Loading...
HomeMy WebLinkAbout1983-0102.Menzies.83-06-18102/83 X6/83 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT ~~ Before THE GRIEVANCE SETTLEMENT BOARD Between: . OLBEU (Leon Menzies) Before: For the. Employer: For the Grievor: Hearing: Grievor - and - The'crown in Right Of Ontario (Liquor Control Board of Ontario) Employer J. F. W. Weatherill Chairman T. J. Kearney Member G. Griffin Member R. Drmaj Counsel Hicks Morley Hamilton Stewart Storie Barristers & Solicitors A. M. Heisey Counsel Blake, Cassels & Graydon Barristers &-Solicitors. March ,16, 1983 ” -2- DECISION The grievor, an employee of some six years' service, and classified as aClerk 2, was discharged from his employment effective January 28, 1983, as a result of an incident which occurred on December 1; 1982. On December 3, the grievor was suspended from duty, pending investigation of the matter. The sus- pension was the subject of a grievance which is before this Board as .file no. 102/83. The discharge is before us as file no. 126/83. Counsel advised the Board that i by letter dated December 15, 1982, the grievor sought to amend a grievance which had been filed so as to claim costs and damages in respect of certain court proceedings; It was agreed that any such issues not now be dealt with, and that the Board (or another panel thereof) retain jurisdiction to hear and determine such matter, to be brought on at the request of the union,at a later date. It would appear that there are, as well, certain other outstanding grievances filed by the grievor, but those are not now before this panel.of the Board. The grievor was suspended for failing to follow proper procedures while operating the cash register. He was discharged for having failed to i reqister customer purchases, accepting payment for items purchased, and failing to account for the amounts received. -3- The issue is whether or not the. discipline imposed was for just cause and the question is whether or not those charges~are established on the evidence before US. The standard of proof is the balance of probabilities, but to support charges such as these, c&ear :.and compelling evidence isrequired. The essential evidence in support of the employer's case is that of one witness, a woman who made ~a purchase from the store where the grievor was working on December 1, 1982. This customer, having selected her purchase, went with it to the cashier's desk at about 7:15 p.m., while the grievor was on duty. There would appear to be'no doubt that it was the griever who served her. The witness, who works as business manager in a dentist's office, and who had worked as a cashier in a shopping plaza some years previously, testified that when she went, to the check-out counter there were two women in line in front of her, and a'man behind her. She noticed that the two women had purchased a bottle of a certain wine, and she remarked to them, "that's a good choice". She observed that dur.inq the two sales preceding hers, the drawer of the cash register had been left open. With machines of the sort in use in that store, trans- -4- actions cannot be runq'up unless the drawer is closed. 1 The witness then made her purchase. She observed that the cash drawerwas open,. and that the sale was not rung up. She tendered a twenty dollar bill, and received correct change. As she was leaving, she turned to observe the following sale, and noticed that, again, the cash drawer was open and the 'sale was not rung in. The witness had been accompanied by a friend, another woman, who may also have observed these .events.. In her statement, given to the employer's director of '. security services some three weeks~afterthe event, the witness advised that her friend "did not want to become involved", and the employer appears not to have sought to question that person. At the ~hearinq, counsel for the grievor asked.the witness the name of the person who had been with her. Objection was taken to requiring an answer to that question, and after consideration the Board made the following ruling: The Board appreciates that Mrs. BOS has come forward as a concernced citizen, and recoqnizes that she is an independent witness not associated with either of the parties. She is, however, a compellable witness in these proceedinqs, and in Our -view it is right for us to apply the i usual rule&with respect to the examination -5- and cross-examination of witnesses. That is the procedure we deem to be appropriate. Such a witness must answer any questions which are relevant and material to the case'before .us. The question put by counsel for the union is, in our view, not one of idle curiosity: it may well lead to the discovery of facts which could test, in a perfectly proper way, .the evidence the'witness has given. Having regard to the evidence already before us, the ques~tion is a proper one. There may be circumstances in which some very strong personal interest of a witness might prevail: we would imagine that in most cases such interests could be protected by in-camera hearings. The mere desire of a person "not to become involved", if that is what is behind the witness' reluc- tance to Ianswer the questionis, as Mr. Heisey properly points out, not sufficient. There are of course some citizens' duties which they might prefer to avoid. In our view, the question is a ,proper one, andthe witness must be directed to 'answer it, The witness was directed to answer the question and did so. The person named as having also been present was not, however, called on to testify. The evidence of Mrs. Bos was not materially shaken in cross-examination. \ The cash register tape was examined by the employer and by the police, and was put in evidence in these proceedings; No transactions are recorded which match the witness' purchase nor, if it be,thouqht the witness' purchase may have been erroneously recorded, does any series of transactions appear which substantially resembles the series of transactions observed by the witness. -G- The grievor did not report any significant overage in his cash at the- end of his shift. If these transactions took place as described by the,witness, there would ,be a cash overage in the till; eon the evidence, then, the conclusion follows that the qrievor did not properly record the transactions referred to, and that he did. not account for the proceeds of those transactions. These conclusions are.not ones the Board can easily accept, having rega~rd to the griever's own demeanour as a serious, intelligent and straightforward .witness, and to the evidence of his good character and trustworthiness. The expectations thus created, however, cannot outweigh the unshaken evidence of an independent witness who had had experience as a cash~ier and whose testimony was clear, We accept~this eyewitness testimony, which in our view is clear and compelling evidence of the alleged .failures. The qrievor's evidence in that respect was simply that, as far as he could recall, nothing of the sort happened on that day, The grievor was acquitted on'charqes of theft , (one charge being withdrawn). With great respect, it would be our view too, on the evidence before us, that there is "reasonable doubt "as to these events. Given -7- the standard of proof which applies (quite properly in our view) in these proceedings, which are very different from criminal proceedings, it must neverthe- less.be our conclusion that the qrievor did not properly record these transactions and did not account for the proceeds. Such is our finding. On these conclusions, it is our view that there must be said to.have.!been just cause for the discharge of the qrievor: Grievance No. 126/83 will therefore be dismissed. It rema&ns to deal with grievance No. 102/83; As to that it may be said, briefly, that the employer did not investigate the matter with dispatch, did not give the grievor sufficient particulars of 'what it considered he had done wrong, and appears not to have given sufficient thought to'the possibility of alternative employment which he. raised.. Inthe particular circumstances of this case, the ~ indefinite suspension without pay for "failure to follow proper procedures" (an offence which in past cases has involved .a relatively light penalty), was not justified. Grievance No. 102/83, therefore, will be allowed, and it is our award that the qrievor be compensated for loss of earnings and other benefits for the period from December 3, 1982, to January 28, 1983. -8- DATED AT TORONTO l’iE3 "I dissent" (see attached) T. J. KeaRley, b%?&fX DISSENTING OPINION ,’ The grievor was suspended for faiiing to follow proper procedures while operating the cash register. He was subsequently discharged for having failed to register’customer .purchases, accepted payments for the items purchased but did not account for the amounts received. I wili~not review the facts which gave rise to the indefinite suspension: and the subsequent discharge as they have been set out in the Chairman% decision. The issue $ two-fold: Pkstly, whether or not the discipline imposed was for just cause; and secondly, the appropriateness of the penalty. With. regard to the indefinite suspension discipline (grievance No. 102/S)) I agree with the Chairman’s rationale’ to allow the grievance with compenqatiob for loss of earnings and other, benefits for the period from December 3, 1982 to January 28, 1983. Regarding the discharge discipline (grievance No. 126/83), with great respect, I strongly’disagree with the learned Chairman’s decision to dismiss the grievance. The Employer can not in my view base its de&ion to discharge.the grievor, on January 28, .1983;on an accusation of theft. Rather, its case must hinge solely on the griever’s failure to follow the Board’s proper procedures. The allegation of dishonesty was dealt with when the grievor was acquitted on charges of theft in criminal proceedings. It is to be noted therefore .- 2- that the more stringent criminal burden of proof I’ beyond a reasonable doubt” was . the~stthatthegrievore@ued.. .’ ,’ I have, in the main, accepted the testimony of ‘the s wit& who provided tha bulk of the evidence in support of the Employer’s case. The, witness . made a purchase, tendered a $20.00 bill, received the correct change, and did not rpceive a receipt of purchase. ‘Additional evidence advanced in these proceedings was the cash register tape examined by both the Employer and the ‘Police. Notwithstanding that no transactioq were recorded which matched or resembl$ ~the witness’ purchase, or that the griever did not report any significant overage in his cash at the end of his shift, it does not necessarily follow that the,grievor did not properly recdrd the transactjons referred to or that he did not account for the proceeds of those transactions. Such a conclusion is not possible because Management accepted a taleran& both for overages and underages, and permitted the existence of a float fund to this end. In my view, the onus is not on the griever to’explain why he did not ring-up the purchase, provide the receipt and account for the amount on the cash register tape. pe initial allegation by the Employer was one of theft. Clear and convincing’ proof of such conduct was not provided during the criminal proceedings. ,’ No new evidence was provided by the Employer’during the arbitration proceedings to shade the griever’s acquittaLon theft charges. The grievor may well not knaw why certain events occurred and he may well not be blam&worthy. Clearly, the grievor is faced with only one allegation of not following the Liquor Control~Board of Ontario operating procedures. , The.grievor has been a good employee foi his six years of employment and no evidence was submitted of B prior disciplinary record. I have .not been convinceq, based on one isolated incident, that Mr., Menzies is an untrustworthy employee. To uphold the griever’s discharge would, in my view, leave the griever’s reputation cast in doubt,because of the inference of dishonesty, when dishonesty has not been provefi. If one weie to accept, testimony of the witness, then dearly the gri.evor failed to follow proper procedures while operating the cash register on Wednesday, December I, 1982. Arbitral jurisprudence indicates that. the I appropriate penalty would be suspension. In balancing the evidence of the witness and. straight forward testimony of the griever, I am of the opinion that the penalty assessed by the Employer in the i&ant case is excessive. Accordingly, I would alter the original dismissal penalty and substitute in lieu thereof a.written warning and the grievbr should be compensated for all lost of wages and benefits. , 5 -I- DATED at Ottawa, Ontario this 18th day of June,’ 1983. -I ,/ T ;J/Kearney Member /lb