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HomeMy WebLinkAbout1983-0688.McPherson.84-03-06IN THE MATTER OF AN ARBITRATION Under THE CROWN,EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OLBEU (D. McPherson) Grievor - And - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer Before: R.L. Verity, Q.C. Vice Chairman R. Russell Member K. Preston Member For the Gr~ievor: A.M. Heisey, Counsel Blake, Cassels & Graydon For the Employer: D.K. Gray, Counsel Hicks Morley Hamilton Stewart Storie Hearings: January 10, 1984 February 7, 1984 -2- DECI.SION The Grievor, Don McPherson, was dismissed from his employment as a Clerk 3 at L,iquor Store #242 in Metropolitan Toronto, effective October 13, 1983. At the time of dismissal, Mr. McPherson had accumulated in excess of 22 years service with the Employer. In a grievance dated October 25, 1983, the Grievor- alleges dismissal without just cause and by way of remedy he seeks reinstatement with compensation for,lost wages. The ground for dismissal advanced at the Hearing, was the allegation of a culminating incident on September 15. On that date it was brought to the attention of Store Assistant Manager J. R. Mooney, that 36 bottles of 40 oz. Canadian Club whiskey placed on the liquor store shelves for sale had been incorrectly priced at $11.45 per bottle, instead of $19.95. The liquor was promptly removed from the shelves; however, some 2 to 3 bottles had been sold in the interim. An investigation undertaken by Mr. Mooney established the fact that the Griever had been responsible for the error. At the Hearing, Assistant Manager Mooney and Store Manaqer R. R. McKean, testified that the Grievor admitted to the error at the time and somewhat nonchalantly dismissed the incident by stating "sorry about that boss". In his testimony, the Grievor was less certain that he had committed the error and testified that "I may have done it, I don't know". -3- On September 16, Manager McKean sent the Grievor the following letter: "You have keen warned verbally and again in writing about your wrong pricing, but you admit to doing it again on Sep'cen&r 15th./83. Dwa to your total lack of concern, possible disciplinary action may result in thismatter. Within three (3) calendar days from receipt of this letter, you are required to submit a written statement, by registered mail, to the Director of Store Operations in which you are to explain the matter which has resulted in this action." Subsequently, on October 11, 1983, I?. B. Rankin, the Director of Store Operations, terminated the Grievor's employment. That letter readsas follows: "This refers to the events of September 15, 1983 which caused your Manager to notify you of possible disciplinary action by letter of Septendzer 16, 1983. After consideration of the events of Septe&er 15, 1983 and an examina tion of your record of employmant it has been decided that your services are terminated effective October 13, 1983. Termination dccuma ntation will be forwarded in due lXUC33." Assistant Manager Mooney testified that the letter of September 16 was handed to the Griever by Manager McKean, and in so doing it was pointed out to the Griever that he must explain his actions by way of a written s.tatement to the Director of Store Operations. Mr. Mooney stated that the Grievor advised the Manager that he was sick of writing letters and had no intention of replying to that request. - 4 - Subsequent to the events of September 15, and prior to the imposition of any disciplinary response, the Griever was involved in another incident which occurred on Saturday, October 8. At approximately 2:30 p.m. on that date, several liquor store employees including the Manager, the Assistant Manager and the Grievor were engaged in a monthly inventory count. The evidence disclosed that the Grievor was singing and talking in a loud manner which was disturbing to some employees, and in particular to the Manager. Manager McKean asked the Griever what he was doing. The Grievor replied "what the fuck does it look like I'm doing". The Manager instructed the Grievor to continue working but to desist from talking while doing so. The Grievor then replied "if you don't like the way I’m doing it then you pull the fucking list". The Griever elaborated that if he wasn't appreciated, then the appropriate course of action would be to fire him. He also stated "I'm so fucking mad, I want to quit this fucking job". This conversation took place within ear shot of liquor store customers. The store was filled with customers at the time due to the Thanksgiving holiday weekend. The evidence is clear that no customer complaints were received as a result of this incident. Subsequently on October 12, 1983, Manager McKean sent a memorandum to the Grievor relating to the October 8 incident. That memo stated that "due to the total lack of concern, possible disciplinary action may result in this matter". In addition, a request was made for a written explanation from the Griever to be forwarded by registered ~mail to the Director of,Store Operations. -5- In the absence of any such explanation, F. B. Rankin wrote to the Grievor on November 16 as follows: "Ihis refers to events of October 8, 1983 and to the letter of October 12, 1983 directed to you by your Manager, w arning of possible disciplinary action. This event has been considered by the Board and is determined to be a culminating incident attracting a disciplinary response tiich would be cause for a review of your complete record of employment. This would have resulted in dismissal had this action not been taken as a result of an earlier incident. YOU are, therefore, notified that this incident will be considered as part of your employment record with the Board." The Griever's record of service throughout his tenure can best be described as somewhat turbulent. In 1976, he was dismissed for unsatisfactory performance, but was reinstated on October 12, 1976 as a result of a settlement between the Parties. Pursuant to that settlement, he received a lengthy period of suspension and was partially compensated upon reinstatement. Following reinstatement, the Griever's performance appraisals were generally satisfactory until 1982. A review of those appraisals does indicate a marked improvement in both the Griever's work performance and general attitude. The August, 1980 performance appraisal refers to a reprimand given to the Grievor as a result of a customer complaint; however, that complaint is not detailed. A second 1980 appraisal recommended against a salary increase and commented that the Grievor "requires further training - 6 - in office procedures". The 1981 appraisal notes that Mr. McPherson required more office training, and that his deficiency seemed to stem from past problems between the Board and him. In all other respects, the appraisals during those years were satisfactory. On March 29, 1982, the Grievor was transferred to Store #242. Since that time, his performance has been less than satisfactory. In May, 1982, he received a 5 day suspension for consuming beer in a local restaurant during his afternoon break, after having been warned against such conduct earlier that month. In July, 1982, the Grievor incurred a $300.00 cash shortage during an assignment at the cash register, and as a result, he has not been subsequently assigned to that particular.responsibility. However, he was not disciplined for the incident and did repay the Board for the cash shortage. On March 21, 1983, F. B. Rankin, Director of Store Operations, wrote to the Griever and imposed a five day suspension for insubordinate behaviour on March 1, 1983. That incident involved the Griever's refusal to obey an order by the Store Manager to clean the' store windows. In his letter, Mr. Rankin referred to the previous sus- pension and stated: "You are therefore to consider this as a final Warning. Any further circumstances that give cause for disciplinary action will be considered as grounds fordismissal." -l- A Grievance was filed as a result of that suspension, '. and on August 30, 1983, the Grievance Settlement Board dismissed the Grievance. See OLBEU (Don McPherson) and Liquor Control Board of Ontario, 241/83. On May 20, 1983, the Grievor received a verbal reprimand from Assistant Manager Mooney for two separate incidents of wasting time while in the course of duty. The evidence is clear that following R. R. McKean's appointment as Liquor Store Manager on May 30, 1983, the Griever's performance was closely monitored. During Mr. McKean's first week as Store Manager, he prepared an appraisal of the Grievor's perfor- mance on a new form entitled "Store Manager's and District Supervisor's Annual Salary Rating Report". That appraisal rated the Griever's performance as 'unsatisfactory" in public relations, counter or sales area, cashiering and office routine (bookkeeping). In that appraisal, the Manager's remarks were as follows: "On Friday, August 20, 1982; McPherson was on the 3-10 shift. Hewas rude to a customer andthe customer returned with his father. B. Wdywhowas in charge of the shift had to apologize to the custcser. He alsohas to be reminded to take customers to the location when they have a problem finding a product. On July 29, 1982 McPherson short $300.00 on cash due tc the astronomical shortage it was decided that it would be to &%cPhersons and the boards' benefit not to use himon cash. Feb. 23, 1983 Ass't I@. Woodcock asked McPherson if he wanted office training. McPherson replied 'only if I get Clerk IV wages'. McPherson is responsible for a much higher ~01~ of breakers than any of our other employees. It should also be noted that when McPherson doesn't wear his glasses he is responsible for pricing errors.II -8- Of particular significance is the Supervisor's comments: "Mr. McPherson is not.functioning at the level required to be a clerk III. Reccsmend: LHsotion to a Clerk II." A series of letters and/or memoranda were sent to the Griever and to Senior Board.Personnel during the month of June which were critical to the Griever's performance. The first memo dated June 2 was written by Assistant Manager Mooney to the Griever seeking clarification as to the Griever's participation in office procedures. On that date, the Griever acknowledged in writing that he desired the training. Subsequently, he received office training during-the week of June 13. The evidence is clear that the Griever was unsuccessful in grasping the fundamentals of office procedure, and repeated instructions failed to rectify the difficulties. Accordingly, after one week of instruction, the Griever wrote to the Manager to the effect that he no longer desired~the training, and wished to be excluded from future office rotation assignments. .Qn June 4, 1983, Manager McKean held a staff meeting, attended by the Grievor, to instruct employees that greater care must be taken to ensure accurate pricing of all products. On that date, Assistant Manager Mooney, in the presence of the Store Manager, had a conversation with the Griever. The Griever was advised that there was need to show "marked improvement" in three - 9 - separate areas of performance, namely breakage of bottles, pricing of liquor and public relations. The gist of that conversation was reduced to writing in the form of a letter from,Mr. Mooney to F. B. Rankin, Director of Store Operations. The Griever read the letter and signed to that effect. On June 9, Manager McKean sent a memorandum to the Grievor alleging that on Tuesday, June 7 the Grievor had incorrectly priced two separate brands of liquor involving some 70 bottles. The memo- randum called upon the Grievor to submit a written explanation by registered mail to the Director of Store Operations. On June 18, Assistant Manager Mooney sent a further memo- randum alleging that the Griever participated in more product breakage, and in addition stated that he had observed the Griever wasting time instead of concentrating on his assigned duties of taking stock. Again, the Grievor was requested to explain his actions in written corres- pondence with the Director of Store Operations. At the Hearing, many exhibits were presented by the Employer in the form of letters from both the Manager and the Assistant Manager to senior personnel of the L.C.B.O. relating to the Griever's poor performance and poor attitudinal behaviour. No useful purpose can be served by reciting the contents of that correspondence as Counsel for the Employer chose not to rely upon them. - 10 - On behalf of the Employer, Mr. Gray argued that the incident of September 15 was a culminating incident which justified discharge on the basis of a poor work record. In addition, he relied upon the subsequent events of October 8 in two respects, namely as a separate ground for discharge and also as a factor weighing against mitigation of penalty. Mr. Gray contended that the Griever had been warned on more than one occasion that the conduct which in fact resulted in his eventual discharge was unacceptable. It was Counsel's position that on the evidence presented, no reason had been established to justify modification of the penalty imposed. Mr. Heisey, on behalf of the Grievor, argued that the evidence presented disclosed no culminating incident. He contended that the Employer's disciplinary response was coloured ab initio by an improper consideration of garnishment procedures in the 1960's which was contrary to the wording of Section 9 of the Employment Standards Act. It was contended that the disciplinary committee of the L.C.B.O. was presented with selected materials from the Griever's personnel records and that because of possible improper considerations under the Employment Standards Act, that the Board should set aside the entire disciplinary response. The first issue for determination is the allegation that the incident of September 15, 1983 was a culminating incident. The doctrine of culminating incident is now well established in arbitral - 11 - precedent. The doctrine itself states that "an incident of misconduct not in itself sufficient to ground the discharge, but sufficient to ground some significant disciplinary action, will permit an arbitration board to take into account the employee's entire record including the culminating incident itself, in deciding whether just cause exists for discharge". Re Weston Bakeries Ltd. and Milk and Bread Drivers, Dairy Employees, Caterers and Allied Employees, Local 647 (19731, 5 L.A.C. (2d) 38 (Adell). ' In Re Air Canada'and International Association of Machinists, Lodge 148 (1973) 5 L.A.C. (2d) 7 (Andrews) it was stated as follows at page 10: "The cases indicate that even conduct warranting no more discipline than an oral reprimand may constitute a culminating incident which, together with a previous poor record, will justify a discharge. See Re U.A.W., Iccal 1235, and Canadian Allis Chalmers Ltd. (1953), 4 L.A.C. 1593 (I&Co&s); see also Re U.S.W. and Canadian Liquid Air Ltd. (1972), 23 L.A.C. 295 (Brcwn)." In cases involving a culminating incident, two questions arise. First, was the culminating incident itself of such a nature as to call for discipline to which the employee's record would be relevant. Secondly, if the answer to the first question is yes, then the next question is whether the record, including the culminating incident-supports the discipline imposed. See Re United Automobile Workers, Local 195 and Admiral Steel Products' Ltd. (1967) 18 L.A.C. 412 (Weatherill). - 12 - As Brown and Beatty state in their text Canadian Labour Arbitrations at page 372: "In d-m-t then, for the doctrine to apply, scme final or culminating incident for which scans discipline may properly be invoked must be established, and only on proof of that incident will the prior record of the employee be- relevant in assessing the appropriateness of the penalty. See inparticular Admiral Steel Prcducts Ltd. supra". On the facts of the instant Grievance, we are of the opinion, that the events of September 15 did warrant some disciplinary response by management. Although the letter of discipline of October 11 did not describe the incident as a culminating incident, there is no doubt that the employer indicated to the Griever that there would be an examination of his employment history. In the circumstances, we find the incident to be a culminating incident which in turn justifies consideration of the Griever's past employment record. In an examination of that record, it is unnecessary to go beyond the original dismissal and reinstatement in 1976. Accordingly, Mr. Heisey's representations in connection with a possible violation of the Employment Standards Act is not a relevant consideration. The real issue in this matter is whether the penalty of discharge is warranted in the circumstances. The evidence established that the Griever's work performance and~attitude showed a marked improvement from the time of his reinstate- ment on October 12, 1976 to approximately the time of his transfer to - 13 - Store #242 on March 29, 1983. As indicated previously, performance appraisals during these intervening years demonstrate that he got along well with fellow employees and with the general public. During that period, he experienced no problems with filling bins, operating cash and posting ledgers. In short, he could be described during those years as an average employee. Evidence presented by fellow employees confirmed that the Griever was regarded by his peers as an average employee. Significantly, the Griever's real difficulties appear to be directly attributable to his posting at Store #242 - a self-serve liquor store outlet. His previous duties had been associated with a conventional store. In May, 1982, the Griever received a five day suspension for consuming beer on lunch break and in July he experienced his first major cash shortage. The evidence is clear that he was never again assigned to cash at Store #242 subsequent to July of 1982. The five day suspension in March, 1983 was of course a second suspension. As a result of that incident, the Griever was advised in writing by F. B. Rankin that this was to be a final warning. However, the Employer tolerated numerous further acts of misconduct subsequent to that final warning which may very well have had the effect of lulling the Griever into a false sense of security. In our opinion, the evidence discloses that the Griever has difficulty handling pressure at the best of times. Clearly, the flurry of letters or memoranda to the Griever in June, 1983 had the effect of increasing the pressure which had disastrous - 14 - results upon the Griever's general performance of duties. No explanation was presented at the Hearing as to why the Supervisor's recommendation of demotion was never acted upon by the Employer. It is beyond question that the Griever's performance of duties since March, 1982 has been'less than satisfactory. His conduct during 1983 is indicative of a severe attitudinal problem which expresses itself in the form of indifference and carelessness. However, that conduct must be balanced against his record from 1976 to at least 1981as an "average" employee. On the facts, the strongest mitigating factor in the Griever's favour is his seniority which is now in excess of 22 years. He is presently 48 years of age and the majority of his working career has been with the L.C.B.O. However, seniority by itself is not an absolute guarantee of tenure of the job. Section 19(3) of 'the Crown Employees Collective Bargaining && gives to the Board broad remedial powers to fashion a remedy where it is found that a penalty imposed is excessive. Section 19(3) reads: "Where the Grievance Settlement Boarddetermines 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 reason- able in all the circumstances." c- - - 15 - b For the above reasons, we find that the penalty imposed upon this Griever is, excessive. In fashioning an appropriate remedy, we are assisted in that regard by the remedial relief awarded by Vice-Chairman Jolliffe in Juliet Sarabura and Ministry of the Attorney General, 289/80. Although~the facts of the two cases are clearly distinguishable, in our opinion the remedy of demotion (upheld in Judicial Review in the Sarabura case) is an appropriate consideration. Accordingly, the Grievor shall be reinstated to employment with the L.C.B.O. on Monday, April 2, 1984 in another position at a Clerk II level at a conventional liquor store and at a location designated by the L.C.B.O. within the County of York or the Municipality .ll of Metropolitan Toronto other than Store #242. This reinstatement sha be without compensation or other benefits and the Griever will not be considered for promotion purposes until April 2, 1985. The Grievor must inform the employer within 15 .days fromthe date of receipt of this Decision whether he elects to return to work on the above terms. The penalty imposed by this Board is in OUT opinion severe enough to indicate to this particular Griever that attitudinal defi- ciencies will not be tolerated in any future employment relationship. In the event that the Griever fails to learn from this Decision, it is unlikely that he can anticipate continued employment. Time alone - 16 - will tell if this discipline is corrective in nature. In the result, this Grievance shall succeed subject to the terms imposed. A.D., DATED at Brantford, Ontario, this 6th &y of March., 1984. R.L. Verity, Q.C. Vice Chairman R. Russell Member K. Preston Member