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HomeMy WebLinkAbout1984-1059.Gilbert.85-02-18IN THE MATTER OF AN ARBITRA.TJION Under THE CROWN EMPLOYEES COLLECTIVE.BARGAINING ACT THE GRIEVANCE SETTLEMENT BOARD Between: OLBEU (David Gilbert.), Before: For the Grievor: For the Employer: Hearing: Before - and - Grievo.r The Crown in Right of Ontario (Liquor Control Board of Oritario) Employer R. L. Verity, Q.C. Vice Chairman R. Russe,ll Member W. A. Lobraico Member / M. Levinson Counsel Koskie & Minsky J. Baker Counsel Hicks Morley Hamilton Stewart Storie January 16, 1985 - ! OECTSTO~N The Griever, David'Gilbert, was suspended without pay on September 22, 1984, as a result of his conduct on September. his employment October 31, 13. On October 23, 1984, he was discharged.from as a Clerk 4 at Store #Il. In' a grievance dated the griever alleg'ed unjust discharge and suspens requested reinstatement with full compensation. ion and The material facts are relatively straightforward'and not in dispute. On Tuesday, September 18, Store 1111 Manager Drain Montgomery was advised by his Assistant 'Manager that Liquor Store records revealed a SZDO.00 cash shortage. As a Clerk 4, the gri.evo~r had the responsibility for all store bookkeeping and preparation of related reports. On September IS; the griever was on his regular~day off. Mr. Montgomery personally reviewed the records and searched the petty cash box, but was unable'to account for the cash shortage. The‘ Manager then contacted his Supervisor who in ,turn advised the Manager to question the griever concerning the matter. The evidence established that Mr. Montgomery' confronted the grie~vor with the problem at approximately 9:00 - 3 - a.m. on Wednesday, September 19. The grlevor admitted that he had taken S200.00 from petty cash on Tu’esday, September 13 but had written a personal cheque to the L.C.B.O. for that amount and had placed the cheque in a separate compartment of the petty cash box. The yrievor then produced the cheque. There is no dispute that the griever admitted to the manager that he had “doctored” the daily sales record for September 12 to reduce the accumulated cash total by $200.00. The daily sales record is a store document which is not submitted to head office. However, the griever made no alterations to the coin order report or to the c.onsolidated sales report, both of which were submitted to head office. Mr. Montgomery instructed the griever to amend the daily sales record to reflect the appropriate figures, and to cash the $200.00 cheque in order to reimburse the L.C.8.0. The griever complied with both requests. On Thursday, September 20, District Supervisor Martin Fernandes telephoned Liquor Store 1111 for the purpose of speaking with Manager Montgomery about this incident. The grlevor answered the telephone in his capacity of managing the store, in the absence of both the Manager and the Assistant Manager. According to Mr. Fernandes, the griever advised him that he had placed a personal cheque in the petty cash box at the time the $200.00 ~was removed. Mr. Fernandes'informed the griever that his conduct. represented a.serious.breach of L.C.B.O. procedures and that it would be necessary to discuss the matter further with the Manager. On Saturday, September 22, Mr. Fernandes attended at Store #I1 and spoke with the griever in the presence of the Manager. Mr. Fernandes testified that he was advised for the first time that L.C.E;O. records had been altered b:y the griever. As a result of that information, Mr. Fernandes placed the grievor on an indefinit’e suspension. On September 24, Store Manger Montgomery wrote to the grievor confirhing t’he suspension "because of doctoring the books and h.idfng a personal cheque in the safe". In that letter the Store Manager requested~~a written explanation from the griever within .three days. On September 26, the griever wrote to F. 8. Rankin, L.C.B.O. ~Director of Store Opera.ti,ons as follo~ws: "The purpose of this letter is inform you of the events which led to my being re)ieved from duty at 4:00 p.m. Saturday, September 2?, 1994. On Thursday, September 13, 1984 1 wrote a personal chcque made payable to the L.C.B.O. 1 did not cash the cheque with a cashier but instead cashed it myself from the Petty Cash box In the store safe. My Intention was to keep the cheque in the Petty Cash until pay day, one week later, rather than have it go through my account. I also changed the figures on the back of the Daily Sales Report to show the Petty Cash balanced without the cheque. 1 had planned to make the necessary amendments to these figures on pay day when they would balance with the Petty Cash/Coin Order Report A/C 4195. At the period end, on September 15, 1984 I submitted the Coin Order Report to Head Office with the Consolidated Sales Report, all figures on this form were correct. Tuesday, September 10, 1984, Mr. Montgomery and Mr. Duff counted the contents of the safe, but did not notice the cheque in the bottom of the Petty Cash box, therefore, they could not balance, seeming to be two hundred dollars short. Mr. Fernandes, the District Supervisor was notified. Ml-. Fernandes phoned the store on Thursday, September 20, 1984. I explained to him about the cheque and the Pact that T had ~replaced the cheque with cash. On Saturday, September 22, 1984 Mr. Fernandes came to the store and questioned me about the figures. 1 explained tom him that the Coin Order Report had been submitted correctly and the Daily Sales Reports had since been corrected as T had intended originally. 1 did not mishandle any Liquor Board funds, however 1 realize that T should not have adjusted the A/C 4195 figures.” At the Hearlng, the griever testified that he removed $200.00 from the petty cash on September 13 to pay off a - 6 - $300.00 football bet. At the time he removed the cash, he deposited a personal cheque for $200.00. However that cheque' was not processed in the normal.fashion, but simply placed into the petty cash.box. The griever explained that he borrowed the $200.00 from petty cash with the 'Intention of repaying ~that amount when he received h / is ne.xt 'p,ay cheque. * When quest'ioned by his,Cpunsel .as to why ,he had altered the daily sales.record, the ,grievor replied, "So that the petty cash would balance withou.t my personal cheque unt,il pay day o,n Septe,mber 19". The evide~nce established .that the,grievpr and his - wife have a joint bank account. Clearly, the griever’s int:ention was to hide the debt payment from both his wife and th'e Manager. .The.grievor had made no attempt,.to obtain the Manager-Is authoriaation for thi,s ,p,roce.dure. Tn essence, the griever gave th,is explanation to Mr. Fernandes ,during the Saturday meeting in the Manager's office. On behalf of ,the Employer, Ms. Raker argued that the griever’s actions involved dishonesty and represented a ser!ous breach of trust in the employer/employee relationship. She contended that~the.evidence established that the griever’s conduct was intentional and deliberate:,.and that in view of - 7 - his position as bookkeeper, discharge nas the only appropriate penalty. Mr. Levlnson contended that the griever’s conduct did not constitute theft, but should be characterized as a serious error In judgment which justified some form of penalty. However, he argued that the penalty~ of discharge was inappropriate and extreme in the circumstances. The thrust of Mr. Levinson’s argument was directed to factors considered by Arbitrators in mitigation of penalty. Numerous arbitral precedents in support of mitigation from both the public and private sectors were cited. There can be no doubt that the griever’s conduct on September 13, 1984 constituted a deliberate violation of L.C.B.O. policies and procedures, which were clearly understood by the grfevor, and which represented d serious breach of trust in the employee/employer relationship. The employer has a right to expect that any employee will perform hisor her duties with honesty and integrity. An employee who has access to L.C.R.O. monies has a special duty to account for any and all monies according to established procedures, and failure to discharge that basic obllgation irk in fact a serious offence which cannot be tolerated. In the instant matter, the griever demonstrated a lack of honesty by converting L.C.B.O. monies for his personal use, falsifying store records and concealing both facts from his employer for a period of some seven days. .r ‘. - 6 - , 1 The.grievor's actions in so doing were both planned and deliberate. ,Tt is obvious to the Board that, atleast~ . initially, the griever failed to appreciate the seriousnessof his misdemeanor. The Board 'is called upon to determine whether t~he penalty of dismissal is just a,nd reasonable in all the circumstances. Here, ther,e, is no serious suggestidn that the griever contemplated theft. There were no CriminaLcharges laid against the griever as a result of his actions. Having had the'benefit of hearing the grlevor in the presentation of his evidence, and observing his reactions, the Board is satisfied that the.grievor intended to reimburse the employer from the proceeds.of his pay. cheque on .September 19. The griever was’ candid.and forthright in the presentation of his evidence. The Board is satisfied that the griever is now very much aware of the seriousness of his conduct and ~ls genuinely embarrassed by that conduct.',, The.Board must take into account the fact that when confronted by Mr. Montgomery on the morning of Sept,ember 19, the griever made ~no attempt to conceal his actions. To the contrary, he made prompt and complete disclosure of all the facts to ,Mr. Montgomery on the morning of September 19, and to Hr., Fernande,s in the interview on, Saturday, September 22. .The I . . - 9 - grlevor’s letter to Mr. Rankln is a further indication of complete disclosure. The griever has approximately 10 years seniority with the Board. He was appointed to the Clerk 4 position in March of 1984. His record of service with the L.C.B.O. is unblemished by any disciplinary action. In addition, Manager Montgomery de~scrlbed the griever as “a very good worker”. He is 37 years of age, married with three young children. In our opinion, the grlevor’s conduct in September of 1984 is an isolated incident, which’ls totally out of character with his past performance and which is unlikely to be repeated. We are supported in that opinion by the fact that Manager Montgomery had sufficient confidence in the griever’s integrity to place him in charge of Store 111 on Thursday, September 20, the day after the confrontation. In older arbltral precedents, many Arbitrators treated dishonesty as an offence which justified discharge. However, in more recent cases, Arbitrators subscriblng to the theory of “corrective discipline” do not treat dishonesty as necessarily warranting automatic discharge, and have considered numerous mitigating factors, which In appropriate circumstances, might tend to justify the substitution of a lesser penalty. The Board has reviewed a number of these cases , which have taken into account appropriate mft~iyating factors. The late Judge R. W. Reville in Ae Steel Equipment Co. Ltd. and. U.S.W., Local 3257 (1964),, 14 L.A.C. 356 set out a number of ~: considerations which should be taken into account where * mitigation of penalty is appropriate. The p'rinciples enunciated in the Reville Award,are still recognized by most Arbitrators as constituting the basic considerations in mitigation of penalty. There have been d number~of refinements to those considerations as for~examplp, Arbitrator Arthurs comments in Re Canadian Broadcasting Corporation and Canadian Union of Public Employees (1979), 23 L.A.C.. (2d) 227 at~pp. 230 and 231., Artibtrator Adams considered the issue in Re Phillips Cable.Ltd. and Tnt'l Union of Electrical, Radio, and Machine Workers, Local 510 (1974), 6 'L.A.C. (2d) 36 at Pp. 48: "Therefore, returninQ.to the question o'f substitution, In deciding wheth~er to -exercise its substitutional powers, a board of arbitration musty have regard to all the circumstances. It must balance the industrkal community's need for general deterrence against an employee's potential for rehabilitation - a task not unlike that which confronts a judge in the criminal matter of sentenc,ing.. . .I' This Board accepts,the ,rationale of those Arbitrators who have determined that breach of trust should not be automatic ground,s for discharge. This Board concludes that in the instant grievance there are many factors to be considdred, other than compasionate reasons, for the substitution of a I . . - II- lesser penalty. Accordingly, we exercise our discretion under Section 190) of the Crown Employees Collective Oargaining Act and order that the grlevor will be reinstated to hls posltlon as Clerk 4 at Store 111 effective January 28, 1985. However, there will be no award as to compensation for lost wages or benefits, wlth the exception that there shall be no loss of seniority. Tt Is to be hoped that this lengthy suspension will serve as a lesson to the griever, and as a deterent to others, that such conduct cannot be tolerated by an employer. Accordingly, this grievance shall succeed subject to the penalty imposed, which in effec't amounts to a suspension of s,lightly in excess of four months. DATED at Brantford, Ontario, this 18th day of February A.D., 1985. I?. L. Verity, Q.C. - Vice-Chairman R L-- * , -Russell - Member R. __--- .-.--- - Ikobraico - tlembe