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HomeMy WebLinkAbout1983-0718.Leavere.84-05-08IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: For the Grievor: For the Employer: Hearings: OLBEU (Terry L. Leavere) Grievor - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer R. J. Roberts Vice Chairman S. J. Dunkley Member W. A. Lobraico Member M. Levinson Counsel M. P. Moran Counsel Hicks Morley Hamilton Stewart Storie Barristers & Solicitors January 16, 1984 March 9, 1984 , -2- DECISION This is a discharge case. The grievor was discharged for failing to ensure the security of funds belonging to The Liquor Control Board of Ontario (the Board). At the hearing, the Board submitted that this incident, in combination with earlier discipline meted out to the grievor, constituted just cause ,for discharge. For reasons which follow, the grievor is reinstated as of the date of issue of this Decision. Prior to his discharge, the grievor had been a long-term employee of the Board. He was hired on April 13, 1971. Over the next several years, the grievor gained recognition as a good employee. He was promoted through the ranks from the position of Clerk 2 to Clerk 4. On May 23, 1978, the grievor was promoted to the position of Manager of a "D" Store in Hastings, Ontario. Two years later, however, things started to go wrong. In June, 1980, the grievor was suspended and later demoted. The reasons for these actions were described by Mr. J. Jennings, Director of Store Operations, in the following letter: , -3- July 16, 1980. Mr. T.R. Leavere, 134 Clyde Street, Hastings, Ontario. KOL 1YO Dear Mr. Leaverei Consideration has now been given to the incident which resulted in your suspension of June 19, 1980. The irregular practice of using Board funds by placing an undated personal cheque in the cash is a serious breach of operating rules. This coupled with other operating irregularities described in the Area Manager's report to you dated June 19, 1980 cannot be allowed to continue. You were warned in June 1979 and again in January 1980 about similar irregularities but you disregarded the rules thereby incurring a serious breach of trust. As disciplinary action you are suspended without pay for one month (21 working days) namely June 20, 21 and the period July 21 through August 15, 1980 inclusive. You have demonstrated that you are not capable of performing as a store manager and as a result are reclassified to Liquor Store Clerk Grade 3, at the salary of $15,850. per annum, effective August 16, 1980. You are to report to Store 343, Peterborough, on August 16, 1980. You are required to sign and immediately return the enclosed copy of this letter thereby acknowledging that you fully understand its contents. Yours truly, J.E. Jennings, Director of Store Operations. The grievor was suspended for one month, demoted to Clerk Grade 3 a&transferred to Store 343, in Peterborough. -,4 - About 5 months later, the grievor again was in trouble. He had cashed a personal cheque at the store for $20.00 and the cheque had been returned marked, N.S.F. He received the following letter from L.W. James, his District Supervisor: January 15, 1981. Dear Mr. Leavere: On January 8, 1981 you issued a personal cheque at Store 343. The cheque, in the amount of $20.00, was subsequently returned N.S.F. You are hereby compelled to make restitution irenediately. You should be aware that it is a criminal offence to cash a cheque when there are insufficient funds to cover that cheque. As a result of your actions, you are hereby permanently denied the opportunity to cash personal cheques at any L.C.B.O. outlet. You will read, sign and return one copy of this letter which will be placed on your personnel file at Head Office. Yours truly, L.W. James, District Supervisor. The grievor was permanently denied the cheque cashing privileges normally extended to Board employees. On I -5- the following day, the grievor sent Mr. James a letter which alluded, inter e, to personal financial problems as the reason for the incident. For over two years after this incident, the grievor maintained a clean record. Apparently, Mr. James decided that the grievor was competent to manage a summer store that the Board. maintained in Warsaw, Ontario, an area which attracted a number of cottagers and vacationers in the summer months.,. The store was not large: essentially, it consisted of the trailer portion of a tractor-trailer, with "in" and "out" doors on one side. It was capable of being operated by the grievor as the sole full-time employee, with assistance from a single part-timer. The grievor began to operate this store on May 16, 1983. Apparently, the grievor operated the store without incident for the entire summer. However, on October 18, 1983, which was the final day of operation, disaster struck. At some point in time after the grievor had closed for the day, thieves broke into the store and managed to steal the cash receipts. These consisted of $3,335.77 in cash and oheques totalling $491.77. The investigation that followed showed that, once inside the trailer, the thieves had an easy time getting .; -, -6- at the money. The grievor had placed the money inside a file drawer which was mounted above the store's safe. While the drawer was locked, it was an easy matter for the thieves to " j+my" the drawer open. The drawer was of standard file cabinet-type construction, with more than enough space around the edges to allow insertion of a crowbar. While the outer door of the safe below this file drawer likewise had been jimmied open, there was no damage to the inner door. This door was made of heavier gauge metal than both the outer door and the file drawer, and there was minimal space between the edges of the door and the safe. It was not necessary for the thieves to attempt to break open this door, however, because it was not locked. The combination to the lock had been set on the last number of its series. Once the thieves broke open the outer door, they only had to swing open the inner door. It seems from the evidence that because the inner door was open the police initially suspected that the theft might have been an inside job. When they interviewed the grievor, however, they appeared to be satisfied that it was not. According to the investigating Officer, Constable R. Moreland, the grievor said that he had placed '. -7- the money in the drawer and not the inner safe. Officer Moreland testified, "He said he placed it in the drawer. He was in a hurry to leave the store because of the long [Thanksgiving] weekend. He didn't mention that he'd locked the inside safe. He also said he put it in the drawer because the outside door [to the safe] was not very secure. That is why he didn't put it into the safe either." Mr. James testified that when he talked to the grievor on the following day, October 11, the grievor sati,,"This was the only time he'd placed the money in the drawer rather than into the inner safe. I asked why this time? He said he was typing up his deposits, the typewriter was right on top of the cabinet. The drawer was a little open. He .placed his deposit in a white bag in the drawer. He inadvertently closed the drawer and it locked. . . . He was on his way out of the store and decided to count his beer before he left. He counted his beer and left the store." This testimony essentially coincided with a description of events in a memorandum dated .October 12, 1983 from Mr. James to Mr. F.B. Rankin, Director of Store Operations. At the hearing, however, the grievor gave a different version of the events leading to the placing of the money in the drawer. This version emphasized the defects that apparently existed in the way in which the outer door -8- was attached to the safe. The grievor said, "I proceeded to put the money in the bottom [inner safe], the [outer] door was on a tilt. All three screws were out. It was hanging by one screw at the top. I spent 10 to 15 minutes that day trying to get the screws in. This was at the end of the shift. When I tried to raise the door, put the screws in, then put the door down, the screws would POP. I decided to use the drawer at the top. I felt it was safer because of the two-lock system that it had. One lock was a push-in lock like the usual file cabinet lock. There was one other lock below that, which is a turn key lock." This testimony was consistent with a letter dated October 12, 1983, from the grievor to Mr. Rankin which stated, inter &, "I felt because of the two-lock system the .monies would be much safer locked in the upper drawer." There was considerable evidence introduced at the hearing regarding whose responsibility it was to repair the outer door of the safe, i.e., the grievor's or Mr. James'? This evidence seems to have been introduced to support the positions of the parties in the event that this Board might find, on the above conflicting testimony, that the main reason why the grievor put the money into the drawer and not the safe was the relative insecurity of the latter due to the condition of the outer door. -9- We do not so find. We find that the main reason why the grievor put the money in the drawer was that he was in a hurry to leave the store because of the long weekend. If it played any part at all, the threat to security which was posed by the condition of then outer door of the safe played a minor role in the grievor's decision. It seems to us that in the circumstances this is by far the most probable conclusion. The evidence showed that the defect in the outer door did not have any impact upon then security offered by the inner door to the safe. Constable Moreland testified, "If the money had been put into the safe, no one would have been able to put a prybar in there. It is so close around the edges they would have had to use a hammer and prybar. The drawer was much easier for the prybar. . . . The safe door was a heavier metal. It would be more work to open than the drawer." In his own testimony, even the grievor agreed with Constable Moreland's assessment, above. On cross-examination, he said, "The drawer at the top is just a filing cabinet drawer, yes. The walls of the inner safe are considerably thicker. They are more in the line of a safe than a file cabinet. It appears more solid and secure than the door. Yes. I agree." This evidence shows that despite the missing screws in the hinge of the outer door, any reasonable person - 10 - in the position of the grievor still would have concluded that it still was safer to place the money into the inner safe and lock it. Moreover, to do so would have been in accordance with Board policy, which was within the knowledge of the grievor. When~ the grievor failed to put the money into the inner safe and lock it he not only was in breach of Board policy, he also was negligent, in the sense that his conduct fell below the standard of 'care with respect to the handling of money that the Board reasonably might demand from employees in the position of the grievor. There is no doubt that this was a serious breach of duty for which the grievor was liable to be disciplined. This brings us to consideration of the discipline which was imposed. By letter dated October 31, 1983, Mr. F.B. Rankin, Director-Store Operations, notified the grievor that "[flu11 consideration has now been given to the occurrence and it has been decided that your services are terminated effective November 5, 1983." At the hearing, the Union directed our attention to a recent case, Re - Zapp and The Liquor Control Board of Ontario, G.S.B #169/82 (Jolliffe) . In that case, the Grievance Settlement Board "found there was negligence, there was indefensible falsification of the records and there was a dishonest attempt to deny knowledge of the truth." Id. at 21. Yet - even in these circumstances the Board substituted a suspension of 6 months without pay for the discharge which While we feel the force of the distinction that counsel drew between the facts of this case and those in m, we cannot accept that the evidence discloses, as counsel for the Board suggested, a frequency of misconduct justifying full-blown application of the doctrine of culminating incident. Two years passed between the incident at hand and the incident in 1981 regarding the "bounced" cheque. Moreover, the latter incident seemed to have been treated by the Board as relatively minor in nature. It did not draw application of a progressive discipline. As to the incident in 1980 that led to the griever's suspension and demotion, the evidence tended to indicate that the Board regarded the grievor, at least to a degree, as having redeemed himself therefrom. It wi 11 be recalled - 11 - was originally meted out to Mr. Zapp. Counsel for the Board attempted to distinguish a on the grounds that only a single incident was involved in the case while here, the incident leading to discharge was in the nature of a culminating incident. Because the grievor had since 1980 exhibited a chronic inability to follow Board policy, particularly with respect to money, counsel submitted, discharge was justified. In this regard, counsel emphasized that in a the grievor admitted prior to and at the hearing that he had been wrong whereas here, the grievor refused to make that concession. - 12 - that part of that discipline involved demotion for incompetence to manage a store. Yet in May, 1983, Mr. James saw fit to make the grievor a summer store manager. This leaves us with two considerations to weigh in the balance: the seriousness of the breach of duty by the grievor, and the fact that up to and including the hearing the grievor seemed unwilling to accept responsibility for this breach. Though perhaps not as grave as the totality of the breaches in m, the grievor's breach of duty was very serious. At a minimum, the grievor's negligence facilitated the theft from the Board of a large sum of money. Granted, the money might still have been taken if placed in the safe. Yet it is undeniable that by his negligence the grievor made much easier the task of the thieves. In the light of this and in the light of the griever's perceived unwillingness to come to terms with his responsibility in the matter, it seems to us that it was in order to impose severe discipline. The matter did not, however, warrant discharge. For all of the above, we conclude that the grievor must be reinstated as a Clerk 3 as of the date of issue of this ,&ision. There will be no award as to back pay. We will retain jurisdiction pending implementation of - 13 - this Decision. DATED AT London, Ontario this 8th day of May, 1984. -- "I dissent" (see attached) w. A. Lobraico, Member DISSENT At first blush, the decision to reinstate the grievor appears reasonable considering his length of service, the doctrine of progressive discipline, the decision Re.Zapp and.the~ L..C~.B..O;.#189/82 and the inci- dent on October 18, ~1983 which can be considered the result of inadvertence. Further review and assessment of the facts indicate to me that such a decision is not warranted. The grievor has shown by his actions over the past few years that he cannot be trusted to comply with L.C.B.O. policies nor can' he be relied upon to use good judgement particularly when money is involved. The Board should not be expected to accept such low standards of performance from employees, who demonstrate by personal traits and actions, that their services are not trustworthy. Fortunately the grievor's actions on October 18 did not result in any criminal charges. It would not be innatural for someone to assume that collusion existed otherwise why would he leave the money in a cash drawer rather than the safe (he claimed he had never done this before). Such action can only be considered gross incompetence. The grievor's attempt to defend himself by claiming the retaining screws on the outer door were defective confirms this. The Liquor Board has now given the grievor two opportunities to demonstrate his ability to perform adequately -2- as a Liquor Store Manager and he has betrayed their trust. How many times do they have to give him another chance to the detriment of the Board -and the taxpayers who ultimately suffer the consequences? The Board should not be required to employ such a person in a position of trust and at the very least reinstatement should not permit employment in any position involved with the handling of cash. In my opinion any further attempt at rehabilitation of the grievor will only lead to further embarrassment for the L.C.B.O. and this Board. I would have dismissed the grievance. I s Respectfully, W.A. Lobraico