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HomeMy WebLinkAbout1984-0010.Elliott.84-12-051 i IO/84 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Between: Before: For the Grievor: Before THE GRIEVANCE SETTLEMENT BOARD For the Employer: M. P. Moran Hearing: OPSEU (C. Elliott) and Grievor .The Crown in Right of Ontario (Liquor Control Board of Ontario) -Employer 1. C. Springate P. Craven D. 8. Middleton Acting Chairman Member Member M. Levinson Koskie & Minsky. Barristers & Solicitors Hicks Morley Hamilton Stewart Storie Barristers EC Solicitors June 4, June 5 and June 19, 1984 -2- The grievor and the union allege that the grievor was discharged by the Liquor Control Board of Ontario (the “L.C.B.0.“) without just cause. The grievor commenced employment with the L.C.B.O. on a part-time basis at the end of 1977. In May 1981 he became a full-time employee and commenced working at the L.C.B.0; store in Hanover. -Prior to September 9, 1983, he had no disciplinary record. .As a result of certain events on that day, however, the grievor was discharged for attempted theft. The union does n~ot dispute that on the day in question the griever acted inappropriately. However, it contends that his conduct was the result of certain prescribed drugs that he was taking and, further, that his conduct did not involve any attempt at theft. On ,August 7, 1983, the grievor commenced a two week vacation. At the time he was suffering from severe.headaches, and as a result on August 7th went to see Dr. 3. McKim a physician who carrieson a family practice in Lucknow. Dr. McKim also serves as an assistant clinical professor at the University of Western Ontario Medical School. The griever’s headaches proved difficult to cure and he returned to see Dr. McKim on a number of occasions. When the grievor’s vacation came to an end his headaches were still bothering him, and as a result he, went on sick leave rather than return to work. The grievor testified that as a result of the headaches he felt that he was “in a fog” most of the time, and that he would “lose” or be unable to recollect parts of a day. Dr. McKim testified that during this period the griev,or complained to him that he would be fine for a number of hours, but then he woufd be ‘“down and out” with a headache. -3: : When the grievor first saw Dr. McKim on August 7, 1983, the Doctor prescribed certain medications for him to take. Notwithstanding these medications, however, the headaches continued. The grievor again visited Dr. McKim on August 23, August 24 and September 2, 1983. Following the September 2nd visit the grievor was taking two prescribed drugs, namely a pain reliever and asendin, a sedative and,antidepressant. On September 9, 1983; the grievor again visited Doctor McKim. This visit had apparently been arranged when the grievor was at the Doctor’s office on September 2nd. On this visit, the griever complained to the Doctor about his headaches and also about certain bumps on his head. After examining the grievor, Dr. McKim concluded that the bumps were ‘due to a tightening of certain head muscles. Dr. McKim testified that while examining the grievor~on September 9th, he noticed some twitching in ~the griever’s face, but nothing else untoward. The Doctor further testified that there was nothing about the griever’s conduct on the 9th that would lead him to suspect that his judgment.might be impaired, or to cause him to carry out any procedures to test the griever’s judgment. In order to relax the griever’s head muscles, Dr. McKim prescribed the drug indocid which is an anti-inflammatory agent. There is no evidence as to whether the grievor actually filled this prescription on September 9th. However, it is possible that on September 9th the griever did take prescribed dosages of the pain reliever as well as the drugs asendin and indocid. Although not directly relevant to these proceedings, it is noteworthy that it was not -4- until November of 1983 and several more visits to the Doctor, that the griever’s headaches were finally cured.‘, The grievor had previously been invited to attend a “stag and doe: party on September 9, 1983, in Belmore. The party was being organized by Mr. Brian Work, a friend of the grievor who lives in Toronto. Mr. Work asked the grievor to act on his behalf in submitting an application to the L.C.B.O. for a %pecial occasion permit” which would permit the sale of liquor at the party. The grievor did so, apparently leaving the application at the L.C.B.O. store in Wingham cn or about September 3, 1983. On two subsequent occasions, the grievor and Mr. Work discussed whether the amount of liquor covered by the special occasion permit would be sufficient. It appears that the,second of these conversations occurred on, or shortly prior to, September 8th. During this conversation, Mr. Work advised the griever that bottles of, liquor in addition to those covered by the permit were going to be brought to the party. The griever then pointed out to Mr. Work that any such ‘additional bottles would not bear a mandatory L.C.B.O. “levy stricker” and, accordingly, if the police or L.C.B.O. officials did a check of the party, it would be apparent to them that liquor not covered by the special occasion ~permit was being sold. When liquor is purchased pursuant to a special occasion permit, a levy sticker for each bottle is supposed to be obtained for an additional $2.00 fee. The $2.00 fee is in lieu of the retail sales tax which otherwise would have to be collected when the liquor is re-sold. Upon being advised of the need for levy stickers, Mr. Work ,requested that the grievor obtain some stickers so they could be placed on the additional bottles of liquorthat . . : ‘, .: )./ .~ .:,. i -5- were to be brought to the party. The griever indicated he would try to obtain the stickers. On December 1, 1983 the grievor, in a written statement to Mr. F. 8. Rankin, the Director~of Store Operations of the L.C.B.O., described these events as follows: “A good friend of mine asked me to fill out an application for a special occasion permit. I did so, making sure that the permit allowed sufficient liquor and beer. My friend, upon learning the amounts allowed by the permit called me and told me that he felt that these amounts would be not enough. 1 assured him that the amounts on the permit were more than sufficient. That was fine. The next day he called and said that he had been in touch with some of the other people involved with the permit, and that they too, felt that they would run short and said that they had bought~ some extra liquor and beer. 1 informed him that all bottles of liquor and cases of beer had to have a levy sticker on them and the amounts had to be marked on the permit. I ~warned him that if they were to have liquor bottles or cases of beer on the premises without stickers and the Liquor Inspector .or Police came in they were in serious trouble. He then asked me if I could get him some stickers. I told him they didn’t need the extra liquor and beer, that they had lots with the amount allowed on the permit. He said that he felt it wasn’t sufficient and that they were going to take the other bottles onto the premises. I told him that I’d see about a few stickers but that I wasn’t promising anything.” Each L.C.B.O. has a stock of levy stickers, which come in rolls of about 300 or 400 stickers. The stickers are available to store staff so they can be issued whenever purchases are made pursuant to a special occasion permit. When testifying before the Board, the grievor contended that had he really wanted to obtain levy stickers for an improper purpose he could have gone to the store in Hanover where as an employee he had easy access to them. A difficulty with this contention, however, is that at the relevant time the grievor was on sick leave from the Hanover store, and, accordingly, questions would likely have been raised had he gone into -6- the store to obtain some stickers. Moreover, by his own admission, the grievor did make at least one attempt to get levy stickers for an improper purpose. The first L.C.B..O.,store visited by the grievor in an attempt to obtain ievy stickers was the store in Kincardine, where he arrived at about 5:45 on September 9, 1983. In his examination in chief, Union counsel asked the grievor why he had gone to the Kincardine store, to which the grievor replied that. he did not know, that he was confused due to his headaches, and he did not.know what he was doing. However, in his written statement of December 1, 1983, the griever indicated that he had been after stickers for his friend. The relevant parts of the statement read as follows: “I went into the Kincardine liquor store and asked one of the permanent employees if 1 could have a few levy stickers. We went to the gun with levy stickers in it. There was only a few stickers left on the roll. He looked around to see if there was any more. He couldn’t find any and then he asked one of the temporary employees if he knew where there was some more. He, said non he didn’t. The full time employee then said he couldnY give me any because that was all the had left. During this time I ,did not tell him what 1 wanted the stickers for. I told that 1 was going to be going through Lucknow later on and that I would see if 1 could ‘pick some up for them at the Lucknow liquor store and 1 would drop them off the next day. He said okay. 1 had, by this time given up any idea of trying to get any levy stickers for my friend. The more I thought about it, the more I realized how wrong it. was. I had decided to let my friend, since he wouldn’t take my advice, take the consequences if the Liquor Inspector or Police caught him with the extra’booze. . . . . . This is my account of the incident and I hope it is satisfactory for your investigation. I would like you, to consider the following in making your decision. I asked for a few stickers in one store for myself, was refused and decided not to try to obtain anymore. -7- After he left the store in Kincardine the grievor drove to his cottage at Point Clark in order to get something to eat. The griever testified that although he could not recall doing so, he was later advised by Mr. Work that from his cottage he had telephoned Mr. Work and advised him, that he could not obtain any stickers. The griever stated that he could not recall when Mr. Work advised of this, but it was probably before he wrote the memo on December I, 1983 to Mr. Rankin. IMr. Work was not : called to testify. From his cottage, the griever drove to his mother’s home in Lucknow. It had previously been arranged that the grievor on his way to the party in Belmore would drive his mother to her brother’s home in Belgrave to deliver a wedding gift. The griever’s mother has a car of her own and at the time was capable of driving. On the day in Question she did not voice any concern about the griever’s ability to drive. /A The grievor, accompanied by this mother, drove to the L.C.B.O. store in Lucknow. Mr. Larry ,Marzetti, the manager of the store, testified that he was “on ~cash” when the grievor, but not his mother, entered the store. According to ,Mr. Marzetti, the grievor asked him for two rolls of levy stickers for the Kincardine store. To this Mr. Marzetti replied that he could not just hand out levy stickers, and that the manager of the Kincardine store should have phoned him about it. According to Mr. Marzetti, the grievor then told him “to stick them up my fucking ass”, and that he would get the stickers from the store in Wingham. The grievor then left the store. Mr. Marzettr testified that although at the time he had ,‘: ), . ::. i. ” ,./ -8- regarded the griever’s request,for levy stickers as unusual, he had noticed nothing unusual or strange about the griever’s manner. The grievor, when testifying, stated that he could vaguely recall asking for a couple, of rolls of levy stickers at the Kincardine store. In his written statement of December 1, 1983, to Mr. Rankin, however, the grievor dealt with the matter in some detail as follows: “Later that evening, I entered the Lucknow Liquor Store and asked the manager if he would give me one or two rolls of levy stickers, which 1 was going to take to Kincardine. He said that they were two dollars each if I wanted any. I said I wanted them for the Kincardine Liquor store. He asked me why they: ‘hadn’t phoned to tell him that I was coming. I said that it hadn’t occured to me that would be necessary. So I left saying that I would see if I could get any in Wingham, since I was going through there next?’ With his .mother still in the car, the grievor drove to the L.C.B.O. store in Wingham. Mr. Henry Devlin, the ‘manager of the Wingham store, had been warned by a phone call from Mr. Marzetti that the grievor was on his way. According to Mr. Devlin, the grievor arrived at the store at about 7:30 or 8:00 p.m. and asked for a couple of rolls of stickers for the Kincardine store. Although Mr. Devlin had an adequate supply of stickers, he told the giievor that he had none to spare. The grievor then left the store. Mr. Devlin testified that he knew the grievor to see him, and that at the time the grievor appeared to be “fine.” -9- The grievor testified that from the Wingham store he drove to Belgrave and dropped off his mother, after which he drove to Belmore to attend the party. At one point in his testimony, the grievor stated that the party was all a blur, and that he could not recall if he had had a drink. Later, however, he stated that he was certain that he did not have a drink, and that although he had purchased some liquor tickets, he had handed them out to others attending the party. The griever left the party and returned to Belgrave to pick up his mother at about IO:00 p.m. He drove his mother home to Lucknow and then drove to his cottage at Point Clark. By the time he reached Point Clark, the grievor had driven in excess of 60 miles . On the following day, September 10, 1983 ,the grievor telephoned the Kincardine store. The manager was away ill, and the grievor spoke to Mr. Stan Emmerston, the assistant manager. Mr. Emmerston had known the griev& for about two and a half years. In his written statement of December 1, 1983 the grievor described this telephone call as follows: “The next morning I phoned ,the Kincardine store and told the assistant manager that 1 was not able to get any levy stickers for them the night before. .He told me that he didn’t need any stickers. 1 told him, about what happened in the Kincardine store the previous day. He told me that they had lots in the store and that the full-time employee who I had been talking with did not know where the stickers were kept. He then told me that the manager of the Lucknow store had phoned the evening before and asked if they have sent me for some stickers. The man who was on duty the night before was away for supper when 1 was in the store that day and didn’t know anything about it and told the Lucknow manager that they - 10 - didn’t need any and wasn’t aware that I was after any stickers for them. 1 asked the assistant manager in Kincardine if he would mind phoning the manager in Lucknow and explain the mix up. I didn’t get a yes or no answer to this request. To this day I don’t if he did or did not phone him..” Mr. Emmerston’s version of this conversation was somewhat different. According to .Mr. Emmerston, the grievor requested that if the manager of the Lucknow store telephoned him, Mr. Emmerston should say that he had sent the grievor to Lucknow to pick up some levy stickers. The grievor, who testified after Mr. Emmerston. stated that his recollection of the telephone conversation was different from that of Mr. Emmerston’s, but perhaps Mr. Emmerston’s recollection was better than his. The grievor then stated “his (Mr. Emmerston’s) recollection is a lot better, yes.” The above evidence leads us to then following conclusions. On or prior to September 8, 1983, ttie griever indicated to a friend that he would get him ~some levy stickers. On September 9th, the grievor went to the store in Kincardine and asked for a number of stickers. The grievor asked for the stickers knowing that the plan was to put them on liquor bottles not covered by the special occasion permit. This would have saved the $2.00 per sticker fee, and also have done away with the need to get a special occasion permit for the extra bottles. The griever’s request for stickers was refused on the basis that the store has none to spare. The griever then visited the stores in Lucknow and Wingham asking for two rolls of levy stickers for the Kincardine store, but both times was refused. Given Mr. EmmerstonS evidence about the phone call, and the failure of the grievor to refute this evidence at the hearing, we are satisfied that on September , IOth, the griever phoned the assistant manager of the Kincardine store and - II- asked him to say that on the 9th he had asked the grievor to get the stickers, even though on the 9th he and the grievor had not spoken to each other. As noted above, the union contends that the griever’s actions on the day in question can be traced to the prescription drugs he was taking. Mrs. M. Elliott, the griever’s mother, was called to testify in support of this contention. Mrs. Elliott testified that at times in’ August, 1983, the griever was confused, and oh some days he was not even rational. She further stated that in early September he became worse, and that she had ascribed this to his prescriptions. As for the day in question, September 9, 1983, Mrs. Elliott testified that the grievor seemed confused and irrational. She stated that on the day in question the grievor~had driven her to see her brother with a gift to take to a wedding, but that two weeks iater the grievor could not recall the gift. In cross-examination, Mrs. Elliott. indicated that during the months of August and September she had met with the grievor about two or three times per week. She agreed that during the period the griever did not ‘seem angry, did not stagger and his speech was clear. Mrs. Elliott also acknowledged that although she had her own car, she had driven with the grievor on number of occasions. AS for September 9, 1983, Mrs. Elliott indicated that she had not been afraid to drive with her son. .%ledical evidence as to the griever’s condition was given by Dr. McKim. Dr:McKim testified that altough the grievor had complained to him about his headaches affecting his ability to function, at no time -12- ’ did he complain about being confused. Dr. McKim added, however, that confused people often do not complain of’confusion since they are not aware of it. Dr. McKim indicated that he did not feel that the grievor had been confused or his judgment impaired. Dr. McKim testified that whenhe examined the grievor on September 9, 1983, the very day in question,, he ,did not reach a conclusion that the griever’s judgment was impaired or that there was any need,for specific judgment tests. Dr. McKim did note that the three drugs prescribed for the,. grievor on September .9th were particularly bad for the thought process. He stated that asendin, which the grievor had been taking prior to September 9th, might cause a person to become confused or disoriented, and that indocid which he first prescribed for the grievor on September 9th, might cause dizzyness or a feeling of floating. The Doctor noted, however, that to him the grievor had never appeared confused or disoriented, and that he had never complained about dizziness. Indeed on September 27, 1983, well after the events in question, Dr. McKim had increased the dosage of indocid being taken by the grievor. At the end of Dr. McKim’s testimony, one of the’Board’s members asked if the mental floatation effect caused by indocid might affect an individual’s ability to make rational decisions. Dr., McKim responded that it would not result in a person walking into a fire or falling off a cliff, but that the person might make a judgement which was not an appropriate judgment for a rational man. The Doctor further stated that an indivi,dual might be able to drive a car but, if aggravated, he might ,hit you ~although otherwise he would not. The union’s case is essentially that the griever’s conduct on September 9, 1983, occured only because his judgment was impaired as a -- - 13- result of the drugs he had been taking. The union submits that this is the only rational explanation for the’grievor’s conduct in asking for two rolls of levy stickers when it was ridiculous to think that he would be given them. For its part, the employer contends the griever wanted stickers for the party, and when he was refused a few stickers at the Kincardine store, he went to the other stores seeking the rolls as a cover for this attempt to obtain stickers for his own purpose. The employer also points to the griever’s attempts to cover his tracks the next day by asking the assistant manager of the Kincardine store to falsely state that he had asked the grievor to obtain stickers for the store. In assessing the griever’s conduct, one must start- prior to September 9, 1983, for it was prior to that date that the grievor agreed with his friend that he would try to obtain some levy stickers for use at the party. That the grievor agreed to do so is not questioned. Neither is it questioned that the grievor attempted to obtain the stickers for the party from the Kincardine store. It was not a spur of the. moment or impulsive act. Further, while the value of the levy stickers was not particularly great, the seriousness of,.the grievor’s actions cannot be down-played. The’ grievor attempted to obtain the stickers from’his employer without paying for them, and he knew that the intended purpose of the stickers was to put them on bottles of liquor not covered by a special occasion permit. When the grievor agreed to try to obtain the levy stickers, Dr. McKim had not yet prescribed the drug indocid for him. While the possiblity exists that .; .., _. i: ” - 14- the other two prescription drugs he was taking might have affected his judgment, it is noteworthy that Dr. McKim, who was seeing the grievor on. a rather frequent basis, was of t~he view that his judgment had not been affected. Further, we do not believe that the prescription drugs can be blamed for the griever’s decision to try to improperly obtain the levy stickers. ~To put it another, way, we do not believe that the taking of prescription medications could somehow have caused the gtievor to decide to improperly acquire levy stickers from his employer. On September~ 9, 1983,. Dr. McKim examined ‘the grievor and was not caused to be concerned about his judgment. On the 9th; Dr. McKim prescribed the drug indocid. As already noted, it is possible that the grievor had the prescription filled and took a dosage of the drug prior to visiting the various L.C.B.O. stores. While it is clear that the grievor first went to the Ktncardine store in an attempt’to carry out the plan to obtain levy stickers for the party, there is a question as to whether his subsequent visits to the Lucknow and Wingham stores were designed to pick-up levy stickers for use at the party in the guise of trying to obtain stickers for the Kincardine store (perhaps with the intent of taking any unused stickers to the Kincardine store) or whether the grievor was truly trying only to obtain stickers for the store. The difficulty with the latter contention is the fact that on the following day, the grievor asked the assistant manager of the Kincardine store, who he had known for some time, to lie and state that he had asked the grievor to pick-up stickers for the store. If the grievor had honestly believed that he was ,trying to get stickers for the store, there would have been no reason for him to ask the - , - 15- assistant manager ~to lie. This factor leads us to conclude that in his visits to the Luckmw and Wingham stores the grievor was likely still seeking to obtain levy stickers for use at the party. Even if we were to assume that the griever’s conduct in going to the stores was somehow affecteq by the indocid prescribed earlier that day, the fact remains that .in visiting the stores the grievor was trying to fulfill a plan agreed to prior to the drug being prescribed. \ We have concluded that the griever sought to obtain levy stickers frpm the L.C.B.O. without paying,for them. The fact that the monetary value of the stickers was not very great is not, in the circumstances, a’relevait consideration. Se& Dominion Stores Ltd. (1981) 2 L.A.C. (3d) 438 (Weatherill). What is. relevant, however, is the fact that the grievor was aware that the plan was to place fhe stickers on liquor bottles so as to mislead the authorities into believing they were covered by an L.C.B.O. issued special occasion permit. In other words, the grievor was not only seeking to obtain stickers without paying for them, but he knew that the plan was to use the stickers to bypass his employer’s regulations regarding liquor sold pursuant to a special occasion permit. The evidence establishes that the griever’s actions were premeditated. The prior planning and the griever’s attempt to obtain the stickers was so long and drawn out that his conduct cannot possibly be characterized as impulsive or a momentary aberration. In our view the seriousness of the griever’s conduct, particularly when viewed in the content of his relatively short seniority, did in fact give the employer just cause to discharge him. The grievance is accordingly dismissed. DATED at Toronto this 5th day of December, 1984. --r--7---- I. C. Springate, Acting Chalrman “I dissent” (see attached) --- -------~- P. Craven, Member -;---------- ------------ D. 8. MIddleton, Member , DISSENT