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HomeMy WebLinkAbout1979-0102.Bernardi.79-12-17IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTi'U'E BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARG Betwe% : -Mr. G. Ekrnardi and The Liquor Control Board of Ontario Eefore: Professor J. R. S. Prichard Vice-Claiman :&,. Mr. E. A. E!cLean b!enber 'Mr. H. E. Weisbach I,lember For. the Grievor: Mr. W. R. An9us Administrator Ontario Liquor Boards' Employees' Union For the Employer: Mr. C. G. Ri99s HICKS, Morley, Hamiltcn Barristers & Solicitors Hearing_: June 3.~1979 August 20, 1979 -2- 1 In this case'; the grievor, it-. Glen Bernardi,grieves his dismissal as manager of Store 191, a Liquor Control Board of Ontario (LCSC) outlet in Sault Ste. Marie. He'was dismissed for allegedly falsifying cash register tapes and ~reporting forms at his store. By his grievance he seeks "immediate reinstatement to my position with the L.C.B.O. and a return of all monies and credits lost to myself". It should be emphasized at the outset that there is no suggestion by the LCBO that grievor stood to gain financially from his alleged wrongdoing. Rather, the LCBO maintains that the wrongdoing was motivated by the grievor's desire to maintain a higher level of staffing at his store than might otherwise have been the case. The Board held hearings on June 25 and August 20, 1979 in this case. In addition, after August 20, 1979, in response to a request by the Chairman of the panel the LCBO submitted to the Board a copy of the "LCBO & LLBO Classification Guide" for a "Liquor Store Manager 2". This was followed by an exchange of correspondence ,. consisting of letters by the Chairman (August 30 and 31), counsel for the Union (August 29, September 4 and September 18) and counsel for the LCBO (September 7). All of these submissions have been considered.by the Board in reaching its conclusions. The resolution of this case turns primarily on questions of credibility as there is a direct conflict between the LCBC and the grievor as to the factual circumstances of the case. we therefore turn to a review of those events and their context which led to the grievor's dismissal. ., -3- II The grievor is 39 years old, married and has one child. He began work with the LCBO in 1965 as a Clerk 1, rising to the rank of Assistant Manager and then Manager. He has spent a total of seven of his fourteen years with the LCBO in supervisory positions, the last three as a store manager. To the date of his discharge, the grievor had an unblemished record. Indeed; the evidence indicated that the grievor is a skilled manager who maintained good relations with the public and generated great loyalty from the employees under his supervision. The LCBO operates 586 stores in Ontario. The grievor was manager of Store 191, one of four stores located in Sault Ste. Marie. Store 191 is a self-serve store and was for most of the relevant period operated by three'men including the grievor. The grievor's dismissal arose from errors on the cash register tapes and statistical'reporting forms for Store 191. In the store, every transaction is recorded on the cash register tape as each sale is rung up. For each sale, the price per bottle is multiplied by the number of bottles at that price to give the total. Therefore, if a customer buys one bottle of wine at $1.90 per bottle, the sale should be rung up as $1.90 x 1 = $1.90. The cash registers used in the store permit a total for the day or part thereof to be.taken from the tape by "closing out" the machine. The closing out gives the total number of bottles and the ~total value of sales for the day, or part thereof. From these totals, the average value per transaction can be calculated. In addition, the average trans'action per man/day . . :.. can be calculated if the number of employees working during the day is : .: -4- 1 / known. LCBO procedures require each store manager to complete a form known as an "S-36" each week and to submit it to head office. (Exhibit #3 is a sample S-36) Head Office sends copies to the supervisor and Area Manager. The S-36 includes entries for the number of transactions, the value of the transactions, the number of man/days, .I the average number of transactions per man/day and the average value per sale. The S-36 is signed by the Store Manager and submitted each Saturday. In the case of Store 191, 'from January, 1978 to March 1979 (when the grievor was dismissed), the LCBO alleges that the cash register tapes and the S-36 forms were deliberately manipulated and falsified so as to show a higher average transaction per man/day Andy a lower average value per transaction. The manipulation alleged is the reversal of the price per bottle and the number of bottles when certain Since the value of the transaction does not vary with the reversal, there is no direct financial advantage to be gained by the employees by virtue of the reversals. However, by altering the I I ~- transactions were rung up. Thus, when a transaction should be recorded as 51.90 x 1 for the sale of one bottle at a $1.90.per bottle, the LCBO alleges it was sometimes entered as .Ol x 190. The latter entry represents the'sale of 190 bottles at le per bottle. The value of the transaction does not vary with the reversal.since in ': both cases the total is $1.90. However, the reversal increases the number of bottles from 1 to 190 thus inflating the number of transactions per day and thus the average transaction per man/day. Simultaneously the average value per sale would fall. -5- number of transactions, the reversal does distort the calculation of the average transactions per man/day and the average value per sale. Mr. Ramsay, an Internal,Auditor with the LCBO, testified about the results of an audit he undertook of all the tapes and S-3& for Store 191 from January, 1978 to April, 1979. He testified that the average value per sale was low for that period relative to similar stores and that the average transactions per man/day was relatively high. Upon checking the actual tapes underlying the S-36s, he found ~, that on all but 15 days in the period from late January 1978 to early March, 1979 there was one reversed transaction per day. On 5 days there were no reversals and on the remaining 10 days ~there were two or more. The reversals normally occurred in the morning and most commonly involved a bottle at $1.90. The 10 days involving two or more reversals occurred primarily around Christmas when volume is normally heavier. Mr. Ramsay testified that the reversals ceased after the grievor was discharged. The S-36 forms faithfully represented the totals from the cash register tapes on all but'5 days in the period. Thatis, while the .tapes showed inaccurate,totals since they included the reversals, the totals from the tapes we're entered on the S-36s on all but 5 days. On the.5 exceptional days, the total transactions were inflated on the S-36s by approximately 190-200 bottles. Furthermore, these 5 days were the same 5 days for which the cash tapes showed no reversals. -6- Mr. Hickman, a law student with a master's degree in history : ' employed by the Union, testified that he also studied the cash tapes and S-36s. As a result of extensive effort, he made two significant findings. First, there was no correspondence of the pattern of reversals with the vacation periods of any of the three store employees. That if, the reversals continued while the grievor was on holiday and . . while the other employees took their respective holidays. Secondly, 'Mr. Hickman identified at least one or two reversals post-dating the grievor's discharge and found that between January 1978 and March 1979 the pattern of reversals described by Mr. Ramsay was not quite as regular as he suggested. However, he did agree that the pattern suggested by Mr. Ramsay dominated the tapes and he did not dispute Mr. Ramsay's evidence regarding the 5,days for which there were no reversals- but for which the S-36s were changed. There was some dispute as to the relevance of the average transactions per man/day calculation. Various witnesses for the LCBO asserted that the average is a factor of varying significance in determining the staffing requirements of a store. The grievor and ,.. other witnesses on his behalf attempted to minimize the relationship .between the average and the.number of staff. However, it appears to us that it would be inconceivable for there not to be a relationship between the two. Nhile numerous other factors must certainly influence the staffing decision, it is beyond reason to suQgest that the average number of transactions per man/day would not be a factor of importance. -7- Between 1977 and 1979 there wasp a running debate concerning the appropriate staffing complement far store 191. While the store opened as a self-serve store with 3 employees operating 6 days per week, it was reduced to a 5 day, 2 man operation fora period. However, following the intervention of the local~MPP, the late Mr. Rhodes, at the request of the grievor, the store was restored to its 6 day, 3 man status prior to . January, 1978 when the reversal on the tapes began. The LCBO identified _ the grievor's concern to maintain the 3 man complement as a motive for inflating the average transactions per man/day figure. This concern, " the LCBO argued,:would be motivated in part by a concern for the welfare of his employees but also by the advantages to the grievor of a 3 man complement.. The 3 man complement,ensured a 6 day schedule, permitting the employees to schedule two consecutive days off each.week for each man. In a 2 man, 5 day operation, days off are fixed by the days the store is closed, thus reducing the employees' flexibility in scheduling days off. The fundamental difference between the LCBO and the grievor in this case is that while the LCBO characterizes the pattern of reversals between January 1978 and March 1979 as demonstrating a deliberate pattern of manipulation and deception, the grievor maintains that the pattern can be attributed to human error. Tobuttress his position, the grievor in his testimony offered two complementary explanations for the reversals. First, he explained that the type of cash register used in his store is unusual in that.it is not the dominant model used by the i LCBO and it requires the operator to reverse the order of entering the price and number 'of bottles for a transaction. As a result, if the operator enters the transaction in the order that he would enter it on most LCBO cash registers, it will appear as a reversal on the cash register tape at Store 191. Thus, the operator must be constantly vigilant if he is to avoid inadvertantly entering reversals. This difficulty was compounded in the view of the grievor by the absence of any adequate training on the- proper use of the cash registers. As evidence of the d~ifficulty associated with these particular cash registers, the grievor pointed to an earlier.eight,_month period in which it was discovered that he was misusing the machine and thus submitting inaccurate S-365. While the particular errors associated with this problem were eliminated after advice from Mr. Ball at head office, the grievor viewed the problems in this case in a similar light to those in the earlier incident. Secondly, the grievor suggested that the preponderance of the reversals associated with $1.90 could be attributed to the popularity in his district of a particular brand of inexpensive wine favoured by persons short of funds but having a strong desire.for an alcoholic beverage. As a result of the popularity of this brand, it was placed in cases near the cash register to enable customers to make an easy selection. The grievor indicated that the date of placing the-wine near the cash register and the origination of the reversals coincided. In a l.etter dated March 30, 1979 (Exhibit 17) he suggested a causal relationship between the location of the wine and the reversals,. an explanation repeated at the hearing and concurred in by the other -9- employees at the store. He wrote: The errors in the ring ups could have occurred because I have 553B (a high sales volume in this store) sitting in cases in front of the till. The customers that buy this brand, will put, for example, 2 bottles on the counter and the cashier will ring up the sale and then the customer will +y he has enouqh money for another bottle and at this time, when you are asking the customer how many bottles he is purchasing, I feel it is possible for the cashier to ring the sale in the reverse order. Because of the indecision of the customer in how many bottles he is going to purchase it is probably confusing to the cashier. It should be noted, however,.that although the wine continued to be kept near the cash register after the grievor's dismissal, the pattern of errors ceased. One further factual matter deserves mention before we turn to our conclusions based on the evidence. It was agreed by virtually all.witnesses that there is an LCBO policy requiring each employee in a store to use his own cash drawer when operating a cash register. The purpose of this policy is to permit the identification of the person responsible for any errors or shortages arising from the use of the cash register. If the separate drawer policy is followed and the cash register tapes signed by the individual operators as they remove their drawers, it is possible to tell with precision who was operating the machine at the time the error occurred. ., ,_ -,-z:j Unfortunately in store 191 a single drawer po~licy was used. Thus, since all employees in the store including the grievor operated the same cash register using the same drawer it is not possible to identify which employee was operating the machine at the time of - IO- the reversal each day. While it was agreed that LCBO policy required the separate drawers to avoid this sort of difficulty, there was less agreement as to the degree of enforcement of.or compiianc~ with this policy. A number of the witnesses.called by the Union testified that it was their.experience'in.other stores that the policy was not followed. In particular, one employee testified that in Store 63 the policy was not followed. The significance of this is that store 63 is the site of the office of the local LCBO supervisor, Mr. Kelly. The suggestion was that if the store most likely to be subject to supervision ignored the policy, some measure of the degree of compliance with the policy generally could be inferred. With regard to the drawer policy at store 191, Mr. Don D'Orazio, one of the employees working at the store and called to testify by the union, testified~ during re-examination by Unioncounsel that until 1977 store 191 followed the separate,drawer policy. This was changed by the grievor when he assumed the position of manager eat the store. However, it must be acknowledged that the chan~ge also coincided with the conversion of the store from a conventional to a self-serve store. (continued on page 11) - ll- III i In evaluating this evidence, 'we applied the standard of proof urged upon us by Mr. Angus, counsel for the Union. That is, as was stated in Re Toronto Hydro-Electric system (1978), 19 L.A.C. (Zd) 252 LYennedylI in cases in which crtminal or quasi-criminal conduct such as falsification is alleged, the employer must provide "clear and convincing proof" of that conduct and not merely demonstrate its existence on the basis of a "balance of probabilities". Applying this standard of proof, we must first resolve the central issue before us: were the reversals on the cash register tapes and the modifications of the S-36s the result of human error and inadvertance or the result of a deliberate plan?- If we were to conclude that it was mere human error, there might be's case for some disciplinary response based on careless performance of duty but it certainly would not, in our opinion, be cause for dismissal. On the other hand, if we were to conclude that this was a deliberate Plan to modify the tapes and S-36s in order to deceive upper management with regard to the level of ,-activity at store 191, then we would be faced with .an extremely serious breach of trust warranting a very severe disciplinary response. The resolution of this issue rests primarily on a determination of credibility. The grievor and the other employees at Store 191 all denied any attempt to deceive management, attributing the reversals to human error. Each of the employees offered the same explanation as that offered by‘the grievor concerning the location of the $1.90 wine as the likely source of the errors. While the grievor and the other employees were adamant in denying any wrongdoing, they are faced withy the very,damagi,ng,evidence, presented ; - 12 - by Mr. Ramsay; the auditor. Viewed as a whole, Kt-. Ramsay's evidence showed that: (1) There was one reversal a,day, every day for 14 months except for 15 days; (2) On 10 of the 15 exceptional days there were two reversals ~, and on 5 there were none; (3) On the 5 days on which there were no reversals, the S-36 forms did not correspond with the totals on the cash register tapes but were increased by approximately 200 transactions; (4) On all other days in the 14 month period the totals of the cash register tapes corresponded with those on the S-36 forms; and (5) The reversals usually occurred in the morning and involved a transaction for one or more bottlesat Sl.90. The impact of this evidence was diminished somewhat by Mr. Hickman's study of the reversals and the S.36~. He demonstrated: (6) That the reversals were unrelated to whether or not-the grievor or any other employee at store 191 was on holiday. That is, the reversals continued through the vacation periods of each of the employees; and (7) That contrary to Mr. Ramsay's evidence, the reversals did not cease completely after the grievor was removed as manager of store 191 as he was able to point to a small number of errors post-dating the grievor's removal. The necessary implication of (6) is that if there was a deliberate plan to distort the tapes, it was not carried out by the grievor alone. At ~least some of the~.other employees must have been.involved inorder to continue the pattern while the.grievor was on holiday. The effect of (7) is less clear in that while it confirms that reversals can occur as a result of error, the dramatic reduction in the number of reversals after the grievor's removal suggests a change in behaviour by those operating the cash registers. What is ambiguous based on (7) alone is whether the change resulted from greater care being exercised in ringing up purchases or from a decision to cease a previous deliberate plan of deception. In our opinion, Mr. Ramsay's evidence, when viewed in its totality and subject to the qualifications indicated by (6) and (7). is simply not consistent with anything other than a deliberate pattern of falsification and as such is "clear and convincing proof" of such a pattern. For us, it simply strains credibility too far to explain away the pattern identified by.points (1) to (5) as mere human error or inadvertence. Perhaps the most compelling single point is (3), involving the modification of the,S-36s on the 5 days on which there were ho reversals on the tapes. To us, these appear as 5 days, on which those involved on the plan neglected to enter a reversal, causing them to have to modify the S-36 so as to avoid showing a sudden drop in transactions tha,t day. Even the grievor himself when faced with (3) agreed that it not be explained as mere random error even though he denied personal responsibility for the alterations. We have therefore concluded~that there was a deliberate plan at store 191 to enter reversals on the cash tapes and thereby to distort the figures reported on the S-36 forms. The motive for this no doubt related to concerns about the level of staffing at the store. As we said above? despite suggestions to the contrary by the grievor and some of his fellow employees, there is undoubtedly a relationship between average transactions per man/day and the number of staff assigned to the store. Furthermore, the grievor must have been aware of this fact. The result of the reversals was to inflate substantially the average transactions per man/day at Store 191. This must be seen in the context of a sporadic but on-going controversy as to whether store 191 should be a 2 or 3 man store. The advantages to the grievor of maintaining the 3 man status were greater flexibility in running the store and scheduling days off and'the maintaining of jobs for his employees. The latter concern is entirely consistent with the evidence we heard of the store employees' praise for the grievor arid the mutual loyalty between him and them. While in some senses this concern by the grievor for the job security of his employees is admirable, it in no way justifies or excuses a deliberate plan to mislead upper management by distorting financial records. Having concluded that there was a deliberate plan of deception, we still face a further issue: does the evidence point to the grievor as the one responsible for the plan 7 That is, while we are satisfied that the evidence points to.a plan of deception, does it point to the grievor as being responsible for it? Our difficulty in answering this question is that there is an absence of direct evidence on the point. Indeed,~given Mr. Hickman's evidence regarding vacations, the direct evidence indicates that at a minimum there must have been at least two employees participating in the plan. A consideration of particular relevance to resolving the griever's responsibility for the pattern of deception-is the fact that if LCEO policy had beenfollowed in store 191 we would.be in a better position to make our decision. As was indicated above, bard policy requires e2ck enpioyee'tc use a separate cash drawer and to sig :ke czsh rqis:er -15 - tapes as the operator changes. One rationale for this eclicy is to ensure that it is possible to trace .the source of any shortages or errors regarding the operator of the cash registers, exactly the situation raised by the case. The evidence indicated clearly that the grievor failed to comply with the LCBO policy. As manager, the grievor bears responsibility for ensuring that his store is run in accordance with LCBO policy and is not free to mo.dify policies as he sees fit. Furthermore, Mr. D'Orazio testified that it was the grievor who was responsible for eliminating the separate drawer policy at Store 191 since previous managers had insisted on the use of separate drawers. Counsel far the Union attempted to minimize the importance of the grievor's failure to implement the separate drawer policy by adducing evidence that this policy, like some others, is not followed with the degree of uniformity that the LCBO might suggest or desire. In particular, there was evidence that the-policy was not followed in store 63, the store in which Mr. Kelly, the local supervisor, kept his office. The implication of this was that if the policy was not followed in the store that might be expected to have the closest supervision (Store 63), then the grievor should hardly be condemned for failing to comply with the policy in his store. We find some force in this submission and would have liked to have heard evidence from Mr. Kelly to assist us in determining the degree of ccmpliance with the policy. By failing to call iAr. Kelly as a witness, the LCSO forces us to resolve the issue in the absence of such evidence. While we are persuaded there is less than full compliance with the policy, we are not.persuaded that the grievor should te exonerated frcm resoonsibility for failing to follcw the oolicy. In 'hi5 eviie?ce, -, 16- he admitted knowledge of the policy and did not indicate that he had ever been told to do other than follow it. He testified that it was his opinion that in a 3 man store you either trust your fellow employees absolutely or not at all, and that therefore there was no need to maintain separate drawers. In our view the grievor made a serious error in failing to follow LCBO policy on separate drawers since it'destroyed his ability and ours to determine by direct evidence who was responsible for the reversals. That is, through his own breach of policy as a manager, the grievor put himself in a position in which ,he must bear greater responsibility for the operation of his store than he otherwise would. As manager, he is responsible for the proper operation of the store as he holds a position of trust and responsibility. As manager, he must do his best -~-,:~ to supervise operations and monitor his employees. If he deliberately fails to comply with an LCBO policy which would assist him in his suPervisor tasks, he must bear added responsibility for the consequences. Counsel for the Union $1~~0 tried tom minimize the grievor's responsibility by adducing evidence that from time to time all employees at the store completed the S-36 reports. However, once again, as manager the grievor must bear primary responsibility for the information submitted as he signs the forms and submits them to head office. If he wishes to be assisted in thisfunction, he is free to SO arrange his operation, but always subject to.his continuing responsiblity for the accuracy of the inicrmacfcn. In sum, we are faced with a situation in which by virtue of his position as manager the grievor mus t bear primary responsibility icr : - 17 - any impropriety in the operation of his store. Furthermore, to the exten: that by his own deliberate~failure to follow LCBO policy he has made it impossible to trace the source of the impropriety, he must bear responsibility for it. This conclusion corresponds with our assessment of the grievor's evidence as'.a whole as we found his explanation of the reversals and the . S-36 discrepancies lacking in credibility. Indeed, after considering the totalit of the evidence, we are persuaded virtually beyond doubt that the grievor was a major participant in the pattern of deception which led to his dismissal responsib We are fully aware that while fixing the grievor with ility for the wrongdoing we are, by implication, suggesting that at least some of the otheremployees at store 191 participated in or went along with the plan to modify the figures. No disciplinary action has been taken by the LCBO against the others and they were not represented by counsel before us. We therefore want to emphasize that the conclusions we have reached inferentially about their involvement must be discounted by the context of their evidence and that any finding of wrongdoing on their part must derive from an independent process. A final argument made by counsel for the Union relates to the apparent inadequacy of the supervision provided by the local supervisor, Mr. Kelly. Counsel pointed out that the reversals and inaccurate reporting extended over a 14 month period during which Mr. Kelly failed to notice any anomalies in the S-36 reports or to take any corrective action. hrthermre, as we indicated above, Mr. Kelly may bear scme blame for failing to ensure that the cash drawer policy is rigorously followed. -18- If the theory of the employer's case had been carelessness or incompetence on the part of the grievor, the apparent inadequacy of the supervision would have been of great relevance to an assessment of any disciplinary action. However, given that the employer's case is based on the deliberate falsification of records, the failure of Mr. Kelly to detect the wrongdoing in a timely fashion is not of direct relevance to the fact of the wrongdoing. The focus of the employer's complaint is the breach of trust by the grievor and the time taken to detect this breach in no way diminishes its seriousness. Indeed, then failure to detect the falsification extended the wrongdoing by the grievor as he'continued the pattern of wrongdoing for such an extensive period: Thus, while we are concerned and troubled by the absence of close scrutiny by Mr. Kelly, it does not in this case diminish the grievor's responsibility. IV Having concluded from the evidence that the grievor engaged in a pattern of deliberate falsification of records, motivated in part by self-interest and a desire to deceive upper levels of management within the LCBO, we have also concluded that a severe disciplinary action was called for. The issue before us is whether or not dismissal is just and reasonable in all the circumstances. In determining this. question we have considered the grievor's long and unblemished work as an employee at the LCBO, his strengths as a manager in'developing good relations with the public' and his employees, and the economic hardship he faces if his discharge is upheld. However, we have also considered the principles at stake in. this case. As we understand our mandate under section 18 of FXZ c~(r7: Employees Collective dar~aini.r~ i.c t, we are to exercise cur discreticn to . ensure that any penalty imposed is just and reasonable in the circumstances. Our discretion should, in our view, be exercised to modify disciplinary sanctions in cases in which the employer has over-reacted to an employee's breach of his responsibilities. It should also be exercised to extend compassion, to recognize the very real economic hardships of the market place and the individual frailtiesof all of us. This . Board has on numerous cases so acted. However, we are also of the opinion that our discretion should not be exercised so asto undermine the integrity of the public service of Ontario and that to do otherwise would violate our mandate and undermine the confidence of all parties and the public in the workings of this Board. Our decisions should not compromise the principle that all members of the public service of Ontario, both bargaining unit employees and supervisory personnel, should be held to a high standard of integrity in all their actions. The grievor in this case has risen to a position of trust and responsibility in his employment with the LCBO. As manager, he occupied a position requiring total integrity by virtue of his responsibility for funds, inventory, reporting and supervision. He ..~ then violated this trust by deliberately falsifying documents in a consistent pattern,a pattern of conduct which in no way can be characterized as a "momentary aberration". While his motives for so doing no doubt included a concern for the job security of his employees, it also included a measure of self-interest; Furthermore, since his dismissal, the grievor has consistently denied any wrongdoing, constantly explaining the discrepancies in the documents as random~ human errors. As we stated above, we simply cannot accept this explanation - - 20- as credible. Thus, we are faced with a grievor who not only violated his position of trust but also refuses to admit his error and seek a compassionate response. If the grievor had elected to admit his wrongdoing and turned to the LCBO seeking an exercise of discretion in his favour, the LCBO may well have accepted his contrition and given him a renewed opportunity. However, the grievor elected to come to the Board and to deny his wrongdoing, forcing us,to make a factual determination. Given that we have done so and have found a deliberate breach of trust, the choice between the principle of integrity and the economic hardship for the individual is made stark and no compromise is possible. Forced to choose, we must, in the best interests of the conduct of labour relaticns inthe Ontario'Public Service, choose integrity so that there can be no doubt as to the standards required of all persons holding positions of trust. We therefore are unable to conclude that the penalty of discharge is, in all the circumstances, other than just and reasonable. We have reached this conclusion only after very considerable agonizing. While the breach of trust quite clearly led to the conclusion that the grievor could not be reinstated as a manager, we had more difficulty in concluding that the grievor should not be reinstated'at all. Both counsel agreed -. that we had the~power to reinstate the grievor in a non-managerial position if we were to conclude that such a remedy would be just and reasonable and we were tempted by our concerns for the economic welfare _' of the grievor to adopt this solution. However, in the end we were unable to order any form of reinstatement as such an order could only be understood as compromising the principle of integrity. In reaching that conclusion we were guided in part by the extensive arbitral jurisprudence dealing with various forms of breach of trust. While not absolutely uniform in its results, this jurisprudence does affirm the principle of integrity, particularly for employees in positions of relatively greater trust. Furthermore, the cases appear to put considerable weight on whether or not the employee is prepared to acknowledge. his wrongdoing. This is not to say that we would discourage the LCBO from reinstating the grievor to some position at its own initiative. Indeed, given the grievor's long record of first class service, it would be quite reasonable to suppose that such a decision could work to the benefit of both the grievor and the LCBO and we therefore hope the LCBO will give consideration to such a course of conduct. However, such a decision would presumably.be preceded by an admission by the ~grievor of his wrongdoing and by a statement of his determination to avoid any further breach of trust. v In sum, the grievance is dismissed. Finally, we would be remiss if we failed in closing to thank Mr. Angus and Mr. Riggs for their thorough preparation and considerable assistance throughout this case. Dated at Toronto this 17th day of December, 1979. J.R.S. Prichard Vice-Chairman NOTE: See attached dissent by Mr. Weisbach. .I concur E.A. McLean - Member i GS3 102/73 In t:he matter of the Grievance of Mr. G. Bernardi. MINORITY DE-CISION. __-_-_-------_-_________________________-- After careful least in part, dissent ly studying the award I find that I must;at from the final conclusion of the majority. While generally agreeing with the findings of the Board, I believe the'final conclusion of the Board should be a more positive one. It is my contention'that the grievor being out of work for the last number of months has already paid heavily for any misdeeds t:he Board feels he has committed. The dismissal from a job,is like the highest penalty anybody can receive. I believe that~the griever has been a good employee generally, and some consideration should 32 given for his furth~er employment. __ There fore I would have.reinstated the grievor in a~lesser position than the one he had occupied at the time of his dismissai. There should be no 'compensation'for the time lost since his dismissal I cannot agree with the conclusion of the Board that reinstatement of the grievor in a lesser position would compromise the princi-$e of integrity . .- The grievance should have been allowed inpart. Toronto, Eecember 12th 1979.