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HomeMy WebLinkAbout1983-0203.Robertson.83-11-10IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OLBEU (G. J. Robertson) Grievor - and'- The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer Before: J. F. W. Weatherill Chairman M. V. Flatters Member F. T. Collict Member For the Grievor: M. Levinson Counsel For the Employer: B. Bowlby Counsel Hicks Morley Hamilton Stewart Storie Barristers & Solicitors Hearings: May 31, 1983 September 20, 1983 -2 - .5- D,ECISION s In this grievance, dated March 22, 1983, the grievor protests his discharge from employment. The grievor, a Clerk 3 having some six years'.service with the employer, was discharged effective March 21 as a result of an incident which occurred on February 22, 1983. The issue is' whether or not the grievor was discharged for just cause. The incident leading to the imposition of discipline in this case was the grievor's failure to ring in an $11.80 purchase on the day in question. There is no doubt, on the evidence before us, that such failure occurred. The individual who made the purchase, while not acting in any official capacity at the time, was a licenced private investigator, and had had experience as an "integrity shopper" on behalf of the employer. On the day in question, he purchased a bottle of rum priced at $11.80, gave the grievor, who was cashier, a $20.00 bill and received the correct change. He observed, however, that the grievor did not ring up the sale, although he had done so for the previous customers. Instead the grievor had left the drawer of the till open (it was thus impossible to ring up the sale) and had simply placed the bill in the drawer and giVeI the Change. There was of course no receipt:, - 3 - _- . as the transaction had not been rung up. Shortly after this transaction, the witness contacted the assistant manager then in charge of the store, and explained the matter to him. As a result, about forty minutes after the transaction had taken place, the grievor's cash register was closed off, and the cash counted and reconciled with the tapes. There was found to be a cash "overage" of $11.50. It is not alleged that the grievor stole any money; and certainly no significant loss appears. It is, however, quite clear thatthe grievor failed to follow the correct procedure which requires that every . sale be rung in; and that a receipt be issued-~ This is a standard proced,ure, which the grievor knew and understood, and its importance to the efficient and proper conduct of the employer 's operations is obvious. In the case of an employee involved in such operations, failure to'follow such procedure is a serious matter, and constitutes an offence for which discipline may be imposed. In the instant case, we find that there was just'cause for the imposition of some discipline on the grievor. Whether or not there was just cause for ~the particular penalty imposed - that is, discharge - is to be determined having regard to all of the circumstances, including the disciplinary record of - 4 - the employee. At the hearing of this matter of May 31, counsel for the union objected to the introduction of the grievor's disciplinary record as part of the employer's case, arguing that there was no need to go into the record unless the ."culninating incident" is made out. The board ruled that the case ought not to be divided, and that evidence of tne grievor's record was properly admitted at that time. Of course, the disciplinary record isnot relevant to the issue of whether or not the "culminating incident" occurred. It is, however, relevant to the issue of the appro- priateness of the penalty imposed, and thus to the overall issue of just cause. While there may be occasions on which it is desirable for a board of arbitration to hear evidence and argument, and make a determination on the issue of the "culminating incident" before proceeding further in the matter (and while of course the determination of there being such an incident is logically prior to any consideration of the previous record), it is the usual, and we think the desirable practice to hear the whole of the parties' cases on all aspects of the just cause issue. This is so even although it might be determined that there was, -5 - on the occasion in question, no incident justifying discipline, and so no occasion for consideration of the past record. In the instant case there was, as we have found, occasion for the imposition of discipline, and so the grievor’s past record is properly to be considered. It was argued by counsel for the~union that "unrelated" offences were not material, the De Havilland case 16 L.A.C. 383 (Arthurs) being cited as authority for that proposition. With respect, that case does not support counsel's view. The grievor's record was considered as a.whole, and as it stood. The arbitrator also considered. quite properly, evidence.to suggest that the grievor ."might well be rehabilitated as a useful citizen in this industrial community". In the case before us, the grievor's record (that is, the recordofdiscipline imposed and not altered by reason of grievance or other procedures) shows that discipline is recorded in respect of four instances since Auqust, 1980. These include two suspensions and one ,written warning for "unrelated" matters (although one of these involved the cashing of an n.s.f. cheque), as well as a ten-day suspension (accompanied ,by a "final warning") - 6 - in August, 1982, for a failure to follow the void sales policy, which offence is certainly related to that which gave rise to this case. While the grievor gave evidence of certain personal events which were no doubt the occasion ,of considerable stress, those events took place some time before the incident in question. They donot serve to bring the incident in question here within the category of momentary lapses attributable to some temporary external cause. While an instance 0:: ;;: ; :I ;:irc kc> ri.lll,j up a sale would not in itself justify discharge, it is a serious matter, and where, as here, there is a substantial disci- plinary record including other instances of unacceptable cash handling, the penalty of discharge is justified. That was the case here, and we find there was just cause for the employer's action in this case. ,For the foregoing reasons, the grievance is dismissed. DATED AT TORONTO, this 22nd day of November, 1983 I \ ‘J.F.w. Weatherill, Chairman "I dissent" (see attached) IN THE MATTER OF AN ARBITRATION- under THE CROWN EMPLOYEES~ COLLECTIVE BARGAINING ACT before THE GRIEVANCE SETTLEMENT BOARD BETWEEN: OLBEU (G. AND: J. Robertson), Griever The Crown in Right of Ontario (Liquor Control Board of Ontario), Employer DISSENT ----_-- I have now had the, opportunity to review the opinion of the Chairman, Mr. J.F.W. Weatherill, in this matter. Although I accept the findings of fact contained therein, I must, with the greatest of respect, dissent from the decision to dismiss the grievance. The evidence presented at the hearing of the grievance clearly proved a failure on the part of Mr. Robertson to comply with the operational policies of the L.C.B.O. as described in paragraph numbers twelve (12) and thirteen (13) of the L.C.B.O. Store Operating Manual (Cash and Security F4 - Cash Receipts) entered into evidence as Exhibit Number Five (5). Specifically, the Griever failed to record as required the purchase transaction of Mr. Walter Frederick Flink. This failure, in my opinion, justified the imposition of some discipline so as to protect and foster the integrity of the cash system. The difficult question before this Board was whether such failure justified a discharge when considered in conjunction with the prior work record. A consideration of the facts of this case, together with the prior work record as placed before the Board, has led me to conclude that discharge was too sever6 a sanction in the circumstances. In this regard, the evidence presented did not I provide clear and convincing proof that the Griever acted with any dishonest intent. Rather, it was consistent with the occurence of an honest mistake caused through inadvertance or inattention. It is also noteworthy that no evidence was presented to suggest that the Griever had removed money from the till. Indeed, the isubsequent cash reconciliation process disclosed an "overage" of $11.: 50 . All of the evidence tended to suggest a failure to comply with established procedure in respect to the recording of a single purchase transaction rather than a deliberate attempt to deceive or otherwise act in a dishonest fashion. In light of the above, I do not view the incident of February '22, 1983 as sufficiently serious so as to justify a discharge from employment, even when considered in conjunction with the prior work record as reviewed in the decision of the Chairman. The prior work record is clearly somewhat blemished, but I cannot conclude that it is so poor a disciplinary record as to require a discharge for the culminating incident of February 22~, 1983. This incident nonetheless reflected an extremely serious breach of procedure. In view of the fact that there had been one previous ten (10) day suspension for a related failure to follow the void sales policy, I am of the opinion that a substantial suspension without pay is the appropriate sanction. After much reflection, I have concluded that a suspension of ninety (90) days would be the discipline that I would elect to impose, given the circumstances of this case. Accordingly, I would have allowed the grievance in part. DATED at Windsor, Ontario, this 10th day of November, 1983. . wk.z&x& I/. ticS%Pd Michael. V. Watters - Member