FAQ's Cases - Stewart McKelvey

Page 952 52. The Union argued that despite the Employer's repeated accusations of dishonesty, this isnot a case which falls neatly into what the arbitral authorities have held to be dishonesty in the past.53 53. The Union referred to numerous cases where employees had been dismissed for dishonestyand argued that the recurring theme running through them is that the employee or a friend receiveda benefit as a result of the employee's dishonesty.54 54. Counsel did not dispute the Employer's definition of "sweethearting" and accepted that itdoesn't require the employee to act on behalf of a relative or a friend. It was acknowledged thatwhat the Grievor did was wrong and warranted some discipline but that here the facts do not supporta finding of dishonesty.55 55. Counsel argued that it was a busy day, otherwise the Grievor would not have been calledup to work as a cashier. When he was called over to work as a cashier, the Grievor was alone in theProduce Department and had some tasks he intended to complete. It was frustrating to be calledaway to work as a cashier and he was stressed and frazzled as a result. Because he was so stressed,the beeping of the computer "drove him nuts".56 56. Counsel pointed out that the Grievor was busy enough and stressed enough that the nextday he could not remember this incident or what the customer looked like.57 57. Counsel indicated that it should not be difficult to understand why the Grievor found itstressful. He was not properly trained to work as a Cashier and he was being forced to do it withouthaving passed the test. There was a growing line up behind his customer and he couldn't get thecash register to accept the code for the asparagus. In addition, he knew that his manager would beunhappy with him the next day because the Produce Department would be a mess with no one thereto stay on top of things. These were the things going through his mind.58 58. The Union acknowledged that the Grievor's conduct was wrong but when the cash registertwice refused to accept the asparagus he was stressed and confused and out of frustrationtossed the asparagus into a bag and put it in the customer's cart. The question isn't whether this waswrong, that is admitted. The question is, was it dishonest?59 59. Counsel acknowledged that the Grievor's behaviour was stupid, careless, inappropriateand wrong but there was no dishonest intent. He was not trying to steal a $6.00 bunch of asparagus,he was just trying to extricate himself from his situation and get the customer through without delay.He was wrong to do so as cashiering is part of his job but it is important to recognize that heacted out of frustration not dishonesty.60 60. The Union indicated that this does not excuse his conduct but does go to his motive.61 61. The Union pointed out that this employee has a relatively clean record with only awarning concerning an attendance matter and no history of anything remotely similar to what wesee here. It was acknowledged that he was a hard worker and basically a good employee. It was theUnion's view that there is no reason why this single incident should result in him losing his job.62 62. Counsel argued that progressive discipline ought to be tried to ensure that behaviour ofthis type does not happen again. According to the Union, the Grievor's record and the nature of theoffence suggest that a lesser form of discipline would be appropriate.63 63. Counsel indicated that the case authorities say that dismissal should be reserved for onlythe most serious offences: serious fraud; industrial espionage; serious violence toward a manager or