Loading...
HomeMy WebLinkAbout1982-0191.Brown.82-09-10IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before K-iE GRIEVANCE SETTLEMENT BOARD Bet&x”: Before: For the Grievor: For the Employer: OLBEU (George Brown) and The Crown in Right of Ontario (Liquor Confrol Board of Ontario) Grievor Employer Mr. R.L. Verity,Q.C. Vice Chairman Prof. P. Craven Member Mr. E.R. O’Kelly Member Mr. A.E. Golden, Counsel Golden, Levinson Barristers & Solicitors Ms. C.F. Murray, Counsel Hicks, IMorley, Hamilton, Stewart & Storie Barristers & Solicitors July 14 and 19, 1982 :. -- ., .~., -2- AWARD This matter involves the discharge of George H. Brown effective Apri,l Znd, 1982, for his alleged participation "in an attempted theft of stock" from Liquor Store 164 on March ZZnd, 1982. The Grievor seeks. reinstatement with.full compensation and denies the allegation of attempted theft. Prior to termination, the Grievor was classified as a Liquor Store Clerk 4, and his seniority dated back to June of 1973. The Grievor was first employed at Store 164 on December lst, 1981. That Store is 1ocate.d at 812 Eglinton Avenue East, in Metropolitan Toronto. p.m., the On March ZZnd, 1982, at approximately 2:24 Grievor was apprehended'by twos L.C.B.0. Security Off rear of Liqubr Store 164, after having completed the icers near the placement. of 6 full cartons of assorted liquor in the ba~ck of a hatch-back automobile owned by Nick Gianopoulos. Mr. Gian,opoulos is one of ch is located I two owners of the Onassis Pizzaria and Restaurant wh i ,immediately adjacent to the Liquor Store, and he was of the Grievor at the time of the ap.prehension. The in the company Liquor Store liquor being taken from the rear door I Security Officers witnessed of Store 164 by both the Gr i both men in the Gianopoulos evor and Mr. Gianopoulos and placed by I vehicle, which ins turn was parked at the I rear of the restaurant. Store 164 is a conventional Liquor Store. When confronted by the investigating Officers, the Grievor~was unable -3- to produce either an order slips known as .a "multiple s ip" for the liquor, or a cheque signed by Mr. Gianopoulos for the alleged purchase. When questioned by L.C.B.O. Senior Advisor Security Services, Brian Andrews, the Grievor admitted that he had not followed the proper store procedure, but insisted that Mr. Gianopoulos was going to pay for the liquor. Investigator Andrews en,quired of Mr; Brown whether the.re was an invoice or purchase order. The Grievor replied ".yes, in the office". The Grievor was subsequently unable to produce any documentation in the office, and thereupon began to prepare a.multiple order (form S-2314) in pencil (Exhibit 2). Subsequently, the L.C.B.O. Secu.rity .Investigators prepared an inventory of the. liquor found in the Gianonoulos vehicle. That~ inventory is as follows (Exhibit 3): "6 (Six) cartons containing:- 12 - Campari Aperitivo 12 - Baileys Irish Cream 12 - Smirnoff Vodka 12 - Triple Crown Rye 12 - Costieres du Gard Red Wine 8 - Jordan Ramatu,elle Carte d'Or 4 - Grand Marnier 4 - Chiva~s Regal 750 ml. 700 ml. 1136 ml. 1136 ml. 750 ml. 750 ml. 700 ml. 40 oz. 1 1168 @ $10.80 16668 @ 13-90 475A @ 16.25 91A- @ 15.40 19578 @ 5.10 : 14978 @ 3.25 3988 @ 21.10 B ! 129.60 166.80 195.00 .~ I 187.80 61.20 26.00 84.40 (1 1 36 ml. 116A @ 31.35 125.40 $973.201' . - 4 - The Police were then called to investigate, and eventually both Messrs. Brown and Gianopoulos were taken to Police Station S3 Division, where a police investigation was conducted in the presence of the two L.C.b.0. Security Officers. Later the same day, Mr. Brown was formally charged with theft over $200.00 under the Criminal Code of Canada. Mr. Gianopoulos was not charged. On Apri 1 theft charge was . I Zlst, 1982, a prelimi.nary Hearing on the held before Provincial Court Judge Scott. Charges of theft were dismissed at that preliminary Hearing and the Grievor was discharged. At this Arbitration Hearing, Liquor Store Manager Michael Sokoluk testified that he was Manager of Store 164 at the'relevant time, having assumed his responsibilities as Manager on November 9th, 1981. The Liquor Store in-question is a "C" Store which is located-in' Leaside and employs a small staff.of 5 persons including ~. ./,<. the Manager, with 2 part-time staff assneeded. Mr. Sokoluk was obviously concerned 'about monthly "shortages" which had e.xisted for a consider~able period of time prior to his appointment.~' It was natural that the Manager w a view of the relatively~sma 1 Manager resolved to reduce month. On the recommendat i introduced a new inventory s concerned about'these shortages in 1 sales volume at the Store. The these shortages to under $50.00 per on of his Supervisor, the Manager system to attempt to correct the shortage problem, together with an internal procedure for filing stock -5- control slips for the purchase of .each bottle of liquor. In spite of these procedures, shortages continued to occur and in fact increased in dollar value. In December of 1981, the records for fiscal period 9 ind~icated that the sho‘rtages amounted to 4668.15 (inventory taken on. December 5th) In 1982, the following 7): shortagesswere ascertained (Exhibit I T' ..~. 7 .'~ S485.50 shortage for fiscal period 10 (dated January 18th, 1982) $2,131.85 shortage for fiscal period 11 (dated February 16th, 1982) 9892.75 shortage for fiscal period 12 (dated March 12th, 1982) S2,083.10 shortage ~for fiscal period 13 (dated April 17th, 1982) (This figure includes the $970.00 recorded in the I: alleged attempted theft) Subsequent to the Grievor 's suspension and termination, the shortage/overage reports ti'ere as follows: .:.: $13.05 shortage for fiscal period 1 (dated May 18th, 1982) S207.55 shortage for fiscal .period 2 $107.00 .overage for fiscal period 3 (dated June 5th, 1982) (dated July 6th., 1982) The Store Manager was unabl, e to ascertain the cause of. these shortages, and as a result of his own suspicions he contacted the Security Division of the L.C.B.O. for assistance. Security Advisors, Brian Andrews and James Ramsay were assigned by the L.C.B.O. illance 0.f the rear of 8to.re Security Division, to establi.sh a surve 164 in March of 1982. The first surve Manager's day off on March 11th and no illance took place on the unusual occurrence happened , -6- on that date. Both Officers repeated the same exercise on the Manager's day off on Thursday, March 22nd. The Grievdr's evidence, supported in most respects by the evidence of Mr. Gianopoul'os;was 'that he had lunch at the Onassis Restaurant between 12:00 and 1:OO on March 22nd. Mr. Gianopoulos advised the Grievor in the restaurant that he wished to purchase liquor for his home use and that he was having a ~family birthday party. According to the Grievor's testimony, the Grievor wrote the Liquor Store phone number on a piece of paper, gave it to Mr. Gianopoulos, asked the restaurant owner to call the Liquor Store at'approximately 2:00 and that he would p'repare the o'rder. The Grievor subsequently received a telephone call at the apoointed hour, wrote down the sizable order on a "scratch pad" and advised Mr. Gianopo~ulos that the order would be ready in approximately 1S to 20 minutes.. At Mr. Gianopoulos' request, the Grievor delivered the liquor in question to Mr. Gianopoulos' car. .The evidence with regard to payment for the liquor was somewhat vague. According to the Griever's evidence, Mr. Gi~anopoulos said he would pay "by cheque". According to Mr. Gianopoulos' evidence, he was willing to pay either' by cheque or cash, and would do so when advised by the Grievor of the price of the order. The evidence is clear that at the time .of the Grievbr's apprehension by the L.C.B.O. Officers at 2:24 p.m., Mr. Gianopoulos had not been advised dy the Grievor of the total price of the liquor. It is also clear that at .~.the time of the apprehensio'n arrangements had not then been made for , - 7- payment. Mr. Gianopoulos testified ",I knew I had to pay for it". The Em,ployer's Counsel, Miss Murray argued that the Grievor had been apprehended- by L.C.B.O. Security Officers under suspicious circumstances, which when viewed in their entirety were more con.siste'nt with attempted theft than with failure to follow procedures. She argued that the Grievor's written explanation of the occurrence on March 22nd (prepared by a lawyer - Exhibit 9) differed substantially from the Grievor's explanation at the Hearing. Alternatively, it was argued that if the Eoa,rd was unable to charac- terize the fact situation as attempted theft, the Board should uphold the discharge in any event: On behalf of the Grievor, Mr. Golden argued that the Grievor's explanation was totally credible in the circumstances, and that since the Employer framed the di,scharge on the sole basis of attempted theft, that he.should be reinstated forthwith with compensation. It was Mr. Golden's position that the Employer had failed~to discharge the onus of establishing clear and convincing evidence of attempted theft. He referred to several incidents in the evidence whereby the "element of fairness" was absent in the Em layer's actions. - 8 - The- Employer is required to establish that there was just cause for the discharge. Previous Awards of the Grievance Settlement Board have consid.ered the standard of proof required in cases where criminal acts are alleged. In those Awards, the Board has required proof by way of clear and convinci,ng evidence. That test is a higher onus upon the Employer than the standard civil test of proof upon the balance of probabilities. See _ Bernardi and'L.C.B.O. 102/79 (Pritchard); Tsialtas and L.C.B.O. 282/79 (Eberts); and Re Douglas and The Crown in the Right of Ontario (Liquor Control Board of Ontario), (1981) 28 L.A.C. (2d) 332 (Swinton). In a review off all the evidence in its. totality, we are unable Tao conclude that the Employer has established the attempted ~' theft by cleat- and convincing evidence. Admittedly, the Grievor violated a fundamental rule of the Employer, which rule when simply stated requires the'receipt of cash 'prior to the delivery;of liquor. On the evidence, we find that the Grievor's actions of March 22nd are more consistent with a violation of the Employer's procedures than the allegation of theft. We accept the evidence of Mr. McPherson, who was on duty with the Grievor on March 22nd,'at the relevant time, that the Grievor stated to him "I have a big order from Nick" -- "he is going to give me a cheque". We also accept Mr. McPherson's evi~dence that delivery of liquor had preceded payment "on occasion" -9- at Store 164. It should be noted that this was the evidence of Ur. Uc?herson, both at the preliminary' Hearing ~before Judge Scott and also at this ~Arbitration Hearing. In retrospect,. it may well be that the appre- hension of the Grievor and Ur. Gianopoulos by L~.C.B.O. Security Officers Aidrews and Ramsay was premature in the circumstances. However,. it is difficult to believe that attempted theft was in the process of being committed on a bright 'sunny day at 2124 in the afternoon. It is also~ difficult to believe.that anyone in the process of committing th'eft would place the liquor in the,rear of a hatch-back automobile surrounded as it was by car windows, or inform'the cashier concerning th.e order and anticipated payment for that order. This Board is concerned about the propriety of the actions taken by L.C.B.O. Area Uanager Albert Brady in his attempt to discredit the evidence presented by Ur.McPherson at the preliminary Hearing, subsequent to that Hearing and prior to this Arbitration- &P our opinion, there was nothing wrong with Ur. Brady obtaining a transcript of the McPherson testimony at the preliminary Hearing and being concerned with the contents of that testimony. 'eon the other hand, it was improper for Mr. Brady to have obtained a signed statement from ~Xr. McPherson as he did on May 28th, 1982 (Exhibit 8), ; the effect of which was to attempt to discredit !JcPherscn's previous , - 10 - sworn testimony -- a fact which was ne'ither fully appreciated nor understood by Mr. McPherson. Any attempt by Management in these circumstances to influence a witness prior to an Arbitration is highly improper. The evidence of the Grievor's admitted breach of L.C.B.O. procedures merits comment by this~ Board. It is difficult to imagine that any rule of the L.C.B.O. is more clearly understood by L.C.B.O. Employees than the rule to receive cash or a certified cheque prior to liquor being removed from a store. The Store Manager, Mr. Sokoluk clearly re-emphasized the procedure to his employees including the Grievor, when Mr. Sokoluk introduced then new inventory procedures and in particular the procedure to use and initial stock control slips for each bottle of liquor purchased. ,,, The Grievor candidly admitted at the Hearing that he knowingly violated procedures the afternoon of March 22nd. That b~reach of procedu,re is a fun~damental dereliction of duty which was the cause of the problem and which'~ cannot be tolerated by the Employer. Although it is true that the Employer, in its letter of termination to the Griever dated April 7th, 1982, relied solely upon the allegation of "attempted theft of stock" as the reason for discharge, we are of the opinion that the Grievor's admitted pro- ,,. cedural omission of delivery of stock priorto the payment is a related issue. The Griever-'was candid in admitting this procedural error - 11 - and had every opportunity at the Hearing to explain his reasons for tha t error. This Board is of the opinion that the Grievance Settlement Board's powers are broad enough pursuant to Secti~on 19(3) of the Crown Employees Collective Bargaining,~Act to substitute a lesser . penalty which we consider "just and reasonable in all the circumstances Section 19(3) of the act reads as follows:' "Where the Grievance Settlement Board determines that a disciplinary penalty or dismissal of an employee is excessive, it may substitute such other penalty for the disciplbne or dismissal as it considers just and reaso~nable in all the circ.umstances." Accordingly, the G~rievor will be to his former p-o,sition as a ‘Liquor Store C forthwith reinstated lerk 4 with the Employer, but shall receive, as a result of his actions on March ZZnd, a three month suspension dating from April Znd, 1982 to and including';July 2nd, 1982. Further, the Grievor shall be compensated for all loss of w~ages from July 2nd to the date of his reinstatement with no loss of benefits. In the event that there are no further similar procedural violations by the Grievor during a period of two years from the date.of the Grievor's reinstatement, al,1 references to the incident of March ZZnd, 1982, shall be removed from the Grievor's employment ,record. This Board will retain jurisdiction in the event that there are any difficulties between t he Parties regarding the . . calculation of compensation or in the interpretation or implementation of this Award. DATED at Brantford, Ontario, this.lOth day of September, 1982. OR. L. Verity Vice Chairman (See addendum artached) P. Craven Member (See addendum attached) E.R. O'Kelly Member ADDENDUn I cast these remarks in the form of an addendum rather than a ~dissent in order to emphasize my agreement with the rest of this Board on the main question at issue between the parties: Was the Liquor Control Board justi- fied in dismissing Mr. Brown for an attempted theft? I have no hesitation in joining with my colleagues on this Board in finding that the employer has failed to establish the attempted theft by clear and convincing evi- dence, and that Mr. Brown’s actions on March 22 were more consistent with a ' violation,of LCBO procedure than with the allegation of t,heft (page 7). MY colleagues on this Roard proceed, however, to assess a heavy disciplinary penalty on Mr. Brown for the admftted procedural error which he committed on March 22, in permitting~ the delivery of stock before recei- ving payment for it. In my respectful submission, the majority is quite wrong in this decision. In, my view, they have erred in three respects: 1. They have misconstrued the “substitution of penalty" provision of Section 19 (3) of the Crown Eaployers Collective Bargaining Act, and in so doing have exceeded the jurisdiction of this Board. 2. Even were this not so, they have made an error in natural justice in failing to afford Mr. Brown the opportunity to produce evidence and make argument in connection with the breach for which they have lized him. pena- 3. And even if I am wrong on both these counts, I am satisfied that in all the circumst+nc+s the disciplinary penalty'they have assessed is excessive. I deal with these points seriatim below. Before turning to that, however, I should stress that Mr. Brown was clearly involved in a breach of Liquor Control Board procedure, as he has openly admitted. Nothing in what 1 I shall say should be construed as sanctioning his actions in that respect. By his actions Mr. Brown may well have laid himself open to discipline. Hy argument shall be that the Liquor Control Board failed to exercise its discretion to discipline him for breach of procedure, and that it is conse- quently not open to the Grievance Settlement Board to undertake to do so on the LCBO’s behalf. 1. Section 19 (3) of the Crown Ewployrcs Cbllrctive Bargaining Act provides as follows: Where the Grievance Settlement Board determines that a disciplinary penalty or dismissal of an employee is excessive, it may substitute such other penalty for the discipline or dismissal as it considers just and reasonable in all the circumstances. The parallel provision of the Ontari~o Labour Rriations Act (formerly Section 37 (G.)), provides: Where an arbitrator or arbitration board determines that an employee has been discharged Or otherwise disciplined by an employer. for cause and the co1 lective agreement does not contain a specific penalty for the infraction that is the subject-matter of the arbitration, the arbitrator or arbitration board mdy substitute such other penalty for the discharge or discipline as to the arbitrator or arbitration board seems just and reasonable in all the circumstances. In my submission, the. chief differences between the.provision in CECBA and that in the- OLRA -- namely, the inclusion in the latter of the words “for . . cause” and the qualification concerning specific penalties in the co1 1 ec- tive agreement - flow from the statutory provi si ens of the former respecting discipline and the requirement for just cause. Section 18 (2) (cl of the CECB.4 confers a right ta grieve upon every emplo.y& who claims "that he has been disciplined or dismissed or suspended from his employment .; without just cause. ” In my submission this provision rendered it unnece- ssary to include in this Act the wdrds of the OLRA concerning cause and specific penalties in collective agreements. In every other respect the two provisions are identical, and read in ~the context of the whole statutes of which they are respectively parts, their effects are identical. In my respectful submission, the power conferred upon the Grievance Settlement Board and upon a board of arbitration under the ULRA by these sections is the power to supply a lesser penalty in circumstances where the employer has alleged conduct attracting discipline and assessed a penalty. The task of the arbitrators is twofold. First, they must determipe whether the employer had just cause for the imposition of discipline. This means that they must first test the employer’s alleqation of ‘conduct -attracting discipline against the facts, to determine whether what the employer said 4 occurred did occur, and then determine whether that conduct attracts disci- pline. Only when~ they have found that there was just cause for the disci- pl ine .!!?$~Y the arbitrators proceed to their second task, determining whether, '1 i n al 1 the circumstances, ” the disciplinary action taken by the empl ayer was excessive. If they find that it was they may substitute a .~~ 1 esser penalty. But they~may only embark upon the second of these tasks once they have.determined that the employer had just cause for assessing :, discipline. Put in very simple terms, arbitrators must first ask, "Did the :: griever do what the employer alleges he did (and if he did it, is that :' cause for discipline)?" Only when the answer to thi.s .threshold question is .$ “yes” can they go on to ask, “Is the penalty imposed by the employer ’ excessive in all the circumstances?" / In the instant case, the employer has been forthright and i’ con- sistent in its allegation of what conduct gave rise to the discipline. 0l-l \ April 7, 1982, J-E, Jennings, Director of Store, Operations for-the LCBO, 1 ? .> wrote to the grievar in the following terms: “It has now been concluded that you participated in an attempted theft of stock from Store ++164. Because of this it has been decided that your employment is terminated effective April 2, 1982. n (Exhibit 111 Throughout the hearing before this Board! the employer consistently maintained that the grounds upon which it relied~ in dismissing Mr. Brown were that he had participated in an attempted theft on March 22. The threshold question before this Board is, “Did Mr. Brown participate. in- an attempted theft on March 229” If the answer to this question is "no" -- and of course we have determined that the answer is “no” -- the question of substitution of penalty simply does not arise. Having found that Mr. Brown did not engage in the conduct for which the employer dismissed him, there is nothing left for us to do but to uphold the grievance and make the qrievor whole. But this is not what the majority have done in this case. They have determined that while Mr. Brown was not gui,lty of an attempted theft, he was guilty of a very different form of wrongdoing: breach of Li quor Control Board procedures in delivering stock before payment was received. This is not a matter of substituting one penalty for another, but & substituting one allegation of wrongdaing for another. It was no pait of the employer's submission that it had disciplined Mr. Brown for delivering stock before receiving payment, so the question whether :,Q.e did or not is .::. not properly before this Board. The Grievance Settlement Board lacks the jurisdiction to substitute its own grounds for discipline for those advan- ced and relied upon by the employer. As authority for this proposition, I refer first of all to Brown ..~;and Beatty, Canadian Labour Arbitration, at 103, where it is stated: “Al- though it has been stated that the arbitrator should seek. to entertain and 4 determine the real, as opposed to the ostensible, grievance, where its meaning is clear, there is no authority in the aibitrator to alter a grievance or other submission to arbitration in the absence of the mutual agreement of the parties. That is, the arbitrator's jurisdiction in each Case is drtrrminrd by the submission to arbitration.. and he has no authority to decide any qurstion not subBitted to hip" Cemphasis suppliedl. The power to substitute a penalty once the arbitrator is satisfied that the grounds advanced by the employer constitute just cause for discipline does not expand the jurisdfction of the arbitrator with respect to the grounds for . discipline th&nselves. Having found that the employer did not have just cause to assess discipline on the grounds it brought forward, this Board has no jurisdiction to substitute grounds for.discipline other than thoseput forward by the employer. In this connection I refer to the jucigment of the Divisional court in Canadian Steelworkers Union, AtIas Division v. Atlas Steels Co'ipany, 76 CLLC at para. $4,037 (pp- 225-01. This was an application .for judicial preview of the award of an arbitration board (constituted under the ULRA) in a disc.ipline grievance. The. employer disciplined the griever for his negligence or misconduct in ignoring standing instructions about which materials were to be used in a certain operation. The board of- arbitration found that the griever had been negligent in not checking whether his foreman was present, despite the fact that the employer had not al 1 eged that such conduct ~amounted to negligence. The Court determined that, “In. our vi en, the Board in this~ case, based its finding of negligence on an ,...,%.G al 1 eged act on the part of the employee, that the Company did not allege W&S negligence nor the basis for the action it took against the employee. In so doing, it exceeded its jurisdiction by substituting its own viem as to why the employee was discipl.ined and as to what constituted negligence.” CO’Leary, J., at 227-83 The .award of the board of arbitration Was set aside. I have argued above that the jurisdiction of the arbitrator under section 19 (3) of the CECBA is subject to the %&me limits as those in the parallel provision of the ULRA. In sum, my submission is that while this Board is empowered to substitute a lesser penalty for. that imposed by the employer when it is satisfied that the employer's grounds for disciplining the employee.consti- tute just cause for discipline, it has no jurisdiction to substitute its version of the grounds for discipline for those advanced &d relied up& by , the empl oyei. Having found the employer’s specific allegation of mi scon- duct to have been unsupported by the f’&ts, this Board has no alternative but to upho1.d the grievance and make the griever whole. 2. Even if I am wrong in my submission that this Board was without jurisdiction to substitute its own grounds for.discipline for those relied upao by the employer, there is a second r&son for the view that what it did was wrong. In failing to afford the griever the opportunity to put the ~,.~ : evidence of his wrongdbing -- the breach of procedure - to the test, to introduce evidence on his own behalf, and to attempt to mitigate the seve- rity of the breach and the disciplinary penalties that flowed from it this Board denied natural justice. The part i es came to the hearing prepared to supply evidence and argument concerning the alleged attempted theft. The qrievor's position was a very simple one: he said, “I didn’t do it," and this Board has agreed. with him. He did not come prepared to answer a charge Of having ,been in.breach of' procedure or to.argue what disciplinary penalties should flow from such a breach ., for this was not the grounds upon which the em- 6 player relied in disciplining him. It was oft course open to the employer at the time discipline was imposed to have supplied breach of procedure as the grounds, but the employer chose not to do this. What would have happened had the employer appeared before this Board seeking to amend the grounds of discipline to include breach of procedure? Once again, Brown and Beatty supply. a useful digest of arbitral practice (at 104): The arbitral principle that a party is not entitled to raise new grounds for its decision at the arbitration stage has arisen most frequently in discharge and discipline. cases. In such circumstances, al though the emp I oyer may have uncovered new and different evidence or reasons to support its decision, there is a general ieluctance to permit the new bases for decision to be presented. Indeed, even in those circumstances where the arbitrator may permit the employer to alter the grounds on which it supports its decision,, if that would cause unfair surprise, then he can reasonably be expected to grant an adjournment. Since the employer was clearly in a position at the time the discipline was imposed to include breach of procedure among the grounds -- there was no .subsequent discovery of new information giving rise to these grounds - the Board would likely have denied the employer's application to vary the grounds at the time of hearing. In any event, it would surely have acqui- esced in a request by the grievar for an adjournment to prepare a case in response to the new grounds. If this is true of an employer attempt to vary the grounds, which would have led either to the denial. of the attempt or to affording an opportunity for a full hearing on the new grounds, surely the~~eequirements must be even more stringent when the employer declines to amend the grounds and chooses to proceed on the basis of its original allegation alone. F0r it was only at the close of the hearing, when all the evidence was in, that 7 the Board decided to assess discipline for grounds other than those to which the griever's evidence and argument were directed. Even if the Board has the right to substitute grounds -- and I have argued that it has no such right - surely it is required to give the same opportunity for a full hearing on those grounds when they are introduced on its own initiative as when they are introduced on an employer's application to vary the original grounds; It might be argued in response that the griever admitted that he ,:-. was in breach of procedure, and that the Board therefore did not 'need to hear anything more in order to make a finding of fact that procedure had been breached. But leaving aside the absence of any formal evidence as to the existence or prpmulgation of the company rule that was broken, the gr i ever *=Y well hdve wished to introduce evidence and argument on such matters as the employer's prior condonation of the practice, the severity of the breach, any special mitigating circumstances, the.employer's general disciplinary practices, and so forth: evidence that would at the least have had to be considered by,this Board in assessing what penalty to supply, if not in determining whether the admitted breach even amounted to, just~ cause for discipline in the first place. But the grievar has had no such opportunity, and for this reason natural justice has been denied. To hold that this Board is empowered to substitute its own grounds for discipline for those advanced by the employer is to run the risk of authorizing fishing expeditions (although I do not consider such an impro- per purpose to have motivated the majority’s decision fin this case): to hold that, it can do so without affording the griever the opportunity to meet the c.ase against him is surely to fly in the face of the provisions of Section 19 (1) of the Crown Employees Collective Bargaining Act from which this Board derives'its statutory .powers ;- II . . . the Board after .gioing a fuII opportunity to the parties to prrsrnt their evidence and to aakr their sub?issions, shall decide the matter . . . I' [emphasis supplied1 - with the result T as well, that natural justice is denied. 3. But even if I am wrong on all these counts, even if this Board has the jurisdiction to substitute its grounds for discipline for those advanced by.the employer, and even if it can do so without affording the griever full opportunity to present evidence on the new grounds and make submissions, I should still find that in all the circumstances of the present case the penalty assessed by. this Board is excessive. The majority considers the breach of procedures to which the grie- vor has admitted not only to be just cause for discipline, but to merit an extremely heavy penalty (and this despite the griever's previous unblem- ished record). As I ,have already suggested, I do not think the Board has before it evidence or submissions upon which this decision could reasonably beg based. The majority states (at 9) that the breach of procedure “is a fundamental dereliction of duty which &as the cause of the problem. and which cannot be tolerated by the Employer." The majority clearly wishes to provide a serious disincentive to this griever to engage in such a breach again, and seeks as well to make an example of him so that other employees will be dissuaded from similar breaches in future. In my submission, the griever has already suffered a’ very set-i au5 penalty and one; moreover, from which we could never realistically make him entirely whole. Apart from his termination and the consequent loss of income - for which we can and should make him whole -- .!- has been subjected to interrogations by sec,urity officers and the police, to the 1 aying of criminal charges, to continued suspicion of having committed a 9 serious crime (amounting in fact to a continued conviction on the em- ployer's part that he was guilty) despite his discharge at the preliminary hearing, and to all the social and'psychological consequences of these. In my view, it is extremely unlikely that this griever. will ever again knowingly place himself in circumstances that might give rise to a repe- tition of this experience. the has surely suffered enough, and for what he has suffered no real remedy can be supplied. Similarly, it seems to me that other employees who have been familiar with the griever's circum- stances (and it is only such other employees who.could be influenced by whatever penalty the grievor receives now) will have learned that employees who act as the griever did run the risk of incurring some extremely unpleasant consequences. It might be said that the griever, by his breach of procedure, invited 'the unpleasant results. That is as it may be, but in any event they surely served whatever disciplinary purpose might be sought. As I have said, we~really~ can give him no relief for most of them in any event. The purposes of discipline would be fully served by simply noting in the award that the griever admitted having violated procedure, that this Board in no way condones that breach, and noticing that it was the sort of behavi our that could well attract discipline. Even were this Board in a position to discipline the griever for breach of procedure, then, it would _Ir have 'b&.sufficient in all the circumstances' to have reinstated him with full back pay, and to.have~ stated unequivocally that the grievor's.conduct ~..,~... ~I.> was such as to lay him open to disciplinary action, so that neither. he nor others should expect that in other circumstances an additional .penalty would not ,be forthcoming. ~. The lengthy suspension imposed by the majority is unnecessary on any generally-accepted arbitral theory of discib.line, and especially in view of what this griever has been through already. In conclusion, then, I submit that this Board erred in law in assuming jurisdiction to substitute grounds for discipline for those relied upon by the employer. In the alternative, I submit that this Board erred in law in failing to afford the griever the full opportunity to respond to the case it made against him. Finally, I find the penalty imposed to have been excessive and unnecessary. I would have upheld the grievance by finding that the employer did not -have just cause for disciplining Mr. Brown because its grounds for the discipline, participation in an attempted theft,. are unsLpported by the evidence. I would have sought to make the griever whole by reinstating him with full back pay. I would have recognized in the award that this remedy could not fully compensate him for all that he had been through, but I would have noted his admitted breach of procedure and suggested that to that extent he may have brought some at least of his ’ experiences upon himkelf. . . 11 ADDENDUM It is with some reluctance I join in the award in this case. It is only because the evidence adduced falls short of proving, in a clear and.convincing way, the charge of attempted theft. The very large losses experienced at store t164 could hardly have; occurred without collusion. , The act of removing liquor from the premises without any documentation or payment can be the final step in an attempted theft. That is why the employer must consider a breach of the procedure requiring:written order and payment prior' to delivery extremely important. The suspension of three months in place of discharge is fully justified in this case."