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HomeMy WebLinkAbout1986-0292.Jaegar.86-12-11ONTA.VO CROWN EMpLO”EES GRIEVANCE SETTLEMENT BOARD Between: OLBEU (H. Jaegar) IN THE MATTER OF AN ARBITRATION - Under - THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD 0292/86 Grievor - and - Before: The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer Z.~. .,. R.J. Delisle '~ Vice-Chairman I:.~-Freedman ~.~ Member D.B.,Middl.eton Member For the Grievor: For the Employer: Hearing: M.'Levinson, C@.xnsel Koskie and Minsky Barristers and Solicitors P.G. BaLfcw, Counsell~ Hicks.Morley.Hamilton Stewart StOrie Barristers and Solicitors J& 15, 1986~.. August 29, 1986 -. This grievance alleges unjust dismissal. The grievor was a clerk 3 in ~the Dufferin Mall Liquor Store. The employer alleges that on April 11, 1986, while the grievor was working as a cashie‘r, he deliberately attempted to misappropriate funds. Before us, it was common.ground that &hould the allegation be found to be proved unjust dismissal was a justified response. on the second day of the hearing, after the completion of the evidence and after listening to argument the Board retired for consideration. After that adjournment the Board.~ notified the parties orally .~that they were unanimous in finding the allegations proved, the dismissal justified, and accordingly dismissed the grievance. We advised that written reasons would follow. John Quinlan, assistant,manager at the store described the incident. At approximately 7:00 p.m. the grievor was working as a .cashier in relief of another, Anne Belmar, who had just gone on her break. Quinlan was standing behind the grievor when he observed~him waiting on a customer. After the transaction was completed he saw the grievor take a $20., $2., and $1. bill out of their particular compartments in the register drawer. Th' grievor folded the bills, opened a cabinet drawer underneath the cash register and placed the bills under a cash register tape. Quinlan asked the grievor what he was 'doing. The grievor's reaction appeared to be one of surprise. The grievor explained 2 that he was not sure whether he had rung in a customer's~purchase and that he put the $23. in the cabinet drawer intending to ring it in later if, on cashing out, he was $23. over. Quinlan called Belmar back to the cash register, in the presence of another rang the grievor off and found that he was $23.over, i.e. the amount rung in was $23. less than the cash on hand. Quinlan testified that the cabinet drawer was for use as storage for register tapes, pencils, extra coin and extra $1.'~ and.$2.'s from the float. Quinlan noted that each cash register has a buzzer which will notify the i assistant manager. on duty and established procedures require the cashier to use the buzzer immediately if he suspects an 'error has been made. At monthly staff meetings this procedure is repeatedly emphasized. He testified that the grievor was well aware of this procedure. Quinlan noted that the procedure protects the. cashier and also~ protects the employer. Quinlan testified that on ringing.off a cashier it would not be normal to check cabinet drawers unless cashier was short on cash: in that event they would check whether any bundles of $1.'~ or $2.9 s from the float were then present. In cross-examination Quinlan testified that the grievor, if intending to steal the money, was better off putting the money in the drawer than directly into his pocket. If seen by a customer it would not be suspicious and the cashier could later come back, after cashing out; and remove the money from the cabinet. Quinlan's testimony was unshaken in cross-examination. 3 Ron Flett, Vice-President Retail Division, was the person who decided to terminate. He reasoned that Quinlan's description was an account of attempted theft and the grievor’s explanation not credible. He testified that if the grievor was concerned that he might not have rung the $23. in, he~could have rung the- buzzer, ask another staff member to witness what occurred, put the three bills in the cash register under. the tray, or put the bills in their respective compartments along with a note. He, in cross-examination, supported Quinlan's hypothesis: windows all around' make the cashier observable by pedestrians in the store and in the mall and it would be suspicious to put the money directly into his pocket. Flett emphasised that there was simply no reason for the grievor to remove the.:-money from the cash register. The grievor testified that he noticed $23. sitting on his tray in the cash register drawer, lying across the compartments. The money was with respect to his second last transaction which he had not put away. He wasn't sure whether he'd rung it up. He put the $23. in the cabinets drawer unfolded alongside a group of $20.'~ he'd previoumly put there. He' intended to take the $23. to the office when he cashed out. On cross-examination he was asked why he didn't check the window of the register to see on the tape whether the $23. was registered. He answered that he did look and "didn't see $23. registered and realized.1 didn't ring it in.11 This, obviously, doesn't square 4 with his evidence that he wasn't sure whether he'd rung it in and therefore put the money in the cabinet drawer. He was asked why he didn't just leave the $23. in the cash register drawer but there was no response. It was put to him that since the money belonged in the cash register, whether rungs.-in or not, there was no reason for taking it out and he agreed. He was asked why he didn't ring the buzzer when the error was discovered and answered that there was no need since Quinlan was right behind him. This was clearly not responsive as he had testified that before seeing Quinlan he had decided to put t&$23. away and bring it with him when he cashed out. The question was repeatedly put, in a variety of clarifying ways, but the answer was always~ the same. In the beginning we thought the witness obtuse but concluded that. he was being evasive since there was no explanation for failing to follow~procedures. . . The employer's allegation and the consequences for the grievor are extremely serious. Whether we.phrase the standard of proof as "clear and convincing" or "proof beyond a reasonable doubt" we recognize that we must be very sure indeed that the allegations are properly founded. We realize that it is not a ,- question of choosing which version to believe, Quinlan's or the grievor's. We must be satisfied that the allegations have been made out. For the grievor to suceed we've taken the position .~ that it's not necessary that we believe him but rather sufficient if we conclude that his explanation could reasonably be true. We .~ 5 have concluded it could not. We are satisfied, beyond a reasonable doubt, that he was caught in the act of attempting to misappropriate funds belonging to the LCBO and that he had the necessary intent. There is nothing approaching an explanation for why he didn't ring the buzzer and why he didn't leave the money in the cash register. The grievance is. dismissed. Dated at Kingston this 11th day of December, 1986. R&Delisle, Vice-Chairman I. Freedman, Member ~:.~',~,.~ D.B. Middleton, Member