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Home My WebLink About1985-0447.Whyte.86-02-178 -_ i oNrAmo CRorm EuPlrnEi GRIEVANCE !SESE;bEMENT IN THE MATTER OF AN ARESTRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Between: OLBEU (Merv Whyte) Befcxe THE GRIEVANCE SETTLEMENT BOARD and The Crown in Right of Ontario (Liquor Control Board of Ontario) Bef ae: Fa the Grievor: For the Employer: Hearing: P. M. Draper I. J. Thomson A. G. Stapletdn Vice-Chairman Member Member M. Levinson, Counsel Kcakie & Minsky Barristers & Solicitors J. Chaykowsky, Classification Officer Ontario Liquor Boards Employees Union 3. Baker, Counsel Hi& Morley Hamilton Stewart Storie Barristers & Solicitors R. MacDougall, Staff Relations Officer Liquor Control Board Of Ontario January 24, 1986 Grievor Employer :.., ‘I , :a. _. DECISION The Grievor, Merv Whyte, grieves that on May 11, 1985, he was mj$tly dismissed frcm his employment as a temporary employee at Store #443 in Ottawa . and requests teinstatement and restoration of lost wages and benefits. At the,o&et of the hearing, course1 to the Grievor submitted That, in the first instance, the Board should decide the is.%us of the culminating incident sinceit is a.generally accept~ed arbitral view that such anincident must be shown to have occurred and to have precipitated t,he employer action complained of, in this case dismisal. Coumel to the Employer argued that where, as here, ursatisfactory work perfamance, as distinct from deliberate and culpable behaviour, isihe cause of the dismioal, the Employer is not required to await a specific instance,of poor w work perfamance before acting; and that, in any event, the Board slPu.ld not heai the issue of the culminating incident separately. Following the practice adopted in Robertson, 469/82 and continued in King, 813184, the Boa&ruled that it would hear evidence and argument on the issues, fiat, whether or not the doctrine of the culmimting incident is applicable here and, s,econd, if it is, whether or not there was, on May 1 I, 1985, an incident or occasim relating to the Grievor that would constitute a culminating incident under the doctrine. The outcome of these deliberations would determine whether or not the hearing wouJd,continue on a later date. -2- ..,. ‘!T ., :: ,.j Charles Arcand has been the manager of ,Store #443 since February, ’ 1984.’ He has twenty years of service with the LCBO, six of them as a store manager. He testified that on Saturday, May 11, 1985, the Grievor reported fcr wcrk and worked the full 9 am. - 6 p.m. day shift. On three occasions, twice in the morning and once in the afternoon, for about five minutes each, he observed the Grievor taking cases of bottles from a conveyer belt and stocking the store shelves. The Grievor %eemed dazed” and did not appear to be working at a normal pace. About 230 p.m. one of the employees working with the Grievor “came to him to disas” the Grievor’s work. Some time between 4:30 p.m.. and 6~00 p.m. he leamed%econd or third hand’ that a customer had complained about language used by the Grievor. He took no immediate action as a result of this information. He was anpy and frustrated and when the store dased at 6 pm; he made up his mind to dismiss the Grievor. While notifying the.Grievor that he was being dismissed he told hi that he “had received” a complaint that a customer “was not pleased with his language”. News of the complaint had confirmed his feeling that the Grievor should be dismissed but the reason for hi decision was the Grievor’s poor work habits. The Grievor admitted having had “a bad day”, said he did not feel well and he did not look well. He asked the Grievor if he wanted his “resignation papers” at once or by mail and said he could type them up if the Grievor wanted to wait. The Grievor returned to the store on Monday May 13, 1985, and was handed a letter of dismissal. The text of that letter reads: -_ -3- This will confirm that your employment at this store has been terminated effective immediately. This dismissal is..rade necessary for the fallowing reasons: The attached documents are self-explanatory and also until May 11, 1985 at 6:00 p.m. you required constant supervision as you were not self-motivated, your deportment left much to be desiredand your devil- may-care attitude was a detriment to your quality and quantity of work, Admittedly, May 11, 1985 was not ~a very good day at all fa you. You were in a dazed state the better part of your 9 to 6 shift. What must be noted here is that the so-called ‘bad days’ were outnumbering the other days. May I remind you that at our very first discussion on February 14, 1984 we agreed that evaluations would be based on ‘job performance’. I feel I have extended to you every opportunity to improve in all areas mentimedin the attached documents. By your own admissim you’have concurred that I was fair and understanding relative to all infracti~s. Despite counselling and encouragement, you did not achieve consistency in the performance of your duties. As you are obvio1151y not a self-disciplined individual, you failed to meet Board requirements.. The Grievor testified that he was employed by the LCBO at Store f/443 for about two years. On May 11, 1985, he was not feeling well which he thought might have been becaGe he had been out drinking the night before or perhaps became he ws coming down with the ‘flu. .He was probably worldng more slowly than Usual because of his conditim. He had not wanted to be absent on a busy day (Saturday). When he mentioned to Arcand at the end of the day that he had not been feeling well he was told that it would have been better if he had not come in to work. He was approached by a customer who objected to something she had heard him say. He had not used foul language but apologized “to be courteous”. When he was told he was being dismissed he thought it was because of the customer complaint. He returned to the store on M,mday hoping to discuss the dismissal with Arcand and was given the letter of dismissal. -4- The doctrine -of the culminating incident is commonly discussed in the context of employer disciplinary action. Thus in Brown and Beatty, Canadian Labour Arbitratim, Second Editim, at pages 475-476, the authors state: “The doctrine of the culminating incident delineates those circumstances in which it is proper for the employer to consider an employee’s past employment record in matters pertaining to discipline”. And further: ‘It follows from’ the definition of the doctrine that as a condition precedent to its invocation, an employer mist affirmatively prove some final incident of misconduct which itself is deserving. of some discipline”. However, the doctrine has also been applied by arbitrators in cases of non-dbciplin&y dismissal for innocent absenteeism. See Brown and Beatty, op. cit., at p. 372. it therefore appears that ‘the doctrine is properly applied in cases of . alleged unjust dismissal whether or not the dismissal is disciplinary in character. Accordingly, we have concluded that the doctrir’le applies in the circumstances present here regardless whether the Grievor’s dismissal is characterized as disd@linary or non-disdplinary. In our opinim the case turns on the question. whether or not the events of May 11, 1985, described in evidence constituted an incident or occasion which, under the doctrine, warranted some prejudicial action agaimt the Grievor and so made his employment record relevant to the issue of just cause for his dismissal. We find, on the evidence, that they did not. Arcand did not speak to the Grievor during any of the three shxt periods of time when he observed him at work, or when an employee came to him i -5- with a criticism of the Grievor’s work, or when he was told of a customer complaint against the Grievor. The fact is that he did not confront the Grievor until the end of the day and then, having already made up his mind to dismiss him, only to announce the dismissal. At no time prior to reaching his decision did he approach the Grievor with a view to obtaining any explanation there might possibly have been for his apparently slow work pace. Nor did he attempt to go beyond the hearsay account of the customer complaint in order to determine its authenticity and to hear the Grievor’s side. It is to be noted that Arcand made a point of referring to the complaint when he dismissed the Grievor on the Saturday yet m.ade no reference’to it in the letter setting out the reasons for the dismissal which he prepared and gave to the Grievor on the following Monday. In sum, there was no inquiry -whatever by Arcand into the events of the day having to do with the Griever. We found Arcand to be a forthright witness but the.evidence strongly suggests that he simply got fed up’and acted on impulse. For example, there is no evidence that he reviewed the Grievor’s employment record befare the dismissal. Our conclusion must be that the evidence before us as to the events of May 11, 1985, relating to the Grievor does not constitute the proof of an incident or occasion necessary to support an Employer response. We find that the Employer has failed to discharge the onus of proving that a culminating incident occurred on the date in question. The grievance therefore succeeds. It is hereby ordered that the Grievor be reinst.ated as of May 11, 1985, in t~he employment from which he was dismissed on that date, without loss of any -6- applicable benefits and with compensation for loss of earnings. We retain jurisdiction in ordei to determine, if requested, the amount of the compensation to which the Grievor is entitled pursuant to this decision. DATED at Toronto, Ontario this 17th day of February, 1986. @fJ&& M..., ir&&j&L P. M. Draper, Vice-Chairman -- A. C. Stapleton, Member