FAQ's Cases - Stewart McKelvey

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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
Page 10supervisor. Counsel argued that it is only in these types of cases where dismissal without progressivediscipline is acceptable and even in serious cases the penalty is often mitigated.64 64. According to Counsel, the misconduct here is not nearly serious enough to permit theEmployer to skip progressive discipline. He pointed out that it was acknowledged that progressivediscipline wasn't even considered in this case.65 65. According to the Union, the Employer is attempting to characterize this behaviour as"under-ringing" in order to squeeze it into its Honesty and Integrity policy in the hope that this willjustify termination.66 66. Counsel pointed out that the Honesty and Integrity Policy was unilaterally established bythe Company and should not be confused with a negotiated specified penalty clause. It is not bindingand the Employer must meet the usual principles of just cause for the termination to stand.67 67. Counsel argued that progressive discipline is about fairness and common sense. It has apurpose and recognizes that people make mistakes and in most cases they are capable of learningfrom their mistakes, correcting their behaviour and continuing as productive employees.68 68. According to the Union, progressive discipline balances the interests of the employerand employees. It allows the employer to have a workplace free of turmoil and misconduct and respondsto the employee's interest in job security. Progressive discipline is corrective discipline designedto fix problems and only where warnings, suspensions and more severe suspensions don'twork is termination appropriate.69 69. The Union strongly disagreed with the Employer's claim that the Grievor's conduct wastantamount to theft and argued that it wasn't remotely like theft. Counsel argued that the Grievormade an error in judgment when he put the asparagus in the customer's cart without ringing it in buthe did it out of frustration because he was unable to get the cash register to accept the code. What hedid was wrong but he did it because he was under stress, flustered and confused and not because hewas dishonest or trying to gain a personal benefit.70 70. The Union argued that this isn't a case where termination was an appropriate disciplinaryresponse to the Grievor's misconduct: discipline was warranted but termination was too harsh. Hesuggested that discipline at the low end of the progressive scale was warranted: a short suspensionor a written warning.71 71. The Union relied on the following authorities: Brown and Beatty, Labour Arbitration inCanada, para. 7:4422, Simon Fraser University and A.U.C.E., Local 2, 17 L.A.C. (4th) 129 (Munroe),Canada Post Corp. and Canadian Union of Postal Workers re Venosa, 15 L.A.C. (4th) 418(Adell), Re Government of Alberta and A.U.P.E. re Froehlich, 23 C.L.A.S. 346 (McFetridge,W.D.), April 16, 1991, Re C.W. Carry Ltd. and U.S.W. re Orsini, 22 C.L.A.S. 309 (Lefsrud, ErikS.), March 8, 1991, Ontario Store Fixtures and C.J.A., Local 1072 re Phinn, [1993] O.L.A.A. No.70 (MacDowell), Greyhound Lines of Canada Ltd. and A.T.U., Loc. 1374, [1991] C.L.A.D. No. 25(McFetridge), Canada Safeway Ltd. v. United Food and Commercial Workers, Local 401 reChampagne, [2007] A.G.A.A. No. 27 (Hornung), Canadian Union of Public Employees, Local5111 v. Saskatchewan Assn. of Health Organizations re Priest, [2011] S.L.A.A. No. 9 (Williams),Re New Dominion Stores and Retail Wholesale Canada (U.S.W.A., Local 414 re McCaul, 60 L.A.C.(4th) 308 (Beck), McKinley v. BC Tel [2001] 2 S.C.R. 161, Brown and Beatty, Labour Arbitrationin Canada, para. 7:4400, Re United Steelworkers of America, Local 3257 and The Steel Equipment
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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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COURT OF APPEAL FOR ONTARIOBETWEENC
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Page: 3[5] In his application, the
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Page: 5(c) By the Employer at any t
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Page: 7continuation, in the amount
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Page: 9D. ANALYSIS[23] It is well-s
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Page: 11[28] The appellant submits
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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)
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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 113 and 114: Page 2of the immediate problem that
Page 115 and 116: Page 4- He admitted that he had pla
Page 117 and 118: Page 626 26. The Grievor's conduct
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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
Page 145 and 146: tasks beyond his functional limits
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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Page 165 and 166: is older, or believed that the appl
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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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