" lady purchasing a bottle of sherry for $3.10 and subsequently having difficulty finding her money. The customers in the cashier line-up became impatient and the Grievor began to process other customers including a gentleman who rushed through the line, left $7.00 with the cashier and left the store. The Grievor was candid in admitting that he lost control in the processing of the line-up of customers at the cash desk. During this period of time five professional shoppers were in the store. His evidence was that there was "mass confusion" at the time, and although he deposited the $7.00 in the cash register, he forgot to ring in the $7.00 cash sale and had no opportunity to give the customer a receipt. In retrospect, he testified that he should have processed one customer at a time to avoid a procedural error. The evidence is clear that the Grievor was familiar with L.C.B.O. procedures for the cash register. -4- Mr. Drmaj, on behalf of the Employer, argued that cash procedures in a Liquor Store are important to the successful operation of the L.C.B.O., and that the procedures must be rigidly enforced. It was argued that the Grievor was guilty of a breach of board policy and that the breach merited some form of discipline. The Employer's Counsel argued that the three day suspension without pay was reasonable in view of arbitral precedent, and that there were no mitigating circumstances to justify a reduction in the penalty imposed. Mr. Heisey, on behalf of the Grievor, argued that the penalty of a three day suspension was severe in the absence of dishonesty, and in the presence of an unusual fact situation. He argued that arbitral precedent would indicate that a written warning to the Employee would be appropriate. In a determination of the issue, the Board agrees that proper cash procedures are essential to the successful operation of any L.C.B.O. Store. There is no doubt that the Grievor was aware of those procedures. There is also no doubt that the Grievor in violating the cash procedures lost control of his responsibilities by allowing himself to become intimidated by impatient customers. The Liquor Store cashier's responsibity is to process one customer at a time before proceeding with the next customer. The Board is of the view that there are mitigating factors to be considered in assessing the appropriateness of the penalty imposed. We accept the Grievor's unchal lenged evidence that he had not been disciplined on any previous occasion. In addition there is no suggestion of dishonesty on the part of the Grievor, and clearly the fact situation can be classified as an isolated incident. The following arbitral authority was submi tted by Counsel; Re Retail, Wholesale and Department Store Union, Local 414 and Dominion Stores Limited, Discharge of Mrs. Dorothy Skinner (Curtis, Unreported - 1977); Re Dominion Stores Limited and Retail, Wholesale & Department Store Union, Local 582, Grievance of Marlene Williams (Egan, Unreported - 1978); Re Canadian Pacific Ltd. and Canadian Brotherhood of Railway and General Workers' Union (1981) 29 L.A.C. (2d) 111 (D. Owen-Flood); Re Douglas and the Crown in Right of Ontario (Liquor Control Board of Ontario) (1981) 28 L.A.C. (2d) 332 (Swinton); Re J. Pfeffer and The Liquor Control Board of Ontario, Grievance Settlement Board Award of K. Swinton, Vice-chairman dated April 14th, 1980; Re Joan Chapman and The Crown in Right of Ontario (Liquor Control Board of Ontario), Grievance Settlement Board Award of S. B. Linden, Vice-Chairman dated July 12th, 1982 The instant case bears a remarkable similarity to the Chapman Award of Vice-chairman S. B. Linden, of the grievance Settlement Board. are of the view that the penalty imposed -6- Chapman Award. We are of the opinion that the penaity assessed by the Employer in the instant case is excessive in the ci rcumstances. Accordingly, this Board varies the original penalty and substitutes in lieu thereof a suspension for the balance of the day in question, namely July 13th, 1981 from 1:00 p.m. for the balance of the Grievor's shift (the approximate time the error occurred). we are of the view that this incident should attract a penalty and that a written warning would be inadequate in the circumstances. Subject to the penalty imposed herein, the Grievor shall be compensated for all lost wages and benefits. DATED at Brantford, Ontario, this 22nd day of September, A.D., 1982. M. GIBB - M