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HomeMy WebLinkAbout1981-0504.Chapman.87-02-12IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: .Before: OLBEU ('goan Chapman) - and - Grievor The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer S. B. Linden, Q.C. - Vice Chairman H. Roberts - Member L. Robinson - Member For the Grievor: E. Baker, General Secretary Ontario Liquor Boards Employees Union For the Employer: R. Drmaj, Counsel Hicks, Morley, Hamilton Hearing: March 5, 1982 -2- AWARD The facts in this case were not in dispute. It was agreed that the Grievor's classification is "Liquor Store Clerk Grade 3" and she has been employed with the Liquor Control Board since December, 1979. It was agreed that on July 27th, 1981, the Grievor failed to ring up a $10.00 sales transaction. There is a general . Liquor Control Board Store operating manual, filed as Exhibit 2 at the hearing, which sets out the proper cash register procedure in paragraphs 12 and 13 therein. Essentially, the procedure is that the cashier must, for every customer, ring up the purchase, the amount tendered and the change, if any and provide the customer with a receipt. ..~ \ In this case, the Grievor failed to ring up a $10.00 purchase and was given a two day suspension, without pay. The issue for this Board to decide is whether the two day suspension was too severe in the circumstances. Mr. E. Baker, the General Secretary of the Union, agreed,that the item in issue is simply the severity of the penalty. He indicated that originally, the Grievor was suspended for the balance of the day on the day the error was discovered but that later on a decision was made to suspend her for two days. In addition, she would have lost the sick-time and vacation time creditsdueto her if she had worked the two days, - one- half day from each. In the Employer's argument we were asked to look at the Collective Agreement and, in particular, Articled 3, "Management Functions" (this is consistent and almost identical to Section 18. of the Crown Employee's Collective Bargaining Act). Counsel for the Employer points out that management must establish pro- cedures which willgovernemployees and this is especially true with respect to cash and security. The cash procedure in an L.C.B.O. store is very important because it is the only documentation which exists to govern the flow of the product. Accordingly, the procedure must be rigid and strictly adhered to. If it is not, -4 -. there is a problem of inventory control and cash flow as well as the potential for problems with the "trustworthiness" of employees; All the money in an L.C.B.O. store is in the control of the employee and the Employer must, therefore, be able to trust its employees. The clerk is solely responsible for receiving money and,getting it to management, - there are no other checks and balances. That is why the Operating Manual is specific, particularly at Clauses 12 and 13. The procedure imposes a duty on the clerk. Counsel argued that the failure to perform each of these procedures merits some form of discipline and points out .that the importance of the process to the Employer is significant in order to assess the severity of the penalty that should be imposed. He referred the Board to a number of cases, both outside and inside the L.C.B.O. We have looked at those cases and many of them deal with allegations of criminality where the penalty was either a discharge or a very long suspension. Also, many of the cases deal with more than one incident. They also consider the seniority of the employee in question. Counsel referred to some L.C.B.O. cases in which the general principle of deterrence to other employees is indicated as an important factor. Be argues that if the Board reads these cases we will conclude that a two day suspension of this Grievor fits within the range of reasonable responses. He says the two day suspension is not severe considering the circumstances, the cases and the short seniority of the employee. . . . ! --. -5- . . I’ The Union General Secretary asked the Board to consider the letter that the Grievor wrote explaining the circumstances in which the mistake arose. He inferred that the incident was a "set-up" arranged by store security people, presumably to detect criminality and the Grievor was'suspected of taking the $10.00. Mr. Baker felt that the Grievor has already been subjected to more penalty than was proper. He says that to additionally suspend her for two days, without pay, and for her to lose sick leave credits and vacation leave credits is far too severe a penalty. He said that this mistake was not a normal mistake.which arose in the normal course of business and which would, therefore, attract a penalty for discipline. He says that because this was set-up in the way that it was, it should not warrant any discipline at all. In fact, what he says should happen is that the Grievor should get a letter of apology from the Employer for all the trouble she has been subjected to. In reply, Counsel for the Employer argued that in the Crown Employee's Collective Bargaining Act, Section 18. and Article 3 of the Collective Agreement are essentially identical. He said that the procedures to be established are the exclusive right of management and these procedures need not be reasonable. ,; He says that all that has to be reasonable is the penalty for not following the procedures. In any event, he says that whether the procedure has to be reasonable or not, the penalty imposed in this case for non-compliance is fair and reasonable. Counsel further stated that management must consider the welfare of the general business enterprise on the one hand and the. rights of individual employees on the other. He says that what management is engaged in is essentially a balanc~ing act. He says that in this case the actions of management are within the framework of this balancing act. If an individual suffers some embarrassment because of a breach of procedure, management must consider it in light of what'is in the best interests of the whole business operition. He.says that the two day suspension must be weighed against the extenuating circumstances of the Grievor, but it also must be considered in the light of the general business enterprise and how it will affect all other employees, i.e., general deterrence. He says that, therefore, the two day suspension is rea~sonable in all the circumstances. A careful reading of the Grievor's letter about the lead 'one to incident, filed as Exhibit 3 at the hearing can -7- suspect that the error.on her part may not have occurred if the security men had not been lining up and creating confusion at her cash register. It is open to the Board to infer from her letter that this error occurred only because of the.actions of the security men who were trying to "set-up" the Grievor. It is possible that the Employer was interested in detecting criminality among its employees and it is arguable that someone who commits an error as a result of this action by the hnployer should not be subjected to a penalty because of it. This was an isolated incident involving this Grie--or and it is the first time she has been subjected to a penalty and a two day suspension in those circumstances appears to be too severe. The Employer's representative on this Board suggested that a two day penalty is not excessive and that there is material on file that suggests the Employer regrets the incident happening. He maintains that it is not unusual for companies to test their security and the trustworthiness of employees from time to time and he says that, having regard to the fact that she admits she made a mistake in her letter, a two day suspension is not excessive in the circumstances. However, it is~ the opinion of both the Vice-Chairman \ and Union nominee to this Board that, in view of-the facts admitted, I' I , -8-, this-was an hdnest mistake on the part of the Grievor, it was an isolated incident and the first time that it happened. There is no record of any previous impropriety on the part of this employee. Under all these circumstances, we find that the two day suspension is too severe. There is no suggestion of criminality on the facts that we have before us and,accordinqly, we think that the proper response for a first mistake would have been the suspension for the balance of the day, which the Fmployer initially imposed. To impose a further two day suspension, after reflection, seems to us to be excessive in the circumstances. Accordingly, we uphold the Grievance and reduce the suspension of two days to the original suspension of the balance of the day on which the error was discovered. We do not think the Employer was wrong to make efforts to detect breaches of security and, in so doing; it is reasonable to presume that some individual employees may be somewhat embarrassed. This embarrassment is a price that must be paid in the overall general interests of the company and its business operations. One can understand the Grievor'z unhappiness over this incident but we think she should take into account the fact that she did make a mistake and that that mistake should attract some penalty taking into account all of the circumstances. -9- . . DATED at Toronto, Ontario this 12th day of July, 1982. S. B: Linden, Q.C. - Vice Chairman "I dissent" (no paper) H. Roberts - Member "I concur" (s'ee addendum) L. Robinson - Members . !., :: : ‘~ -, _ ,.,_ ..I.,_./ ‘I ..,, . .,I.. ADDWDUM 1 concur with the Chairman’s decision to revoke the’additional ‘i two-day suspension imposed on the grievor and to reduce the penalty to “the balance of the day on which the error was discovered.” I would myself have gone further’and revoked the suspension entirely. There is no doubt in my mind that the grievor was completely innocent and was inadvertently a victim of efforts on the part of the Employer to avoid theft. Although these efforts may be necessary, they can as they were in this case be excessive and cause an Employee to make a mistake which would in normal circumstances not occur. Moreover, when the griever’s error was discovered, she was treated’as if she were guilty and subjected to prolonged questioning, after which she was taken to a police station where she was body-searched by two police women. This was an embarrassment and humiliation which the ,grievor felt keenly and for which she is more entitled to an apology than a suspension. In light of aLI this, the additional two-day suspension was clearly unwarranted. Reference may be made to OLBEU ~(Hill) dnd the Liquor Control Board of Ontario, 367/81, in which the grievor pleaded guilty to four charges of theft amounting to under $200.00, was granted a six months’ conditionai discharge and was then dismissed from her employment. Medical evidence given at the hearing before the Grievance Settlement Board showed that the griever had been suffering from endogenous depression, of which one of the symptoms in her case was a compulsion to steal. On the basis of this evidence, the Board ordered the grievor reinstated with full retroactive pay to the date of her discharge. In light of this decision, which seems to me i.. . . -2- compassionate and also in light of the Board’s reasoning fair, I believe a fortiori that a completely innocent person who for one hour or so was only $10.00 short in her case, who repeatedly asserted her innocence and whom the police did not even charge, should be entirely exonerated and also suffer no loss of pay. For these reasons, I concur with the Chairman’s decision to reduce the penalty as being clearly in the right direction. July 9, 1982 k:, .Yk w . ‘e H. L. Robinson