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HomeMy WebLinkAbout2012-0551.Hall.15-01-06 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB# 2012-0551 Union# 2012-0378-0011 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Hall) Union - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEFORE Reva Devins Vice-Chair FOR THE UNION Val Patrick Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Paul Macchione Liquor Control Board of Ontario Counsel HEARING September 12, October 2, November 19 and 22, 2013, January 29, April 23 and 29, June 9, October 1, 17 and 29, 2014. - 2 - Decision [1] The grievor, Mathew Hall, was discharged on December 28, 2011 for theft. The Employer alleges that on December 9, 2011 Mr. Hall removed product from the conveyor line where he was working, hid it and removed it from LCBO premises. The grievor has denied the allegations throughout. Background [2] The LCBO uses a comprehensive tracking system at multiple transfer points to track the movement of products at various stages of the shipping process. The product is ‘picked’ at the case handling area and sent down a conveyor belt to designated lanes on the MPL deck for shipment to individual stores or other warehouses. Each case of product has a sticker on it identifying when it was picked, which lane it is going to and how many cases are needed to fill the order. Labels are printed for each completed pallet setting out the receiving store, brands and case count. Broken or misdirected products are recorded and scanned off the system. There is also a record of every case placed on each pallet. [3] Warehouse workers can be assigned to a number of locations, including the MPL deck where they build individual pallets to be shipped to a designated location. The MPL deck is made up of a series of conveyor belts that run through an enclosed area up to a window covered by heavy gauge plastic flaps and through which cases of product travel to be placed on a shipping pallet. A wall divides the rear of the MPL deck from the area where the pallets are built. In addition to the window that cases travel through, there is also a door at each lane leading to the rear area. Once a case comes down the assigned lane, it is fitted - 3 - onto a pallet along with multiple cases of different brands; each level is then secured with twine. [4] Damaged cases, referred to as ‘breakage’ or ‘breakers’, are removed from the line and sent to jackpot, another area staffed by warehouse workers. Wet cases are typically placed in breaker bins, whereas dry breakers are placed on a designated breakage pallet. Occasionally, employees will pursue a third option and personally walk the damaged case over to jackpot. Warehouse workers at jackpot prepare a transmittal slip indicating the date, brand number, batch picked and the intended shipping destination for each case they receive. One copy of the transmittal slip is attached to the case of product and the other is sent to the shipping office where it is cross-referenced with the invoice. Eventually, the shipping clerk sends the slip back to jackpot where it is matched to the slip on the damaged case. Events on December 9, 2011 [5] The grievor was a full time warehouse worker at the Durham Warehouse, employed with the LCBO since 2000. On December 9, 2011, he was assigned to lanes 21 and 22 on the MPL deck when Dave Thompson, the floor supervisor, found a case of product behind the wall at his lane. Mr. Thompson approached Nick De Bonis, the operations supervisor in the shipping department, and they went behind the wall at the grievor’s station. They discovered 5 twine boxes, piled on top of each other just inside the door under the conveyor: three twine boxes were on the bottom and two on top, with a case of alcohol tucked in behind them. [6] The case of product behind the twine boxes showed no signs of breakage and was not wet or damaged in any way. Mr. De Bonis examined the sticker and confirmed that it was - 4 - picked earlier that morning. On closer examination, he saw that the case was open but that there were no broken or missing bottles. He could not recall the name of the product, but believed it was some kind of cognac. Mr. Thomson and Mr. De Bonis put all of the boxes back the way they originally found them and Mr. De Bonis reported his findings to Vic Araujo, the general manager. On cross-examination, Mr. De Bonis agreed that he and Mr. Thomson called the grievor over to discuss the operation of the conveyor after they took a view. [7] Mr. Araujo and Charles Edison, the order-processing manager, went to view the area during the lunch break at roughly 12:35 PM. They went behind the wall and saw 5 twine boxes in a pyramid formation directly behind the grievor’s lane. They also found 4 sleeves of Remy Martin XO underneath the twine boxes. They did not see the case in which the sleeves would have been shipped, the other 2 sleeves that would have been in the original case, or any signs of breakage. Mr. Edison took photos of what they saw and they then returned the boxes to their original configuration. [8] After lunch, Mr. Araujo e-mailed the security supervisor at the warehouse attaching one of the photos and advising that he was concerned that the grievor was concealing and removing product. Mr. Araujo received a report from security advising that they had seen this individual put something in his car during the break. Security did not search the car but could not see any product visible from the outside. Mr. Araujo indicated that he was going to follow up with the London Retail Service Center, the location that was scheduled to receive the pallet the grievor had been building, to see if they were short product. He also asked security to set up cameras in the area as soon as possible. - 5 - [9] Mr. Araujo and Mr. Edison went back again at 3:45 PM, after the grievor’s shift had ended. The twine boxes were in a different configuration and the four sleeves of product were no longer visible. They opened the boxes of twine and found 3 sleeves of Remy Martin XO inside one of them. They then watched the video tape recording of this workstation and concluded that the grievor was working there that day and engaged in a number of activities that suggested that he was removing bottles of alcohol from the work place. [10] The grievor was scheduled to work an overtime shift the next day. Mr. Araujo asked to see him as soon as he arrived and advised him, in the presence of a Union representative, that he was being relieved with pay. On cross-examination, Mr. Araujo testified that he had originally planned to raise the allegations of theft with the grievor at the end of the day on December 9. However, the grievor left for the day before Mr. Araujo convened a meeting with him and the Union. [11] Mr. Araujo continued to investigate the matter. Records confirmed that on December 9, Remy Martin XO was on the grievor’s line between 9:36:55 - 9:45:36 AM. This was the only lane that had this product on it that day and it was packed onto two pallets being sent to London, one completed at 9:41AM and the other at 9:48 AM. Mr. Araujo contacted the London Retail Service Center and confirmed that they only received 39 of the 40 cases of Remy Martin XO ordered. The Transfer Order Inquiry also indicated that the London shipment was missing a case of Glen Livet 18 Year Old Single Malt and a case of El Dorado Special Reserve 15 Year Old Rum. [12] Mr. Araujo also received a report from a security guard who observed the videotape of the grievor’s lanes, in which the guard noted that just before 10 AM on December 9, the grievor came out from behind the wall with what appeared to be a box of alcohol and that - 6 - he walked over and set the case down on the jackpot lane. Mr. Araujo investigated and discovered that there was no breakage report, inventory adjustment or transmittal slip for the missing case of Remy Martin XO. Nor was the physical case found. Mr. Araujo did not follow up on the other 2 cases of product that were shorted in the London order. [13] Numerous cameras throughout the facility recorded the day’s activities. Two cameras, at two different angles, recorded activity on the MPL deck. The following times and events were recorded at lanes 21 and 22, the grievor’s lanes, on December 9, 2011: a. 9:26 – the grievor opens a case of Glen Livet Single Malt Scotch before placing it on the pallet. He removes a bottle from its interior sleeve, takes his phone out of his pocket and uses it to take an image of the bottle. b. 9:28 – the grievor is building a pallet in front of the wall, he stops, goes behind the wall, removes a case of Glen Livet from the conveyor belt, tips it upside down and places it on the floor. c. 9:35 – the grievor is in front of the wall chatting with a colleague and appears to show him something on his cellphone. The grievor then points to something on a case of what looks like Remy Martin XO on the conveyor line, puts his phone away, opens the case and removes a bottle from its sleeve, which he shows to his co-worker. The co-worker leaves and the grievor returns to work, putting cases on the pallet at his station. d. 9:45 – the grievor goes behind the wall and removes a second case of product that he puts on the floor, under the conveyor. e. 9:49 – the grievor brings 4 boxes of twine over to his station and puts them down in front of the wall. - 7 - f. 9:54 – cases are coming down the conveyor belt at the grievor’s station and then stop. The grievor throws up his hands and moves towards the wall. He fiddles with his belt and looks around as he approaches the door to go behind the wall. He bends down as soon as he gets behind the wall and remains out of sight for almost a full minute. He then looks through the window, comes out in front of the wall at 9:56, pulls down his shirt and resumes putting cases on the pallet. g. 9:56:52 – the grievor takes two twine boxes behind the wall, bends down and comes out carrying a case of product that appears to be Remy Martin XO. He carries it out of sight of the camera, flipping it around as he carries it. He then returns, puts on a sweater or sweatshirt, zips it up and puts on a jacket. He looks through the window in the door to the back area and leaves. h. 10:54 – Mr. De Bonis and Mr. Thomson go behind the wall, when they come out they call the grievor over to talk to them. i. 11:46 – the grievor goes behind the wall and immediately disappears from sight. It appears as if he is bending down directly behind the wall. The grievor is seen through the window standing up and walking to the rear. He exits back to the front of the wall approximately 1.5 minutes after he first entered. j. 12:26 – the grievor is in front of the wall and starts to walk to the door to go behind the wall. As he moves toward the door he raises his shirt, plays with his belt and looks around. He then goes behind the wall and bends down immediately in front of the door, facing the conveyor belt. As he bends down, cases of product are still moving down the conveyor belt and coming through on the other side at his workstation. He stands up shortly after going in, comes out, tugs his shirt, puts - 8 - one case on the pallet and turns back to put on his coat and prepares to leave for lunch. As he is leaving, he appears to take a small hop. k. 13:33 and 14:25 – the grievor lifts up his shirt but does not fiddle with his belt. l. 14:55:40 – the grievor goes behind the wall, immediately bends down directly in front of the door. Stands up and comes out roughly 45 seconds later. m. 15:33 – the grievor goes in and out of the door leading to the area behind the wall. n. 15:35 – The grievor goes behind the wall as cases continue to come down the conveyor. He remains behind the wall for roughly 25 seconds, bends down in front of door, comes out, puts a few more cases on a pallet and puts on his coat a few minutes later. He continues to palletise with his coat on until the end of his shift. [14] All of the witnesses called by management testified that it was unusual to keep boxes of twine behind the wall and that there was no reason to do so. They also denied that it was common to find loose product behind the wall, especially full cases of product, even at busy times of the year. Finally, they all agreed that although the warehouse workers might occasionally fix a jam behind the wall, the floor supervisor was primarily charged with that responsibility. Disciplinary Response [15] In accordance with the usual practice, Mr. Araujo sent Mr. Hall a NOID (Notice of Intention to Discipline) on December 12, 2011 and set out the LCBO allegations that he had concealed and removed product from the warehouse. The grievor was invited to a meeting on December 13th to discuss the allegations. The grievor attended the disciplinary meeting and denied concealing or removing alcohol. When he was advised that there was videotape - 9 - showing that he was putting something down his pants, he said that it was probably a Tupperware container from his lunch. Mr. Araujo found this explanation implausible and the grievor was subsequently dismissed on December 28th. Grievor’s evidence [16] The grievor recalls working on the MPL deck on December 9th but stated that it was a regular day for him with nothing in particular standing out as exceptional. Consequently, he had very few specific memories of the day and could only offer his best guess as to what he was doing in the video recording of his activity. He did, however, adamantly deny concealing or removing product from the warehouse. He was never stopped or searched on December 9th nor did management ask to look in his car. [17] With respect to portions of the videotape that the LCBO alleged were suspicious, the grievor insisted that there were innocent explanations for all of his actions. He removed the two cases of product from the conveyor behind the wall because they were breakers. He saw that the cases were not moving evenly so he placed them on the floor and later took the case of Remy Martin XO over to jackpot; he did not recall taking the second case there. Since neither case had been scanned onto the pallet that he was currently building, he did not need to scan them off the system. On cross-examination, he admitted that he could not recall precisely how he identified these two cases as breakers. He assumed that it was because there was a gap as they moved down the line that indicated that they were not coming down smoothly. [18] He also recalled that the LCBO had just come out with a new smart phone app that allowed the user to search a product by scanning the bar code. He wanted to try it out, which is what he was doing when he removed the bottles from their case and sleeve and held his phone up - 10 - to the bottle. He thought this would be useful when he was at jackpot so that he wouldn’t have to use a scanner gun to get the brand number of a product. He acknowledged that he wasn’t supposed to open the cases or sleeves of product, that he was not allowed to use his phone at his station or in jackpot and that he had been previously disciplined for using his phone. He nonetheless maintained that he was curious and wanted to try the new app. [19] The grievor also testified that the Remy Martin XO could have been new or in special promotional packaging and he might have removed it from its sleeve to take a better look at it. He initially thought that he also might have used the LCBO app on his phone to scan the Remy Martin XO bottle, as he had earlier with the Glen Livet product. He believed that you had to actually scan the bottle, not the sleeve. On cross-examination, after examining a sleeve and bottle of Remy Martin XO, the grievor acknowledged that the bar code on this product was on the outside sleeve, not the bottle. [20] Regarding the twine boxes that he brought over, the grievor testified that he often brings over extra twine to use as a stool and to ensure that he doesn’t run out. He acknowledged that he would not usually go through a full box of twine in a single day and that he probably saw that there were already three boxes of twine behind the wall before he went and brought 4 more over to his station. He also acknowledged that it was unlikely he would be at the same workstation the next day. [21] The grievor offered a number of reasons why he might go behind the wall: to clear breakage, to fix a loose roller, to store twine boxes, for general housekeeping or to get a broom or shovel. He specifically recalled a problem with a roller falling off the conveyor behind the wall on December 9th and that he had to put it back in place on numerous occasions that day. He also recalled Dave Thompson and Nick De Bonis coming over in the - 11 - morning and asking him about the malfunctioning roller. He explained to them that that roller had already popped out a number of times that day. Normally, the rollers have a chain on them so they don’t fall on the ground, but this one was off the chain so he had to retrieve it from underneath the conveyor. On cross-examination, he said that he bent down at the door and crawled across the floor to the conveyor area where he would retrieve the fallen roller and put it back in place. [22] Lastly, he testified that he is usually asked about overtime in the afternoon before the required shift, although sometimes he is asked the day before that. He does not know where he will be assigned until the morning when he arrives, however, because of his seniority he is usually assigned to forklift operation. He also acknowledged that he takes a morning break at 10 AM, a lunch break at 12:30 PM and that he leaves for the day at 3:345 PM. Submissions [23] In the Employer’s submission, management acted responsibly by thoroughly investigating the grievor’s suspicious conduct before dismissing him from employment. Mr. Araujo reviewed the videotapes, photographs, shipping and tracking reports and considered the grievor’s explanations. Having weighed all of the evidence, management concluded that the grievor concealed and removed product. Honesty is central to the employment relationship and consequently, the grievor’s employment was terminated. [24] The Employer maintained that the evidence established that the grievor failed to follow a number of normal protocols: he removed product from the case to examine it; he used his smartphone to take a photo or scan the bar code of product; he claimed that he removed breakage behind the wall but did not put in in a breaker bin or the designated breakage pallet; he took additional boxes of twine behind the wall when there was no work purpose - 12 - in doing so; and he repeatedly went behind the wall for no apparent reason right before his breaks. Although the grievor was not disciplined for these breaches, his conduct should be viewed as part of a deliberate plan to steal from the LCBO. [25] The Employer submits that it has offered evidence from three credible witnesses and that their evidence is backed up by videotape, photographs and shipping data. All of the evidence supports the conclusion that the grievor removed expensive product from the warehouse and concealed additional product to be removed at a later date. Neither the Union nor the grievor have offered credible alternative explanations of either the grievor’s own conduct or management’s discovery of hidden product behind the grievor’s lane. Nor are there any mitigating factors in this case that would justify awarding a lesser penalty. In the LCBO’s submission, the discharge should be upheld. [26] The Employer referred me to the following cases in support of its position: OLBEU (Di Pronio) v. Ontario (Liquor Control Board), [2005] O.G.S.B.A. No. 136 (Devins); OPSEU (Bijowski) v. Ontario (Ministry of Community Safety and Correctional Services), [2012] O.G.S.B.A. No. 167 (Dissanayake); OPSEU (Sheptytsky) v. Ontario (Liquor Control Board of Ontario), [2008] O.G.S.B.A. No. 56 (Lynk); OPSEU (Conlin) v. Ontario (Liquor Control Board of Ontario), [2013] O.G.S.B.A. No. 29 (Dissanayake); OPSEU (Carmichael) v. Ontario (Liquor Control Board of Ontario), [2010] O.G.S.B.A. No. 264 (Johnston); OLBEU (Massa) v. Ontario (Liquor Control Board), [2000] O.G.S.B.A. No. 84 (Abramsky); OLBEU (Devlin) v. Ontario (Liquor Control Board), [2004] O.G.S.B.A. No. 89 (Watters). [27] The Union submits that the Employer has failed to establish the key elements of their allegations. While it might have established a number of minor procedural violations, such - 13 - as use of a phone on shift or opening cases, in the Union’s submission, there is insufficient evidence to establish that the grievor concealed or removed product. There is no video evidence that clearly shows the grievor placing product in his pants or putting it in his car, as alleged in the dismissal letter. Therefore, the Employer has failed to establish the core allegations it provided to justify the grievor’s discharge. [28] The Union also submits that the Employer was aware that they could approach the grievor on the day in question and ask to search him for product or check his car. In not proceeding in this manner, management has prejudiced the grievor’s ability to defend himself rendering it impossible for him to show after the fact that he did not conceal or remove the product as alleged. [29] The Union further argued that there was exculpatory evidence: the grievor was seen on video taking a case of Remy Martin XO to jackpot, which is consistent with his evidence and inconsistent with evidence called by the LCBO. The Employer’s evidence also confirmed that 40 cases of Remy Martin XO were picked that day. 39 were received in London and a security report establishes that one went to jackpot. Therefore, there was either a 41st case, or there has been a full accounting of all the cases of product at issue. There were also three cases of alcohol missing from the London order. The London office did not seem alarmed by this occurrence, suggesting that cases often go missing for a variety of reasons. [30] Finally, the Union submitted that the sequence of events did not support the conclusion that the grievor was responsible for either hiding or concealing the Remy Martin XO. In the Union’s view the video establishes that not enough time elapsed while the grievor was out of sight behind the wall to permit him to do what was alleged. Furthermore, if he were - 14 - going to hide the sleeves in a twine box, why would he not do that from the start? The grievor did not look worried when Mr. Thompson and Mr. De Bonis went behind the wall nor did he go over to speak to them until he was called over. The Union maintained that all of this evidence is inconsistent with management’s allegations. In the Union’s submission it is far more likely that someone other than the grievor left the product behind the wall and removed it. [31] The Union acknowledged that if the grievor was found to have engaged in the misconduct alleged there were no mitigating circumstances to justify the substitution of a lesser penalty. [32] The Union relied on the following cases in support of its submissions: OPSEU (Vesterfelt) v. LCBO [2008] O.G.S.B.A. No. 196 (Abramsky); OPSEU (Hall: preliminary decision) v. LCBO, (2013) GSB No. 2012-0551 (Devins); Re Sobeys Inc. and C.A.W., Loc. 1090 (Re Brown) (2004), 131 L.A.C. (4th) 166 (Luborsky); Re United Steelworkers of America and Aerocide Dispensers Ltd (1965), 15 L.A.C. 416 (Laskin). [33] In reply, the Employer argued that Mr. Araujo did not rush to judgement: he thoroughly investigated and carefully considered all of the evidence before deciding to dismiss the grievor from employment. Management should not be faulted for waiting to confront the grievor until the investigation was complete. In any event, Mr. Araujo testified that he did attempt to speak to him on the day in issue but that the grievor had already left for the day. [34] The Employer further submits it need not demonstrate that the grievor removed product in his waistband, as alleged in the dismissal letter. If there is sufficient evidence to conclude that the grievor stole product from the LCBO, then the grievance should be dismissed. - 15 - Analysis [35] The grievor was discharged for concealing product and theft. Given the nature of the allegations, it is well settled that the Employer must establish the alleged misconduct on a balance of probabilities, by clear and convincing proof: Ontario (Attorney General) and OPSEU (Khan) (1989), 18 L.A.C. (4th) 260 (Swan); OLBEU (DiPronio) and LCBO (2005), OPSEU (Vestervelt) v LCBO, [2008] O.G.S.B.A. No. 196 (Abramsky). The evidence can be circumstantial, so long as the Vice Chair is satisfied that there is “clear and convincing evidence that it is more probable than not that the grievor” committed the alleged offence and the adjudicator can consider the probability that the offence was committed by someone other than the grievor: Vestervelt, supra, at para. 53. [36] The facts in this matter were largely undisputed. The grievor admits to removing two cases of product from the conveyor behind the wall: a case of Glen Livet Single Malt and a case of Remy Martin XO Cognac. He is seen removing the case of Remy Martin XO just before the morning break and claims that it was breakage that he took to jackpot. There is no record that employees working at jackpot received it, although there is a report from a security guard who did not testify that indicates that he saw the grievor place a case there. There is no evidence that the grievor similarly took the case of Glen Livet to jackpot. [37] The grievor is also recorded on videotape going behind the wall on a number of later occasions, bending down immediately in front of the entry way and remaining there for a prolonged period. He admits to taking additional boxes of twine behind the wall, even though he acknowledged that there was already a number of twine boxes in the area. [38] Finally, there is the evidence of management who observed the area behind the wall at the grievor’s assigned lane. Mr. De Bonis went in after the morning break and discovered a - 16 - pyramid of twine boxes concealing a case of product that had been picked that day. Mr. Araujo and Mr. Edison went in at lunchtime and saw 5 twine boxed stacked up so that they concealed 4 sleeves of Remy Martin XO. The sleeves were not in their case and the other two sleeves that would have been in the original case were not present. When they went back at the end of the day, the twine boxes were in a different formation, with three sleeves of product now hidden inside an empty box. The fourth sleeve was no longer there. [39] The grievor said that his last day of employment was just a regular day and claimed not to recall any specific details. He offered a number of explanations for his video recorded conduct, however, admitted that he was largely speculating. In a few instances he purported to remember what happened, such as the multiple occasions where he had to fix a problem behind the wall with the rollers on the conveyor belt. He also recalled testing out the new LCBO app on his smartphone. [40] I find that the grievor is not credible. His evidence was self-serving, inconsistent and unsupported by the objective evidence. For example, the video recording of the activity at Lanes 21 and 22 on December 9, 2011 does not support the grievor’s recollection that there were numerous problems with the rollers that day before he advised Mr. Thomson and Mr. De Bonis of the issue that morning. The grievor went behind the wall four times before Mr. Thomson and Mr. De Bonis spoke to him, but on only one of these occasions was it to ‘fix the rollers’. He went behind the wall twice to remove cases of product from the line that he claims were breakage, once to store extra twine and retrieve the case of Remy Martin XO to go to jackpot and once to ostensibly fix the rollers. [41] Moreover, other warehouse workers also worked on the same lane, either assisting the grievor or in his absence. None of them went behind the wall to fix a roller or for any other - 17 - reason that day. Nor did the grievor ever go behind the wall in the presence of co-workers. All of the instances when he went behind the wall were at times when there did not appear to be anyone else in the immediate vicinity. Furthermore, the grievor’s explanation that he was bending down immediately behind the wall to fix the rollers from underneath the conveyor is thrown in doubt by the evidence that there were several boxes of twine stacked up in the same area. He would have had to crawl across the floor with boxes of twine impeding his access. This seems highly unlikely if not virtually impossible. [42] The grievor’s evidence in other respects further undermines his credibility. He testified that he took extra twine boxes back behind the wall to use as a stool and to ensure that he had extra supplies available in case he ran out of twine. However, he acknowledged that there were already three boxes of twine and a stool behind the wall when he brought in two additional boxes. He also testified that he only used one box per day, making several “extra” boxes unnecessary. Finally, although he was scheduled to work overtime the next day, he testified that he believed he would be assigned to operate a forklift and would not be assigned to the MPL deck. In the face of this evidence, his explanation for bringing over more boxes of twine makes absolutely no sense. [43] Nor is his evidence credible regarding the use of his cell phone. He is seen on video removing two bottles and examining them. One is a bottle of Glen Livet Scotch and the other is a bottle of Remy Martin XO, the same products that he is seen shortly thereafter removing from the conveyor belt behind the wall. He is recorded using his phone in connection with the bottle of Glen Livet. [44] The grievor testified that he was trying out the LCBO’s new app, which might be useful to identify product numbers at jackpot instead of using the scanner gun. I do not believe that - 18 - was what he was doing. LCBO policy forbids the use of cell phones and the grievor had been previously disciplined for violating this policy. The app would therefore have no legitimate use in the workplace. [45] I agree with the Employer’s submission that the evidence viewed as a whole points to conduct that is not merely suspicious, but characteristic of a plan to steal product. The sequence of events shows that the grievor removed a bottle of Remy Martin XO from its sleeve and examined it for no work purpose; he subsequently removed a case of the same product behind the wall and failed to follow the normal protocol for breakage; he brought in extra twine boxes, so that there were a total of 5 twine boxes in an area where they are not used; he went out of sight behind the wall immediately before each break and in physical circumstances where it would be extremely difficult if not impossible to “fix” the rollers, as he claimed. [46] At different points during the day, management found product concealed in various ways behind the grievor’s lane: managers and supervisors saw a case of product hidden behind twine boxes at approximately 10:50 AM, 4 sleeves of Remy Martin XO hidden behind twine boxes at 12:35 PM and then 3 sleeves hidden in an empty twine box at 3:45 PM. The grievor was seen going out to his car at his break and depositing something in his vehicle. Although his car was not searched and no stolen product was visible from the outside, the totality of the evidence overwhelmingly supports my conclusion that the grievor removed Remy Martin XO from the warehouse and hid the remaining sleeves to be retrieved later. [47] When management reviewed the video they thought that they saw a bulge in the grievor’s shirt and pants that could be evidence of product hidden there. Having viewed the video, I agree that from some angles it appears that there might be something concealed underneath - 19 - the grievor’s clothes. However, the image is fleeting and it is very difficult to come to any reliable conclusions based on this evidence alone. In my view, it is unnecessary to rely on this evidence and I have not done so in reaching my conclusion. [48] The Union suggested that other workers were responsible for hiding and removing the Remy M artin XO. I do not find that this is likely. No one else was visible on the video recording, no portions of the videotape indicating that other people were there were identified by the Union and there was no other evidence that anyone else was behind the wall at the grievor’s lane. Even the grievor testified that he did not see anyone else go over or under the conveyor at his lane that day. While it is theoretically possible that someone else went behind the wall and crawled underneath so that the camera didn’t pick them up, it is not plausible in the circumstances. [49] The Union also suggested that it was not unusual for cases to be short shipped and not arrive at their intended destination. Management acknowledged that cases are occasionally not received at their scheduled destination. Indeed, the evidence in this case was that the London Retail Service Center was short three cases: one each of Remy Martin XO, Glen Livet Scotch and El Dorado Rum. I accept that the fact that these cases did not arrive at their intended destination is an insufficient basis for a finding of misconduct in the absence of other confirmatory evidence. [50] However, in this instance there is overwhelming evidence of a deliberate effort to conceal the very product that was not received in London. This is not a random shot in the dark where management is trying to place responsibility for missing product on the last person in the shipping chain. There is video evidence of the grievor examining the product and removing a case from the line. There is also evidence that the product was hidden under - 20 - twine boxes and that there was less hidden product at the end of the day than there was at noon. Finally, the product was hidden by and then concealed in the very twine boxes that the grievor is seen taking behind the wall. [51] The Union argued that the Employer has failed to produce the “best evidence” available to them when it did not stop and search the grievor before he left work on December 9, 2011. The Union urged me to draw a negative inference and conclude that the grievor did not possess or conceal any product as alleged. While it is true that the management could have confronted the grievor before he left work on December 9th, their failure to do so does not support a finding that the grievor was therefore innocent. It simply does not follow that because someone was not caught in the act of stealing that an inference can or should be drawn that they did not steal. In any event, the Employer’s evidence was that they intended to speak to the grievor before he left at the end of his shift but that he had left by the time a meeting could be convened. There is nothing in management’s conduct that detracts from the force of the evidence it relied upon to establish the grievor’s misconduct. [52] Based on all of the evidence, regardless of who ‘might’ have removed the Remy Martin XO at issue, the most probable likelihood is that Mr. Hall rearranged, concealed and removed the product from the warehouse. He was seen on the video going behind the wall, bending down at the precise location where the concealed product was found and remaining there for a prolonged period. He was observed doing this immediately before each of his three breaks: at 9:57 AM, before his morning break, at 12:26 PM, before the lunch break and at 15:35 PM, before he left for the day. On each of these occasions he also put on his coat within minutes of exiting the rear area. - 21 - [53] There are some unresolved evidentiary issues. In particular, there is evidence that the grievor took a case of Remy Martin XO to jackpot just before 10 AM: he is seen on the videotape carrying a case of this product and the report of the security guard notes that he left it at jackpot. There is nonetheless no evidence to establish whether the case was full or empty. Nor is there is any record that the warehouse workers at jackpot received a case of Remy Martin XO as breakage on December 9th or evidence that the product is otherwise accounted for in the inventory control system. Mr. De Bonis did testify that he first saw a case of product hidden behind the grievor’s workstation after the grievor was seen taking the case to jackpot. He did not remember the product name for the case that he saw, although he thought it was some kind of cognac. Although this inconsistency is puzzling, it does not refute the cogency or force of the preponderance of evidence. [54] Nor I am persuaded by the Union’s submissions that there is other exculpatory or inconsistent evidence that detracts from the Employer’s position. The Union characterised the grievor’s conduct when Mr. De Bonis and Mr. Thomson went behind the wall as inconsistent with his alleged guilt. It was suggested that the grievor continued to go about his work and did not appear worried. Having reviewed the videotape, I find it very difficult to determine whether the grievor was or looked worried. In any event, it is impossible to discern whether his alleged demeanour is genuine or feigned. [55] The Union also suggested that the grievor did not have time to remove and conceal the sleeves of Remy Martin XO in the time the videotapes show he was behind the wall and out of sight of the camera. I do no agree. Mr. Hall went behind the wall on a number of occasions where he was off camera for a prolonged period of time, up to a minute or minute and a half in some instances. I regard this as more than enough time to hide and remove sleeves of product. - 22 - [56] Finally, I do not accept the Union’s argument that the Employer failed to establish the core elements of the allegations set out in the discharge letter because they did not establish that he removed a bottle of Remy Martin XO in his pants and hid it in his car. On the basis of my review of the evidence as a whole I am satisfied on a balance of probabilities that there is clear, cogent and compelling evidence to find that the grievor stole LCBO product on December 9, 2011 and concealed other bottles to be taken at a later date. Even though there is insufficient evidence of the precise means the grievor used to remove Remy Martin XO from the warehouse, the overwhelming preponderance of evidence supports the conclusion that the product was taken and that it was the grievor who took it. [57] There was no evidence of mitigating factors and the Union did not argue that an alternate penalty should be imposed. Even if they had, there is a widespread acceptance that dishonesty in a retail environment is generally grounds for dismissal. In this case, there is no reason to find otherwise. [58] The grievance is dismissed and the discharge of the grievor is upheld. Dated at Toronto this 6th day of January 2015. Reva Devins, Vice-Chair