FAQ's Cases - Stewart McKelvey

Page 12hope to gain a financial benefit, he was motivated by self interest and an expectation of personalbenefit. His decision to give the customer the asparagus without charge, was his response to the difficultyhe was having with the cash register. His problem was being broadcast to everyone in thearea by the "obnoxious" beeping of the cash register. Just getting the cash register to stop beepingwas a benefit to him and he was able to do that simply by skipping the step of charging the customerfor the product. That step is fundamental to his job responsibilities. By stepping around his obligationto charge the customer for the asparagus, the Grievor was able to benefit in at least two ways:he could silence the obnoxious beeping and thereby hide his lack of skill in the operation of the cashregister from his employer and co-workers and he could get through the customer's order morequickly and possibly get back to the Produce Department sooner.77 77. The Grievor did not hesitate to sacrifice his employer's entitlement to payment in orderto solve his own immediate concerns. He was employed as a cashier, his job was to receive paymentfor the goods. His first and only response to his problem with the cash register was inconsistent withhis obligation to his employer, it was a breach of the faith inherent in the employment relationshipand a violation of an essential condition of his employment.78 78. Although what he attempted was not "sweethearting" in the usual sense, merchandisewhich should have been paid for was given to a customer without charge. The essential character ofthe conduct is not altered by the fact that the customer was a stranger and the Grievor had no expectationof financial benefit. If someone takes your watch without your consent and gives it to astranger, the watch has been stolen and a theft has occurred. The fact that here, an honest customerprevented the theft from taking place, has no bearing on the question of the Grievor's honesty. Thecustomer had to demand that the produce be weighed and rung through. To overcome the Grievor'sinitial resistance, he had to physically remove the produce from the cart, take it out of the bag, put iton the scale and insist that he be charged for it. The Grievor knew that his conduct was wrong becausehe looked right and left, he put his finger to lips and told the customer" Shuss, it's all right".He thought he could get away with this and would have but for the honesty of the customer.79 79. I am not persuaded that customer service was a motivating factor in the Grievor's decisionto give the customer the produce without charging for it. As stated previously, the store was notparticularly busy, there were only one or two customers in line at his till and if he was so concernedabout customer service why did he resist the customer's demand that he be charged for the produce.I believe it more likely that this explanation occurred to the Grievor some time later and at the timeof the incident, he was focused on getting the obnoxious beeping to stop and putting through thecustomer's order so he could return to the Produce Department.80 80. I acknowledge that the Employee Honesty and Integrity Policy was unilaterally introducedby the Employer and is not binding on this process. It does not have the same force as if itwere a negotiated specified penalty clause but it is a policy which has been in place for many years,has been publicized widely by the Employer, was known to the Grievor and has been applied consistentlysubject to review through the arbitration process. The Employer has the onus to establishjust cause81 81. It has long been recognized that the obligation of arbitrators is to examine each case onits unique facts. As Arbitrator Hope stated in Re Canada Safeway Ltd. and U.F.C.W., Loc. 2000(1997), 29 L.A.C. (3d) 176 at p 186-187: