Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396

Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396

GSB#2013-3756 UNION#2013-0682-0013

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Anderson)

Union

• and -

The Crown in Right of Ontario (Liquor Control Board of Ontario)

Employer

BEFORE

Gordon F. Luborsky

Vice-Chair

FOR THE UNION

Val Patrick Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Adrienne Couto Liquor Control Board of Ontario Counsel

HEARING

January 28, 2015

Decision

1The parties agree that I have jurisdiction to determine the Union’s grievance dated November 14, 2013, alleging that the Grievor, Ms. Jessica Anderson, was unjustly dismissed from her position as a casual employee on November 6, 2013. The grievance demands the Grievor’s reinstatement with full back pay for all lost wages as a result.

2Although the instant proceedings were initially scheduled as an arbitration hearing, the parties agreed that I could decide the grievance utilizing the process of mediation – arbitration (“med-arb”), which included the parties’ consent that I could make any findings of disputed facts in an informal and summary fashion. The parties also agreed it would not be necessary to expound upon the facts of this case except in a very general sense and that I would not be required to set out detailed reasons for my decision, in order to complete this award on an expedited basis. As such, this expedited decision is not intended to have any precedential value.

3Having thus received the evidence and submissions of the parties, I arrive at the following findings of fact and conclusions.

4The Grievor was employed in a casual capacity at the Employer’s store located in Powassan, Ontario, which is approximately 23 kilometers south of North Bay. It is a relatively small store having no more than three employees at any one time on duty, located in a community of less than 4,000 residents. The Grievor commenced employment as a store clerk for the Employer in March of 2009 and was terminated on November 6, 2013 for alleged cause (following a suspension with pay from on or about June 21, 2013), after some four years of service. In that period she worked an average of 70 hours per month.

5In summary, it is alleged the Grievor attended at a licensed establishment in the community after her working hours on June 20, 2013 (hereinafter “the establishment”) along with her manager. The establishment was one of the Employer`s regular customers that the Grievor also serviced as a casual employee for the Employer. The Grievor admits that she was intoxicated and acted improperly in that she (and apparently her manager) became involved in a dispute with the establishment owners and were asked to leave; however in doing so the Grievor took a 750 ml. bottle of tequila from the establishment for which she did not pay.

6It seems that the Grievor and her companions consumed the bottle of tequila that evening at a residence elsewhere in the town. When later that evening (or very early the next morning) the establishment owners demanded that the Grievor either pay for or return the bottle, the Grievor alleges that she had a friend purchase a bottle of tequila for her at one of the Employer’s stores in North Bay, which the Grievor later gave to the establishment owners on June 21, 2013 in a brown paper bag having the Employer’s logo and markings.

7Based on its investigation, the Employer came to the conclusion that the Grievor took the bottle of tequila from its Powassan store without permission, thereby constituting theft of product. The Grievor denies ever entering the Powassan store that day or taking any product from the store. The Employer nevertheless terminated the Grievor’s employment for theft of product that was exacerbated by alleged improper conduct in the presence of one of the Employer’s customers, which in a small town was said to damage the Employer’s reputation in the community. At the time of the instant arbitration the Grievor was 24-years-old, and there was no evidence of any prior disciplinary record. It is to be noted that the manager who attended at the establishment with the Grievor received a two-day suspension without pay for his conduct on that occasion. Unlike the Grievor, the manager was not involved or complicit in taking the tequila from the establishment owners.

8Therefore considering all of the circumstances of this matter after utilizing informal med-arb techniques as agreed upon by the parties, I have concluded that the Employer has not satisfied its onus in a case of this nature to prove that the Grievor committed the very serious act of theft of product from the Employer’s Powassan store. Thus to that extent the Union’s grievance is accordingly allowed.

9However, I am persuaded on the evidence and submissions before me that the Grievor committed acts of misconduct in her treatment of the establishment owners and by her taking of a bottle of tequila from the establishment without permission or payment. Even though the Grievor was off duty at the time, in a small community where the Grievor is one of the Employer’s representatives regularly providing services to the establishment owners, I am of the view the Grievor knew or ought to have reasonably known that her misconduct would reflect badly on the general reputation of the Employer in the community, and would certainly have a negative impact on the relations between the Employer and the establishment owners, all of which the Employer had a reasonable interest. For this transgression the Employer was entitled to discipline the Grievor and thus that aspect of the Union’s grievance is dismissed; however, I conclude that discharge for such misconduct in itself was disproportionate to the offence in all of the circumstances.

10Therefore, in accordance with my authority under the collective agreement to substitute such other penalty as may be appropriate, I order as follows:

(a) The Grievor is hereby reinstated to her employment effective February 17, 2015 (which date is selected to comply with the two-week notice requirements under the collective agreement);

(b) Upon reinstatement, the Grievor will be assigned to Store 363 “Lakeshore” in North Bay, Ontario, it being understood that the Grievor may be transferred or request reassignment in accordance with the terms of the collective agreement to such extent as not expressly limited hereunder;

(c) The Grievor will not be eligible for call-in shifts at the Powassan store;

(d) The Grievor will receive no compensation for her lost earnings and/or benefits arising out of her termination on or about November 6, 2013 to the date of her reinstatement;

(e) The Grievor’s termination letter dated November 6, 2013 shall be commuted to a letter of discipline having a five-day disciplinary suspension without pay substituted for the discharge, which will remain on the Grievor’s record in accordance with and subject to the sunset provisions of the collective agreement until at least November 7, 2016;

(f) Upon reinstatement, any conduct of a nature similar to the circumstances described herein at the establishment (or in similar venues) will result in progressive discipline up to and including termination;

(g) Furthermore, in the event of any theft of the Employer’s product, property and/or assets by the Grievor in the future, the Grievor will be subject to immediate termination (which she may grieve in accordance with the collective agreement, as appropriate);

(h) The Grievor shall not be permitted to work alone at any of the Employer’s stores until on or after November 7, 2016; and

(i) The Grievor shall not be assigned to work in the role of “shift leader” until on or after November 7, 2016.

11The result of the Union`s grievance is consequently mixed, and disposed of in accordance with the foregoing.

12As requested by the parties at the outset of these proceedings, I shall remain seized in the event of any disputes concerning the interpretation and/or implementation of the remedial terms of this Award.