FAQ's Cases - Stewart McKelvey

Page 11Co. Ltd., 14 L.A.C. 356 (Reville), Wm. Scott & Co. and Canadian Food and Allied Workers Union,Local P-162, BCLRB Decision No. 46/76 (Weiler), Re United Automobile Workers, Local 127, andOntario Steel Products Ltd. 13 L.A.C. 197 (Beardall), Re Nova Scotia Liquor Commission and NovaScotia Liquor Commission Employees Union, Local 470 C.L.C., 5 L.A.C. (2d) 117 (Richard),Home Hardware Stores Ltd. and Home Hardware Co. Employees Assn., 32 L.A.C. (3d) 129 (Tadman),Maple Leaf Potatoes, a Division of Maple Leaf Foods and United Food and CommercialWorkers, Local 401, unreported, (McFetridge, W.D.), July 31, 2006, and United Food and CommercialWorkers Union Local 401 and Canada Safeway Limited, unreported, (Beattie, AlanV.M.)(Q.C.), December 14, 2010.DECISION72 72. The Employer has the onus to demonstrate that the Grievor's conduct justified the impositionof discipline and, if that is established, the Union has the onus to prove that a lesser penalty isappropriate in all of the circumstances. (Canada Safeway Ltd. and U.F.C.W. Local 401 re Brandse(supra).73 73. There were few facts in dispute and the Grievor admitted that he did what the Employeraccused him of doing. Furthermore, he also admitted that he had received and was aware of theEmployee Honesty and Integrity Policy. The Policy contained the warning: "If an employee commitsany act of theft or dishonesty termination of employment will result."74 74. The focus of much of the argument was whether the Grievor's misconduct constituted aform of "dishonesty". It is well established that dishonesty requires proof of intent. (See Re Berto'sRestaurant and Hotel, Motel & Restaurant Employees Union, Local 442 8 L.A.C. (4th) 87 at p. 94as quoted in Canada Safeway Ltd. and U.F.C.W., Local 401 (Brandse) (supra).75 75. The Union argued that the Grievor was flustered and confused and acted out of frustrationand not dishonesty. This would be a compelling argument if it were supported by credible evidence.However, as Counsel for the Employer pointed out, the reasons given as to why the Grievorwas under stress do not stand up to scrutiny. There was no evidence that he was tired or that hisability or mood was affected by circumstances in his personal life, the incident occurred at the verybeginning of his shift, it was his first customer of the day, there were no other customers in linewhen he began the order and only one or two by the time he finished it. Although he'd not achieveda passing mark on the cashier test, that was more than two months ago. He'd been working as a reliefcashier on a regular basis since completing his training and had plenty of time to learn the job.There was evidence that he knew how to do what was required of him: on this same order he'dproperly rung through a bunch of bananas which is sold by weight and must be placed on the scaleto ring through; he'd also entered other produce that was sold by the item. These are the only twoways in which produce is sold; if its not sold by the item, its sold by weight. There was also no reasonfor the Grievor to fear a backlog of work or the disapproval of the Produce Manager when hisstint as a cashier was over. The Produce Department had been fully staffed all morning, it was ingood shape and there was another employee scheduled to work there that afternoon. There was nocredible evidence that there were any extra ordinary demands placed on the Grievor. It was a normalday and the store was not unusually busy. There was no basis for the Grievor to be flustered,confused or stressed.76 76. The Union attempted to distinguish the Grievor's conduct on the basis that, unlike mosttheft cases, there was no hope of financial benefit for the Grievor. Although the Grievor did not