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HomeMy WebLinkAbout1985-1051.Irwin.87-01-021051/85 Between: IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT. Before THE GRIEVANCE SETTLEMENT BOARD Before: For the Grievor: For the,Employer: Hearing: OLBEU (G. Irwin) - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) E. B. Jolliffe, Q.C. J. D. McManus I. J. Cowan Vice-Chairman Member Member M. Levinson, Counsel, Koskie & Minsky, Barristers & Solicitors S. Moate, Counsel, Hicks Morley Hamilton Stewart Storie Barristers & Solicitors Grievor Employer February 4, 1986 -2- DECISION The grievance. of Mr. Gary G. Irwin arose from his suspension for two days in February, 1985. The grievor had been employed by the Liquor Control Board of Ontario since 1974. At the time of his suspension he was classified as a Clerk 4 at Store No. 584 in Scarborough, with I responsibility for the accounting function. The incident resulting in discipline was cle,arly described in letters and memoranda written by the grievor and his superiors between January 10 and February 19, the substance of which was confirmed in the testimony given before this Board by the grievor and his store manager. At Store No. 584 three persons were entrusted with the keys of the store: the Manager, .the Assistant Manager and the grievor. It was necessary for at least one of them to be present to open or close the store. On the morning of Januar~y 10, the Manager and most of his staff were busy in the basement taking delivery of cases of liquor. At some point of course it was necessary to distribute bottles to the.shelves in the store, which is operated on a self-serve basis. -3 - Between 11 and 12 o'clock in the morning the grievor wrote a note which he gave to another employee fordelivery to the manager. According to the grievor, he had been suffering from bronchitis for some weeks and felt unable to continue working. Further, he was upset by a remark the Manager had made earlier that morning. His note, Exhibit 7B was as follows: I will be leaving at 1.00 p.m. As I was at the doctors on Tuesday for my cold and received more medication the best place for me would be at home in bed rather than trying to rjork sick like I have been for the last 4 weeks. You obviously do not appreciate anything1 do but the whole thing is that if you do not talk to people like myself, you can't expect people to read your mind. In a subsequent conversation the Manager told the grievor to leave, his lunch break being due at 12.00. At about 12.21 p.m. the grievor put keys on the desk in the Manager's office, which was not locked. With the keys he left another note, Exhibit 7A: Here are my keys incase (sic) I will not be feeling better. On the same day, Mr. Gary Way, the Store Manager, addressed the following letter to the grievor, Exhibit 4: The purpose of this letter is to advise you that as a result of leaving your keys on my desk and not informing me of your actions while I was present in the store, upon your departure for the day, disciplinary action may be taken against you. - 4- Within three (3) calendardays 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 mentioned above which has prompted this letter. The Board’s decision concerning this matter will be made known to you in due course. The next day, January 11, Mr. Way wrote to Mr. F.B. Rankin, Director, Store Operations, giving his version of the incident, Exhibit 5: * The incident which has prompted me to have Mr. G. Irwin explain his actions in writing regarding the handleing (sic) of store keys took place Thursday January 10, 1985. Gary Irwin was instructed by myself, at 12 noon to go to lunch. He presented a letter to store clerk Hal Morris, with instructions to give the message to me. I got the note and proceeded to inquire with Mr. Irwin as to what was the problem, and he told me that he wasn’t feeling well, that he was sick and going home at 1:00 pm. I gave him a form 011, and instructed him to stop working immediately, that he was on his lunch hour any ways, and that if he was sick he shouldn’t wait until l:OO, that he could go home. I then returned to checking in the warehouse delivery. When I returned to my office after completing my task with the delivery, I discovered a note and a set of keys on my desk. The doors to the office were open. * I did not request Mr. Irwin to .leave his keys, and I wouldn’t have anyone leave their keys in that manner, jeopardizing the security of the store. Mr. Irwin has received a letter of warning in regards to the handleing (sic) of store keys, September 24, 1984. Complying with the Manager’s instructions, the grievor wrote Mr. Rankin on January 16, Exhibit 6, as follows: -5 - As requested by Mr. Way in his letter to me dated January 10th 1985, I am submitting this explanatory letter to yourself. I left my keys on the Manager's desk with a note rather than handing themtohim personally because for the last two (21 weeks he has consistently refused to converse with me on any matter what so ever, with the exception of the above mentioned date of January 10, 1985. I have had a lingering cold since mid-December, on January 8th I visited my Doctor and hediagnosed my condition as a severe case of bronchitis. I was given medication, and returned to work January 9 1985. OnJanuary lOth,while at work I told Mr.Way I did not feel tiery good and informed.him that I would be going home at noon. He handed me a Qll Form and suggested very nastily that I go hare right nm. I signed out at 12:21 PM, it was then I realized that with the assistant manager away on sick leave the store could not operate two (2) shifts with only the Manager's set of keys if for health reasons I could not come in Friday or Saturday. The above was the context of the note I leftwithmysetof keys on Mr. Way's desk. The griever's explanation did not satisfy management. There was a meeting of the Discipline Committee,'which considered Mr. Way's letter of January 11 and the grievor's letter of January 16 to Mr. Rankin. Mr. Robert MacDougall, the Board's Staff Relations Office, also placed before the Committee a summary of the grievor's record from his appointment in March, 1974, Exhibit 10(R). Since the Summary contained several references to discipline between February, 1982, and September, 1984, counsel for the grievor has objected to its admissibility. Of course it is not evidence in relation to the incident in -6 - February, 1985, but it becomes relevant if consideration must be given to another question: i.e. whether the penalty imposed was appropriate or excessive. A ruling as to its admissibility will be made hereafter. In the result, Mr. Rankin on February 19 wrote the grievor by registered mail the following letter, Exhibit 3: This refers to recent events which caused your Manager to fiotify you of possible disciplinary action, by letter of January 10, 1985. It has been concluded that in leaving your store keys on the Manager's desk, you unnecessarily compromised the security of t& store. As disciplinary action for this neglect you are suspended without pay for the two working days, namely February 27 and 28, 1985. You are required to sign and immediately return the enclosed copy of this letter acknowledging that you fully understand its contents. Mr. Irwin did not grieve against the suspension until March 12, Exhibit 2. At the outset of the arbitration hearing, Mr. Moate, representing the employer, said: "Perhaps it was late, but we are waiving any objection." The grievance and the reference to arbitration are said to be based on Article 3;2 in the collective agreement between the Employer and the Association, page 9 of which was tendered as Exhibit 1. Article 3.2 is as follows: - l- 3.2 In addition to any other rights of grievance under this Collective Agreement, an employee claiming, (a) that his position has been improperly classified: (b) that he has been appraised contrary to the governing'principles and standards; or (cl that he has been disciplined or dismissed or suspended fran his employment without just cause, may process such matters in accordance with the grievance procedure provided in this Collective Agreement and failing final determination under such procedure the matter may be processed under Article 21.5(e) .of the Collective Agreement in accordance with the provisions of the Crown Employees Collective Bargaining Act., In short, the grievor's complaint is that his suspension for two days was "without just cause." Thus the first issue to be considered is whether he was guilty of an offence meriting discipline. Also tendered as evidence was an extract from the "LCBO Store Operating Manualrn Exhibit 8. It is headed "Reference Cash and Security Section Store Keys" and its effective date was October 3, 1983. There are 11 paragraphs, but only the following are relevant in this case: A record of all key holders should be kept in store log book, signed for and dated by employee and manager under all circumstances. 01. Store keys will only be allotted to employees other than manager and assistant where there is a proven requirement. 02. Keys allotted to responsible employeeson a temporary basis will be returned to the manager immediately after the requirement is met. -8 - . . . * . 06. All spare keys will be inserted in a sealed envelope, bearing the date and manager's signature, and will be retained in the money chest of the safe. . . . . . 08. Employees having store keys in their possession will turn them in to the.store manager or acting manager prior to proceeding on vacation. . . . . . 10. If anemployee is called by police, a securitycompany e or an alarm company, a return call should be made for verification in case it is a ploy by someone to gain entrance to the store. Caution should be exercised when responding to night calls. There is no paragraph specifically prohibiting the act of returning keys to the Manager by leaving them on his desk. It is obvious, however, that prudence and the common sense normally exercised by a responsible employee would not allow keys to be made accessible in an unlocked office. Members of the public are constantly moving in and out of the store: it is not impossible to enteran unlocked office when the Manager is absent. Prudence would alsosuggestthathisoffice should be locked when he is in the basement and the Assistant Manager is not on duty --- which was the case on the morning of January 10. -9 - Mr. Way in his testimony confirmed that the Assistant Manager had beenon sick leave for a week or more and possessed a set of keys which he would normally retain over week-ends. The store was open until 6 p.m. each day except Friday when it closed at 9.00 p.m. In the absence of the Manager, the Assistant Manager and the griever, it would be necessary to entrust a set of keys to another employee for use Friday evening and Saturday. When Mr. Way found the grievor’s keys on his desk between 12.30 p.m. and-l.00 p.m. on Thursday, January 10, he put them in the safe and later gave them to a clerk named Morris. The Manager emphasized, however, that he had not asked the grievor to leave .d his keys at the store. Mr. Way conceded that he often left keys on his desk earlyin the morning sothatany clerk could open the door of the store. He himself might be occupied elsewhere in the building, as indeed he was on the morning of January 10. There were three other clerks employed at the store. In the absence of the Manager, the Assistant Manager and the grievor, it would be necessary to entrust keys to one of them, at least for use on Friday evening and probably Saturday. To make this decision would be the Manager’s responsibility, not the grievor’s. - 10 - Mr. I Way asserted that there had been “no friction” between himself and the grievor in the two weeks prior to the incident. The grievor had been with him for six or seven months. He himself was no longer at Store 584, having transferred to another store in the Yorkdale complex. Cross-examined, he agreed that he must have been back in his office’ very soon after the grievor left. What disturbed him was not the fact that the grievor left his keys behind. He considered the “way it was done” - .i to be a breach of security. The keys ought to have been returned to him personally. The grievor testified that for some time prior to January 10 he had been suffering from bronchitis. He had seen a physician on Tuesday of that week and received medication. On Thursday morning, when the stock delivery arrived, he went downstairs and swept the floor. According to him, the Manager yelled “I guess that’s all you are good for --- sweeping the basement.” He tried to explain he was not well but the Manager was too busy to listen, and told the grievor to “put stock away.” Later, they had another talk and he was told to go home. he had intended to work until 1 p.m., but left about 12.21 p.m. He left his keys on the Manager’s desk because he thought they would be needed the next day. He also recalled that on his way out he told another clerk what he had done. . .i 11 - The grievor said he now’ realizes that “the safest thing to do would have been to hand the keys to the Manager,” but “prior to noon he had refused to talk to me.” The difficulty with the grievor’s explanation is that in fact he had at least two conversations with the Manager before leaving the store. Indeed, he left on the Manager’s instructions after saying he was sick. The keys could have been returned at the timer. Even if he was too upset to think about it then, he could have gone to the Manager when about .to leave and he has admitted that would have been “the safest thing to do.” Mr. Moateconceded that the grievor had a legitimate reason for leaving the keys but “not for the way he did it.” Most of the staff were busy receiving stock. There was no clear view of the Manager’s office at all times from the back of the store and never from the basement. The grievor was well aware of the importance of the keys and the risk in leaving them where they could easily be stolen. For the grievor, Mr. Levinson emphasized that the exposure to risk could not have been for more than 25 minut.es, probably much less. The grievor was “pretty sick” and had been ordered to go home. In his condition he did not take the wisest course, but it was not a serious offence. . - 12 - We are satisfied on the evidence of the grievor himself that he was negligent. He was responsible for a set of keys which had been entrusted to him. If he was well enough to realize that his keys would probably be needed the next day, he was also well enough to understand that the proper course was to hand them to the Manager. No doubt he felt ‘resentment about the attitude of his superior, but this does not constitute an excuse for neglecting his duty to safeguard the keys at all times. In all the circumstances there was just cause for discipline. The only question remaining is whether the penalty imposed was appropriate. If the offence were the first in the grievor’s history, we would take a different view of the two-day suspension. Unfortunately, however, it was not the first of fence. The record prepared and identified by Mr. Macdougall, Exhibit lOR, is as follows: DISUPUNI S.WARX - G. G. IPMN Appintsd March 1974 February 1982 - Written Warning - failed to report absence on time March 1982 - Suspended without pay 3 days - absent with inproper reason July 1982 - Suspended without pay 6 days - failed to report for scheduled shift January 1984 - Written warning - neglect of duty - failure to set alarm system September 1984 - Written warning - neglect of duty - leaving early while in charge - 13 - The accuracy of the above record has not been disputed. More- over, Mr. MacDougall testified that Mr. Irwin had not grieved against any of the previous penalties. The record does not suggest adequate acceptance of his responsibilities on the part of the grievor, a Clerk 4. For example, the warning of September 24, 1985, was given because Mr. Irwin, while Acting Manager, had left the store before 6 p.m., leaving his keys with another employee. In all the circumstances we cannot find that the two-day suspension was an inappropria,te penalty. The grievance is denied. Dated at Rockwood, Ontario this 2nd day of January, 1987 J. D. McManus-Member I. &A I. &A Cowan-Member Cowan-Member EBJ:sol