HomeMy WebLinkAbout1984-0315A.Blackmore.84-08-30IN<THE MATTER OF AN ARBI'
Under
THE CROWN EMPLOYEES COLLECTIVE
Before .~.
Between:
315A/B4.
I
TRATION
BARGA,INING ACT
THE GRIEVANCE SETTLEMENT BOARD
Before:
For the Grievor:
For the Employer:
Date of Hearing:
OLBEU (H. Blackmore)
Grievor
- And -
The Crown in Right of Ontario
(Liquor Control Board of Onta rio)
loyer EmP
P. M. Draper .V.i.ce Chairman
I. Thomson Member
H. Roberts Member
M. Levinson, Counsel
Koskie & Minsky
Barristers & Solicitors
B. Bowlby, Counsel
Hick s Morley Hamilton Stewart Storie
Barr isters & Solicitors
July
I
17, 1984
6 r
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The Grievor, Hilary Blackmore, grieves that he
has been unjustly discharged and requests reinstatement to
his former position.
The following statement of agreed facts was filed
with the Board:
.I' 1 . The grievor was first empl'oyed by the
L.C.B.O. on October 3rd, 1977, as a Clerk II.
He was subsequently promoted to Clerk III
in 1979 and he continued to work in that
capacity until his employment was terminated
on March 23,rd, 1984, at which time he was
working at store 383.
2. The grievor's employment was terminated by
a letter from F. B. Rankin dated March 23rd,
1984, which states that:
"Full consideration has now been
given to the circumstances to your
explanation and to your admission
of having placed the bottle in the
garbage bag.
It has been concluded that your
action was an attempt at theft. Your
record has been considered. It haps,
consequently, been decided that your
employment with.the Board is terminated
effective upon receipt of this letter."
3. The specific incident leading to the letter
of March 23, 1984, occurred on the morning of
February 16, 1984, when the grievor was picking
up waste from the waste receptacles in store 383
and putting it into a green plastic garbage.
bag. The green plastic garbage bag was found
to contain, along with some waste paper, an
unsealed 375 ml. bottle of Bolshoi Vodka . . .
(Stock #14.761) worth $7.10.:
4. The grievor, when confronted with. the fact
that th.e,;\cqd~ka was in the bag, initially
denied that he had placed it there. He
denied ~this to Gord Campbell, the Assistant
Manager, on February .16th; to Keith Burkholder,
the Manager, on February 17th, and finally to Ken
Fletcher, the District Supervisor, on
February 29th when Mr. Fletcher. attended at
store 383 to investigate the matter. During
the course of this interview with Mr. Fletcher.
the grievor, after initially denying that he .
had placed the bottle of vodka in the garbage
bags, subsequently admitted that he had placed
the vodka bottles in the bag.
a suspension
an incident
5. The grievor's past record included
of two days duration as a result of
on December 23, 1981, in which the
had ,improperly.failed to register a
contrary tom operating procedures.
grievor
sale
6. During the last three years of his employment,
the grievor received no merit increase as a
result of unsatisfactory work performance."
No witnesses were called for the Emp loyer. The
Grievor testified on his own behalf.
The Grievor is 64 years old, is married, and
supports a stepson. Prior to his employment by the LCBO in
1977, he had been employed for ten years elsewhere in the
Ontario Public Service. LCBO rating reports~reveal that the
Grievor was an average, generally satisfactory employee; that
he was inadequate at cash register operation and bookkeeping;
that he was content.to remain in his cl.ass.ification; that he
had asked not to be included in the office rotational program;
and that office training would be of no benefit to either
him or the Employer. To put it plainly, he was an employee
with limitations recognized by himself and .tolerated by the
Employer.
At the hearing the-Grievor testified that while
he was collecting refuse he decided to, and did, take a bottle
of vodka from the store shelf and put it in the garbage bag
he was using, intending to remove it later from the premises.
(hit wa.s,explained to the Board that the bottle was discovered
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because of the noise it made when the
bag to the floor to put refuse in it.
Grievor 1 ower ed the
), Vodka is hi s regular
drink and he purchased it "a couple of times a week." He
acknowledges that what he did was wrong and he is sorry for
it. No criminal charge was laid against him as a result of ~.
the inc i' dent.
The case before us is one of an admitted act of
d theft. The question for determination is whether attempt e'
or not the penalty of discharge imposed on the Grievor is
excessive in the circumstan~ces present.
ft, 1 proposition, an employee act of the As a genera
or of attempted theft,
employee relationship.
is incompatible with the employer-
But that is not to say that such an
the 'penalty of discharge. act, of itself, always warrants
That circumstances alter cases i
of this Board and of other like
s amply illustrated by decisions -~,
tribunals such as those to
which we were referred by counsel. These are~instructive, but
no two cases are identical and each ultimately turns on its
own facts. Then Board has consistently held that misappropriation
of the proper~ty of the Employer (i.e., the Crownli~n right of
Ontario) is among the most serious of employee offences. But
to go a further step, in the name of, consistency, and automatically
uphold penalties of discharge imposed for such offences would
be to abdicate the authority bestowed on us by the Crown
Employees Collective Bargaining ,Act. ‘As well, the Board
must take a judicial, as c0ntrasted;t.o a punitive, approach
to discipli-ne cases. We- are required to strike a balance
between the interests of the Grievor and those of the Employer,
z
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which is to say, between the Grievor's interests in protecting
his
Ew
pub
equity in his job and his continuing livelihood, and the
oyer's interests in maintaining the confidence of the
ic and the integrity of its operations.
Certainly, the LCBO is especially vulnerable to
theft and attempted theft of i
are inevitably presented with
dishonest behaviour and there _1
ts property. Its employees ~.
tempting opportunities for
are practical limits to the
security measures that can be taken to guard against the
misappropriation of money or goods. We do not go s~o far as
to say~that employees,~ by reason merely of their employment
by the LCBO, are any more to be considered as occupying
positions of trust than are other categories of public servants.
We do, nonetheless, recognize that the nature of their
employment requires that they conform to a high standard of
personal conduct.
We turn now to the case before us. The Grievor
was not employed in a position of special trust. His act,
though deliberate, was isolated. It was so inept as to
suggest that it was not premeditated. There had been no
previous act of wrongdoing;~~ the Grievor's suspension in late
1981 was for careless cash‘register procedure and was not
The Grievor's initial
admission of guilt, made
cited in the letter of discharge.
denial notwithstanding, his timely
before his d~ischarge and repeated in his testimony, should
not leave him worse off before the Board than if he had not
made it. It does more than confirm his guilt; it has a
redeeming' element as well. The prospect for the Grievor's
rehabi
which,
tions,
litation and the risk of a repetition of his offence
in other circumstances, would be appropriate considera-
do not strike us as factors material to the determination
of this case. He is sincerely contrite and he is only months
away from retirement age.
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We are not satisfied that the Grievor's misconduct
was such, or that he has so compromised his trustworthiness,
that the employer-employee relationship cannot usefully continue.
Nor do we consider that the economic hardship and social censure
associated with discharge should be visited upon the Grievor
as the inescapable'consequence of his lapse. Accordingly, we
find, on the evidence, that the penalty of discharge imposed
on the Grievor is excessive. We find further that, in view
of the nature of the Grievor's offence, a lengthy suspension'
is the, just and reasonable alternative penalty to discharge.
It is hereby ordered~-
(1) That the Employer reinstate the Grievor in
the position from which he was discharged, as of the date of
that discharge, March 23, 1984.
(2) That the Employer suspend the Grievor without
compensation, but without loss of seniority, for a period of
six months commencing as of March 23, 1984.. .,l...;d
(3) That the Employer amend its records in
accordance with the terms of this order.
Our decision that discharge is an excessive penalty
in the circumstances of this case is not to depreciate the
offences -of theft.and attempted theft. A six-month suspension
s
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without compensation is not a lenient penalty. We believe
that the message it conveys will not be lost on the Grievor
and on members of the Ontario Public Service generally.
DATED at Consecon, Ontario, this 30th day
of August , 1984.
P. M. Draper, Vice Chairman
I. Thomson, Member
.
. I
H. RobertyMember
/SC