Loading...
HomeMy WebLinkAbout1984-0161.Drury.84-10-19IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: For the Grievor: For the Employer': Hearing: OLBEU (G. Drury) - and - Gri evor The Crown in Right of Ontario (Liquor Control Board of Ontario & Liquor Licence Board of Ontario) Employer R. H. McLaren Vice Chairman ..:~. B. Switzman Member M. O'Toole Member Mr. Levinson Counsel R. J. ~Drmaj ~.: -.- Counsel Hicks Worley Hamilton Stewart Storie Barristers and Solicitors , August 24th, 1984 -2- DECISION Mr. Gary Drury, the Grievor in this matter, has been employed by the Liquor Control Board of Ontario since the 19th of February, 1980. His most recent work has been as a Clerk III at the Duty Free Liquor Store at the Pearson International Airport in Terminal II on the outskirts of Toronto. The Grievor's duties involve working in what is known as the "sterile area" at the airport. That area is where the orders received from the public for duty free liquor are filled. The orders are then delivered to ..~. the departure lounge gate and turned over to the individual purchasers just prior to their boarding an aircraft leaving Canada. His work, therefore, does not involve contact with the public to the same degree as if he were working at the counter in the store at the airport. He has had a clean record with his Employer and was considered to be an average worker. Following the completion of his morning shift on January 27th, 1984 Mr. Drury was arrested by the police. The Grievor was. subsequently charged under the Criminal Code, R.S.C.' 1970, c. c-34, Section 423'(1)(d) alleging one count of trafficking in I 'Heroin. He wasalso charged under the Narcotic Control Act with trafficking in Cocaine. Each offence is alleged~to have occurred on two different occasions. ..c Information regarding the laying of .the criminal charges came to the attention of the Employer through contacts between the police and Mr. M. Wenham, the Director of Security Services for the Employer. As a result of that contact, Mr. Wenham advised by memo Mr. F. Burtt, the Assistant General Manager Retail Division, and Mr. Schaefer, Assistant General 'Manager Personnel and Mr. Rankin, the Director of Store Operations of ~the fact that the charges had been laid. The Employer had no involvement in the laying of the criminal charges nor the initiation of the i inv.estigation resulting in them. As a result of the information obtained through its Security Division from the police, Mr. Rankin advised the Grievor by letter dated January 30th, 1984 that: . . . effective immediately you are relieved from duty, without pay, pending a review by the Board of the circumstances which led to your arrest on January 27th. 1984 . ..II (Exhibit 3) Mr. Rankin testified that upon learning of the arrest and charging of~the.Grievor that in accordance with the policy' of the 1.. Employer he was suspended pending the resolution of the criminal charges. He explained that if the charges resulted in the Grievor '.being acquitted then the Board would reinstate him and pay full compensation from the date of .the suspension to the date of reinstatement. Mr. Rankin further explained that aside 'from the . ..~ i -’ -4- policy there had been some adverse publicity in other unrelated situations involving employees of the Employer when they were charged. There was, therefore, a desire to avoid-such adverse publicity again in this situation. It is the argument of the counsel on behalf of the Employer that the general principles established .in the early awards on the subject of the effect of- the laying of criminal charges remains in effect. The cases which follow are merely establishing exceptions to the general principle. It was argued that the general proposition where a criminal charge is laid, and the Employer has not been instrumental in laying them or initiating the investigation leading to the charges: is that the Employer is justified in suspending the employee until the determination of those charges. Support for such a proposition comes-from cases such as re: Ford Motor, 3 LAC 892 (Cross 1951); re: Moffats, 6 LAC ,327 (Anderson 1956); re: Canada Wire and Cable, 16 LAC 240 (Fuller 1965), and re: Preston Mines 18 LAC 64 (Hanrahan, 1967). The thrust of the argument on behalf of the Board then involved demonstrating that cases such as re: Dorr-Oliver Long, 3 LAC (2d) 193 (O'Shea 1973): re: Phillips g+, 5 LAC (2d) 274 (Adams, 1974) and re: Ontario Jockey Club, 17 LAC (2d) 176 (Kennedy, 1977) merely go to establishing exceptions to the principle of the earlier awards. - 5 - With the greatest of respect for the very able arguments of counsel for the Employer this Board does not agree with the fundamental thrust of the argument that the original principles in I this area have remained unchanged: nor that the further development of cases are merely exceptions to such principles. It appears to this Board that if one were to accept such a proposition it would be only to conclude that the exceptions, are now the principle rather than the earlier rule. The Board has been afforded a very full and able argument by both counsel who listed all of the case law published to date during their submissions to it. A full review of the case law suggests that the developments in this area now appear to have I I evolved to the proposition that an employee .who is charged with a I criminal offence cannot be suspended because of that mere fact ,~ .pending the resolution of the criminal charges. However, the greater the number of contact points existing between the alleged I criminal conduct and the employment relationship then the possibility of suspension for cause may arise. Such a conclusion I appears to explain some of the cases which search for a factual determination as to whether the alleged criminal conduct is "work-related." See for exampl.es re: Brewer's Warehousing, 12 Firestone Tire and However, not all of is case it is beyond LAC (2d) 153 (H. D. Brown, 1976) or re: Rubber, 9 LAC (2d) 345 (Mason, 1975-Alta.). the cases draw such a~ distinction. In th -6- ,* doubt that .the matters raised in the criminal charges are not "work-related." They do not arise as a result of an investigation initiated by the Employer. They do not involve 'the use of the Employer's premises: nor in any other way impinge on the day to day operation of the Employer. It is this Board's view that the re: Door-Oliver Long case, supra, touched upon the principle as stated by this Board when it suggested that at least in cases involving non-work related offences an analysis of conduct in the work place ought to be used to determine whether the suspension was with cause. The case of re: Phillips Cable, supra, suggests that there must be a balancing of the interest of the Employer against the competing interest of the employee who has been charged and:.who may not be found guilty of the charges. It is the Board's view that the Phillips case is further - support for the proposition that the greater the number of contact points existing between the alleged criminal conduct and the employment relationship then the greater the probability of finding cause in a suspension pending results of a criminal trial.. It is this Board's view that the Phillips case together with subsequent cases such as re: Ontario Jockey Club, supra, and r~,e : Treasury Board and Guenot, 6 LAC (2d) 400 (Simmons, 1974) outline some of the considerations in balancing the interest of Employer and employee. The Employer must consider such points of contact as: the nature,of the charge: together with the type of operation. of the Employer and the type of work of the employee within the Employer's operation: consequences'. which may arise in connection with the business interests of the Employer; the attitude of the co-workers and possible other jobs within the Employer's operation. It would appear that the Liquor Control Board of Ontario's policy in dealing with criminal charges does not take account of the arbitral principles as they have evolved to date. It was articulated to us by Mr. Rankin that once a serious charge has been filed then it is the practice to suspend until resolution of the charges. It was argued that the practice is a satisfactory one because it relies on the original principle that an employee who is acquitted will be made whole by reinstatement and complete back pay to the date of the suspension. The difficulty in that proposition is that to await the outcome of a criminal charge in the courts without the benefit of employment in the interim could so dramatically affect the individual's life that subsequent acquittal could be quite meaningless even with the reinstatement and full back pay. This could easily be the case in this situation because the charges were laid originally in the wrong jurisdiction and were dismissed in June of 1984. They have been relaid in the proper jurisdiction and the Board is advised that -8 - it could be anywhere from nine months.to a year from the date of the hearing of this arbitration before the matter is finally disposed of. That -means that the employee could be under suspension until late 1985 approaching 18 months of suspension or possibly longer. It is also argued by the Employer that the Liquor Control Board played no part in the investigation and the situation resulting in the criminal charges. The offence is not of the type in which the Employer could be involved. Even if it were that type of factor is merely an example of ,one point of contact between an ,employment situation and the interest of the Employer. The Employer who has participated in investigations would have information which would enable it to make a determination as to whether it ought to act and discharge or suspend an employee based on factual evidence rather than merely on the existence of the charges. It is part of the principle that an employee ought not to be suspended mer,ely because of -the existence of criminal charges unless there are sufficient points of contact between the alleged conduct and the employment relationship. The absence of Employer invo~lvement in the investigation in this situation is : immaterial. In this case there, is nothing which suggests that the possibility of guilt presents any substantial or immediate hardships on the Employer or its employees. If it did then the imposition of a suspension might be justified. There is no evidence to suggest that workers would refuse to deal with the Grievor. His contact with the Employer's customers is of a fleeting and minimal nature and not one which would~ require or even allow the customer to refuse to deal with the Grievor. The just cause that the Employer offers is in connection with the possibility of guilt having some affect on the Employer and in particular the likelihood of adverse publicity. Adverse in some other cases and was testified to by publicity has occurred Mr. Wenham. While that predicted it appears to is not a factor which can be controlled or this Board that there is little likelihood of such reaction in this case. Even if it were to occur, one would have to ask whether it would be both legitimate reaction and having anything other than a fleeting effect upon then Employer. It is not of itself sufficient to justify cause in this case. This Board finds the nature of the charges to be very serious. The existence of the criminal charges do not affect the work environment or the nature of the work which the individual does. They do not present any adverse affects or hardship on the Employer or its employees. NO business interest or the possibility of injury to such has been shown in evidence as arising in this case. The Employer did examine the possibility of . i employment in other parts of the stores division but found that there was none. It did not examine the possibility of employment in other areas of the operation. However, in'the Board's view of this situation that would have been unnecessary. It is found that in this case there -is not sufficient cause to suspend the employee. The Employer cannot establish sufficient contact between the existence of the charges and the employment relationship so as to satisfy the principle that the of'fence will impact adversly on the Employer: thus, justifying a suspension of the employee until the final disposition of the charges. The Employer has suspended without just cause. For all of ~the foregoing reasons it is ordered that the Grievor be reinstated to his employment. It follows from this order that the .employee is entitled to full compensation for the period from the suspension until the date of his return to employment. He is to be made whole in all respects including loss of benefits and seniority. This Panel will remain seized of the order and the determination of the amount owing to the Grievor as a. result of it for a period of sixty days ~from the date of this Award. If the parties are unable to agree as to the amount of compensation owing to the Grievor under this Award then either party may reconvene the Board within the sixty day period for the purposes of determin,ing the compensation owing to the' Grievor. If no written request is received by the Registrar of the Grievance Settlement Board for the reconvening of this panel of the Board within sixty days of the date of this Award th i s Panel will have no further jurisdiction to deal with the matter Dated at London, Ontario thisl9th 'day of Octobers; 1984 L I R. H. McLaren, Vice-Chairman ,i ,.“,, 7: B. Switzman, Member ,, 3 q‘&& M. O'Toole, Member