IN THE MATTER OF THE TRADE UNION ACT

BETWEEN :

on behalf of Deborah Muise

- a n d -

ARBITRATOR

JUDGE J. A. MACLELLAN

Hearing Held at The Hotel Nova Scotian on March 10, 1981

IN THE MATTER OF THE TRADE UNION ACT

BETWEEN :

on behalf of Deborah Muise

hereinafter called the Grievor

- a n d -

hereinafter called the Employer

1. The grievor filed a grievance on November 12, 1980 alleging that she was dismissed on November 4th, 1980 as Bartender / Waitress without just cause. The grievor requested that she be reinstated without loss of pay.

2. The employer alleges that the grievor left her employment early, around 12:30 a.m. on November 2nd without permission and also that the grievor had another employee punch her time card at the end of the shift shortly after 3 a.m.

3. Tom McCaughey gave evidence for the employer as he was duty manager on the evening in question. His duties were to basically look after the hotel operation in the absence of the manager. Mr. McCaughey told of being in the Eager Beaver lounge on the night in question and seeing the grievor who was on the shift from 8:30 p.m. until closing and clean up which was usually anywhere from 2:00 to 3:00 in the morning depending on how busy the lounge was. He went on to say that around 12:30 a.m. the grievor approached him in the lounge and asked him to approve three requisitions for supplies for the lounge. As a result he signed all three requisitions but with a change from ten to five cases of Keiths beer because he felt the supply requested was excessive. This change was not acceptable to the grievor and she questioned him about the change but Mr.

McCaughey would not change his mind. The grievor asked to talk to Mr. McCaughey a third time out in the storage room and attempted to have him change his mind. At this point Mr. McCaughey told the grievor to do as she was told. He went on to say that there was no anger but that both felt they were correct in the amount of Keith’s beer that should been requisitioned.

Mr. McCaughey went on to say that the grievor was working with two new employees, one waitress, Tracey Schrans had just been working a couple of nights and the bartender who was also relatively new on the job having been there about one week. They were the only three working in the lounge on the evening in question.

He went on to say that sometime near 1:30 a.m. he saw the grievor standing near the door with her coat on talking to the other waitress, Miss Schrans, and then she left. He stated that he thought it strange tht if she was going to leave early why she had not obtained permission from him. Mr. McCaughey said that he felt that if he had approached the grievor there might be a conflict because of the problem over the Keith’s beer so he decided to say nothing and the grievor left just prior to 1:30 a.m.

He further stated that the practice is if an employee requests to leave early that they ask the supervisor before they leave. He went on to say on cross-examination that he did not remember the grievor telling him that she was going home and did admit that it was possible that she had asked permission to go home early and that he did not hear the request. The evidence was that it was loud in the lounge and there was an orchestra playing.

Mr. McCaughey also stated that he had subsequently learned that the other waitress, Tracey Schrans, had punched the grievors time clock after being requested by the grievor to do so when the grievor was leaving to go home. The rules of the hotel prohibits anyone touching any time card but their own. Punching someone elses time card is a dismissible offence.

4. Tracey Schrans testified and told of her being only employed for two or three days when the incident occured. She told of how she and the bartender were new on the job and that the grievor was experienced and was really showing them what to do. She said that the grievor had asked her to punch her time card and at first she hesitated but then said that she would. She said she wasn’t aware of the rule concerning the punching of other person’s time cards but that she certainly is now. Miss Schrans went on to say that she felt the grievor was in charge and she

didn’t know about the duty manager. She further stated that the grievor asked her if she could handle things and she replied " I guess so " and the grievor then asked if she could go and Miss Schrans said that it was up to her and that it was her decision to make. She went on to say that she did not want to get involved. Miss Schrans stated that at the time she felt she was busy but under the same circumstances now she could handle the job alone easily with the number of customers that were in the lounge that night. She stated that she was not disciplined by the company in any way for the punching of the grievors card.

5. The grievor testified and gave much the same evidence as the two previous witnesses. She elaborated on the amount of Keith’s beer required and told the Board that from her experience there was no doubt that there was going to be a shortage of Keith’s beer. She also told of the three requests to Mr. McCaughey. She went on to state that on the first occasion she approached Mr. McCaughey in the lounge she made a point to tell him she was not feeling well and that she was leaving early. She stated that she received no reaction and she then asked Tracey Schrans if she could handle things and she got the reply that she, Tracey, could handle things.

The grievor went on to say that she had already called a taxi and had her coat on to leave when she realized that she had forgotten to punch out and at this time she said she asked Miss Schrans if she would mind punching her card. The grievor further stated that she didn’t know that it was wrong to punch someone elses card as she had done it before for others and others had done it for her.

She also stated that the previous manager of the lounge had a practice that one could leave early if the lounge was not busy. She stated that this had been told to her on a number of occasions.

The grievor stated that the evening in question was her first shift back after being out sick for two days and that she was still not feeling well on the evening in question.

6. Both the grievor and George Smith, the union steward told of the meeting on November 4th with Mr. Ejack, Executive Assistant Manager of the Hotel, Patricia Heading the Assistant Manager and Mr. McCaughey wherein the grievor was dismissed.

7. This being a discharge case the onus of proof is clearly on the employer to show just cause for the dismissal.

One reason given by the employer was the leaving by the grievor before her shift was completed. The evidence of Mr. McCaughey was given in a straight forward and honest manner. He stated that it was possible that the grievor had asked permission to leave and he did not hear the request. The grievor states categorically that she did ask permission. I have had the opportunity to observe the demeanor of the witnesses and I have no reason to disbelieve the grievor on this point. I therefore accept the fact that she had asked permission. Perhaps it was not prudent on her part to leave without gaining some response from Mr. McCaughey. However, it was obvious she was not trying to steal away as she stood in the lounge with her coat on before going to her taxi. Perhaps the issue could have been avoided if Mr. McCaughey had said something at that time. Having found that the grievor did speak to Mr. McCaughey before leaving then the fact of leaving before her shift was finished is not nearly as serious and I find that the employer has not discharged the onus placed upon it and has not shown just cause for dismissal on this ground.

As regard the punching of the time card by Tracey Schrans ; the only evidence before the Board of previous practice was that of the grievor who said that in the past this was an accepted practice in the Eager Beaver lounge. Both Tracey Schrans and the grievor stated that they did not know that it was a rule by the employer that this could not be done. They both admitted they are now aware of this rule. In view of the fact that it was Miss Schrans who punched the card and no disciplinary action was taken it would appear to be unfair that the grievor now be disciplined to the point of discharge. In addition it was not the grievor who punched someone elses card. Therefore for the above reasons the company has failed to discharge the onus placed upon it and has not shown just cause for dismissal on this ground.

8. It is perhaps easier for an arbitrator to weigh the evidence in the calm of an arbitration hearing and my task in this matter was made much easier by the very capable manner in which the hearing was conducted by Mr. Martell and Mr. Wheatley. I must say that I was impressed by all the witnesses in the way that they testified and conducted themselves during the hearing.

9. As a result of the above findings I uphold the grievance and order that the grievor be reinstated with full salary and benefits from the date of her unjust dismissal on November 4th, 1980.

10. At the beginning of the hearing the parties agreed that I was properly appointed an arbitrator ; that the matter was arbitrable ; that the use of a mechanical recorder was satisfactory and a transcript was not required unless specifically requested.

11. DATED AT Kentville this 13th day of March 1981.

______________________________ Judge J.A. MacLellan, Arbitrator