FAQ's Cases - Stewart McKelvey

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Page 1Case Name:United Food and Commercial Workers Union,Local 401 v. Canada Safeway Ltd.(Watson Grievance)IN THE MATTER OF an ArbitrationBetweenUnited Food and Commercial Workers Union, Local 401, andCanada Safeway Ltd. with respectto the Grievance of Ian Watson[2011] A.G.A.A. No. 61215 L.A.C. (4th) 183109 C.L.A.S. 126AlbertaGrievance ArbitrationPanel: William D. Mcfetridge (Arbitrator)Award: December 9, 2011.(94 paras.)Labour arbitration -- Discipline and discharge -- Available sanctions -- Dismissal.Labour arbitration -- Discipline and discharge -- Grounds -- Dishonesty.A part-time grocery clerk/cashier at a major supermarket grieved his dismissal for dishonesty. Acustomer had reported the grievor for giving away two bunches of asparagus without charge becausehe had a problem scanning them into the cash register. The employer argued that any act oftheft or dishonesty was cause for dismissal. The union argued that the grievor had no motive to bedishonest; rather, he was frustrated and confused by his problem with scanning the asparagus, andhe just wanted to get the customer through without delay. The grievor did not profit from his conduct.It was simply an error in judgment, for which he should be disciplined but not dismissed.HELD: Grievance dismissed. The employer had a strict honesty and integrity policy of which thegrievor was aware. Even though the grievor did not benefit financially, he did benefit by getting rid
Page 2of the immediate problem that faced him. The grievor did not hesitate to sacrifice his employer'sentitlement to payment in order to solve his own immediate concerns. It was a breach of faith and aviolation of an essential condition of his employment.Appearances:Representing the Union:Kevin Tamblyn, Counsel.Laura Lowrie, UFCW Business Agent, Advisor/Witness.Ian Watson, Grievor/Witness.Representing the Employer:Joyce Mitchell, Counsel.Dale Hladiuk, Director of Labour Relations, Canada Safeway, Advisor/Witness.Darrell Randall, Witness.AWARDPRELIMINARY MATTERS1 At the outset the parties agreed that I was properly appointed and had jurisdiction over theissues in this case. The parties agreed to waive time lines stipulated in the Collective Agreement forthe issuance of the Award. There were 6 exhibits entered by consent including Exhibit 2 which includeda total of 7 separate documents. A full list of the Exhibits is attached.THE ISSUE2 The Grievor's employment was terminated for cause when it was discovered that he hadplaced two bunches of asparagus in a customer's cart without charging him. The misconduct is admittedand the sole issue here is whether, in all the circumstances, dismissal was the appropriatedisciplinary response.FACT SUMMARY3 1. None of the essential facts are in dispute.4 2. The Grievor was employed part-time by Safeway as a General Clerk II assigned to theProduce Department. He began his employment in June, 2008 and was dismissed for cause in July,2010. At that time he was working 28 to 35 hours per week.5 3. Although his primary responsibilities were in the Produce Department, it was a regular partof his job to perform cashier relief. His cashier assignments might be for just a few minutes or formost of a shift. The cashier work was not predictable and depended on how busy the store was andwhether there was an unexpected absence.
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The Labour Relations BoardSaskatche
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3unionized workforce at their plant
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5[15] In addition, there was some h
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7Employee “D”: He was on his pr
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9[37] The Board did not have the be
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11[48] Shortly after Mr. Copeland b
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13credible reason for the disciplin
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15outlined by the Board in RWDSU v.
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173. Order for captive audience mee
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19for his failure to produce the wi
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21[95] Similarly as noted in the qu
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23[103] Also, in The Newspaper Guil
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25rights under the Act. The Employe
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27The determination of whether, in
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29respect to the section of the Alb
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31meetings, would have been within
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33[143] In respect of the complaint
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- 2 -[2] The plaintiff, Susan Chart
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- 4 -by the time she finished there
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- 6 -[24] Testimony was received fr
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- 8 -would feel grateful for the fo
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- 10 -[49] 2. Comfortable, even tem
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- 12 -[67] Another complaint was th
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- 14 -bottom of the problem and the
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- 16 -member about something amusin
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- 18 -[111] Given that the meeting
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- 20 -[130] Some of the plaintiff
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- 22 -[146] The plaintiff’s expla
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COURT OF APPEAL FOR ONTARIOBETWEENC
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Page: 3[5] In his application, the
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Page 63 and 64: Page: 7continuation, in the amount
Page 65 and 66: Page: 9D. ANALYSIS[23] It is well-s
Page 67 and 68: Page: 11[28] The appellant submits
Page 70 and 71: Page: 14[37] When parties contract
Page 72 and 73: Page: 16addressing the issue of a c
Page 74 and 75: Page: 18application of mitigation:
Page 76 and 77: Page: 202008 ONCA 479, 91 O.R. (3d)
Page 78 and 79: Page: 22[56] Notably, the concern e
Page 80 and 81: Page: 24termination without cause,
Page 82 and 83: Page: 26[64] The costs on the appli
Page 84 and 85: The parties agree this Board has th
Page 86 and 87: Mr. Wallace. The evidence is that M
Page 88 and 89: Mr. Mutter and Mr. Wallace each tes
Page 90 and 91: Mutter spoke. He testified he was a
Page 92 and 93: saw (or was told by the crew) Mr. K
Page 94 and 95: and heard, as well as other factors
Page 96 and 97: When viewed in that light, it is fa
Page 98 and 99: IN THE SUPREME COURT OF BRITISH COL
Page 100 and 101: Balogun v. Deloitte & Touche, LLP P
Page 111: Balogun v. Deloitte & Touche, LLP P
Page 115 and 116: Page 4- He admitted that he had pla
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Page 119 and 120: Page 8he had a problem with was fro
Page 121 and 122: Page 10supervisor. Counsel argued t
Page 123 and 124: Page 12hope to gain a financial ben
Page 125 and 126: Page 1483 83. McKinley is an import
Page 127 and 128: Page 16(iv)Has the employer attempt
Page 129 and 130: HUMAN RIGHTS TRIBUNAL OF ONTARIO___
Page 131 and 132: [1] This is an Application under se
Page 133 and 134: [10] Sean McKay also testified on b
Page 135 and 136: THE LAW[19] Section 5 of the Code p
Page 137 and 138: that ensued. There is no evidence t
Page 139 and 140: HUMAN RIGHTS TRIBUNAL OF ONTARIO___
Page 141 and 142: [1] The applicant has filed two App
Page 143 and 144: CHRONOLOGY OF KEY EVENTS[11] The ap
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Page 147 and 148: do what they can and that if someon
Page 149 and 150: checking summaries before stating t
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Page 153 and 154: Section 10 of the Code defines hara
Page 155 and 156: was assigned duties that required h
Page 157 and 158: -last portion of the day he levels
Page 159 and 160: [66] I recognize that some of the c
Page 161 and 162: was made aware on May 22/07 that hi
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“To be honest Tony I don’t know
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is older, or believed that the appl
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[91] The applicant also submitted t
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steps to address allegations of dis
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this period lessening, in my view,
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[109] The respondent submits that i
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that the events of May 22 may have
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Accordingly, I am requiring the par
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FAQ's Cases - Stewart McKelvey

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