FAQ's Cases - Stewart McKelvey

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Page 1588 88. There are many cases involving these parties where dishonesty has been grounds fordismissal even where small sums and long service employees are involved. The following exampleswere provided by the Employer:Safeway and UFCW Local 401 re Szakszon - a 9 year employee was terminatedfollowing a series of incidents where goods were obtained at improperdiscounts. The value of the improper discounts totaled approximately$43.00.Safeway and UFCW Local 401 re Schlekewy - a 22 year employee wasterminated after marking down a packaged ham and then purchasing itherself. The value of improper mark down was $4.99.Safeway and UFCW Local 401 re Fedor - a 24 year bakery employee wasterminated when he was caught eating a pastry without paying for it. It waslater determined that this was not an isolated act.Safeway and UFCW Local 401 re Daniel, Hall and Kaiser - a 7 year and a3 year employee were dismissed when it was discovered that they had improperlydiscounted cheese. The value of the improper discount was$12.28. Ms. Kaiser, the cashier who rang the goods through was reinstatedas it was determined that she was not part of the conspiracy.89 89. I return to Arbitrator Hope's statements in Re Canada Safeway Ltd. and U.F.C.W., Loc.2000 (1997), 29 L.A.C. (3d) 176 at p 186 - 187:...accepting that each dismissal must be examined on its unique facts, andaccepting that reinstatement is available for all acts of misconduct, howevergrave, it must be acknowledged that an act of theft or other dishonesty inthe retail food environment places extreme strain on the relationship. Anemployee who admits dishonesty or is found to have acted dishonestly inthat environment must, as stated, establish mitigating facts consistent witha maintenance or restoration of the essential element of trust.90 90. The case of Wm Scott & Co., [1977] 1 C.L.R.B.R. 1, 1976 CLB 1780 (P.C. Weiler) providesa blueprint of how arbitrators should review disciplinary penalties at pp 5 -6:(I)(ii)How serious is the immediate offence of the employee which precipitatedthe discharge (for example, the contrast between theft and absenteeism)?Was the employee's conduct premeditated, or repetitive; or instead was it amomentary and emotional aberration, perhaps provoked by someone else(for example, in a fight between two employees)?(iii) Does the employee have a record of long service with the employer inwhich he proved an able worker and enjoyed a relatively free disciplinaryhistory?
Page 16(iv)Has the employer attempted earlier and more moderate forms of correctivediscipline of the employee which did not prove successful in solving theproblem (for example, of persistent lateness or absenteeism)?(v) Is the discharge of this individual employee in accord with the consistentpolicies of the employer or does it appear to single out this person for arbitraryand harsh treatment (an issue which seems to arise particularly incases of discipline for wildcat strikes)?91 91. When these principles are applied to the facts before me there is little to suggest that thepenalty of discharge should be mitigated:(I)(ii)Although the amount was small, the duties of the employee and the natureof the retail industry in which he was employed, make this a serious offence,which of itself, often warrants discharge.This was not planned or premeditated and there was no evidence that theemployee had done it before however this was a not case where the employee'smisconduct was an emotional reaction to provocation or unusualstress. The Grievor was performing his regular duties under normal circumstances.(iii) The employee does not have a record of long service although his shortservice is free of any serious misconduct; there is a single but unrelatedprior incident on his record.(iv)The Employer has not attempted more moderate forms of discipline althoughit has for many years publicized its policy of "zero tolerance" foracts of dishonesty or theft.(v) The Employer has consistently applied its zero tolerance policy for acts ofdishonesty or theft and the discharge of this employee was consistent withthis policy. It has not singled out this employee for arbitrary or harshtreatment.92 92. The Grievor said he was sorry as soon as he was confronted with his misconduct butthere was very little evidence that he understood the seriousness of his misconduct or accepted responsibilityfor it. He seemed to believe that this was something that happened to him rather thansomething he did. This was exemplified by his response to Union Counsel's final question as towhat assurance could he provide that this would not happen again if he were reinstated. His answerthat he could not be certain (that it would not happen again) but hoped it wouldn't was undoubtedlyas disappointing to his Counsel as it was to me.93 93. I think the closing comments of Arbitrator Jones in his decision in Szakszon (supra) involvingthese same parties are applicable here:
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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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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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- 14 -bottom of the problem and the
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- 16 -member about something amusin
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COURT OF APPEAL FOR ONTARIOBETWEENC
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Page: 16addressing the issue of a c
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Page 86 and 87: Mr. Wallace. The evidence is that M
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Page 98 and 99: IN THE SUPREME COURT OF BRITISH COL
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Page 113 and 114: Page 2of the immediate problem that
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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
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Page 137 and 138: that ensued. There is no evidence t
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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 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 171 and 172: this period lessening, in my view,
Page 173 and 174: [109] The respondent submits that i
Page 175 and 176: 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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