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HomeMy WebLinkAbout1979-0050.Reed.80-09-08Between: Before: For the Grievor: For the Employer: IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOAR0 Mr. William Reed And The Crown/Ontario Liquor Controls Board of Ontario Professor J. R. S. Prichard Vice-Chairman Mr. George Peckham Member Mr. Henry Weisbach Member Mr. S. John Page, Page & Strange Suite 17, 2885 Jane Street Cownsview, Ontario Ms. Janis Baker Hicks, Morley, Hamilton Hearing: %;.?ghH,%'~O Suite 2100 180 Dundas St. W. Toronto, Ontario M5G 128 -2- In this case, Mr. William Reed alleges that he was unjustly dismissed as an employee of the Liquor Control Board of Ontario (LCBO). Mr. Reed, a Clerk, was dismissed by the LCBO by a letter dated September 14, 1978 which stated: Careful consideration has been given to the events which caused your suspetiion from duty on September 2, 1976 and to your behaviour while at work during the past several months. It has become increasingly apparent that your attitude and conduct while at work are incompatible with your obligations as an employee of the Board. The decision, therefore, has been reached to terminate your employment with the Board, effective September 2, 1978. Termination documents will follow in due cou.?se . As the letter suggests, the culminating incidentin ~Mr. Reed's relationship with the Board occurred on September 2, 1978 and he was suspended from that date until the termination decision was taken. Mr. Reed began work with the LCBO in 1965 but since.1971 his employment relationship has deteriorated such that the case before us now is a tragic one. Since 1971,lMr. Reed has beendischarged three times, has brought his case at various times to the LCBO, to his MPP, to the Ombudsman and twice to the Grievance Settlement Board (for the previous decision, see ee Reed 97177). He has been reinstated twice.and now seeks reinstatement a third time before us. After considering all of the evidence adduced before us in two days of hearings and after considering our responsibilities:.under Sections I7 and 18 of The crown employees Collective Bargaining Act and The Collective & .<. -3- Agreement between the parties, we are unable to accede to his request. We have concluded that the grievance must be dismissed since we concur in the LCBO'S judgment that Mr. Reed's attitude and conduct are incompatible with continued employment with the LCBO. In the pages which follow, we. have attempted to summarize Mr. Reed's employment history, to describe the incident on September 2, 1978 so far as we are able toreconstruct it from the evidence and to state our.reasons:for dismissing the grievance. In doing so, however, we must acknowledge~that this decision merely summarizes the facts put before us and that many details and nuances have been left out, However at the hearing we were provided with the complete story and it is based on the totality of the evidence that we have reached our decision. II Mr. Reed first began work with the LCBO in 1965 and worked until he was terminated in 1971. While we heard only a summary of the reasons for that termination, it related to Mr. Reed's illness, his subsequent failure to attend at work and his alleged failure to communicate and co-operate fully with the LCBO. In any event, following unsuccessful approaches to two MPP'S, the Labour Board, lawyers and others, Mr. Reed met with success after his taking his case to the (Xnbudsman of Ontario. He was reinstated to employment with the Board in June, 1976 as a Clerk Two. Unfortunately, the period of reinstatement was not a happy one, being marked by his being disciplined on a number of occasions. From March 2, 1977 to May 2, 1977, Mr. Reed took an unpaid leave of absence in an effort to "pull himself together". While scheduled to return to work on May 2, he did not in fact do so and that failure plus subsequent events led to his discharge on May 27, 1977. s i. -4- Mr. Reed grieved his May, 1977 discharge to this Board and in an award dated October 25, 1977 a different panel of this Board ordered that he be reinstated in employment without pay "upon the certification Iwithin six months? of a duly qualified medical practitioner specializing in psychiatric medicine that the grievor is fit to return to work with the LCBO and that such a return to work is in the best interests of the grievor". Mr. Reed was so certified in December, 1977 and was reinstated at a new store in January, 1978. This history would be incomplete without reference to a matter which is fundamental to Mr. Reed's employment relationship. He perceives that he was done a grave injustice by the LCBO, and indirectly by his Union, in 1971 when he was first terminated. Despite his two subsequent reinstatements, he does not believe that the wrong has been fully righted and his life appears to have been dominated by his obsessive desire to correct the record. This obsession continued after his January 1978 reinstatement and his subsequent discharge was largely, in an indirect way, due to it. In January, 1978,.following his reinstatement, Mr. Reed was sent to work at Store 14 under the supervision of the Store Manager, Mr. Jack Bonnett, and, indirectly, the District Supervisor, Mr. Sam Scowcroft. In reconstructing the events leading up to Mr.. Reed's discharge in September 1978, we have the evidence of Mr. Bennett, Mr. Scowcroft and Mr. Reed. There is some considerable divergence between the testimony of Mr. Scowcroft and Mr. Bennett and that of Mr. Reed. Based on an assessment of their respective credibility, their apparent ability to recall the events and the corroborative documentary evidence, where the evidence diverges we prefer that of Mr. Bennett and Mr. Scowcroft. - 5 - Mr. Bonnett reported that during February, March and April, Mr. Reed got off on a "fairly good'note" although there were some minor incidents involving customer service requiring correction but not discipline. At the same time, Mr. Bonnett quite quickly became aware of Mr. Reed's perceptions of the LCBO's previous conduct towards him as Mr. Reed from time to time came to the Manager's office to go over his tale of woe. Mr. Reed often carried with him a folder of documents concerning his case, a folder which he appeared to have at the first hearing day in this,case. Prior to July. the~re was a small number of occasions on which Mr. Reed was corrected bye the Manager or the Assistant Manager concerning the handling of inventory control slips. This apparently led to a written warning on at least one occasion. Mr. Scowcroft also testified that on occasion Mr. Reed raised his grievances concerning the LCBO's past conduct with Mr. Scowcroft during his store visits, and partly as a result Mr. Scowcroft concluded that Mr. Reed was obsessed with his prior problems with the LCBO. Mr. Bonnett also testified that several times during their discus- sions of the past, Mr. Reed made threats about the LCBO saying he would "get even" and "revenge" the wrongs done to him, and that he had "nothing left to live for." On at least one occasion these threats included reference to getting "his shotgun", a matter which was reported by LCBO headquarters to the police. At the beginning of July, Mr. Bonnett prepared his six month perfor- mance evaluation of Mr. Reed in which he judged Mr. Reed to be an average employee and added the following written comments: MANAGER'S REMARKS AND'RECOMENDATIONS During the past six months, Mr. Reed has proven to be an average employee in most areas. However he continues to show some weakness with regards to serving the counter, as to errors on slips, or slips that have not been paid for. - 6 - Mr. Reed apparently does not enjoy good health, as he is frequently absent through illness. His sick credits for the year have been used since his re-instatement in February. Recommendation: Ni 1 Upon being shown this evaluation, Mr. Reed became angry and upset and refused to sign it, apparently viewing it as part of the LCBO's continuing campaign against him. Following normal procedures, Mr. Scowcroft then added his evalua- ~_ tion which rated Mr. Reed as below average in dependability, work attitude and quality of work and included the following written comments: Mr. Reed has become sd engrossed in his past problem that it is affecting his job performance. His attendance credits for the year are exhausted as of this writing - this is a direct result of his negative attitude towards his job. Mr. Reed has little respect for the Board, is not dependable and cannot be relied upon to execute the duties assigned him without supervision. If his present performance is not improved I would recommend further disciplinary action be taken. Receiving maximum salary for classification - Recco: No Change. When the evaluation was shown to Mr. Reed sometime just prior to September 2, he became further incensed, rejecting the evaluation of his work and 'seeing it as evidence that his position with the LCBO was "untenable". On August 21, 1978 there was an incident at the store in which an apparently angry Mr. Reed was slamming bottles in the storage bins. Upon being challenged, Mr. Reed'entered into a verbal tirade against the LCBO, including a repetition of his threats. On September 2, 1978, a day he was scheduled to work, Mr. Reed did not appear at starting time but instead telephoned Mr. Bonnett saying he was "on strike". Later in the morning he came in and demanded an oppor- tunity to speak to Mr. Scowcroft to discuss his evaluation. Mr. Bonnett telephoned Mr. Scowcroft, advised him of the situation and then put Mr. - 7 - Reed on the line. In the short conversation which followed, Mr. Reed uttered a variety of obscenities at Mr. Scowcroft, then slamned down the receiver and left the premises. According to his evidence, Mr. Reed then went to the Ombudsman and the Labour Board seeking help and was later referred to this Board. Following the September 2 incident, Mr. Reed was first suspended and then discharged. Mr. McDougall, the LCBO's Staff Relations Officer, testified that this decision was taken in light of Mr. Reed's entire employment record with the LCBO once they were satisfied that the September 2 incident required a disciplinary response. One further matter of evidence which ran throughout the proceedings must be recorded in order to complete the factual background to this case. Despite the objection of counsel for the LCBO, we decided to admit evidence relating to Mr. Reed's original discharge in 1971. We did so on the basis that it was offered as evidence of the LCBO's motives in dismissing Mr. Reed in 1978. In essence, Mr. Reed's position was that in July, 1978 he found in the Union's files certain notes written by a Dni~on official in 1971 but previously unknown to Mr. Reed or the LCBO. Mr. Reed interpreted these notes as corroborative of his version of the 1971 events and therefore sought to re-open the 1971 case based on this "new evidence". He wanted the matter re-opened since he viewed the 1976 settlement achieved for him by the Ombudsman as only a partial success since it did not, in his view, entirely absolve him of responsibility for the 1971 termination. In August, he therefore made representations to various LCBO officials, hoping to bring the matter to the Chairman of the LCBO's attention. Mr. Reed,.prior to the date of the hearing, had not achieved a resolution acceptable to him of this issue. Indeed, he indicated in his - 8 - I testimony that he viewed the hearing before us as an opportunity to air the matter. I 7-r-r - Turning to our conclusions, we wish to deal first with Mr. Reed's "new evidence". We have absolutely no doubt that Mr. Reed honestly believes these notes to corroborate his story and to indicate bad faith on the part of the LCBO. His intensity of concern could lead us to no other conclusion. At.the same time, however, we find absolutely no evidence that in reaching its decision to terminate Mr. Reed in September, 1978, the management of the LCBO was motivated by any concern whatsoever that this "new evidence" might expose or embarrass them. In the result, we find the LCRO's decision to terminate Mr. Reed in September 1978 was based exclusively on an assessment of the seriousness of his conduct on September 2 and his total employment record. We are left therefore with deciding whether or not in all the circumstances the LCBO's decision to terminate Mr. Reed in September, 1978 was other than just and reasonable. As we stated at the outset of this award, we have concluded that it was not. We cannot disagree with the LCBO's decision to terminate Mr. Reed since we find that despite his testimony to the contrary, Mr. Reed is not able to maintain a responsible and viable employment relationship with the LCBO. His grievances against the LCBO run too deep and are beyond repair. He is obsessed with the past in such a way that he cannot divorce it from the present. In the result, if we were to order Mr. Reed reinstated we could not do so in the expectation that despite past difficulties, the new relationship would be a successful one. Rather, - 9 - the only reasonable conclusion we can draw from the evidence is that any attempt at a new relationship will be doomed to suffer from the same disabilities as the previous two. In such circumstances it would, in our opinion, be irresponsible for this Board to overturn Mr. Reed's discharge. There was clearly an incident on September 2; 1978 warranting a disciplinary response; counsel for the grievor acknowledged this fact. Thus, the LCBO quite properly considered the entire employment record in assessing the remedy. As we have just stated, the only resonable penalty in the circum- stances must be discharge since any prospect of a successfuly employment relationship is now foregone. The LCBO is not required to provide endless repeated opportunities to Mr. Reed to repair his employment relationship. At some point it is entitled to demand a resonable work performance or 'terminate the relationship and we cannot disagree that that point was reached on September 2, 1978. We do not consider our conclusion inconsistent with that of the previous panel of this Board which adjudicated Mr. Reed's prior termination. That panel stated that it reinstated Mr. Reed "very reluctantly" but did so in the hope that with medical assistance the employment relationship might be re-established. However, that panel quite clearly did not view it as a certainty that the relationship could be successfully re-established. As the evidence we have heard amply demonstrates, the new relationship has not been successful. That, of course, does not mean that the previous attempt was not worthwhile, but it does mean that we are unable to conclude that another attempt is ~warranted. The tragedy of this case is that we suspect that this decision will be no more successful 'than any of the previous proceedings at relegating the past to history in Mr. Reed's mind. . - 10 - Although Mr. Reed testified that he believed we heard all the evidence required to decide this case and that he had had an opportunity to say everything he wished to say, we would be deceiving ourselves if we were to think that by confirming the'termina~tion of the employment relationship we are ending Mr. Reed's concerns with the LCBO. However, the other route - to reinstate - would,.in our opinion, be no more successful and indeed would be very likely to lead to even greater difficulties. In sum, the grievance is dismissed. Finally, we wish to thank Ms. Baker and Mr. Page for their assistance in this matter. As our award no doubt betrays, this was not an easy case but it was made manageable through counsel's skill, cooperation and courtesy. Dated at Toronto this 8th day of September 1980. Prof. 3. Robert S. Prichard Vice-Chairman I concur Mr. G. Peckham Member I concur Mr. H. E. Weisbach Member