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HomeMy WebLinkAbout1979-0148.Pfeffer.80-04-14Between: '. Before: IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Mr. 3. Pfeffei (Griever) And The Liquor Control Board of Ontario (Employer) Professor K. Swinton Vice-Chairman Mr. A. Fortier Member Mr. W. b;alsh Member For the Grievor:, Mr. M. Green Golden-Levinson For the Employer: ,.. Mr. R. Dramj Hicks, Morl$y, Hamilton Hearing: February 20, 1980 Stiite 2100, lB0 Dgndas St. Idlest Toronto, Ontario - 2 - This is a grievance in which Joseph Pfeffer claims that he has been unjustly discharged by his employer, The Liquor Control Board of Ontario, for failure to obey Board policy with regard to the treatment of void cash register receipts. The grievor, Pfeffer, was employed as a Clerk 3 by the LCBO until his discharge. He is 25 years of age and married and the job at the LCBO was his first full-time job. His seniority dates from November, 1975. The incident giving rise to the discharge occurred on April 4, 1979. On that day, Pfeffer was acting as relief cashier at the Suannerhill Store (Number 10). Summerhill has been a self-serve store since December, 1978, and the grievor has worked there since he started with the LCBO. Prior to that date, he worked part-time while a student. As relief cashier, he was required to take over cashier's duties during the lunch hour and dinner breaks of the other employees. A cashier is given a $50 float tom start each day. At the end of the day, he'"rings off" his machine, totalling the amount tendered in the,,transactions of that day. The employee then takes the cash register tape and his~cash to the Bookkeeper. The $50 -. float is separated and the Bookkeeper counts the remaining cash. The amount of cash plus the amounts from "voids" should equal the total shown by the ring-off. "Voids" are cash register receipts ~. from transactions which have been voided because of employee error. - 3 - Board policy with regard to void sales is contained in a circular sent to all stores dated May 30, 1978 and kept in the Store Operation Manual (Ex. 7). It states that if.an employee makes a mistake in ringing up an order (for example, by charging the incorrect price for a bottle of liquor), it is Board policy that the employee summon the Manager or Assistant Manager to come to the cash register and initial the cash register receipt. The employee also initials the receipt, which is now called a "void." The employee is then to ring through the transaction properly. .~ If he has done so, at the end of the day, he would be short in his cash unless he were to receive some sort of credit for the voids. To prevent this, the practice for balancing is as outlined above - the Bookkeeper totals the cash~in the drawer plus the voids. Together they should equal the sum on the tape. On April 4, 1979, when the Bookkeeper, Jeff Nester, counted the grievor's cash and added in the.total of seven voids claimed (Ex. 6)?he found that the grievor was $39 short of the cash register tape sum of $1,632.52 (Ex. 5). It,is Board policy that an employee must pay part of the losses which he incurs while on cash. The Board pays the first $2.00, while the Board and the i; employee share equally the remaining shortage. In the case of a $39 shortage, the grievor would have to pay $18.50. Nester told the grievor of the shortage, and Pfeffer said that the whole thing should be left until the next day, when he would take care of it. Pfeffer stated in his testimony that he i - 4 - had been ill with bronchitis all week and was in a hurry to get home. A doctor's certificate (Ex. 11) appears to confirm.~that he was ill at the time. At that time, Russell Morrison, the Assistant Manager, told the grievor that the particular cash register was not needed that evening and that he and Nester would clear the machine and ,, check the tape to see if they could find any discrepancies to account for the shortage. That evening Morrison checked the tape and, while doing so, found several places where the grievor had claimed credit for a void, but had not rung the customer's order back in after the void. Of the seven voids for which credit was claimed, to a total of $187.77, only two were rung back in. These two (numbers 6 and 7 on Ex. 8) were for $39.85 and $27.00 respectively,for a total of $66.85. From their position on the tape, they occurred near the end of the day. The other five voids, totalling $120.92,.were not rung back in. Correcting for those errors on the voids for .." which money would not have been received (for example, when the grievor twice~punched $20 for tax, rather than $20 to show the amount tendered) the value of the merchandise on those five voids was $78.80. Morrison tias disturbed by the finding and informed R. J. Ford, the Store Manager. They met with the'grievor and Mr. Scowcroft;' the District Supervisor, on April 6. Ford asked the grievor for an explanation- for his failure ~to~ring in the five voids. The response was that the grievor did not know and could give no explanation. - 5 - On being asked again, with the assurance that this was a serious matter, Pfeffer asked Ford if he wanted the resignation of the grievor. Ford replied that all.he wanted was an explanation. When that failed to materialize, he suspended the grievor for one day, charging him with violation of Board procedures and notifying him that he had three days to give an explanation.by registered letter to Mr. W. D.NcLeod, Director of Store Operations. The grievor's~ letter (Ex. 12) reiterated his inability to explain the discrepancy in his cash and expressed his wish that further investi- gation.would lead to the discovery of an explanation. Subsequent to this letter, the grievor was discharged on May 19, 1979. It is the contention of the employer that the grievor was justly discharged for failure to abide by an important Board policy; namely re-ringing voided transactions. Failure to do this, coupled with taking credit for five voids that were not re-rung and his inability to give an explanation for the discrepancy in his cash, gave rise to an inference of untrustworthiness, justifying discharge. The union has argued that there was no just cause for discharge on the basis that there is no onus on the grievor to explain the discrepancy. It was argued that management was alleging theft and had failed tosubstan- tiate its allegation on the basis-of proof beyond a reasonable doubt. If the employer had been 'alleging theft,.it is,doubtful that it would succeed in this case. The burden of proof on an employer in cases in which criminal or quasi-criminal conduct is alleged is not on the basis' of a balance of probabilities. Rather the employer must provide "clear and convincing proof" of such conduct (Re Toronto Hydra Electric System (19781, 19 L.A.C. (2d) 252 (Kennedy); Bernardi and Lipor Control Board OF OntariO 102/79 at 11). In this case the evidence would not support an allegation - 6 - of theft. On being accused of stealing cash from his drawer during cross-examination, the grievor twice denied it. . The employer does not, however, base its decision to discharge on an accusation of theft. Rather, its case rests solely on breach of the Board's rules. Discharge is alleged to be justified because of the importance of the rule to the protection of the employer's cash system and the inference of untrustworthiness caused by the breach. Normally, a cashier's tapes are not checked. If the employee rings off correctly and the cash plus voids balance, the tape is not. checked to ensure that voids are properly re-rung. This is significant, if the nature of the voids is considered. When an employee is credited with a, void, it is equivalent to giving him cash. If he actually sold the goods which were the subject of the void sale, received cash for them, and then did not re-ring the sale, the credit for the void should put him in an overage position when his "cash" (voids plus actual cash) are matched against his cash register tape. If a void has not been re-rung and the cash plus voids balance with the tapes, the empl,oyer might well be concerned that there has been some misappropriation of cash. Because of this concern about the possibility of employee dishonesty if voids are not handled properly, the Board chose to discharge the grievor. In the absence of some explanation as to why the grievor had not re-rung five voids.credited to him (for example, because the customer changed his mind and decided not to buy the liquor), the Board felt that the grievor's~conduct gave raise to an inference of untrustworthiness. - 7 - There is no doubt that employee honesty -is important to all employers. To quote from Re Phillips Cables ~:a. and Int'l union of Electrical, Radio and Machine Workers, Local 510 (1974), 6 L.A.C. (Zd) 35~ (Adams) at 37 - n . ..honesty is a touchstone to viable employer- qployee relationships..... In other words, employee good faith and honesty is one important ingredient to both industrial democracy and the fostering of a nwre co-operative labour relations climate." The words are particularly appropriate in circumstances in which the employee is entrusted with the handling of cash, particularly where the employer cannot provide constant monitoring of the employee's conduct. Therefore,, employee honesty has been described as the most important aspect of his or her duty to the employer, and for many years, proof of theft of company property or that of other employees was automatic grounds for discharge.(Brown & Beatty, Canadian Labour Arbitration at 313). There has been a lessening in the rigidity of that position in recent years, with some arbitrators showing a willingness to consider the employee's ability to correct his conduct in the future and to provide honest service to the employer despite some act of dishonesty (Re Phillips Cables, suora; Re Toronto East General Hospital Inc. and - Service Employees Int'l Union (1975), 9 L.A.C. (2d) 311 (Be&); ifaight & Ministry of Government Services, 23/75; Cranley and Staunton and MiniStry of Revenue, 48/76; 49/76). Nevertheless, these employees have still been subject to heavy penalties and lengthy suspensions in order to emphasize the gravity of the offence to the grievor and to those who might be tempted to duplicate the conduct. While it is not alleged that the grievor actually stole money. from the Board, it is argued that his conduct has given rise to an inference of untrustworthiness because of his failure to explain why he took credit for the voids. Usually in discipline cases, the onus is on the employer to prove just cause. However, there may be circum- stances when the onus shifts ~to the employee to give an explanation for his conduct. Arbitrators have been reluctant to specify general rules as to when an employee should be required to give an explana- ; tion, for this type of rule might well conflict with other .important values, such as the right to protection against self-incrimination in criminal cases (Toronto East General Hospital, slpra, at 316). Nevertheless, several arbitrators have held that in some circumstances, an employee is required to give an explanation: Re Polymer Corp. Ltd. and Oil, Chemical & Atomic Workers, Local 9-14 (19731, 4 L.A.C. (2d) 148 (Palmer); Re United Automobile Workers of America, Local 397 and Brantford Cordage CO. (1969), 20 L.A.C. 412 (itanrahan); Re Toronto East General Hospital, supra. In the last-mentioned case, Professor Beatty emphasized that the duty of explanation arises only in "extreme circumstances!' and discussed the rationale for the duty as follows (at 315) - "Very simply, and in sharp distinction to the criminal law context, we are here concern& with - 9 - an employment relationship the continuation of which, to a larger degree, is premised on the good faith, mutual trust and respect of the parties to this relationship." It should be noted, as well, that even where a duty to explain arises, arbitrators have been reluctant to generalize about the type of explanation required (Re Int'l Chemical Workers LX& 279 and Rexall Drug co. Ltd. (1967), 18 L.A.C. 342 (Weatherill)). With these considerations in mind, it is necessary to evaluate the circumstances~ of this case., There is no doubt, on the evidence, that the grievor failed to follow Board policy with regard to the voids. According to that policy (Ex. 7), he should have had the voids initialled, at the time at which they occurred. Because the ~day in question was one on which stock was arriving, there were times when no one was in the office to initial voids. The grievor, therefore, had~the-wine consultant take two voids in for initialling after the transactions. More important than the possible irregularity in obtaining initials is the failure to re-ring five of the voids and, later, the obtaining of credits for those voids. The failure to re-ring is cleariy in conflict with the Board policy. From the evidence, it appears that the grievor was familiar with this policy. The final two,voids in the day were properly re-rung. All the voids were initialled by Pfeffer and by another employee. -The grievor also testified.that he was familiar with the policy on voids, although he had not been on cash for one month while he was taking office training. Therefore,.it would appear that Pfeffer ~,_ : knew the policy and did not follow it. ~' - 10 -' This is a cause of concern for the employer, in light of the importance of that policy to its operations. Added to that is Pfeffer's use of five voids which were not properly re-rung. Pfeffer testified that he realized the significance of the voids - that they were a credit similar to~cash. It must then be asked whether he had an obligation to explain to the employer why he used the five voids which were not properly re-rung, especially on an occasion when his cash was already out $39. In the circumstances of this case, it was not unreasonable for the employer to ask the employee for an explanation of his conduct, for it can be inferred that the employee took credit for something for which he should not be credited. In these circumstances, the employee can be asked for an explanation, for he is in a position to know what might have happened - for example, a customer did not take ._- the goods originally brought to the counter. However, even if the employer had the right to ask the grievor for an explanation, was it justified in discharging him when no adequate explanation was forthcoming. 7 This is a difficult question to answer in this particular case, for no one, employer or employee, has come up with any explanation as to what had happened to put the cash out $39, and there are competing inferences which can,be drawn from the evidence. The grievor on the day of the incident was feeling quite ill,and a doctor's letter indicated that he was ill enough to have been off work on the day after the incident. This might~~well~ haves affected his-concentration and memory - 11 - with regard to the transactions and, therefore, his ability to give an explanation. Certain aspects of his behaviour do not indicate blameworthy conduct. For example, when told that he was $39. short and that Morrison and Nester would check the tape, he made no effort to stop them, for example, by offering to pay his $18.50 share then. Furthermore, the grievor has been regarded as likable and a fair worker by Ford, the Store Manager. Ford also expressed surprise at the event Andy said that he believed Pfeffer did not know why the cash was out. These factors cangive rise to an inference that the grievor did not have any explanation for the di.screpancy or the credits for the voids. In finding that the.employee has a duty of explanation to the employer, the arbitrator should be wary of shifting the onus to the employee to prove his innocence. He may well not know why certain events occurred and he may well not be blameworthy. The Union has argued that in cases where neither side can explain what has occurred, it would be improper to apply the rule that, in the absence of a satisfactory explanation, the onus is on the employee. We would agree that care should be taken that the employee not be required to prove his innocence. If the arbitrator believes that the.employee honestly has no explanation, it should be reluctant to uphold the discharge of the employee. Nevertheless, there may be some limited circumstances where the absence of explan,ation gives rise to cause for discharge (me sterling Actions & Keys Ltd. (1952). 3 L.A.C. 1105 (cross)). In a decision of another panel of this Board, Bernardi and !rhhe Liquor Control Board of Ontario, 102/79, an employee who failed to comply with Board policy regarding separate cash drawers was held to-bear added responsibility because this breach made it impossible for the employer and the Grievance Settlement Board - 12 - to determine who was responsible for falsifying records regarding store productivity. The employee in that case was manager of the store and directly responsible for implementing the policy which would have led to an explanation as to the person or persons responsible for the falsi- fication. The present case is different from the Bernardi case. In this case the grievor asserted that he had no explanation and hoped that-; one could be found. Various theories could be constructed to explain the shortage and the voids, and the employee's conduct is not necessarily blameworthy, as in Bernardi, for it is not his conduct alone that has stymied the employer and this Board in discovering the reason for the shortage. In light of the evidence and the possibility that the grievor is unable to explain the discrepancy, we are not prepared to conclude that the grievor should be discharged for failure. to provide an explana- tion. The onus to prove misconduct remains on the employer. However, that conclusion does not resolve a central problem in this case, and that is the significance to be attributed to the failure to follow Board policy regarding void sales by not re-ringing voids and by accepting credits for such voids. This policy is an important one, ,~known to the grievor. The employer must ensure that employees abide by ., it in order to protect the integrity of its cash system. Therefore, breach of the rule is a serious infraction, whether or not there'is dishonesty associa~ted-with the breach, and constitutes conduct which is ::. deserving of discipline. The employees on cash are in a position of trust, : they are bonded, and they must be careful to comply with the employer's control system. Therefore, theeemployer must beg concerned about emphasizing the importance of this policy to all employees, SO tha~t general deterrence is a major factor entering into. the assessmentof the proper ^^^- 1C.. .cmr L,"..-.,.L. ^C CL..:- . . . ..^ 7.. -.AA:+:^" +b.n Fmw.1n~r~r m,.r+ hn rnnrcrrnnrl - 13 :_ about the trustworthiness of any employee who breaches such a rule and the ability of this employee to perform in a trustworthy manner in the future. While this Board is 'concerned about the gravity of the breach of the.employer's policy on void sales, we are not prepared to conclude that the grievor should be,discharged. The grievor has been a good employee for several years and has no prior disciplinary record. We are not convinced'that Mr. Pfeffer is an untrustworthy employee, and, as has been stated in Re United Automobile wc&ers, Local'127 and Ontario. Steel Products Ltd. (1962), 13~L.4.C. 197 (Beardall) at 199 - "If there is any reasonable doubt as to the adequacy of the punisi;ment, I think that the griever should be given the benefit of the doubt." To uphold the discharge would leave the grievor's reputation under a cloud, because of the implication of dishonesty, when dishonesty has not been proved. Nevertheless, the grievor has been~guilty of grave misconduct. It must be emphasized to him as swell as to other employees that failure to abide by the employer's void policy cannot be tolerated, for the integrity of the cash system is central to the employer's operations. Breach of the void policy must then be grounds for severe penalty. In the circumstances, a lengthy suspension will serve to emphasize these ends of deterrence, both general and specific. Previous decisions of the Board have imposed suspensions of.ap,pcoximately five months and four months for isolated acts of dishonesty (Haight, crmley, supra) and a recent decision in the private SeCtOr, me Canadian Broadcasting Corp. and Canadian Union of Public Employees (1980), 23 L.A.C. (Zd) 227 (~&hum) imposed a.five month suspension plus reinstatement to a different job in circumstances of untrust- worthiness similar to these. . . ,. - 14 - Here, while dishonesty is not proved, breach of an important rule indicating lack of trustworthiness has been proven, and we would regard the offences as similar in gravity. Therefore, pursuant toes. ~(3) of The Crown Employees Collective Bargaining Act, S.O. 1972, c. 67.a.s am. we would allow the grievance and order the following: (1) that the grievor be reinstated forthwith; (2) that a five-month suspension be substituted for the discharge. We will make no award as to compensation at this time. Should the parties be unable to agree on compensation, the Board will retain jurisdiction to deal with problems arising out of implementation of the award. Dated at Toronto this 14th day of April 1988. /et- ::: . %+--ye, Professor K.~ Swinton Vice-Chairman I concur A. Fortier Member I concur W. Walsh Member