Loading...
HomeMy WebLinkAbout1994-1215.Bzdyl.96-11-25 Decision ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE , SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100 TORONTO ONTARIO M5G IZ8 TELEPHONE TELEPHONE (~16) 326- 388 180 RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) M5G IZ8 FACS/MILE'TELECOPIE (4161 J26-1396 GSB # 1215/94 OPSEU # 94E268 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Bzdyl) Grievor - and - The Crown in Right of ontario (Niagara Parks Commission) Employer BEFORE: H Finley Vice-Chairperson G Majesky Member D Montrose Member FOR THE R Murdock GRIEVOR counsel Ryder, Wright, Blair & Doyle Barristers & Solicitors FOR THE C Riggs EMPLOYER Counsel Hicks, Morley, Hamilton, Stewart, storie Barristers & Solicitors HEARING February 22, 1995 April 5, 6, 7, 1995 July 12, 1995 September 15, 1995 October 5, 6, 1995 November 10, 1995 January 26, 29, 1996 , I ~ \ t , l GSB 1215/94 DECISION INDEX SECTION PAGE BACKGROUND 02 CASH HANDLING PROCEDURES 09 CASH SHORTAGES 32 INVENTORIES 34 AUDIT AND MYSTERY SHOPPER 38 CHRONOLOGY OF EVIDENCE 44 IMP ACT OF THE ALLEGATIONS AND THE DISMISSAL ON MS BZDYL 98 ARGUMENT 98 DECISION 110 ARBITRAL CONTEXT 110 FINDINGS III ALLEGATIONS AND DETERMINATIONS 116 CONCLUSION 146 1 BACKGROUND Stephame Bzdyl was a Seasonal SupervIsor WIth the Niagara Parks CommIssIOn, most recently at Naturally NIagara, untIl she was dIsmIssed by her Employer on August 29 1994 for engagmg m a series of thefts from the Naturally Niagara Store as well as violating the trust that the Niagara Parks Commission accorded [her] as a Seasonal Supervisor She gneved on September 6, 1994, that she had been unjustly fired and asked that she "be rehIred WIth a clean record and [receIve] all momes lost whIle off' The Umon clanfied that thIS Included back pay WIth Interest, benefits and semonty The Umon asked that the Panel remaIn seIzed. Ms. Bzdyl receIved the follOWIng formal notIce of her dIsmIssal on August 29/30, 1994, It was dated August 29, 1994 Dear Stephanie On August 22, 1994, Mr Peter Adams advised you that the Retail Department had reason to believe that you had stolen Commission funds by fraudulently voiding a customer purchase and claiming that the customer had returned one item and purchased another As a result of this conversation with Mr Adams, you contacted me, and requested that a complete investigation be conducted. I agreed and requested Miss Barbara Arndt, Director of Human Resources to immediately conduct that investigation. Ms. Arndt s investigation revealed the following: 1 The Manager of Naturally Niagara began closely monitoring the cash system in the store after the occurrence of a large cash shortage in July 2 As a result of this monitoring a number of discrepancies came to her attention which necessitated an in-depth analysis of the dailv register tapes. 3 The analysis of the register tapes revealed a distinct pattern of merchandIse returns and voids. In each case the voids were performed by yourself and the majority occurred when other staff were not in the store As well, on two occasions Items listed as returns were not in the inventor} \Vhlch the Manager check immediatel} after the incidents These sales had been voided by vou and the money supposedly refunded to the customer 4 Mr Adams requested that the FlI1ance Department suppl} a shopper to attempt to pll1point the problem On August 19 1994 the shopper purchased a compact diSC from 2 you Immediately following that purchase, you performed a void for a cassette tape which was purchased Immediately prior to the purchase made by the shopper On the back of the vOId you wrote that the purchaser changed her mmd and purchased a compact disc At that time vou did not realize that it was an mdlvidual sent by NPC who purchased the compact disc When Miss Arndt met with you during your investigation you stated that you were innocent and alleged that you were being harassed because of an earlier complaint that you had lodged with Miss Arndt through Colleen McComb-Page. You also stated that you were being discriminated against because of your nationality Today a meeting was held with yourself, Colleen McComb-Page, Barbara Arndt, Peter Adams and Lisa Daniels in order to acquaint you with the information that Miss Arndt discovered in the course of her investigation. Miss Arndt first explained that during her investigation she found no evidence to substantiate your charges of harassment and discrimination. Further, she advised you that Debbie Whitehouse had conducted an investigation of a prior claim by you and most of the issues had been dealt with at that time. Mrs. Daniels presented the information that she had discovered during her analysis. The cash register tapes, cash register receipts and reports from the Cash Office were presented. After the information was outlined in detail, you were offered the opportunity to reply and/or explain. You were unable to do so The evidence shows that you have engaged in a series of thefts from the Naturally Niagara Store as well as violating the trust that The Niagara Parks Commission accorded you as a Seasonal Supervisor Consequently, although you have been a valuable employee of the Commission for the past seven years, it is with genuine regret that we must terminate your employment effective August 30, 1994 You are expected to return your employee identification card, uniform and any other property belonging to The Niagara Parks Commission prior to receiving your final pay cheque. Yours sincerely, 'Signed" DWS/ch o W Schafer General Manager cc P Adams BArndt R. WoodrO\~ Barbara Arndt, the DIrector of Human Resources, testlfied that 'the August 19th mCident was what she was found gUIlty of stealmg" and that Mr Schafer 3 was convInced because there was no explanation that it showed a series of inconsistencies, but that August 19th IS the Incident, [and she] could not say that she is accused of the other incidents [which were] indicators. She stated m eVIdence that she could only speculate on Mr Schafer s reference to a senes of thefts Dunng the hearmg, the Panel heard eVIdence from a number of wItnesses. Detatled eVIdence was presented respectmg the financIal procedures WhICh were m place at Naturally NIagara pnor to, dunng, and subsequent to the penod of the allegatIOns. The followmg mdIvIduals testIfied m the order m WhICh they are lIsted. LIsa DanIels An employee of The Niagara Parks CommISSIOn for three seasons at the time of the mltlal hearmg day; She was an adult seasonal supervIsor m Naturally Niagara m 1993 and became Its Manager in January 1994 Laune Bnsson Fmance Department Employee Served as the "Mystery Shopper" Bargammg Umt Member Peter Adams Co-ordmator 12 retaIl operatIOns and several attractIOns, responsible for staffing, polIcy follow-up, shrmkage, and health and safety HeIdI Archambault Student Seasonal SupervIsor and Sales Clerk/ CashIer at Naturally Niagara at tlme of alleged mCldent. As a Student SuperVIsor, she was not a member of the Umon m the summer of 1994 At the tIme of the heanng she was the Adult Seasonal SuperVIsor and Sales Clerk/CashIer at Naturallv NIagara (the pOSItIon prevIOusly held by Ms Bzdyl) and would have been a member of the Bargammg Umt. At thIS pomt m the heanng there was a change of Counsel for the Umon. As a result, there was a change m the approach of the Umon, and a rulmg was made dunng the heanng that certam eVIdence whIch had not been put to management WItnesses would be admIssIble and that the 4 Employer would have the rIght to recall any of Its wItnesses m reply Counsel for the Employer chose not to call any WItnesses m reply Stephame Bzdyl Adult Seasonal SupervIsor and Sales Clerk/CashIer at Naturally Niagara at the tIme of her dIsmIssal Soma Delaney Worker m DIstrIbutIOn Centre Warehouse, has also been CashIer at Maid of the MIst, a Umon Steward. Kam Tal Chan (JoJo) With The NIagara Parks CommIssIon for seven years, normally Elevator Operator at Great Gorge. At Naturally Niagara as Cashier/Sales Clerk from May to mId-August 1994 due to pregnancy accommodation. Last scheduled day at Naturally NIagara was August 19, 1994 The NIagara Parks CommIssion (the CommissIOn) operates approxImately 21 ofretall outlets as well as a number of attractions. It runs a scaled-down operatIon durmg the winter penod and IS fully operatIOnal durmg ItS peak season in the late spnng, summer and early fall Its varIed shops, attractIOns and serVIces cater to an mternatIOnal tounst clIentele and ItS staff IS reqUIred to commumcate wIth many indIVIduals who speak lIttle or no EnglIsh. Many of the tounsts arrive by bus and therefore the staff often serve a large number of purchasers who are there for a fixed, often short penod of tIme, gIven that they are subject to the schedule of the tour operator Two retail operatIOns are relevant m thIS partIcular case The Table Rock Complex, located at the Horseshoe Falls, IS the largest and busiest of the CommiSSIOn s retail outlets and offers a vanety of souvemr Items Naturally Niagara IS a small, retail operatIOn located m the Botamcal Gardens at the Niagara Parks School of Horticulture It opened Initially for the 1993 season and m that year remamed open m November and December It reopened on Apnl 1 1994 The shop specIalIzes In Items WIth a nature theme. It offers for sale, WIldlIfe carvmgs, chIna ornaments, live and sIlk plants, SCience and gardenIng Items, books, tapes and compact disks (CDS) It also stocks such Items as T-shIrts, post cards, films, and confectIOnar) Items such as soft dnnks and cand\ It mcreased ItS sales dUrIng the second year of operatIOn by $50 000 over the prevIOUS vear Its staff m 1994 conSIsted of the Manager (Ms Damels) one Adult Supervisor (Ms. 5 Bzdyl) one Student SupervIsor (Ms Archambault) and four CashIer/Sales Clerks (Kam T aI Chan Adult CashIer and Derek Broerse, Joanne Provenzano and Shannan Poole Student CashIers. The staff have dlffenng degrees of responsI bIlt ty for the handlmg of cash and product, dependmg on theIr status The Manager IS responsIble for the overall runmng of the store, the staff and ItS well-bemg, performance and schedulmg, the handhng and accountmg for cash, accessmg the safe, the supervIsIon of merchandlsmg and floor control, and mventory The SupervIsors are responsIble for merchandlSlng and floor control, cash handhng and procedures, m partIcular, accessmg the safe, Imtlalhng VOIds and returns, and checkmg bIlls of large denommatIOn. As well, they see to the conduct of the sales staff and the dally closmg of the store The Adult SupervIsor has partIcular responsiblhties WhICh flow from her being second m command and replacmg the Manager in her absence She opens the store, carnes out supervIsIOn of the staff, floor, and cash, makes schedule adjustments and does call-ms. She also deals WIth customer complamts. Naturally Niagara IS open 7 days a week from 0900 to 2000 hours and IS staffed from approxImately 0830 to 2015 hours by no fewer than two persons at any gIven tIme, except at the very begmmng and end of the day and m the very early spnng when custom IS faIrly slow In order to mamtam a staff of two, the Manager schedules three staff to allow for lunch hours and breaks. Staff normally work 58-hour shifts a week. Two mId-shift breaks are mcluded m that tIme penod. The Manager of Naturally NIagara reports to the Co-ordmator RetaIl OperatIOns and AttractIOns, Peter Adams, who m turn, reports to the DIrector of OperatIOns, Roy Woodrow Mr Woodrow IS responsIble to the General Manager m 1994 DennIS Schafer who reports to a Board of DIrectors. FmancIaI matters and revenues are handled by a central Fmance Department. One of the mdlvlduals workmg there IS John Wallace who, as one of hIS accountmg dutIes, carnes out audIts of the vanous commISSIOn operatIons DaIly revenues from the retaIl operatIOns m questIOn are sent, uncounted, to the cash office, located m the Fmance Department, to be processed and reconcIled. 6 Ms. BzdylIs marned, the mother of a daughter who was sIxteen, and a son who was eleven at the tIme of her testImony She was born In Poland, came to Canada In 1974, and attended school here EnglIsh IS not her mother-tongue but she has acqUIred a command of It to the level that has allowed her to progress successfully In the retaIl trade, a large part of whIch Involves commumcatIng wIth a broad section of the tOUrIsm publIc She was InItIally hIred by The NIagara Parks CommIssIon In May, 1987, to work as "a Jamtoress" After her first year WIth the CommIsSIOn she moved from thIS pOSItIOn Into the RetaIl Department where she worked In several dIfferent locatIOns the Green House, VIctoria Park, Maid of the MISt, the ChrIstmas Store, Table Rock, the Fudge Shop, and Naturally Niagara. It was In Table Rock that she began to work as a CashIer/Sales Clerk and was promoted to the pOSItion of Adult Seasonal SupervISor In 1993 she was gIven the pOSItion of SupervIsor at the Fudge Shop However, she testIfied that she was senSItIve to the odours gIven off during the cookIng process WIth the result that she found It an uncomfortable workmg enVIronment. She also worked at Table Rock North as an ASSIstant SupervIsor In that pOSItIOn, she had between 14 and 16 CashIers to oversee. In March 1994 she was transferred to Naturally Niagara as an Adult Seasonal Supervisor The Manager of Table Rock also agreed to place Ms. Bzdyl on the roster at Table Rock so that she would have call-m opportumty dUrIng the wmter PrIor to her dIsmIssal m 1994 she had not attracted any dIsciplme dUrIng her eIght years WIth The Niagara Parks CommIssion. She receIved three performance appraisals WhICh could be said to be in the B+ range. From her perspective, she was gIven "a lot of responsIbIlIty" and "was trustful" She belIeved that "Management perceIved [her J as an excellent SupervIsor" In 1992, Ms. Bzdyl had spoken WIth the DIrector of Human Resources concernIng what she felt was dISCrImmatory behaVIOur towards her by a CashIer and Manager In front of a customer The dISCrImInatIOn she referred to Involved comments on the dIfficulty she had pronounCIng certaIn EnglIsh words and, In her VIew the two IndIVIduals had made fun of her Ms Bzdvl dId not file a formal complaInt, and the then DIrector of Human Resources arranged for an artIcle to be publIshed In the commISSIOn newsletter concernIng treatment of IndIVIduals WIthIn the multI- cultural commumty ThIS was satIsfactory to Ms Bzdyl at that tIme On August 4 1994 Ms 7 McComb Page had dIscussed some allegatIOns of harassment on behalf of Ms. Bzdyl wIth Ms Arndt At the tIme of the heanng, Ms Bzdyl testIfied that she understood that she had been termInated for theft, and that harassment was not part of the reason for her dIsmIssal nor was It part of her gnevance She dId, however state that she belIeved that part of the conflIct whIch arose between her and Ms Damels In August 1994 stemmed from her perceptIOn that Ms. Damels was dISCnmInatIng aga10st Ms Kam Tal Chan. - In 1994, the year of the alleged 1OCIdent, Naturally Niagara began to get ready for the Apnl to November season on March 14th. Dunng the first two weeks, the store was cleaned, stocked and prepared for opemng by Ms. Damels and Ms. Bzdyl. It opened to the publIc on April 1 st and for the first few weeks, these two 10divIduals staffed the store together without other aSSIstance Accord1Og to Ms. Bzdyl, they got on well together ThIS was Ms. Bzdyl's first expenence us10g a computenzed cash system or a computer At the tlme of the 1OCIdent, she dId not have a computer, although by the time of the heanng there was a computer 10 her home. She was gIven instructIOn at random times by Ms DanIels for a total of 5 to 6 hours dunng the two-week penod when they were readymg the store for ItS Apnl1st opemng. Ms Bzdyl recogmzed the value of the mventory control offered by the computenzed system, but found that the use of the PLU (Pnce Look Up) number rather than SImply the category lengthened the tlme of the process and resulted m customers waltmg longer for transactIOns to be completed. Ms. Damels gave no eVIdence as to her own tra10mg on the system, and Ms Bzdyl explaIned that no traIner came from the computer company Ms. Bzdyl testIfied, as well that It was her expenence that staff found the computer system confUSIng, that errors on the part of staff were not Infrequent, and that more elTors were found WIth adult staff than WIth the student staff 8 CASH HANDLING PROCEDURES Physical Set-up The Naturally Niagara store consIsts of the dIsplay and sales floor, the stock room, a storage/furnace room wIth a staff eating area and, an office From the eVIdence there appears to be one entrance/exIt from the store Itself whIch leads dIrectly to the outsIde The store proper containS an alr condItIOmng umt, a stereo, a refngerated umt for soft dnnks and a dIsplay where people lIsten to mUSIC through headsets. It was pOinted out In eVIdence that all of these umts contnbute to a certain level of background nOIse A safe IS located In the office and there are two computenzed cash regIsters on the dIsplay and sales floor - RegIster 1 and RegIster 2 These regIsters are part of a system WhICh carries out Inventory control and certain accounting procedures. They produce customer sales and VOId receIpts and a sequentlal dally Journal tape which provides a record of every transactIOn on the respective regIsters. It can also furnIsh an X report WhICh gives an up-to-date snapshot, by category, of transactIOns to that pOint In the cash day and a Z report whIch gIves the report, by category, of transactIOns taken during the whole cash day and then proVIdes the same lIst of categones wIth a zero balance for each categol1 pnor to mOVing Into the next cash day The tlme of each transactIon IS recorded, although the timing on the regIsters was, according to Ms. Damels, approxImately 7 minutes slow, that IS, If a transactIOn was recorded as haVing taken place at 1945 hours, It actually took place at 1952 hours There was no key for the regIsters themselves, but there was a Single key for both regIster drawers. It was located In the store as opposed to on a person at the tlme of the alleged inCIdents. The regIsters themselves were never locked, although the cash drawers were opened In the mormng and locked at mght by the Manager or by one of the SuperVIsors It was not the practIce to lock the drawers dunng the day There were no indIVIdual cash drawers Although Ms Damels testIfied that It was a store polley to have one person on one regIster the Manager and SuperVIsors work.ed on both and, even If a CashIer was aSSIgned to a specIfic regIster that person was relIeved dunng lunch and other breaks although no record was kept of thIS i 9 i i I Daily Cash Routme Prior to August 18, 1994 Durll1g the summer of 1994 the followll1g daIly procedures were 111 place Each morning the staff person m charge for that day eIther Ms. Daniels, as the Manager, or Ms. Bzdyl, as the Adult SuperVIsor opened the store, and, among other preparatory duties, retneved the key for the cash drawers, unlocked the drawers and actIvated the regIsters. Ms Bzdyl testIfied that when she had responsibIlIty for opening the regIsters she would nng m the sale of a small Item and then VOId the sale, to be certam that the computer was workmg and dId not reqUIre rebootmg. At opening, each regIster contamed the drawer from the prevIOUS night, a $100 CanadIan float, a $100 US float, as well as the money from sales between approxImately 1630 hours to 2000 hours the prevIOus evening, that IS, from the tIme of the Z Report, whIch is the begmnmg of the new cash day Dunng each cash day at Naturally Niagara, a Charge Record was kept next to each regIster and all credIt and debIt card sales were entered on It. ThIS record was totalled at cash closmg time Ms Delaney testified that at Table Rock, where Ms. Bzdyl had prevIously been a Seasonal SuperVIsor, for each regIster durmg each ShIft, there were three Control Sheets the Signature Sheet whIch was sIgned by each CashIer workmg on that regIster, the Adjustment Sheet on whIch the vOIds were recorded and the CredIt Card Sheet on whIch credIt card transactIOns were recorded. Ms. Bzdyl testified that at Table Rock one dId not do the vOIds on the regIster; mstead, because returns were done on the "pmk" [Customer Refund Shps] and mistakes [errors] on the Adjustment Sheets Refunds and exchanges, she explamed, dId not go on the Adjustment Sheets It was not the practIce for the cash to be counted at the openmg of the cash day dunng the cash da\ or at the end of the cash day The Manager and the two SuperVIsors worked on both regIsters, and whIle Ms. Daniels testIfied that It was store pohc) that each CashIer was assIgned to one of the regIsters, the eVIdence demonstrated that other CashIers worked on each regIster dUrIng breaks, although, as noted above, no record was kept of thIS Further, the regIsters dId 10 not m an} way record the person keymg m the sale WIthout mdIvIdual cash drawers, four or five employees could, therefore, be workmg out of each tIll on any gIven da} That number would be mcreased for a cash day gIven that other staff would often be workmg the prevIous evemng dunng the penod following the start of the new cash day Ms Damels testIfied that she would always check the tapes m the mormng and would callm to the Cash Office, where the regIster mformatIOn and the cash were reconciled to check the balances. It was not clear m her eVIdence WhICh tapes she was checkmg smce the Journal tapes of the prevIOus cash day would have gone to the Cash Office The only one WhICh would have been avaIlable to her, would have been the Journal tape oflate afternoon/early evemng of the previous day and that day followmg openmg, of the current cash day, WhICh would stIll have been in the regIsters. She mIght also have Journal tapes of prevIOus cash days WhICh she mIght have requested from the Cash Office. The Manager and SupervIsors were not responsible for balancmg the tIlls, they were, however, responsible for balancmg the float for each regIster Throughout the tIme the store was open, purchases were made WIth cash, travellers' cheques, credIt cards (several were accepted) or debIt cards. For approvmg and processmg credIt and debIt card purchases, the store had a SWIpe machme through which the CashIer would pass the customer's card. In thIS type of sale, a two-sIded receIpt was generated WhICh the CashIer would separate One part would be signed by the customer and ultImately be sent to the Cash Office, the other would be gIven to the customer for hIs/her record. These transactIOns would be recorded on the Charge Sheet showmg the regIster number, the sale number the amount of the sale under the card type, and the card transaction number The entrv was venfied by the CashIer s ImtIals. Returns for refund, exchanges, WIth or WIthout refunds, aborted sales, and cashIer errors all known at the tIme as "VOIds", were also processed through the cash regIsters Returns for refund or exchanges could be made for purchases made at other commISSIOn stores There was no eVIdence that credIts for future use were offered. The VOIds were usually although not necessanly, processed through the regIster of the ongmal transactIon, gIven that the ongmal II regIster could be busy or the sale could have origInated In another commISSIOn retaIl outlet. The returns, exchanges, aborted sales and errors were processed only by the Manager and the SupervIsors The onl~ verification required was the Manager's or Supervisor's initials on the journal tape. No explanatory note was required, nor were the original or void receipts retained. At Table Rock, accordIng to Ms. Delaney, SupervIsors came by each regIster hourly It was the procedure there that all credIt card sales and VOIds were Imtialled by a SupervIsor and that all VOIds were InItIalled by both the CashIer and the SupervIsor on the Adjustment Sheet and the Journal tape. She explaIned that whIle the ImtlallIng of the Adjustment Sheet could be left untIl later during the ShIft If bUSIness was brisk, the Imtialhng of the Journal tape, needed to be done faIrly promptly Some Supervisors, she testIfied, inSIsted that CashIers not serve another customer untIl a VOId transactIOn was InItIalled, she stated that thIS was not Ms. Bzdyl's practIce At Naturally Niagara, the regIsters were closed off by the Manager or one of the SupervIsors at approxImately 1630 hours. That process Involved generatIng a Z Report. The first portIOn of the report shows 11/12 purchase categones and under each a percentage, the total number ofumts sold, and a total dollar amount for the category There IS a functIOn for "markdown" and "return" as well However, on the Journal tapes presented In eVIdence, neIther category was used, although the use of the "return" functIOn was to be part of the August 18, 1994 change FollOWIng the product categones, there IS detaIled accountIng and Inventory InfOrmatIOn, and Included In thIS are "voId", "VOIds" and "return" categones. Once the Z Report was complete the outgOIng cash-day Journal tape was detached from the Journal tape whIch was to remaIn In the regIster to begIn the next cash day The Manager or SupervIsor dOIng the clOSIng would then SIgn her name, and wrIte the date and regIster number at the end of the removed portIOn of the Journal tape A zero balance was then generated In the form of a Z Report. Instead of presentIng the transactIon figures for the cash day thIS second report showed zero for everv category, WIth the exceptIOn of 3 GT categones at the end. ThIS IndIcated that the regIster had been cleared The zero balance and subsequent transactIOns of that day were kept on the Journal 12 tape for the new cash day ThIS mcluded the transactIOns for the rest of the new cash day, and the followmg day until cash closmg, and the Z readmg for the cash day was taken As part of the cash day closmg/opemng, the cash drawers were changed and a new float of $1 00 CanadIan and $100 US was placed m each regIster SometImes the floats would have been prepared m advance The money from each regIster was placed, uncounted, (except for a penod of approxImately 1 month m July 1994), In green bags, one for each regIster These bags had one pocket for CanadIan currency and one for US currency They were zIpped up and placed m a larger, brown bag. The Charge Record, the credIt and debit card vouchers and the Journal tape from each regIster were then placed In a white bag, and this was also placed In the brown bag. The brown bag was locked and the Niagara Parks PolIce were informed that the momes were ready for pIck up An officer would pIck up the locked, filled, brown bag and delIver It to the Cash Office where the money, the travellers' cheques, the credIt and debIt card vouchers from each regIster were counted and reconcIled wIth the Journal tape from that regIster Processing of Individual Transactions at Naturally Niagara Each Item In the Naturally Niagara shop had a twelve-dIgIt IdentIficatIOn number referred to as the "Pnce Look Up Number" (PLU number) For example, there was a separate PLU number for each T-shIrt SIze and colour The Item also had a bnef IdentIfYing descnption, such as "Garden DesIgn" for a specIfic book, "Favont" for a specIfic compact dIsk. ThIs could be the tItle or the name of a specIfic product. The same numbers and Item deSIgnatIOns were used In the cash regIster procedure and the mventory When a purchase was bemg made, the staff person processmg the purchase carrIed out thIs transactIOn WIth the customer eIther by reCeIVing Canadian or US cash or travellers' cheques, or by processmg a credIt or debIt card purchase If there were several umts of a smgle Item the pnce and number ofumts were keyed m first. The person on the cash then noted the PLU number on the Item and keyed It mto the regIster on whIch the Item descnptIOn and pnce were dIsplayed. 13 After each Item was keyed In, the person on the cash keyed for a subtotal, then for ProvIncial Sales Tax agaInst the applIcable Items In the subtotal, and then for the Goods and SerVIces Tax agaInst the applIcable Items In the subtotal As the GST was Included In the pnce of most Items, that key Input usually had a neutral effect. The CashIer next keyed In for a total, then the amount receIved from the customer At that stage, the amount of change was calculated. The CashIer then prOVIded a receIpt and change accordIng to the regIster When a credIt or debIt card was used for the transactIOn, the sale was rung In, the type of card keyed mto the regIster, the drawer closed, and the card run through the SWIpe machIne The CashIer would then hIt the "No Sale" key to open the drawer, would put the store's copy of the transactIOn m the drawer and close It. The person handlIng the transactIon then entered the credIt or debIt card sale on the dally Charge Record and ImtIalled It. The above mformation was recorded simultaneously on the journal tape of the cash regIster and on the IndIVIdual receIpt gIven to each customer SIX other Items of InfOrmatIOn were recorded on the receIpt and the Journal tape at the end of each transactIOn. the date, the time, the sequential number of the transactIOn, the termInal number, the regIster number and the number of umts sold. The folloWIng IS a transcnptIOn of such a Journal entry/receIpt for a CanadIan cash purchase of 3 bottles of apple JUIce and one coffee cnsp for WhICh $20 00 was tendered by the customer and on whIch both PST and GST were payable 3 @ 1001 000060130200 APPLE JUICE 3.00 g 000060700102 COFFEE CRISP 0.80 b SUBTL 380 PST 006 GST SL 380 GST 0.25 TOTAL 386 14 CASH 2000 CHANGE 1614 08/02/94 #004 COOl 12 17 TOO01 4047 In a normal, completed transactIOn, the customer would take the Items purchased, the change, If due and the receIpt, leave the store and not be heard from agam. The store would be left wIth the payment and, two records of the cash, travellers' cheque transactIOn or the record of the credIt or debIt card transactIOn, one m the cash drawer, the other on the Journal tape Four August 1994 Journal tapes, were submitted. They showed vOIds processed by Ms Bzdyl WhICh Ms. DanIels consIdered questionable, and contamed voids by others as well They were the followmg (Computer time IS approxImately 7 mmutes slow) (1) Register 1 From August 1st @ 1645 to August 2nd @ 1630 (Z readmg) SIgned off by Ms. Archambault Showmg . a cash sale (#3989) @ 1932 on August 1st for GARDENING, GRDN DESIGN total of $21.38 . A cash vOId (3992) @ 1959 on August 1st for GARDENING, GRDN DESIGN total of$21 38 ImtIalled by Ms. Bzdyl (2) Register 2 From August 3rd @ 1638 to August 4th, @ 1432 (End of tape) (#1186) SIgned off by Ms Archambault Showmg . a sale (#1085) @ 1929 on August 3rd for dog team, total of$19.29 . a vOId (#1099) @ 1020 on August 4th for dog team, mItIalled by Ms Bzdyl, total of $19.29 . a sale (# 1153) @ 1308 on August 4th, for (8), total of $23 10 . a vOId (#1155) @ 1309 on August 4th, ImtIalled by Ms Bzdvl for (8), total of $23 10 (3) Register 1 From August 15th @ 1330 to August 15th @ 1623 (2 readmg) 15 SIgned off by Ms Bzdyl ShoWIng . a cash sale (#7156) on August 15th @ 1443 for CD FA VORlT total $20 37 a . a Visa sale (#7167) on August 15th @ 1517 for dISC appala, total $20 37 . cash vOId (#7169) on August 15th at 1519 for CD FA VORIT, total of$20 37 not InItialled (4) Register 1 From August 18th @ 1641 to August 19th @ 1624 (Z readIng) SIgned off by Ms. Bzdyl ShoWIng . a sale (# 7918) @ 1017 on August 19th for appala tape, total of $13 95 . a sale (#7919) @ 1021 on August 19th for CD FA VORlT, total of $20.37 . a vOId (#7920) @ 1024 on August 19th for appala tape, total of $ 13 95 not InItialled VOIDS V OIds were a necessary transaction under several CIrcumstances. The CashIer mIght have needed to check the computer, re-enter a transaction or correct an error made while keying In. The customer may have had a change of mind, or wished to change hiS or her method of payment part way through the transaction and this would necessitate the Cashier VOIdIng the sale This same procedure of voidIng the sale was In effect pnor to August 18, 1994, when a customer chose to return an item previOusly purchased. Although these items had usually been bought at Naturally Niagara, it was permissible for customers WishIng to return or exchange items purchased at another store to do so at Naturally Niagara. Voids, In other words, were processed for the folloWIng reasons pnor to August 18 1994 . mornIng openIng of cash registers to ensure computer IS functiOnIng . computer faIlure requmng rebootIng . replacement of departmental number With PLU number when PLU not aVaIlable at time of sale . cashier errors . returns for exchange 16 . returns for refund . returns for exchange and partIal refund . return for exchange and additIOnal payment . mId-transactIOn customer changes (aborted sale) [Should thIS be treated as a return or a cashIer error ?] Ms DanIels testIfied that VOIds would be in the system and recorded on the Journal tape for 2 reasons (a) Customer return (b) Change m payment, l.e cashIer error She testIfied that Ms. Bzdyl Had lots of practice doing voids [which are] a simple transaction for a small amount; she never had problems with these. However, she also told Ms. Arndt on August 24th that Ms. Bzdyl had problems WIth VOIds early m the year In 1993 and 1994, Naturally Niagara was on a dIfferent system for returns from the other retail operatIons, of whIch there are approximately twenty-one operated by the CommIssion. The reason for thIS, Ms DanIels explamed, was that Naturally NIagara, bemg a fairly new operatIOn, had a computer/cash regIster whIch was programmed for mventory control The other stores, bemg older operatIOns, were not, at that tIme on a computenzed cash system. The VOId system elsewhere reqUired the retentIOn of ongmal receIpts, the use and retentIOn of a customer refund slIp WIth the customer s and the SuperVIsor s SIgnatures, and the mamtenance of an Adjustment Sheet whIch was InItIalled by the CashIer who made the ongmal transactIOn, and by the SuperVIsor or Manager who completed the VOId. Ms Delaney testIfied that at Table Rock, the correctIOn of errors and the process for glvmg refunds was entIrely "a paper process" There 17 was no mechamcal means of carrymg out these procedures on the register Ms. Bzdyl stated that these documents were forwarded daIlv to the Cash Office and It was her expenence that under the Table Rock system there had not been a problem as long as all vOIds were wntten up on the Adjustment Sheet and vOIded out properly Under thIS system, she had never been questIOned If a large number of vOIds occurred. Accordmg to Ms Delaney, dunng the busy season, she could have up to 40 vOids durmg a smgle shift at Table Rock. She also testIfied that one could, at the end of the day, look at the Journal tape and see which SupervIsor had been responSible for a particular VOId but that one could not tell from thIS tape whIch Cashier had carned out the transactIOn. To do that, It would be necessary to go to the Adjustment Sheet and smce there was a reqUIrement for Cashiers to sign the Adjustment Sheet when carrymg out an adjustment transactIOn, that CashIer's SIgnature would appear on the Adjustment Sheet. She pomted out that the CashIer could be the one aSSigned to that register for the day who had SIgned m, or could be a rehef Cashier who was fillmg m for breaks. It was the procedure that rehef Cashiers were to SIgn the Signature Sheet as well. However, it had been her expenence that on occaSIOn, they forgot, and she would then ask them to sign as she did not Wish to assume responsibilIty for what went on durmg her break. Managers and Supervisors were the only staff authorized to carry out VOId transactIOns m the commiSSIOn retail outlets. At Naturally NIagara, thiS meant that only Ms. Damels, Ms. Bzdyl and Ms. Archambault entered VOids m the registers dunng the summer of 1994 The VOId system at Naturally Niagara, pnor to mid-August 1994 dId not reqUIre retentIOn of ongmal receIpts or of VOId receipts It was the practIce to discard them followmg the keymg of the VOId m the cash register Nor was the use of Customer Refund SlIps. the obtammg of customer SIgnatures, or the mamtenance of an Adjustment Sheet reqUlred Ms. Bzdyl testIfied that bemg relatIvely new to computers she dId not feel comfortable as [she] dIdn't understand exactly how It would work, the way not to keep receipts as [she] used to do" She was concerned that, even though the transactIOn was on the Journal tape. once you had thrown the receIpt out, If there was a problem, the Manager would not be able to see It on the receipt, and further It was not pOSSIble to trace an error through the Adjustment Sheets, as she was preVIously able to do at Table Rock 18 Further, she explamed that all the Cashiers were aware of the vOId procedure at Table Rock and that when a customer brought a return to a Cashier, that she/he would call for a Supervisor while the customer was still there, and the Supervisor would try to determine the reason for the return of the Item. Followmg thiS, the Cashier, the Supervisor and the customer would each sign the customer refund slip and the appropnate entry would be made on the Adjustment Sheet. Accordmg to Ms. Bzdyl, she made a lot of mistakes domg VOIds at Naturally Niagara which Ms DanIels had to redo and adjust and for that reason, when Ms. DanIels was available, she would do her VOIds, although she did them herself when Ms. DanIels was not aVailable Ms. Bzdyl acknowledged, however, that carrymg out VOId transactIOns was part of her Job Ms. Chan testified that she found the computer system at Naturally Niagara confusmg and that she normally made 1 or 2 errors dunng a shift and that the largest error she made dunng her approximately 3 months there, was an error of $400,000 Ms. Bzdyl's trammg with respect to voids took place m March and she testIfied that It lasted for approximately one hour of the 5/6 hours set aSide for trammg Ms. Bzdyl dId not find the trammg adequate, and on one occasIOn asked Ms. Daniels to wnte out the steps of the vOid procedure down so that they could be aVailable for her when Ms DanIels was not m the store She also asked for further trainIng. Accordmg to Ms Bzdyl, she received neither Ms. DanIels dId, however, offer to explam speCIfic problems when the) arose and dId so when asked Ms. Bzdyl testified that on a few occasIOns she VOIded more than she should have, and Cash Office staff members were upset smce they were not able to balance the till. Ms. DanIels was contacted and, accordmg to Ms. Bzdyl, once she had the Journal tape, she was able, accordmg to Ms Bzd'r I, to find and correct the problem nght away and then explam It to her On occaSIOn, ho\vever, Ms DanIels was not able to correct the problem, partIcularly when the amounts \vere large ThiS difficulty which was also common to both SuperVisors, accordmg to Ms Bzdvl remamed unsolved at the time of her dismissal In cross-exammation Ms Bzdvl testified that v. hen she was concentratmg on servmg a customer she would not worry about completmg the 19 VOld at the same tune Rather It was her practIce to complete It later, at her convenience She stated that thIS practIce had not been raised as a problem by Management m the past. At Naturally Niagara, pnor to August 18, 1994, If a CashIer who was not a SupervIsor needed to vOld a sale, that person would mform eIther the Manager or one of the SupervIsors who would key m the vOld transaction WhICh would generate a void receIpt and a copy on the Journal tape The Manager or SupervIsor would then InitIal the vOld on the Journal tape The CashIer's SIgnature was not reqUIred. Dunng July and August 1994, vOlds could have been reqUIred by one of Ms Damels, Ms. Bzdyl, Ms. Archambault, Ms. Chan, Ms. Poole, Ms. Provenzano or Mr Broerse Ms. DanIels, Ms. Bzdyl or Ms. Archambault was responsible for the VOIds of Ms. Chan, Ms. Poole, Ms. Provenzano and Mr Broerse, and for theIr own. Ms Bzdyl testified that Ms Chan had problems entenng numbers and when she made an error, It was her responsibIlIty as SupervIsor to correct It through the vOId procedure. She cIted one occaSIOn m July 1994 when thIS employee keyed m a sale of 8,000,000 Items and testIfied that to correct the error, she had to do at least 20 VOIds. She found that when she was keymg in the vOld, that "It was addmg more mstead of gomg back" It showed that Naturally NIagara sold 8,000,000 of one Item and they dId not have that inventory On that occaSIOn, she eventually left the problem for Ms Archambault who was commg on duty later She explamed that Ms. Archambault, havmg worked on the computer system durmg the previous summer, had more expenence in the vOIdmg process. Ms. Bzdyl provIded the Cash Office WIth a note to let them know the approxImate figure she expected they would be out, and accordmg to her testImony, the error was eventually sorted out among the DIstributIOn Centre, the Cash Office and Ms Daniels. L\ccordmg to Ms. Bzdyl pnor to the mId-August 1994 and the mtroductIOn of the ne\\- system at Naturallv NIagara, If a customer wIshmg a refund came m, a VOld would be entered directly on the regIster If that person dId not have hIs/her ongmal bIlL as a courtesy to the customer It was the practIce to try to look. through the Journal tape and, If the transactIOn was found, a refund was given. If the customer came m several days later havmg purchased several products and \vantmg to return one for a refund, Ms Bzdyl testIfied that she would do a VOId for the returned 20 product on the condItIon that the customer was wIllmg to leave the receIpt. On the other hand, If the customer was not wIllmg to leave the receIpt, she would "vOId the whole sale and nng back the pIece they [did] not want" and "keep the whole receIpt and [she] would CIrcle for [her] knowledge whIch one [she] vOlded out" The Journal-tape ImtIallIng procedure allowed some measure of control to be kept on the cash handlmg and mventory smce a vOld has a dIrect etTect on mventory The eVIdence showed that It was not unusual for a VOId to be processed conSIderably later than the ongmal transactIOn whIch precIpItated It. ThIS was due to the Importance placed on prompt customer servIce and the frequent need to serve a number of customers wIthm a short penod of tIme. Accordmg to Ms. Damels, 2 or 3 VOIds m one day on a cash regIster was not unusual. The V Old Summary (AppendIX A) shows that thIs figure IS low A vOld slIp would show the followmg VOID 000010365020 appalach ta 12.98-b SUBTL 12.98- PST 0.97- GST SL 12.98- GST 0.85- TOTAL 13.95- CASH 13.95 08/19/94 #001- COOl 10.24 TOO01 7920 [ExhIbIt 11] It would not show the reason for the void, that is, whether it was due to an error, a mid- transaction customer change, a refund or an exchange, and further the void receipt was not retained following the transaction. Nor was it the practice to note the reason on the journal tape. ThIs procedure was m place untIl August 10, 1994 Void due to Morning Start-up or Computer Down-times before and after the August 18, 1994 Changes Ms Damels and Ms. Bzdyl were the only two staff who had the responsIbIlIty of openmg the store m the mornmg at 0900 hours Ms Bzdyl testIfied that she found that It took several mmutes for the computer to start up and often there was a conSIderable number of customers 21 requmng her prompt assIstance smce theIr bus was there only for a short time When It was her responsIbIlity to open up she would select an Item of merchandIse usually a tissue for cIeanmg camera lenses, and she would punch It m as a regular sale" WIth Its PLU number total It and would then have a receIpt, as If It were a regular sale She would then press the vOId and the PLU number and "It would show [her] mmus as the pnce It would come to", Ms Bzdyl would then throw the ImtIal receIpt and the vOId receipt away Ms Bzdyl testified that on other occaSIOns when the system dId not work and there were customers wattmg, she would enter the item "under the department [category]", rather than usmg the PLU number Once the system was workmg, she would go back and reboot the computer and would then vOId the sale from the department, enter the PLU number and "get zero off' Havmg done thts, she would dIscard the vOId receIpt. ThIS resulted m the computer adJustmg the mventory of product sold that day She stated that on 2 occaSIOns there was a power outage when the back-up system dId not functIOn and m those cases, they had to wnte the sales down, vOId them out, and enter the PLU number agam. Those occaSIOns were handled, one by Ms. Damels, the other b} Ms. Archambault. Void due to Error before the August 18, 1994 Changes CashIer errors occurred when mcorrect mformatIOn was keyed mto the regIster by the CashIer, SupervIsor, or Manager It could have been an error relatmg to the PLU number the amounts, the entenng of currencv mstead of a charge card, etc The error was sometImes compounded and thIS accounts for some of the very large amounts WhICh show m the VOId Summar} (AppendIx A) When the Manager or one of the SupervIsors keyed m mcorrectly she would put through a vOId ImmedIately, to correct the error, or later at her convemence If she dId so before kevmg m any other transactIOn, the VOId would have shown up on the Journal tape directly followmg the error If she dId It later It would have normally shown up later on that cash day s Journal tape however not necessanly on that day, smce vOIds mIght not have been completed tIll the 22 followmg day although that would still be on the same cash day It was the usual process to vOId mIstakes on the regIster on whIch the error was made However Ms Bzdyl testIfied that once m a while, "If RegIster 1 was busy and [she] dId not want to lose the receIpt, she would do It m RegIster 2, but If the regIster was clear [she] would do It m RegIster 1 " When a CashIer keyed m mcorrect mformatIOn, it was necessary to call the Manager or one of the Supervisors, smce he or she dId not have the authonty to complete or sIgn a VOId transactIOn, or to mltlal the vOId on the Journal tape If done ImmedIately, the vOId would show up next m sequence to the error on the Journal tape If done later, Its locatIOn m the sequence, as cIted above, would bear no sequential relatIOnshIp to the onginal error, although It would m most cases be on the same cash day Ms. Bzdyl testIfied that if she made a mIstake, smce she needed to "take tlme WIth [hers]", she would attach the error receIpt to the sIde of the regIster and when the OpportunIty arose, she would vOId It. It was not the practice of the Manager, the Supervisors or the Cashiers to record the reason for the void, nor was it a requirement. Void due to Mid-transaction Customer Change prior to August 18, 1994 A customer could have begun by usmg one method of payment and deCIded after the CashIer had begun keymg m the transactIOn, that he or she wIshed to change the method of payment. For mstance, a customer mIght have begun paymg by cash and then dIscovered that to do so would leave hIm or her short, and so decIded to pay by credIt or debIt card. A customer could also have begun paymg m CanadIan currency and dIscovered that he or she dId not have suffiCIent CanadIan funds and deCIded, after the CashIer had begun keymg m the transactIOn, to tender Amencan funds. In such cases, the person carrymg out the sale had to fimsh the mItIal transactIOn, take the receIpt from the aborted transactIOn and do one of two thmgs. If she was a Manager or SupervIsor she could have keyed m the vOId whIle the customer WaIted, or she could have completed the new transactIOn and set aSIde the receIpt of the aborted transactIOn to enter the vOId at a more convement time Ifhe or she was a CashIer wIthout authont'Y to approve vOIds he or she would have had to call the Manager or a SupervIsor to complete the VOId whIle 23 the customer waited or could have completed the new transactlon and set aSIde the receIpt of the aborted transactIOn and asked the Manager or SupervIsor to enter the VOId at a more convement tIme Void due to Return for Exchange with or without a Refund before the August 18,1994 Change The polIcy ofthe CommIssIon allowed customers to exchange Items. No tIme hmlt was mentIoned. Customers wlshmg to exchange one purchase for another were expected to present the appropnate receIpt, although Ms. Bzdyl testIfied that as a servIce to the customer she would, on occaSIOn, exchange an Item without a receIpt provIded that she was able to find the transactIOn on the Journal tape In the case where a customer came to the store and wIshed to exchange a preVIously purchased Item for an item which had the same PLU code, Ms. Bzdyl testIfied that she would sImply exchange one for the other and the exchange would not be keyed m to eIther of the regIsters. Smce customers were also allowed to return items purchased m the CommIsSIOn's retaIl outlets for exchange or refund at any of the other retaIl outlets operated by the CommiSSIOn, a customer could have made a purchase or several purchases at Table Rock and whIle shoppmg at Naturally Niagara, deCIde that he or she WIshed to exchange one of the Items for another m Naturally Niagara. If the customer wished to exchange a preVIOusly purchased Item for one WIth a dIfferent PLU code, then that code would need to be keyed mto one of the regIsters, because, even though the pnce may have been the same, the mventory control reqUIres the exchange to be recorded. Therefore, the CashIer would have accepted the Item the customer WIshed to exchange WIth the ongmal receIpt, and once the customer had selected hIS or her new purchase, would have keyed m the amount of the new purchase Then the SupervIsor or Manager would have keyed m as a VOId the amount of the exchanged Item WIth taxes, and a VOId receIpt would have been produced. The Manager or SupervIsor would then have ImtIalled the VOId on the Journal tape Followmg thIS, eIther the Manager or SupervIsor would, 1 f necessary, have calculated the dIfference between the ongmal sale and the ne\\ transactIon and returned that amount to the customer or collected the amount owmg The 24 ongmal receIpt and the vOId slIp would then have been dIscarded pnor to August 10 1994 and prior to August 18, 1994, no reason for the void would have been recorded. At the other stores operated by the CommIsSIOn, when an Item was returned for exchange, [although It was not clear whether thIS applIed stnctly to sItuatIOns m whIch a refund was proVIded] the SuperVIsor was reqUIred to fill out a Customer Refund SlIp and have the customer and the CashIer sIgn thIS slIp and then attach the ongmal receIpt to It. The transactIOn was then recorded on an Adjustment Sheet. ThIS procedure was m place at Table Rock where Ms. Bzdyl had preVIOusly worked and she testIfied that she was more comfortable wIth thIS system and had suggested to Ms. Daniels that it be mstItuted. Ms Delaney confirmed that on an exchange at Table Rock the ongmal receIpt and the refund receIpt were put together and attached to the Adjustment Sheet. She emphasIzed that the CashIer "cannot throw anythmg away" Such a procedure was not m place, however, at Naturally Niagara pnor to mId-August 1994 The system used there reqUIred no customer refund slIp, no customer SIgnature, no cashIer SIgnature, no retention of the origmal receipt, no retentIOn of the VOId receIpt and no recording of the reason for the void. Accordmg to Ms. DanIels, It was not necessary because of the computenzed system used by Naturally Niagara. She testIfied that Naturally Niagara operated on "the honour system" Void due to Return for Refund before the August 18, 1994 Change If a customer determmed that he or she wIshed to return an Item purchased at Naturally Niagara or many ofthe CommISSIOn's stores, and receIve the money back, that person would present hIm or herself at one of the stores, m thIS case Naturally NIagara, and would present the Item to the CashIer wIth the ongmal receIpt, and ask for a refund. The Manager or SupervIsor would nng m the return for refund as a vOId and the regIster would produce a vOId slIp whIch would be mItIalled on the Journal tape by the Manager or the SuperVIsor There was no eVIdence as to whether credIt and debIt card returns were credIted to the customer bv gIvmg cash or a credIt 25 slip Ms Delaney testified that at Table Rock, if a customer returned an Item, as the CashIer she was reqUired to fill out a Customer Refund Slip and staple It to the ongmal receIpt. As part of tlus routme, as CashIer, she was reqUired to have the customer s signature, the SuperVIsor's sIgnature and her own sIgnature V oid Summary A V Old Summary by regIster based on the "l" readmgs taken dally on each cash regIster was prepared by Rebecca Murdock, Counsel for the Umon, dunng the penod of the heanng. It takes m the period from Apnll, 1994 to August 21, 1994, WIth the exception of August 15, 1994 It does not differentIate between errors, mId-transactIOn changes, or returns for exchange and/or refund. ThIS summary was not challenged by the Employer and It IS accepted by the Panel as accurate. The summary IS found m AppendIX A. A bnef analysIs shows the followmg. . 137 cash days were recorded. . The summary was by cash day and regIster, not by ShIft. . No vOIds are recorded on 6 days on RegIster 1, and on 15 days, RegIster 2 showed no vOIds. . The dally number of VOIds on RegIster 1 ranged from 0 to 36 and on RegIster 2 from 0 to 78 . Dally vOId totals on RegIster 1 ranged from $0 00 to $ 2,180 06539 and on RegIster 2 from $0 00 to $2, 089,092 61 There were no daily VOId totals between $2,372.31 and $106,370 48 on RegIster 1 and none between $646 13 and $102,944 69 on RegIster 2. . It IS reasonable to assume that dally VOId totals over $ 3 000 were cashIer errors or problems WIth the computer There were 4 of these on RegIster 1 and 11 on RegIster 2 26 Changes Instituted to the Void Procedures between August 10, ]994 and August 18, 1994, and the Reasons for Them Mr Adams testIfied that the opportumty to steal both cash and merchandIse eXIsted wIthIn the retaIl operatIOns and could happen In one of the follOWIng ways . One could steal merchandIse . One could steal cash from the cash regIster or the safe . One could steal through an mcorrect vOIdmg procedure. A merchandIse shortage would become eVIdent because the mventory would be "all out of skew" A cash shortage would be reported through the Cash Office A theft through the VOId procedure, however, would not be notlced at that time but would show up only m the general shrInkage figures of the store The voiding procedure IS not, he explamed, withm the responSIbIlity of CashIers, but IS solely the responSIbility of the SupervIsors and Managers It IS they who correct cashIer errors and give refunds to customers. If someone were mIshandlmg VOIds, there would be, accordmg to Mr Adams, a bUIld up of cash whIch would show as an overage There was no further evidence on thIS final pomt. Ms. Damels explamed that she conSIdered "bemg SUSpICIOUS", as part of her Job as Manager of Naturally NIagara and testIfied to the accumulated CIrcumstances whIch aroused her SuspICIOns. She explamed that m 1993, the opemng year, there were SIX VOIds for return or exchange for the entIre season WhIch mcluded November and December She dId not prOVIde supportmg documentatIOn for thIS and she was not the Manager at that tlme She gave eVIdence that m 1994 there were 1 or 2 returns weekly dunng the first weeks and that thIS number began to mcrease at the end of June and the first part of July to the pomt where there were 2 or 3 returns each week. Ms. Damels also gave eVIdence that sales for the entIre year at Naturally NIagara Increased from 1993 to 1994 by $50 000 27 The specific tnggers for her SuspICIOns m late July/early August 1994 were cash shortages and certam VOId transactIOns and she focussed on Ms Bzd} I as the staff person lIkeh to be responsIble for what she perceIved InItIally as financIal dIscrepancIes As a result of these SuspicIOns, Ms. DanIels "began to track and document" and spoke WIth Peter Adams several tImes begmnIng m the first week of August 1994, about her concerns, her SUspIcIons, and the object of her SuspIcIOns. She came to the conclusIOn early on that there was a "pattern" to what she perceIved as VOId dIscrepancIes, and testIfied that most of the questIonable transactIons were exchanges and most were Ms Bzdyl's transactIOns, although Ms. DanIels recognIzed that there was the odd return for the other employees. She noted, although she dId not proVIde complete documentary eVIdence for this, that the transactIOns WhICh concerned her were all cash sales, all m CanadIan funds and all for around $20 00 Nor was eVIdence produced to show the proportIOn of inventory Items priced m this range or the number of sales m that range She testIfied that there "may have been a few mstances of US cash returns whIch could have been plausible so [she] dId not document them" She thought the transactIOns were 95% CanadIan funds and acknowledged that she, herself, may have been mvolved in one or two credIt card returns. She also explamed that the normal procedure on a return both before and after the mId- August changes IS that one does a sale, then a VOId and then a sale. It was her observation when lookmg at the Journal tapes that, for example, a sale made on a Wednesday nIght would be VOIded out Thursday mornmg, and so the order of the transactIOns was sale, sale, VOId. ThIS dId not make sense to her because, she explamed, on an exchange, customers want to see the credIt before "they owe you more money" Ms. Damels dId not address the SItuatIOns wherem customers would exchange an Item for an identIcally pnced Item, nor does she appear to have conSIdered the SItuatIOn wherem the customer exchanges an Item for one of lesser value and therefore receIves money along WIth the new Item. Mr Adams testIfied that "he looked at the tapes closely" and "looked at the Journal tapes" and "felt reason was there" One of the results of Ms DanIels' SuspICIOns bemg conveyed to Mr Adams, was that he suggested certam changes to the procedure for dealmg WIth VOIds receIpts from customers or cashIer errors would be kept along WIth the corrected receIpt on file b'\ the week or month for 28 [Ms DanIels] reference" He also mstructed her to "follow-up on the number of vOids and what was happenmg" The mItIal change was mstItuted on Wednesday, August 10th, a day when Ms. Bzdyl was workmg but Ms Archambault and Ms Poole were off. Ms. DanIels asked all supervisors to keep the original receipt and the void receipt and that they be kept and initialled by a supervisor and a cashier Accordmg to Ms. Bzdyl, the receIpts were to be kept m the tll1. She also gave eVIdence that there was no time hmit placed on when the vOids should be done and that Supervisors were free to process the vOids at their convemence m order to respect the service needs of the customers. Ms. Bzdyl often did hers at a lull during the day or at the end ofthe cash day before closmg the registers. The result of this IS that there were often one or more sales between the ongmal transaction and the vOid relatlhg to it. Ms. DanIels began to use the Customer Refund Slips herself on Sunday, August 14, 1994, and they were introduced as mandatory for the first time, with the customer's signature and the supervisor's signature along with a copy of the original receipt and refund slip on Thursday, August 18th when both Ms. Bzdyl and Ms. Archambault as well as Ms Provenzano and Ms. Poole were workmg, and Ms. Chan and Mr Broerse were off. Ms DanIels descnbed it as the use of "Customer Refund Slips requmng the customer's sIgnature" She explamed that on that date, both Ms. Archambault and Ms. BzdyI were there at the time she announced the change She showed the Customer Refund Slips and put pads of the "pink refund slips" on each cash register The slips are numbered and are set out as the followmg example submItted m eVidence 29 No 7660 THE NIAGARA PARKS COMMISSION CUSTOMER REFUND LocatlOn VaturallJ Niagara Reg No 1 Date Aug 14 4 9 A I Amethyst Charm rtIC e Customer changed mind Sale $ 229 Tax 17 Total 246 Exchange Total ELEASEBlG:N Customer Signed by customer Clerk SupervIsor Signed by Lisa Daniels RECORD ON REGISTER ADJUSTMENT SHEET Accordmg to Ms. DanIels, only the sIgnature of the customer and the SupervIsor were reqmred. The CashIer's [Clerk s] sIgnature was not necessary She dId not explam why Ms. Damels testIfied that she explamed to Ms Archambault and Ms. Bzdyl that if it is a customer return then y press the return button & fill out a customer refund slip w/customer signature & original receipt & supervisors [sic) initials. and anytime merchandise and money exchange hands over the counter a refund slip with a customer signature should be used. She testIfied that when she explamed thIS to the two SuperVIsors, Ms. Bzd\ 1 Said "that s the way It was at Table Rock and, In Ms Damel s OpInlOn, she was "well aware of the pohcy" The restnctlOn of "only SuperVIsors domg vOIds dId not change", Ms. Damels testIfied, and emphaSIzed the three necessary elements of the process 30 (1) Refund slip (2) Original receipt (3) V oid of the return. Accordmg to Ms. Damels, the changes were "commumcated to staff on August 1 Oth and 18th However, It was Ms. Bzdyl's testImony, and clear from testImony of Ms. DanIels that she dId not mform the CashIers of the changes but rather lImIted her dIsclosure of these changes to the SuperVIsors, that IS, to Ms. Archambault and Ms. Bzdyl. What Ms. Damels explamed to Ms Bzdyl and Ms. Archambault was the procedure to be followed when a customer returns prevIOusly purchased merchandIse She stated that the changes were necessitated because there were a lot of overages or shortages on the floor because Supervisors were voiding the wrong way She mdIcated that the changes, WhICh provIded her wIth both the ongmal and the vOId receIpt would assIst her m checkmg the adjustments. Accordmg to Ms Bzdyl she "agreed 100%" and told Ms DanIels that she hoped that wIth the retentIOn of these it would be possible for her, Ms Damels, to explam what she, Ms. Bzdyl, had done wrong There was no eVIdence that any wntten notIce of the changes was produced. Ms. Bzdyl believed that the failure to inform the Cashiers meant that none of the Cashiers knew the system and therefore, if a customer changed his or her mind, then the Cashier would leave a receipt to be voided, without the Supervisor knowing whether the merchandise was returned and that this could result in a mistake. [There was no requirement for a reason to be written on either the original or the void receipt, or on the journal tape, and if a customer changed his/her mind before paying, money would not have changed hands and therefore the transaction would not fit into the parameters set out by Ms. Daniels.) 31 CASH SHORTAGES WhIle the Employer has stated It IS not relYIng on cash shortages as a ground for dIsmIssal, It was a cash shortage of$74.20 on July 30th, that was the first financIal factor whIch resulted ultImately In Ms Bzdyl's dIsmIssal It was referred to In the letter of dIsmIssal as "a large cash shortage" and the ratIOnale for the close mOnItonng of the cash system at Naturally NIagara. Mr Adams dId not dIsagree WIth the UnIon s statement that "a large amount of cash ($4215 00) went mISSIng from Table Rock In March, 1994 Both Ms DanIels and Mr Adams' statements WhICh were filed as exhIbIts refer to 3 cash shortages In her statement, Ms. DanIels stated that there was "no hIstory of cash shortages" at Naturally Niagara, although no further eVidence was produced to venfy this. Nor was any documentary evidence produced to verify the cash shortages which were part of the suspicions surrounding Ms. Bzdyl. Ms Daniels acknowledged that she does not document cash shortages under $3 00 She also testified that she did "not quote the 3 days of shortages because of the Grievor", that she "just documented them" but "was not accusing the Grievor" Ms. Daniels testified that she documented speCific Items because of the dates and amounts and "how they fitted In With the VOIds" When It was put to her In cross-examinatIon that It was possible that the other supervisor might have taken the money, she acknowledged that, If that person were workIng, It was a pOSSibilIty When It was put to her that "anyone working those days IS a possible suspect for talGng the money" she replIed that she "certaInly did not take It" The follOWIng shortages were noted by Mr Adams In hIS statement: Jul) 30, 1994 RegIster * $74 20 August 7, 1994 RegIster * $ 20 63 August 10, 1994 RegIster * $ 30.22 *RegIster not noted The follOWIng shortages were noted In Ms DanIels'statement Jul) 30 1994 Register 1 $74 20 August 7 1994 RegIster * $2000 August 10 1994 RegIster * $30 00 US *RegIster not noted '"I') -'~ Accordmg to the schedule the followmg persons were workmg on Saturday, July 30, 1993, Ms Damels, Ms Bzdyl, Ms Archambault, Ms. Provenzano, Ms. Poole and Mr Broerse, Sunday, August 7, 1993 Ms Damels, Ms Bzdyl, Ms Provenzano, Ms Poole, Mr Broerse, Wednesday, August 10, 1996 Ms. Damels, Ms. Bzdyl, Ms. Chan, Ms. Provenzano, Mr Broerse. Ms. Bzdyl testIfied that she was not aware of how soon, as a matter of practIce, the Cash Office counted the momes whIch were delIvered to them but testified that If there was a large shortage they would receIve a telephone call a couple of days later, and normally they would receIve a statement m about two days. Accordmg to Ms. DanIels, Ms. Bzdyl and Ms. Archambault dIscovered the shortage of$74.20 when they earned out an audIt of RegIster 1 Ms. DanIels noted that she was mformed of the July 30th shortage by the Cash Office and she ten asked for the Journal tapes. Ms. Bzdyl was not mformed that she was bemg suspected as the cause of thIS shortage Ms. Damels noted that she was mformed of the July 30th shortage by the Cash Office and she then asked for the Journal tapes The shortage on August 7th was not assIgned in the eVIdence to one partIcular cash regIster Ms. Bzdvl claims she was not mformed of thIS shortage Ms. Damels connected the alleged shortage on August 10, 1994, WIth Ms. Bzdyl because of the followmg conduct whIch she reported as follows m her statement. J had afeeling something wa [Italics were struck] I waited a fe\\ minutes & followed her into the office She jumped when I came in She was huddled practically inside the safe with the brown bag open. Her hands were inside, (where the green bags were) I stood behind the desk but my view was obscured by the safe door I heard her put the elastic bands back on the money & repack the brown back [sic] and zip it up That day we were short $30 US ThIS shortage was not brought to the attentIOn ofMs Bzdyl at the tIme at the tIme It was dISCO\ ered. 33 INVENTORIES Through the numencal codmg programme m the computer cash regIsters, the retaIl operatiOns keep a reasonably current mventory Accordmg to Ms. Damels, the files are cleared at the DistnbutiOn Centre every Sunday and Thursday She also testIfied that the DIstnbutiOn Centre closed on Fndays at 1630 hours and remamed so untIl Monday mornmg. A centrally-generated computer pnntout of the mventory of Naturally Niagara is made avaIlable to the Manager each Thursday However, Ms. Damels explamed, there IS not an accurate daily pnntout of mventory on thIS system. Mr Adams testIfied that the weekly prmtout was "an approxImatiOn for sales performance and was not necessarily accurate" It does not, he stated, serve an accountmg function, and does not even match up at the annual mventory in October A year-end phYSIcal mventory of the entIre stock IS taken at Naturally Niagara by the Manager and Staff, and verified by Staff from the audIt and account sectiOns of the Fmance Department. ThIS occurs at the end of the Niagara Parks Commission's fiscal year which IS, accordmg to Ms. DanIels, October 30th. The mventory of Naturally Niagara, she explamed, would have balanced on October 30, 1993 [Ms. Daniels must have meant that the mventory was balanced at the end of the fiscal year, smce the shortages would prevent a balanced mventory unless the shortages were wntten off] Ms. DanIels testIfied that she did not receive a final prmtout of the 1993 mventory, nor had she seen the results, and was not therefore aware of shortages whIch mIght have shown up at that tIme NeIther was she proVIded WIth an ItemIzed dIscrepancy llst. She commented that dunng the previOUS year, there had been a Store Managers' meetmg pnor to the opemng of the stores at whIch the year-end statements were dIstnbuted and exammed. Such a meetmg dId not take place m 1994 It was her first year as Manager, and the previOUS Manager dId not proVIde her WIth the preVIOUS year s ItemIzed llst. It was Ms. DanIels' opmiOn that the dIscrepancy for 1992-93 must not have been of the magmtude for It to have been brought to her attentiOn and she was sure that she would have been told If there had been somethmg unexpected. She acknowledged that It was pOSSIble for "tapes to have gone mIssmg dunng the seven-month penod between the annual audIt and the Apnl 1 1994 openmg. 34 In August, 1994 Ms Damels arranged for four physIcal Inventones whIch Mr Adams agreed were "sorely lackIng" . A book inventory In whIch she was lookIng at Item # 40068100 - GARDENING and Item # 40068000-GRDN DESIGN . A dog team inventory, In whIch she was lookIng at Item # 10714500-DOG TEAM . A CD inventory, In WhICh she was lookIng at Item # 1 0367400-CD.F A VORIT . A CD/cassette inventory, In whIch she was lookIng at Item # 10367400- CD FA VORIT and Item # 10365030 - dISC appala. The Book Inventory ThIs Inventory was carned out on Wednesday, August 3, 1994, by Ms. Archambault. She undertook an inventory of all books In the store. On Thursday, August 4, 1994, Ms. DanIels earned out an Inventory of 4 to 6 titles, a separate group of books. In cross-examInation she testIfied that there were SIX tItles and that she had receIved 4 or 6 of each tItle. Ms. DanIels testIfied that when the physIcal Inventory carned out on August 3rd, and the computer prIntout receIved on August 4th, were compared, the only book dIscrepancIes were found In Items # 400681 OO-GARDENING and # 4006800-GRDN DESIGN These tItles, which were new In May, 1994, accordIng to Ms. DanIels, were short one each. Ms. DanIels testIfied, however, that follOWIng the findIng that these were the only two book shortages In the entIre lIstIng ofthlrty books, she "thought the Grievor cancelled the sale and took the money" and she reported this to Peter Adams The computer pnntout was not offered In eVIdence, nor was the phYSIcal Inventorv Ms Damels testIfied that she threw out the phYSIcal Inventory as It was "not proof, but stIll SuspICIOn" The Dog Team Inventory The Inventorv on thIS Item was carned out on Thursdav, August 4th, bv Ms Damels AccordIng to Ms Damels, there should have been 1 and there was none There had ongInally been 2 she explaIned, and Ms Archambault recalled sellIng one. The computer pnntout and phYSIcal 35 inventory were not submItted in eVIdence Ms Damels testIfied that she threw out the physIcal inventory The CD Inventory Ms. Damels testIfied that she undertook an inventory on Tuesday August 16th, "to venfy [theIr] SuspIcIOns" She later descnbed It as an unvenfied "spot check", she thought, of all the CDS, although she stated that she dId not compute all CDS" She dId not retain her notes of thIS exerCIse On the basIs of thIS, she telephoned the DIstributIOn Centre to get the status on the CDS She counted the CDS and went through the August 15th tape, only recordmg the one in questIOn. She testIfied that she dId not know If others were off Since, haVing concluded they dId not "fit a pattern" that IS, they dId not have a partIcular sequence, a partIcular dollar value, and were not in CanadIan currency, she dId not check them. In her VIew, they were not questIOnable The CD/Cassette Inventory Two Items were of concern on August 19th, Item # 10367400- CD FA VORIT and Item # 10365030- dISC appala. By the tIme thIS mventory was carried out on Thursday, August 25th at 0900 hours, the day the most recent inventory pnntout was avaIlable from the DIstributing Centre, It was 6 days after the occurrence of the mystery-shopper transactIOn on August 19th. Ms Damels carried out the inventory and it was verified by Derek. Broerse Although the computer pnntout was not submItted in eVIdence, the phYSICal inventory was, and it showed a shortage of 2 CD FA VORITs on August 25th and an overage of 1 dISC appala, on that same date On August 25th, there should have been 11 CD FA VORITs whereas there were 9, and on that date there should have been 9 dISC appalas, whereas there were 10 Ms Damels looked at a total of 36 Items - 19 cassettes and 17 CDS She counted the number of each Item in the store at that tIme and compared It to the number lIsted on the inventory pnntout. that IS, the number whIch the system sald should be in the store There were shortages in 23 of the 36 Items, overages lI1 4 and the correct number accordlI1g to the pnntout 111 9 Items There was a shortage of 30 cassettes and an overage of 8 a shortage of 22 CDS and an overage of 3 36 CDS In her summIng up of the Inventory, Ms Damels subtracted the number of overages from the number of shortages to demonstrate the total monetary value of the mventory loss, showmg a shortage of 23 cassettes and 21 CDS ThIS calculatIOn does not reduce the total number of shortages from 52 (23+30) Nor does It reduce the number of Inaccurate Items from 27 maccurate Items out of 36 Ms. Damels was asked to explam what accounts for that number of mISSIng Items. She offered four possIble explanatIOns, although she acknowledged she had no way of knowmg what had happened m the IndIVIdual cases of shortage Theft She explamed that anyone mIght take the Items but that she dId not belIeve that "[her] staff' would do so She stated that the store expenenced losses most frequently In the "small, pocketable Items, for example, CDS are taken the most" [EmphaSIS added] Cashier Error A CashIer might ring something In when it should not be rung m, but that proper vOldmg by the SupervIsor should cancel out the error Distribution Centre Error Naturally Niagara was on a separate system and when she ordered stock, she receIved an mVOlce WhICh was pnnted by their computer However, It was necessary that the DIstributIOn Centre staff make a file and download It mto the Naturally NIagara system. That had to be done manually at the tIme. Inventory Taker's Error Ms. DanIels stated that she dId not belIeve that mIstakes made by her and Mr Broerse could account for the shortages on the mventory but that human error could occur on any level She acknowledged that the fact the Items were mIssmg accordmg to the Inventory on August 19th does not tell her anythmg She dId not, however, thmk that the mventory could be all wrong, or all dIscrepancIes the result of mIstakes One can tell, she stated, that there are shortages and dIscrepancIes and acknowledged that, gIven the dIscrepancy In 27 out of 36 Items, that the Gnevor would have 3 out of 4 chances ofbemg wrong Ms Damels stated that she had never tned or been asked to go back through the mventory and other paperwork to ehmmate any of the above possIbIhtIes She explamed that "whatever IS short IS gone and her response to the shortage of approxImately seven hundred and fifty dollars of mventorv was to mstruct the Staff about proper secunty" She testIfied that the shortage had not been dIscussed WIth her m the tIme penod between August 25 1994 and the ImtIal heanng 37 day In February, 1995 Mr Adams testIfied In the context of the Inventones, that he dId not kno\\ Ms Damels "checked [the Inventory of August 25th] wIth the vOIds" nor dId he kno\\ how thIS Inventory found Its way Into Ms. Bzdyl's personnel file Ms. Delaney testIfied that, for her part, she was aware that theft was a problem In the retad outlets at the Niagara Parks CommIssIon and she accepted that Management recogmzed there was a problem wIth theft In ItS retail operatIOns. She testIfied that In one week, she had caught three IndIVIduals stealIng at one of the retail operatIOns where she was workIng. It was her ImpreSSIOn that the CommIssIOn "dId not really have a good secunty system" and that "no one seemed to deal WIth it" She acknowledged that there are both practIcal and legal problems assocIated WIth apprehendIng IndIVIduals whom one beheves may have been stealing AUDIT AND MYSTERY SHOPPER On August 9th, Mr Adams asked John Wallace of the Finance Department to carry out a surpnse audit at Naturally Niagara on August 11 th, a day when Ms. Bzdyl was scheduled to work. It took place In the mormng when Ms. Bzdyl was the only store supervisory staff person present. Mr Adams was also In attendance RegIster 1 was audIted by Mr Wallace and balanced WIthIn 6 cents. On Monday, August 15, 1994, Peter Adams asked John Wallace ofthe AccountIng Department to send a Mystery Shopper to Naturally NIagara on Fnday, August 19, 1994, to "check on Stephame s cash regIster handlIng" Mr Adams asked Mr Wallace to direct the "mystery shopper to purchase a CD in Canadian Funds. This way [they] could test if Stephanie may be tempted to void this sale The person selected was a long-term female employee of the AccountIng Department and a member of the BargaInIng Umt, Laune Bnsson. Though she had not receIved traInIng for her mystery-shopper work, thIS was her fourth "undercover" aSSIgnment. She testified that she dId not kno\\ what happened as a result of her work, but acknowledged that there mIght have been a pre\'lous dIsmIssal as a result. 38 Ms Bnsson was gIven this assIgnment on the mormng of August 19th, and was asked to accompany Mr Wallace to Naturally NIagara. She had never been to the store before, nor dId she know any of the staff. She testIfied that she was gIven $30 00 Canadian, m cash, and was asked to purchase a CD from "an employee called Stephame" Mr Wallace told her that "they had certam SuspIcIOns" concermng "a gIrl named Stephame" and Ms. Bnsson assumed that smce she was asked to make a purchase of a CD, that the Employer suspected eIther fraud or theft WIth respect to CDs. He dId not, accordmg to her, elaborate. In Ms. Bnsson's viva voce eVIdence and her report she presented the followmg detailed verSIOn of events . Ms. Brisson's assignment was "to purchase a CD from Stephame" The observatIOn of other activIty was not part of her aSSIgnment. . Ms. BrIsson was accompanied to Naturally Niagara by John Wallace WIth whom she spent approxImately 3 mmutes m the parkmg lot before entenng at about 1000 hours. . There were other people m the store at the tIme she went m, about 6 customers and 2 CashIers - 2 groups of couples lookmg and talkmg to each other and pIckmg up merchandIse There was also "much stacked all over" . F or the first 15 mmutes, Ms. Bnsson wandered around the store. . At approxImately 1015 hours, Ms. Brisson went to the "SolItude dIsplay" where she put on a headset, and "kept pressmg buttons to hear what the dIfferent tapes sounded lIke" . Durmg the tIme she was "pressmg the buttons" and lIstenmg to the tapes, Ms. Bnsson had a conversatIOn about mUSIC WIth a woman who "was approxImately 50-60 years old" "casually dressed", "englIsh-speakmg", "WIthout an accent" ThIS person kept commg back WIth her husband (Ms. Bnsson assumed It was her husband) and they deCIded, after 15 mmutes or so to purchase a cassette tape entItled" Wilderness' or somethmg lIke that" . She dId not see Ms. Bzdyl "for the first 5 mmutes" as "she was not there" She IdentIfied Ms. Bzdyl at the heanng as "Stephame" Ms. Bnsson testIfied that thIS woman made her purchase from 'Stephame whom she had IdentIfied m the store by her name tag. She testIfied that she saw Ms. Bzdyl for the first tlme when she was completmg the sale of the cassette to the casually-dressed, Enghsh- speakmg lady 39 . Ms. Brisson testified that she saw the English-speaking lady hand over the money to Ms. Bzdyl, and testified that she knew "Stephanie cashed out those people" and was sure of this because she "waited for them to leave the register to make her purchase." She testified that she did not know the denomination of the money given to Ms. Bzdyl by this customer, but stated that she also saw Ms. Bzdyl give her change. . Ms. Brisson testified that she spoke with Ms. Arndt, she thought, more than a week after the incident. Ms. Arndt testified that she spoke with Ms. Brisson, who, in reply to one of her questions, stated that "she didn't know if Stephanie was the cashier who cashed out the lady" and that "she could have misunderstood" Ms. Bnsson also stated that she sa\\- the cassette bemg put into an opaque whIte bag, although she could not recall If there was anythmg on It as she "dIdn't study it" This was the same type of bag m whIch she receIved her purchase. Ms. Bzdyl testlfied that the CD was shown to her on August 22nd by Mr Adams and at that tlme, he "pulled out the dIsk from the brown bag" The CD purchased by Ms. Brisson was presented as eVIdence m a kraft bag with a dark-green deSIgn and It was not confirmed whether or not thIS was the ongmal bag used at the tlme of purchase . Accordmg to Ms. Bnsson, following this purchase, the woman and her husband, or "sIgmficant other", "went out m that dIrectIOn" and "left the store", although she noted m her statement that she "dId not see them leave the store because [her] back was turned" She noted that she dId not see them agam, mSIde or outSIde the store, although she testlfied that she was not lookmg for them. She acknowledged that she dId not actually see the couple open the door and leave but assumed that they dId so and believed, m hindsight, that they could not have remamed m the store . Ms Bzdyl then "passed by Ms Brisson" and Ms. Bnsson took the opportumty to speak WIth her Accordmg to Ms. Bnsson's statement, Stephanie then walked by coming from the cash counter and [she] asked her some questions about the "Niagara" cassette tape (if it was available in cd) and [they] discussed which was the best cd to purchase. She recommended one to [her] and [she] purchased it. . Ms Bnsson belIeved that "between the tIme the lady bought the cassette [hers] was the next transactIon to be rung up " . Ms. Bnsson testlfied that she gave $30 00 to Ms. Bzdyl and receIved change of $963 The CD was then put mto the same kmd of whIte opaque bag as Ms 40 Bnsson had seen the cassette put Into a few mInutes earlIer The purchase was recorded at 1021 hours accordIng to the computer whIch was, accordIng to Ms Damels, 7 mInutes slow At the tIme of her purchase accordIng to Ms Bnsson, there was no other CashIer at the other regIster She was not certam whether or not Ms Bzdylleft the floor folloWIng her completIOn of the sale . When she completed her purchase, Ms. Bnsson left the store It was, accordIng to her watch, 1029 hours. Ms. Bnsson calculated her total In-store tIme as 29 mInutes. She dId not scan the store or walk over In the dIrectIOn of the "other part of the store" follOWIng her purchase and could not say how many persons were In the store at the tIme she left. . Ms. Bnsson then returned to the AccountIng Department, gave the CD she had purchased and the change to Mr Wallace and reported that "everythIng was fine, [Ms. Bzdyl] gave the proper change and a receIpt" , and Ms. Bnsson dId "not notIce anythIng she should not have been dOIng" She dId not, at that tIme, mentIon the woman who had purchased the cassette . Ms. Bnsson went home from work and that evemng, commItted to paper, the substance of her assIgnment. . On Monday, August 22nd, Mr Wallace asked her if anyone else was In the store makIng purchases and inqUIred as to what had been gOIng on around her In the store, and If she had seen anyone else making a purchase She told him about the casually-dressed English-speaking woman and her husband and he asked if they had come back into the store. As she had not yet typed her wntten verSIOn of the assIgnment, he asked her to put down any detaIls surroundIng the purchase made by the other customer as well as detaIls of her purchase and when she made It. She dId so and wrote 1 spent the next 15 minutes at the display for the Solitude music 1 listened to demos of several tapes and spoke for a while with a tourist about the music. This woman was approximately 50-60 years old and was english speaking. 1 kept pressing buttons to hear what the different tapes sounded like. The lady and her husband kept coming back to listen to the music and had decided to purchase a cassette tape (I think it was titled "Wilderness" or somethmg like that.) The husband seemed to be "hovering which led me to believe he was ready to leave, and they made their purchase I did not see them leave the store because my back was turned, but 1 didn't see them again . On that day, Mr Wallace also enqUIred whether or not there was a famIly makmg a lot of nOise to whIch Ms. Bnsson replIed that there was not. He also enqUIred as to whether or not there was a Spamsh lady leaVIng. She dId not offer a reply In her testImOn) as to her response to thIS questIon. 41 . Ms Bnsson testIfied that Mr Wallace asked her to remember what she dId. She testIfied that she spoke onlv to Mr Wallace about her assIgnment and dId not speak to Mr Adams. Mr Adams testIfied that he recalled talkll1g to her about her assIgnment, and although he could not recall the specIfic day he belIeves that he spoke to her from Naturally NIagara. Ms Bzdyl descnbed her work day on August 19th, up to approxImately 1030 hours as follows . She arnved around 0830 hours and opened up the computer by dOll1g a VOId and then opened the cash. She had planned to do a dIsplay of T -ShIrtS that day Ms Chan arnved at 0900 hours and the two of them opened up the store . When Ms. Provenzano arrIved around 1000 hours, she dIrected her to work WIth her on the dIsplay and Ms. Chan to remall1 on cash. . Before startmg their work on the dIsplay, she arranged for Ms. Provenzano to replace Ms. Chan dunng her mommg break (a ten-mmute break) Just before the begmmng of the break, the Manager from the Ice-Cream Store came m and asked for some "clerIcal papers" WhICh had to be filled out. As Ms. Bzdyl was m the office WIth thIS mdlvldual for several mmutes, Ms. Chan's break dId not start untIl 1010 hours, Just after Ms. Bzdyl came out of the office . When she came out of the office \vlth thIS person, Ms Bzdyl testIfied, there were 2 groups of 2 ladles at the dIsk/cassette hstenmg dIsplay One of them, accordmg to Ms. Bzdyl, asked her for a speCIfic dIsk WhICh was not m stock and Ms. Bzd} I then suggested a substItute whIch the customer "asked [her] for" . At approxImately 1015 hours, she left the ladies and went to the stock room to pIck up the T-shIrtS to arrange the dIsplay When she was retummg from the stock room to the floor to do the dIsplay at the pomt at whIch she was stIll behmd the counter, Ms. Provenzano was stIll takmg Ms. Chan's place, and Ms. Bzdyl notIced that "she had foreIgners, paYll1g WIth Amencan currency [and] had a hard tIme to explall1 currency e~change to these people" Ms. Bzdyl testIfied that she dId not get mvolved m thIS transactIOn, but as "Joanne stIll had a hard tIme WIth people, so as a courtesy and accordmg to polIcy, [she] went on RegIster 1 to help these two ladles" who were comll1g towards the regIster In cross- eXamll1atIOn, she agreed that Ms Bnsson, the "Mystery Shopper" had been speakll1g WIth one of them, an "EnglIsh-speakll1g lady . Ms Bzdyl testIfied that the first lady gave her a cassette tape WIth a bud on It that she put m the 8 numbers (PL U number) and the total came to $13 95 Dunng 42 this transactiOn, she heard the two ladies, as best she could recall, discussmg the difference between a diSk and a tape and that one of them remarked that the disk is better and lasts longer Ms. Bzdyl mentiOned the pnce a second time As the conversation between the two ladies continued, the first lady pulled out $20 00 from her wallet and held it in her hand. While she was doing this, Ms. Bzdyl went and picked up a bag to put the tape in from a location on the "left side by a drawer near the register" Just as she picked up the bag, and put the tape into it, someone called the lady from the front door and said "the bus is leaving" and the lady who was making the purchase "just turned around and ran out" According to her evidence, the lady never did hand her the $20.00 but left with it. For her part, she was left with the cassette tape in her hand and never did hand it over to the customer . Ms. Bzdyl testIfied that she then cleared the sale by pressmg "the cash button" and left the cassette tape on the SIde of the regIster She did not remove the cash regIster receipt whIch was generated by thIs transactIOn at thIs tIme . Ms. Bzdyl then explamed that after the regIster cleared, she took the next sale whIch was a compact dISk. The customer was a woman. She rang m the PLU number and the total was $20.37 ($18 95 + tax) The woman tendered $30 00 and Ms. Bzdyl testIfied that she asked her If she had 37 cents. The woman looked unsuccessfully whIle Ms. Bzdyl pIcked up a bag and placed the CD inside She then gave the woman change of $9 63 She npped the receIpts from the regIster and separated them. She dId not VOId the $13 95 She then, gave the customer who had purchased the CD the $20.37 receIpt and the woman left the counter Ms. Bzdyl was not certam whether or not she left the store She testIfied that she then VOided the cassette tape transactIOn and imtlalled the ongmal receipt tape (transactIOn # 7918, timed at 1017 computer tIme) and the VOId tape (transactiOn # 7920, tImed at 1024 computer tIme) Followmg that, she taped the ongmal and the VOId receIpts together and gave them to Ms. Chan who had now fimshed her break and was standmg besIde her She went m and picked up the T-shirts and cassette tape Ms Chan went on the tIll and began to serve a customer Ms. Bzdyl thought that she had asked Ms Chan to put the 2 receipts m her register With charges to keep as a record. Ms Bzdyl then took the T-shirts and the cassette tape and replaced the tape m its display space and went to do the T- shirt display as she had ongll1ally planned . The ongll1al receipt shows that Ms. Bzdyl failed to initial this receipt (transaction # 7918, timed at 1017 computer time) The ongmal VOId receipt shows that she did initial the void receipt (transaction # 7920 timed at 1024 computer time). The ongll1al Journal tape shows that she failed to initial the journal tape void receipt ( transaction # 7920 timed at 1024 computer time) 43 . Ms Bzdyl could not recall at first whether or not she mltIalled the Journal tape but then acknowledged, havmg seen the tape, that, although It was her habIt to Initial she had made the mIstake of fallmg to do so on tll1S occasIOn. CHRONOLOGY OF EVIDENCE Although the Employer IS not relymg pnmanly on the shortages and the other mCldents whIch were contamed m the statements of Ms. DanIels and Mr Adams, they nonetheless form part of the momentum of SUspIcIon drawn from the alleged senes of cash and mventory shortages and the alleged "pattern" of fraudulent VOIds whIch accumulated and resulted m Ms. Bzdyl's dIsmIssal. It IS, the Panel belIeves, both appropnate and helpful to set out the eVIdence m detaIl and chronologIcally, that IS, day by day from July 30, 1994, the date of the first shortage to August 30, 1994, the date she receIved her notIce of dIsmIssal. The Panel IS also of the opmlOn that It IS Important for the dIffermg versIOns and perceptIOns of varIOUS actIOns and mCIdents to be detailed m order for the partles to gam an understandmg of the development of the SItuatIOn of whIch Ms. Bzdyl became the focus. OVERVIEW FROM JULY 24, 1994 TO AUGUST 30, 1994 Ms Bzdyl brought WIth her from her tIme at Table Rock, a feelmg that she had been dIscnmmated agamst by certam workers, none of whom was at Naturally NIagara. An earher performance appraIsal noted that she had a tendency to take thmgs personally She was, one could say emotIOnally sensItlve to mCIdents whIch she mIght VIew as dIscnmmatory both relatmg to herself and others TenSIOn began to grow between Ms. Bzd) I and Ms Daniels m Juh 1994 and on one occaSIOn, Ms Bzdyl took offence at a remark made by Ms Damels WhICh Ms Daniels testIfied she had not mtended as dIscnmmatorv but rather as a Joke It was a statement, however WhICh whIle It would be perceIved by most as an amusmg observatIOn, could be mterpreted by an mdIVIdual who was emotIOnally senSItIve to dIscnmmatlOn to be hurtful 44 Ms. Bzdyl also belIeved that It was embarraSSIng and Inappropnate for a supenor to admomsh a subordInate In front of customers She explaIned It was a practIce she avoIded as a SupervIsor and that when she was the subject of admomtIOn In publIc In front of customers, she found It extremely upsettIng. InCIdents began to accumulate WIthIn a short space of tIme at Naturally NIagara whIch were wornsome for both Ms Bzdyl and Ms. Damels Ms Damels became concerned about cash shortages, and she began to momtor VOIds and Inventory and belIeved that certaIn transactIOns were questIOnable She began to belIeve that Ms Bzdyl was at the root of these problems and, In consequence focussed her momtonng exclUSIvely on Ms Bzdyl She contacted her supenor, Peter Adams, and accordIng to hIm, asked hIm to dISCUSS one employee who was "dIshonest and takIng funds" Mr Adams accepted Ms Damels' concerns as valId and spoke to Mr Wallace of the AccountIng Office and Ms. Arndt from Human Resources. For her part, Ms. Bzdyl began to believe that because of the develOPIng ffIctIOn WIth Ms. DanIels, she was at nsk of losmg her Job The InCIdents whIch caused concern began, and the tenSIOn Increased, shortly after Saturday, July 30, 1994, when Ms. Damels learned of the shortage of $74.20 on RegIster 1 ThIS was the first notable shortage to whIch Ms. DanIels referred, mentIOning m her testImony that there was no hIStOry of cash shortages at Naturally Niagara. Ms. Bzdyl testified that m the summer of 1994 because of shortages In the retall operatIOns at the Niagara Parks CommIssIOn, a temporary procedure was InstItuted on orders from Mr Adams. It began at Naturally Niagara when Mr Adams spoke to Ms. Bzdyl on a day In July when Ms. DanIels was not scheduled. The cash was to be counted, and the total noted and ImtIalled by two of the Manager and the two SupervIsors. A note of the total was then to be sent to Mr Wallace In the Finance Department, and the note was to be returned and checked. FInally, the cash bags were to be sent to the Cash Office, as usual. ThIS process dId not mc1ude balanCIng the tIlls AccordIng to Ms. Bzdyl, no shortage was brought to her attentIOn dunng the July penod and the procedure was termmated at the end of that month. Ms Damels dId not allude to thIS temporary procedure In her eVIdence. It was dunng the first week of August 1994, that Ms Damels confided her SuspICIOns to Mr Adams and that he In turn, Informed Ms. Arndt that there were SuspIcIOns of theft at Naturally NIagara and that an InvestIgatIon was underway WIth the AccountIng Department. Although Ms Damels worked WIth Ms. Bzdvl for 6 days follOWIng a SUSpICIOUS" transactIOn and spot check she dId not mentIOn her concern to Ms. Bzdy I Her explanatIOn for not domg so was that "It was SuspICIOn" and because she IS very cautIOUS, she gave the benefit of the doubt before aCCUSIng someone" She explaIned that she therefore documented, venfied and carned on. However she later testIfied that had "she been workmg that day [she] would have" and then that she dId "not pursue It" because "other thIngs came to lIght then that she dId not "recall If [she] dId nor dId not questIOn her", and then that she "dId not have anythmg to lead to a conclUSIOn of theft on August 2nd. 45 EVENTS FROM JULY 30,1994 TO AUGUST 30,1994 [The register reports of each day are from the compilation prepared bv the Union Counsel which is found at Appendix A They take in the approximately 24-hour time period from the point on the previous day when the Z reading was taken, at about 1630 hours, to the pOInt in time on the day noted when the Z reading is again taken at the end of the 24-hour penod For example the information about August I st, would span the period from approximately 1630 hours on July 31 st to 1630 hours on August 1 st.] IBold typeface has been used throughout the chronology for headings, to identify the source of the evidence, and for highlighting. I SATURDAY JULY 30,1994 CASH SHORTAGE $74.20 Staff workmg, accordmg to the schedule Ms. DanIels 0830 to 1530 hours Ms. Bzdyl 1000 to 1800 hours Ms. Archambault 1200 to 2000 hours Ms. Poole 1600 to 2000 hours Ms. Provenzano 0900 to 1600 hours Register 1 VOIds 9 $ 10605 Shortage $ 74.20 Register 2 V Olds 7 $ 2083 Shortage $ 0000 According to Ms. Daniels, she and Ms. Archambault audIted RegIster # 2 Her report dId not mdlcate whether or not there was a shortage She further reported that "[she J went home leavmg Stephame and Heldl to audIt RegIster # 1 She went on to report that "ThIS was the RegIster that was short $74.20" The only eVIdence of the audIt and the shortage IS found m Ms Arndt s notes of her meetmg wlth Ms Damels NeIther Ms Archambault nor Ms Bzdvl testIfied to havmg carned out the audIt. Ms Damels told Ms. Arndt, accordmg to the SImultaneous notes of the latter, that an audIt was done on thlS day that "S counted first alone m office - Heldl venfied short 74.20 " 46 Relevant Information and Activities on July 30, 1994 . Ms. Daniels noted m her statement (It IS not clear from the eVIdence when she revIewed the Journal tape) that "there were no vOids on that regIster (RegIster 1) that there were "no sales rung m tWIce - explammg a need for a vOId" The vOId summary however, shows 9 vOIds totallmg $106 05 . Ms. Daniels noted that on thIS day "All credIt card sales balanced. The US money also balanced wIth the exchange pd out at 34% exactly and there were no cash sales m CanadIan currency over $50 00 . Ms. Daniels commented in her statement that there was an offer of concert tIckets worth approxImately $60 00, WhICh, accordmg to Ms. DanIels, Ms. Poole made to Ms Bzdyl and whIch Ms. Bzdyl accepted, offermg to repay Ms. Poole the followmg day No eVIdence was mtroduced as to whether Ms. Bzdy I receIved the tIckets, attended the concert that evenmg or whether she paid Ms Poole the followmg day or at any other tIme Ms. Daniels demed m her testImony that she was Implymg that there was a financial connectIOn between the tIcket arrangement and the shortage. She stated that its presence m her statement was there to jog her memory [The Panel finds It dIfficult to accept Ms. DanIels' explanatIOn that her recordmg of the concert tIcket mCldent was SImply "[her] way ofremembenng that", partIcularly m VIew of the fact that she mentIOned thIS to Ms Arndt dunng her mtervIew wIth her on August 23rd.] . Ms Daniels drew the conclusIOn, from the mformatIOn avaIlable to her "that the money had gone mIssmg from the drawer at some pomt dunng the day" She was certam that the shortage was not caused by "a clencal error or a cash office error" and m cross-exammatIOn she stated that she had "concluded the money had gone mIssmg from the drawer at the store level" and "that would have to mean that someone took the money" She testIfied she dId not mentIOn thIS to Ms Bzdyl There was no eVIdence mdIcatmg that she mentIOned It to other staff. . Accordmg to Ms. Bzdyl, no one from Management ever asked her to explam thIS shortage Nor dId anyone mform her that she was bemg held responsIble for thIS shortage, and she only became aware of It on December 12, 1994, when she receIved her personnel file WhICh she had requested for her Unemployment Insurance appeal It was at that tIme that she read Mr Adam s statement. (ExhibIt 19 prepared on August 24 1994) He referred therem to various refunds and shortages at the Naturally Niagara Store, which upon investigation brought mto question Stephanie s honest\> and the cash shortages were 30th July 1994 $74.20 47 SUNHAY JULY 31,1994 MS. BZDYL SUSPENDED FOR PART OF SHIFT Statl workmg accordmg to the schedule Ms. Damels 0830 to 1700 hours Ms. Bzdyl 1200 to 2000 hours Ms. Archambault 1600 to 2000 hours (Ongmally off) Ms. Poole 0900 to 1600 hours Ms. Provenzano 1300 to 2000 hours Mr Broerse 1000 to 1300 hours Register 1 VOIds. 5 $ 16.26 Shortage None noted Register 2 VOIds 15 $ 215 06 Shortage None noted Relevant Information and Activities on July 31,1994 . Ms. Daniels testIfied In cross-eXamInatIOn that on thIS day she had wanted to dISCUSS somethIng wIth Ms. Bzdyl and that Ms. Bzdyl had saId "no" She therefore decIded that she "had to send her home" She spoke with Peter Adams and he came down and told her she had to go home. Ms Bzdylleft around 1430 hours. She was paId for the tIme and from Ms. DanIels' perspectIve, "thIS IncIdent went no further" [Ms. Daniels must mean that It went no further as far as she was concerned. It dId go further for Ms. Bzdyl ] . Ms. Bzdyl described the IncIdent from her perspectIve, In somewhat more detml and provIded the folloWIng background. She perceIved thIS as an Issue of "favountIsm" A rule had been mstItuted by Ms Damels WIth respect to where wIthIn the store employees should take theIr breaks and lunch. The rule was that the Manager and SuperVIsors could eat In the office For other Staff, an eatmg locatIOn WIth desk and stool and a coffee machIne was set up m the storage/furnace room, WIth one stool outSIde At the outset, she testIfied, the rule was complIed WIth, as the only mdrvIduals who were there \\ ere the Manager and the two SuperVIsors The arnval of Ms Chan, who was pregnant at the tIme, meant there was one full-tIme, Adult CashIer In the begInnmg, Ms. Bzdyl testIfied, Ms Chan was allowed to eat WIth the Manager and SuperVIsors m the 48 office However that changed when one day m early June when Ms Damels announced that the rule excludmg all but the Manager and SuperVIsors from takmg breaks or lunch m the office would be applIed. Ms Damels, accordmg to Ms. Bzdyl, stated that It was Important that the exclusIOn rule be m effect for the duratIOn of the students' employment because of "money and papers" It was Ms. Bzdyl's perception that the Implementation of the rule followed Ms Chan's bnngmg a strong-smellmg Chmese dIsh for her lunch. She concluded thIS because she was asked If the smell bothered her; It was not clear from the eVIdence by whom she was asked. From that pomt on, when Ms. Bzdyl was supervIsmg and Ms. Damels was not there, the non-supervIsory employees ate on a bench outsIde the bUIldmg m mce weather Ms. Bzdyl became concerned when one day, Ms. Chan, went outsIde to her car to eat her lunch and m domg so became "soaked" When Ms. Bzdyl mqUIred as to why she had done so, she explamed that the smell of the cleamng matenals m the storage/furnace/lunch room made her feel sick and she had been told that she was not allowed to eat m the office. Accordmg to Ms. Bzdyl the followmg day, signs were posted m the office saymg that "thIS office IS not a lunch room" On July 31st, Ms. Bzdyl testIfied, she was havmg her first break of the day and was sIttmg m the office havmg coffee and a muffin. Ms. Provenzano went by to begm her break and Ms. Bzdyl, who was fimshmg hers, asked her If she were gomg back to school. Ms. Provenzano then sat on a chalf m the office Shortly after, Ms. Damels, who was qUIte busy, came mto the office to look up a pnce, said nothmg, and Ms. Bzdyl went onto the floor, As there was a lme up, she went on one of the tIlls. At that pomt, WIth customers present, Ms. Damels asked Ms. BzdylIf she knew the rules and Ms. Bzdyl responded that she dId. Ms. Damels then asked why she had allowed Ms. Provenzano to stay m the office dunng her break. Accordmg to Ms. Bzdyl, she saId to Ms. DanIels, that "nght now there IS a lme and 1 would lIke to dISCUSS thIS later in the office" When Ms. Damels contmued to dISCUSS the subject, Ms Bzdyl asked her to Walt. Accordmg to Ms. Bzdyl, Ms. Provenzano came onto the floor and at that pomt Ms Bzdyl went to the stock/staff room because she "dIdn't want to get upset, crymg or look rude m front of customers" Accordmg to Ms. Bzdyl, Ms. Damels ran after her and "we started It" Ms Bzdyl asked why she could not have a break WIth a CashIer, and Ms Damels made the pomt that there were rules and regulatIOns. The SItuatIOn WIth Ms. Chan was mentIOned and finalh as Ms. Bzdyl put It "1 dId blow up WIth steam" She was then told to go home bv Ms. Damels. She questIOned why perceIvmg that she had done nothmg wrong" It was her understandmg that she was bemg sent home because she dId not agree WIth Ms. Damels' rule, however she testIfied that she agreed WIth the rule but was unhappy WIth the effect It had had on Ms Chan. 49 Ms. Bzdyl asked to call her UnIon Steward so that Ms. DanIels could explaIn why she was beIng sent home, and Ms DanIels allowed her to do so Ms. Bzdyl telephoned and left a message on the Steward s answenng maclllne and then waited for the Steward to arrIve She testIfied that she dId not thInk to telephone her at work In approxImately an hour, Mr Adams arrIved, called Ms. Bzdyl Into the office and asked her If Ms DanIels had asked her to go home She acknowledged that she had, and Mr Adams told her that she was to go home, further that she was suspended wIthout pay She asked If she was fired and he told her that she was not. She stated that she wanted to Wait untIl her Umon Steward came for a reason to be gIven to her for her beIng sent home but, accordIng to Ms Bzdyl, Mr Adams dId not want to hear that. Ms. Bzdyl spoke later WIth her Umon Steward and the end result was that she was to be paId for the ShIft on July 31 st, that she would return to work the follOWIng day as scheduled, and that she was to receIVe a performance appraisal MONDAY AUGUST 1, 1994 PERFORMANCE APPRAISAL OF MS. BZDYL SALE AND VOID OF FILM SALE AND VOID OF GARDENING BOOKS Staff workmg, accordmg to the schedule Ms. Daniels 0830 to 1700 hours Ms Bzdyl 1200 to 2000 hours Ms Archambault 1200 to 1600 hours (OngInally off) Ms Poole 1300 to 2000 hours Ms. Chan 0900 to 1600 hours Register 1 VOIds 2 $ 200 Shortage None noted Register 2 VOIds 10 $ 2942 Shortage None noted Relevant Information and Activities on August 1, 1994 . Ms. Daniels testIfied that on thIS date, she and Mr Adams met WIth Ms Bzdyl when Mr Adams presented her WIth a prevIOus I) prepared, unscheduled, performance appraisal, the first she had been gIven sInce comIng to Naturally NIagara on March 14 1994 In the normal course of events, she would have 50 receIved a performance appraisal from Ms DanIels towards the end of October However, accordmg to Ms DanIels and Mr Adams, thIS appraIsal and the regular performance appraisal form were used "to commUnIcate between management and the employee" They dId not have her personnel file, and mdeed Ms. DanIels testlfied that she had never had It. Ms Damels dId have her own file on Ms. Bzdyl whIch contamed the transfer memo and the start-up contract. She thought that It Imght also have contamed some payroll mformatIOn. ThIS tile was turned over to Peter Adams. Ms. Damels' ImpreSSIOn was that "there was nothmg about her work performance there", but she, Ms. Damels and Mr Adams "had a problem to dISCUSS" They dId not rate Ms. Bzdyl, but the appraisal was placed m her personnel file and went to her master file m Human Resources. Accordmg to Ms. Damels, she would not have dlscIplmed an employee but would report matters whIch she considered mIght reqUIre a dISCIplInary response to Mr Adams Ms. Bzdyl perceIved the "appraisal process" as an mterrogatIOn. It was her expectatIOn, when It had been conveyed to her by her Umon Steward, that Ms. DanIels would be domg the appraisal, that no one else would be mvolved. She was, therefore, surpnsed Mr Adams was there. During thIS tIme her Umon Steward was waltmg outSIde the store. Mr Adams carned out the appraisal, although the appraIsal form, already drafted, was handed to her by Ms. Damels. (The check-off section was not completed.) The comment sectIOn read as follows Stephanie's on the floor job performance is very good however there are other parts of her job that she needs to work on. 0) Insubordination. Full cooperatIOn wIth mgmt is a must Must improve ability to take direction Must improve ability to accept constructive criticism (2) Following company policies at all times regardless of a mgrs presence. (3) Communication between mgmt and supervisors must be constant. Feedback is important. Improvement in these areas must be seen or further dIsciplinary action will be taken. Ms. Bzdyl testified that she read the comments and whIle she dId not understand what "msubordmatIOn" meant, nor dId she ask, she dId understand the other comments She asked Mr Adams, under whom she had worked and who she belIeved, valued her as an employee, what she had done wrong, If she had ever not done as he had asked, tellmg hIll she thought that she "dId have proper dIrectIOn to have trust" At thIS pomt, she recognIzed that she was gettmg upset and she began crymg, and then, she testIfied, she became offended when he asked her "how [she] could be stupId after vou do your Job" She was then told by Mr 51 Adams "to forget It Its only an evaluatIOn and to sIgn Although she had been told by her Umon Steward that she should not feel under pressure to sIgn the appraisal form, she was concerned that she mIght lose her pOSitIOn as a Supervisor She agreed to sign on conditIOn that she add her comments under "EMPLOYEE COMMENTS" She wrote the followmg I feel that was discnmate and my rights were striped. I was harassed My human rights were (1) demane (2) hersment (3) discrimmst. [sic] The three numbered words were then underlIned by Mr Adams and, accordmg to Ms Bzdyl, he said that he hoped she understood them, to which she replIed that she did, and that she would not have put them there, had she not meant them. She observed that Mr Adams was also upset. She then asked to see her Umon Steward and was told that she could go home because she was upset. She asked for half an hour and said that she would return. She then went outSide, met With her Umon Steward, "took lunch, got [her] self together, and went to work" Ms. Archambault who had been brought m on her day off to substItute for Ms Bzdyl, was sent home . A particular sale and vOId of film attracted Ms. Damels' attentIOn, when she reViewed the Journal tape on August 3rd, for thiS day, August 1 st. The sale (#557) and vOId (#571) for a film, Item 50501100 were on Register 1 and were recorded, accordmg to her, at 1717 and 1728, computer tIme respectively, followmg her departure for the day The total m question was $12.20 The vOId was the last transactIOn rung mto Register 1 before the drawers were changed and the Z readmg was taken. In the mterval between these two transactIOns, she noted that 14 other transactIOns were processed. Ms. Bzdyl testIfied that she had no recollectIOn of the transactIOn. She explamed that she had "Just VOIded the sale of film" and that It "could be a cashier error or [her] error" and It could have been a sale or an error She first became aware that Management conSidered there was a problem With thiS transactIOn when she came to the Gnevance Settlement Board for the preheanng when her Gnevance Officer asked Mr Adams about thiS She testified that she did not understand what she was bemg accused of No one from Management had shown her the ongmal Journal tape Nor had she seen a photocopy, either of the ongmal VOId or the ongmal receipt (They would have been discarded.) and no one from Management had asked her to explam the transactIOn. . According to Ms. Daniels, on Mondays, Ms Poole usuall) left at 1950 hours Ms Poole told her that on thiS particular Monday she left at 1955 hours With Ms 52 Bzdyl s permISSIOn as "her mother had come early" Ms DanIels mdIcated that Ms Poole would not have been present for the VOId transactIOn of the gardenmg books referred to below She also testIfied that 2 people were m the store after Ms. Poole left. [ThIS must have been mformatIOn she gleaned from Ms. Poole] Accordmg to Ms DanIels, "the sale was made, the person left and the VOId was done" Ms DanIels wrote m her statement that at "7 59 the store was closed" and testtfied "the VOId would have been put through when the store should have been closed" ThIS, she stated, "suggested SuspIcIOn, somethmg fraudulent" TUESDAY AUGUST 2, 1994 Staff workmg, according to the schedule' Ms. DanIels 0830 to 1700 hours Ms. Archambault 1200 to 2000 hours Ms. Chan 0900 to 1600 hours Ms. Poole 1300 to 2000 hours Mr Broerse 1000 to 1300 hours Register 1 VOIds 15 $ 2, 180,065 39 Shortage None noted Register 2 VOIds 10 $ 1945 Shortage N one noted Relevant Information and Activities on August 2,1994 . Ms. Bzdyl was on a scheduled day off . According to Ms. Daniels, "there were no returns & no vOIds that were out of the ordmal) She states thIS m spIte of the fact that there were 15 VOIds recorded on RegIster 1 for a total of $2 180,065 39 . On thIS mornmg, Ms. Daniels, according to her statement, looked at the Journal tape from the nIght before to see what had been sold She noted a number of VOIds on RegIster 2 and checked them sattsfactonly wIth Ms. Poole who had been workmg the prevIOUS evenIng She checked the tape on RegIster 1 and notIced the cash sale m CanadIan currency of 2 gardenIng books @ $10 69 WhICh took place at 1932 hours accordmg to the cash regIster tape (WhIch would have 53 been 1938/1939 hours due to the computer clock bemg slow) (ThIs IS sale # 557 accord1l1g to her report but the sequentIal transactIOn number shows tll1S as #3989 She appears to have confused thIS sale wIth the film on August 1 s1.) She noted It was vOIded at 1959 hours or 2005/2006 hours, Just after scheduled clos1l1g Ms Poole was not present for the VOId of the gardelllng books, according to Ms. Daniels Ms Dalllels then dId an 1l1ventory of "those books Ms Dalllels would have had the Inventory pnntout from Thursday July 28, 1994 Accordmg to the Inventory she made, based on the July 28th prmt(mt, there was a shortage of the 2 gardemng books . Ms. Bzdyl acknowledged that her SIgnature was on the VOId, that IS, on transactIOn #3992. She testIfied that she could not recall eIther the InItIal transactIOn or the VOId transactIOn but that from the tape she could tell that the imtial transactIOn was done eIther by herself or by a Casmer earlIer and that It was VOIded (transactIon #3992) later on. It could, she testified have been eIther a purchase or a mIstake. Ms. Bzdyl testified that she had not been shown the ongmal of the Journal tape, or the ongmal receIpt or VOId receIpt. She stated that she was aware that she had been accused of some dIshonesty WIth respect to thIS transaction on August 29, 1994, when It was put to her verbally that she had "VOIded gardemng books" WEDNESDAY AUGUST 3, 1994 SALE OF DOG TEAM INVENTORY OF BOOKS CARRIED OUT Staff workmg, accordmg to the schedule Ms. Damels 0830 to 1700 hours Ms Archambault 1200 to 2000 hours Ms Chan 0900 to 1600 hours Ms. Provenzano 1300 to 2000 hours Mr Broerse 1000 to 1300 hours Register 1 VOIds 5 $ 4692 Shortages None noted Register 2 VOIds 8 $ 11114 Shortages None noted 54 Relevant Information and Activities on August 3, 1994 . Ms Bzdyl was on a scheduled day off . Ms. Damels reported that "there were no returns & no vOIds that were out of the ordmary " . Ms. Daniels had Ms. Archambault make an mventory of all the books "at close of' thIS day Ms. Damels would have had the computer prmtout from Thursday, July 28 1994, aVaIlable as a basIs for her mventory check. Accordmg to Ms. Damels "All other book mventory corresponded wIth what was on the pnntout." She then requested the Journal tape from the day before, WhICh would have been August 2, 1994 . According to Ms. Daniels' statement, there was a sale (#1085) of a dogsled carvmg (Item 10714500) at 1929 hours computer tIme, and a subsequent VOId (#1099) on August 4th at 1020 hours. It is identIfied m the Journal tape on RegIster 2 as "dog team" ThIS was a cash sale for WhICh $20 00 was tendered. . According to Ms. Bzdyl, she was not workmg on this day and therefore could not have carned out the origmal transactIOn. She testified that it was possible that eIther Ms. DanIels, Ms. Archambault, Ms. Chan, Ms. Provenzano or Mr Broerse could have made the sale. The sale was made at 1929 hours and, accordmg to the schedule, only Ms. Archambault and Ms. Provenzano were workmg dunng that tIme penod. . The sequence on the Journal tape shows the followmg' AUGUST 3, 1994 TransactIOn # 1082 at 1918 - cash sale of a hon cub, total of $3.20 TransactIOn # 1083 at 1928 - cash sale of Wndr Glow St , total of $ 1.29 TransactIOn # 1084 at 1928 - US exchange, a total of $ 0 45 Transaction # 1085 at 1929 - cash sale of dog team, total $19.29 TransactIOn # 1086 at 1930 - cash sale ofWht Beaver, total $9 13 TransactIOn # 1087 at 2003 - X report THURSDAY AUGUST 4,1994 VOID OF DOG TEAM SALE OF RABBIT HOOK AND CD FA VORIT INVENTORY OF FOUR TO SIX BOOK TITLES CARRIED OUT INVENTOR\' OF DOG TEAM CARRIED OUT Staff workmg, accordmg to the schedule Ms Bzdyl 0830 to 1700 hours 55 Ms Archambault 1200 to 2000 hours Ms Provenzano 1300 to 2000 hours Ms Poole 0900 to 1600 hours Mr B roerse 1000 to 1300 hours Register 1 Y OIds 2 $ 1298 Shortages None noted Register 2 Y OIds 5 $ 4894 Shortages None noted Relevant Information and Activities on August 4, 1994 . Ms. Oamels was on a scheduled day off and Ms. Bzdyl was the semor person on duty from 0830 to 1700 hours. . The weekly mventory prIntout was avaIlable to Ms. Damels on thIS day Ms. Daniels testified that It was on thIS day that "we matched computer to physIcal mventorIes" She was, however, on a scheduled day off and there was no eVIdence to show that she had come m or that she had earned thIS out from home. . The dog-team sale of the prevIOUS day was VOIded by Ms. Bzdyl The Journal tape from RegIster 2 showed the followmg AUGUST 4, 1994 TransactIon # 1088 at 0816 - no sale TransactIOn # 1089 at 0816 - no sale TransactIOn # 1090 to 1096 - cash and card sales from 0912 to 0948 TransactIOn # 1098 at 0948 - mastercard sale of bIrd feeder, total $ 34 34 TransactIOn # 1098 at 0950 - no sale Transaction # 1099 at 1020 - cash void of dog team, total $19.29 Initialled by Ms. Bzdyl TransactIOn # 1100 at 1038 - cash sale of seeds, total $1.20 Ms. Daniels testified that she spoke to Ms Bzdyl about thIS and Ms Bzdyl told her that It was a return, that the people had brought It back. . Ms. Daniels noted a smgle sale (#4616) of two Items on thIS day - a RabbIt Hook (20537013) and a CO FA YORIT) (110367400) The total amount was $32 17 and the sale took place at 1630 hours on RegIster 1 According to Ms. Daniels, 56 a vOId (#4640) for a CD FA VORIT (110367400) took place on the follOWIng day August 5 1994 at 1001 hours. . Ms. Daniels requested thIS day s Journal tape from the Cash Office on August 7th. . Ms. Bzdyl stated that she was not able to venfy the InItlals 100% on the CD VOId and had no specIal recollectIOn of completmg the ongInal sale of the CD and the RabbIt Hook, or the void, nor was she able to tell why the VOId was made She testIfied that the ongInal sale could have been made by Ms. Archambault, Ms Provenzano, Ms. Poole (she was scheduled to leave at 1600 hours), Mr Broerse, or herself In attemptIng an explanatIOn, she stated that smce there were 2 sales, that If It was an error then the whole thmg (2 sales) would be VOIded, or If It follows another sale of a dISk after that, It could be that, but m the end she concluded that she dId "not really know" Ms. Bzdyl testified that she was not aware that an Inventory had been done In the store on August 4, 1994, and that she was not asked the whereabouts of the books by anyone She stated that she was not shown the ongInal or photocopIes of the tape, the mItlal sale, or the VOId transactIOn, nor dId anyone from Management asked her to explam why she made the VOId. She first became aware that dIshonesty on her part respectmg thIS transactIOn, was bemg alleged at the tlme of the arbItratIOn heanng . At 1020 hours, there was the VOId (#1099) of the dog-team sale (#1085), InItlalled by Ms. Bzdyl It was on RegIster 2 and had the same PLU number as the one for WhICh there was a sale the prevIOus evemng on the Journal tape of RegIster 2. There were 14 transactIOns between the sale and the VOId. Ms. Bzdyl testified that she "had to do It" [had to have done It] but dId not recall the CIrcumstances around, eIther the VOId or the ongmal transactIOn. . Ms. Bzdyl could not remember the partIcular Item and first recalls haVIng the dog- team accusatIOn mentIOned to her at the meetmg of August 29th when Management, she dId not specIfy whom, stated that she had VOIded that sale but that they dId not find the merchandIse m the Inventory FRIDAY AUGUST 5, 1994 VOID OF CD FA VORIT Staff workmg, accordmg to the schedule Ms Bzdyl 0830 to 1700 hours Ms Archambault 1200 to 2000 hours 57 Ms. Chan 0900 to 1600 hours Ms Provenzano 1300 to 2000 hours Mr Broerse 1000 to 1300 hours Register 1 VOIds 36 $ 500 78 Shortage N one noted Register 2 VOIds 8 $ 109 26 Shortage N one noted Relevant Information and Activities on August 5,1994 . Ms. DanIels was on a scheduled day off and Ms Bzdyl was the semor person on from 0830 to 1700 hours. . A vOid for a CD FA VORIT (#4640) and the amount, mcluding tax was $20 37 at 1001 hours. It was assumed by Ms. Damels that thIS vOId related to sale # 4616 (RabbIt Hook and CD FA VORIT) from August 4th. (There was no specific eVIdence whIch lmked this VOId to sale #4616 except that It was on the same regIster and wIthm the same cash day) SATURDAY AUGUST 6,1994 SALE AND VOID OF SOUWEST DIS Staff workmg, accordmg to the schedule Ms. Damels 0830 to 1700 hours (Stayed to 1730 hours) Ms. Bzdyl 1000 to 1800 hours Ms. Archambault 1200 to 2000 hours Ms. Provenzano 1300 to 2000 hours Ms. Poole 0900 to 1600 hours Register 1 VOIds 11 $ 16991 Shortages N one noted 58 Register 2 VOIds 3 $ 2522 Shortages None noted Relevant Information and Activities on August 6,1994 . Ms. Daniels reported that she "worked on the floor all day mOnitored sales and stayed untIl both regIsters were taken off and money packed m brown bag" . The void of the dog-team Item attracted Ms Daniels' attentIOn for several reasons the vOId transactIOn mltlalled by Ms. Bzdyl, dId not take place untIl 1020 hours, the followmg morning (August 4th), the transactIOns occurred when she, Ms. Damels, was not present. Ms. Bzdyl was the only SupervIsor m the store Ms. Daniels testified that there had been 2 of thIS partIcular Item, that one had preVIOusly been sold, and that the mventory pnntout showed 1 [thIS would be the pnntout of July 28th] and a physIcal mventory check showed there was no such Item m the store. According to Ms. Daniels, thIS case, followed the "pattern" of "one sold and VOIded out" . Ms. Daniels asked the cash office for the journal tapes for the days she was off [August 4th and 5th] . Ms. Daniels reported m her statement that "There were no VOIds done that day" In fact there were 11 VOIds totallmg $169 91 on RegIster 1 and 3 VOIds totallmg $25.22 on RegIster 2 . Ms. Daniels stated that she "even took the key from the brown bag and asked Heidi to keep it in her pocket until the police came to pick it up" [See August 19, 1994] . Ms. Daniels reported m her statement that the cash balanced that day . Ms. Daniels testified that she reported to Peter Adams her SuspICIOn concermng the gardemng books transactIOn of August 1 st and mventory of August 4th, although m cross-exammatIOn she stated that "she would have talked to hIm about the mventory" on August 3rd or 4th, and then testIfied that she "honestl) could not remember specIfically" on what date she first spoke to Mr Adams about thIS matter . A sale transactIOn (#5057) (total $20 37) was made on RegIster 1 at 1636 hours on August 6th cash day and the Journal excerpt (ExhIbit 27) shows the sale of "souwest dls" (PLU 000010365010), a VOId transactIOn (#5082) for the same Item was completed on RegIster 1 at 1731 hours on August 7th cash day Ms. 59 Daniels noted that the sale was not on that partIcular Journal tape (I twas approxImately 1 hour earlIer before the Z report had been done) (See August 7th) . Ms. Bzdyl stated that she dId not recogmze the 11lltIals "100%" and that she had no recollectIon of eIther transactIon. It was her opmIOn there was an error and the VOId had to be done for that reason. She testIfied that the mItIal transactIOn could have been camed out by Ms. Damels, Ms. Archambault, Ms Provenzano, Ms. Poole or herself. [Ms. Poole was scheduled to depart at 1600 hours.] She testIfied that she was not shown the ongmal or photocopIes of the tape, the mItIal sale or the VOId transactIOn, by any member of Management, nor was she asked to explam what happened m thIS VOId. She stated that she first became aware that she was being accused of dIshonesty WIth respect to thIS transactIOn when her Gnevance Officer asked Peter Adams about It. [This would have been when the partIes attended the Pre-hearmg.] SUNDAY AUGUST 7,1994 CASH SHORT AGE $20.00/$20.63 Staff workmg, accordmg to the schedule Ms. Damels 0830 to 1700 hours Ms. Bzdyl 1200 to 2000 hours Ms. Provenzano 1300 to 2000 hours Ms. Poole 0900 to 1600 hours Mr Broerse 1000 to 1300 hours Register 1 VOIds 4 $ 3250 Shortages $2000/$2063 (to whIch regIster ?) Register 2 VOIds 14 $ 91 09 Shortages $2000/$2063 (to whIch regIster 0) Relevant Information and Activities on August 7,1994 . Ms. Daniels noted m her statement that on thIS day she found another unusual VOId She stated that because of thIS she "called the cash office &.. asked for the Journal tapes from my days off [August 4th and August 5th] to be sent to me to venfy the pattern" 60 . When Ms. Daniels came m at 0830 hours she "checked the Journal tapes on the regIster[ s] to see what had been sold" the previOUS mght. She found that on RegIster 1 at 1731 on the Journal tape (just at the time she was leavmg or had Just left), "there was a vOid of a CD for WhICh there had not been a sale of on that partIcular Journal tape" (See August 6th) The transaction was #5082 and It was for Item # 10365015, (total $20 37) Accordmg to Ms Damels, Ms Bzdyl s explanatiOn for the sale of the Item not bemg on the same tape was that "a man had been m earher that afternoon and purchased the CD" and "he had come back & returned It" [ThIS IS Ms. Damels' phrasmg of Ms. Bzdyl's explanatIon.] Ms Damels explamed In her report that the store gets very few returns and "If a person does come back It'S for an exchange The only time a CD IS returned IS when people buy the sampler album whIch has no mUSIC m the background, Just nature sounds" [ThIS is a generalIzatiOn whIch the Panel cannot accept.] . Ms. Daniels reported there were no VOIds for the rest of August 7, 1994, although no eVIdence was presented to indICate the tImes of the VOids that dId occur A number of VOids on August 7, 1994 IS noted in the VOid Summary (see above) . The cash was reported to be $20 00/$20 63 short, although no documentary eVIdence was presented to thIS effect and there was no indication on whIch regIster thIS shortage occurred. . Ms. Daniels testIfied that thIS must have been the day she spoke to Ms. Bzdyl about the dog team VOId and, that Ms. Bzdyl told her It was a return. . It IS on thIS day, according to Ms. Daniels' evidence, that she mformed Mr Adams that she had "somethmg she could not explam" and thought "the Gnevor was dOIng somethmg fraudulent" She dId not mentiOn any other suspects, nor, she stated, dId she inform Ms. Archambault. [Other eVIdence pOInts to Ms. Damels havmg mentiOned her concerns to Mr Adams several days prior to thIS] . Ms. Bzdyl said that she became aware that the till had been out bv $20 63 only when she receIved her Personnel File on December 12, 1994 . Ms. Bzdyl testified that no one from Management had ever asked her to explam thIS shortage 61 MONDAY AUGUST 8, 1994 REVIEW OF CASH HANDLING PROCEDURES Staff workmg, accordmg to the schedule Ms Damels 0830 to 1700 hours Ms Archambault 1200 to 2000 hours Ms. Chan 0900 to 1600 hours Ms. Poole 1300 to 2000 hours Mr Broerse 1000 to 1300 hours Register 1 VOIds 11 $ 167 94 Shortage None noted Register 2 VOIds. 3 $ 3791 Shortage None noted Relevant Information and Activities on August 8, 1994 . Ms. Bzdyl was on a scheduled day off. . Ms. Daniels "receIved the tapes from the cash office" for August 4th and 5th. . Ms. Daniels brought her speCIfic concerns to Peter Adams. [Other eVIdence suggests that thIS was done earher] . Mr Adams and Ms. Daniels undertook a review of cash-handlmg procedures and the followmg changes were made (1) All ongmal receIpts and VOId receIpts would be retamed. (2) The ongmal receIpts and the VOId copy would be attached to the dally summary sheets (3) SuperVIsors would contmue to InItIal all VOIds on the Journal tape [There was no evidence of a requirement at Naturally Niagara for reasons to be written on the original receipt, the void receipt or the journal tape in this new system, nor in the previous one.] . Ms. Daniels testified that she spok.e to Ms Archambault about the changes to the returns polIcy changes on thIS date. 62 TUESDA Y AUGUST 9, 1994 REQUEST FOR SURPRISE AUDIT AT NATURALLY NIAGARA Staff workmg, accordmg to the schedule Ms. DanIels 0830 to 1700 hours Ms. Archambault 1200 to 2000 hours Ms. Chan 0900 to 1600 hours Ms. Poole 1600 to 2000 hours Mr Broerse 1000 to 1300 hours Register 1 VOIds 8 $ 105 16 Shortage None noted Register 2 VOIds 8 $ 102,944 69 Shortage None noted Relevant Information and Activities on August 9, 1994 . Mr Adams stated m hIS report that on thIS day he called John Wallace at the Accountmg Department and "asked If he could undertake "a surpnse audIt" on August 11 tho ThIS was a day when Ms. Bzdyl and Ms. Archambault were scheduled to be at work, and Ms. DanIels was scheduled to be off. WEDNESDAY AUGUST 10, 1994 CASH SHORTAGE $30.00 US RETENTION OF ORIGINAL AND VOID RECEIPTS BEGAN MS. BZDYL SENT HOME BEFORE THE END OF HER SHIFT Staff workmg, accordmg to the schedule Ms DanIels 0830 to 1700 hours Ms Bzd}l 1200 to 2000 hours Ms Chan 0900 to 1600 hours Ms Provenzano 1300 to 2000 hours Mr Broerse 1000 to 1300 hours Register 1 VOIds 5 $ 87 10 Shortage $3000 US (whIch regIster)) 63 Register 2 VOids 2 $ 1554 Shortage $30 00 US (whIch regIster?) Relevant Information and Activities on August 10, 1994 . Ms. Daniels wrote the followmg about events mvolvmg Ms Bzdyl WhICh raised her SuspIcIOns On August 10th Stephanie took her lunch early, 3.50 pm When she returned at 4.20 she sent the cashier on her lunch [According to the schedule this would be Ms Provenzano] She then said 'well, 1 might as well take these tIlls off before you go home She then brought the bags out of the office and took off the registers while I waited on customers. When there was no one at the counter I went into the office and got a brown locking bag and brought it to where Stephanie was standing at Reg #1 She was holding both green bags under her arm. I held out the brown bag in an open position and said to her [sic] Here, Stephanie, put the bags in here. She ignored me. I said it 2 more times, no response She was sweating. Finally she looked up at me and grabbed the brown bag out of my hand and put it under her arm with the other 2 bags. When I said I could take that for her again she ignored me. There were customers at the register so I started serving them and she took the money into the office to pack in the brown bag & she said she would I had a feeling something wa. [The words in italics are struck.] I waited a few minutes & followed her into the office. She jumped when I came in. She was huddled practically inside the safe with the brown bag open. Her hands were inside, (where the green bags were) I stood behind the desk but my view was obscured by the safe door I heard her put the elastic bands back on the money & repack the brown back [sic] and zip it up That day we were short $30 U S In cross-exammatIOn, Ms. Daniels explained that she "dId not see her take the money" but that she had (stIll at the tIme of the heanng) "a strong SuspIcIOn that she took $30 00 US . Ms. Daniels spoke to Mr Adams about thIS mCldent on August 14, 1994 . Ms. Daniels testified that she sent Ms Bzdyl home on thIS da\ because m refusmg to talk to her, she Ignored her Smce that tIme she had learned that Ignonng IS synonymous WIth msubordmatIOn. She concluded at the tIme that It was not a major deal" smce Ms Bzdyl had SImply Ignored her she had "not Said no" or "defied her" She dId not understand Ms. Bzdvl s actIOns at the tIme but then, 'the next dav the cash office called and Said there was a shortage . Ms. Bzdyl was not spoken to about the shortage of $30 00 The first tIme she became aware of It was on December 12 1994 when she receIved her Personnel FIle 64 . Ms. Daniels testified that she spoke to Ms Bzdyl about the changes to the returns policy on thIS date THURSDA Y AUGUST 11, 1994 Staff worklI1g, accordll1g to the schedule Ms. Bzdyl 0830 to 1730 hours Ms Archambault 1200 to 2000 hours Ms Chan 0900 to 1600 hours (was sIck and dId not attend) Ms. Provenzano 1300 to 2000 hours Ms Poole 0930 to 1200 hours (Ongll1ally scheduled to be off) Mr Bmerse 1000 to 1600 hours (May have been ongmally scheduled for 1000 to 1300 hours) Register 1 VOIds 4 $ 41 81 Shortage N one noted Register 2 VOIds 2 $ 468 Shortage N one noted Relevant Information and Activities on August 11, 1994 . Ms DanIels was on a scheduled day off . The weekly ll1ventorv pnntout was avaIlable for Ms. Damels . John Wallace from the Accountmg Department, at Peter Adams' request, carned out an audIt on one of the regIsters and reported It to be mIme Ms. Daniels belIeved that the audIt was carned out because of the SUspICIons surroundll1g Ms. Bzdy1 . Ms. Daniels testified that she dId not know on whIch regIster the audIt was carned out but was told that "nothll1g came of It" and "that everythll1g was fine " Ms Arndt s notes of theIr meetll1g on August 24th, note that on thIS date that the "audItors arnved - no VOIds done" There was no mentIOn of the fact that the regIster balanced WIthll1 6 cents and Ms Arndt could not recall If she had heard that It had balanced. [It would be unusual, the Panel belIeves, for Ms. Arndt to faIl to make that notatIOn, had she been gIven the ll1fOrmatlOn.] 65 . Mr Adams reported that he happened to be 111 the store when John Wallace undertook the audIt and he testIfied that "He dId thIS audIt at approx 11 00 a.m. on 11 th August. 1994, but the regIster balanced wIth111 6 [cents] . Ms. Bzdyl testified that she was present when John Wallace came to carry out the audIt. Accord111g to her, he asked her to do an "X" read111g on RegIster 1 whIch she dId, he then counted the float m the office and the outcome was that RegIster 1 was 6 cents short. She stated that Peter Adams arrIved wIth111 a couple of m111utes ofMr Wallace's arrIval Ms. Damels was on her day off and that she, Ms. Bzdyl, was not permItted to be present when the funds 111 the safe were counted. [She was the person m charge of the store on that day] Follow111g thIS, she stated, she was asked to sIgn the audIt and she saId that she dId not see It. Mr Adams told her that It was "OK" and then she SIgned it. Accordmg to her, RegIster 2 was not audIted that day FRIDAY AUGUST 12, 1994 Staff workmg, accordmg to the schedule Ms. Bzdyl 0830 to 1700 hours Ms. Archambault 1200 to 2000 hours Ms Chan 1000 to 1300 hours Ms. Provenzano 0900 to 1600 hours Ms Poole 1300 to 2000 hours Register 1 VOIds 5 $ 41 81 Shortage Register 2 VOIds 3 $ 1 93 Shortage Relevant Information and Activities on August 12, 1994 . Ms. Daniels noted m her report that It was pay day 66 SATURDAY AUGUST 13 1994 Staff worklllg, accordmg to the schedule Ms. Damels 0830 to 1700 hours Ms Bzdyl 1000 to 1800 hours Ms. Archambault 1200 to 2000 hours Ms. Provenzano 0900 to 1600 hours Ms. Poole 1300 to 2000 hours Register 1 VOIds. 8 $ 49.23 Shortage None noted Register 2 VOIds 8 $ 3595 Shortage None noted Relevant Information and Activities on August 13, 1994 . Ms. Daniels reported in her statement that there were no vOIds on thIS day when m actuahty there were 16 for a total of $85 18 SUNDAY AUGUST 14, 1994 Staff workmg, accordmg to the schedule Ms. Damels 0830 to 1500 hours Ms Bzdyl 1200 to 2000 hours Ms Chan 0900 to 1400 hours Ms. Provenzano 1100 to 1900 hours Mr Broerse 1300 to 2000 hours Register 1 VOIds 6 $ III 00 Shortage N one noted Register 2 VOIds 17 $ 15594 Shortage N one noted 67 Relevant Information and Activities on August 14, 1994 . Ms. Daniels reported no vOIds m her statement although there were 23 with a total of $267 04 MONDA Y AUGUST 15, 1994 Staffworkmg, accordmg to the schedule Ms. Damels 0830 to 1700 hours Ms. Bzdyl 1200 to 2000 hours Ms. Chan 0900 to 1600 hours Ms Poole 1000 to 1800 hours Mr Broerse 1600 to 2000 hours Register 1 VOIds * Shortage None noted Register 2 VOIds * Shortage N one noted *This date was omitted from the compilation and this may be due to the fact that the journal tape which was submitted in evidence for August 15 1994, was incomplete, in that it began at 1330 hours. Relevant Information and Activities on August 15, 1994 . Ms. Daniels reported that while she was walkmg around the store discussmg merchandIse WIth DIane Chopp, a buyer, "a tape was sold" The documentary eVIdence shows that on RegIster 1 between 1443 hours and 1519 hours 14 transactIOns took place (#7156 to #7169) Ms. Damels found three of these worthy of attentIOn. They were the followmg . (1) Transaction #7156 At 1443 hours a cash sale of one "CD FA VORIT" (Item 10347400 @ $18 95) WIth tax a total of $20.37 On the back of the thIS receIpt were wntten the words change the tape and by VISA paid" Ms Bzdyl did not venfy the signature but testIfied that she did wnte the explanatIOn. 68 (2) Transaction # 7167 At 1517 hours a visa sale of one "disc appala" (Item 1 0365030 @ $18 95) with tax a total of $20.37 This transactIon was entered on the "Charge Record" which IS the daIly summary of credit and debit card purchases as Number CC 17 RegIster' 1 Sale Number 7167 VISA 2037 Ref d. 3563 (Visa transactIOn Number) INT Ms Bzdyl's ImtIals. (3) Transaction # 7169 At 1519 hours a cash void of one "CD FA VORIT" (Item 1 0367400 @ $1895) with tax a total of$20.37 Ms. Daniels testified that she found the time lapse between the cash sale at 1443 hours and the cash void at 1517 hours, SUSpICIOUS. She would, she testIfied, have expected to find the cash vOId "nght after the VIsa sale" She would, she SaId "expect to see 'vOId' before 'sale'" Ms. Bzdyl's explanatIOn to Ms. Daniels when questIOned for the first tIme on August 22, 1994, m the presence of Peter Adams, was, according to Ms. Daniels, that the customer changed her mmd and wanted to pay by VISA. She told Ms. Damels that the husband had purchased the CD and paId for it with cash and the wIfe then came and wanted to get the money back and pay by VISA because they were short of cash. Under those cIrcumstances, Ms. Daniels testified, the "normal procedure would have been to refund the cash and re-nng the sale, but here the sales were rung up and after the VISA sale there IS no sales" She explamed that when the Cashiers rIng VISA, they close the drawer and run the VISA card through the sWipe machme and then hIt "NO SALE" to open the drawer to put the store's VISA COpy away . Ms. Bzdyl did not recall If she carned out transactIOn 7156 (CD - Favont @ $1895) nor did she recall domg the vOId (# 7169) She noted m her testimony followmg an exammatIOn of the Journal tape, that there were no ImtIals on transactIOn #7169 Ms. Bzdyl testified that she was not shown the ongmal or photocopies of the tape the ImtIal sale the VISA voucher for transactIOn 7167, or the vOId transaction, nor was she asked by anyone from Management to explam the 69 transactIOns. She testIfied that she did not understand the allegatIOn over the VISA. She thought that she first became aware of the allegatIOns of her dishonesty over these transactIOns at the arbitratIOn heanng. TUESDAY AUGUST 16, 1994 CD INVENTORY DONE Staff workmg, accordmg to the schedule Ms. Damels 0830 to 1700 hours Ms. Archambault 1200 to 2000 hours Ms. Chan 0900 to 1600 hours Ms. Poole 1000 to 1800 hours Mr Broerse 1600 to 2000 hours Register 1 VOIds 9 $ 2,372.31 Shortage None noted Register 2 VOIds 8 $ 71 61 Shortage None noted Relevant Information and Activities on August 16, 1994 . Ms. Bzdyl was on a scheduled day off . Ms. Daniels "dIscussed the SituatIOn With Peter Adams & did an mventory on the CD s [sic] to venfy our SuspICIOns" She reported m her statement that "Agam the CD's that had been voided did not match up With the pnntout. . The pnntout aVaIlable to Ms Damels would have been from August 11 1994 WEDNESDA Y AUGUST 17, 1994 Staff workmg, accordmg to the schedule Ms. Damels 0830 to 1700 hours Ms. Archambault 1200 to 2000 hours Ms Chan 0900 to 1600 hours Ms. Provenzano 1000 to 1800 hours Mr Broerse 1600 to 2000 hours 70 Register 1 VOIds 7 $ 23 51 Shortage None noted Register 2 VOIds 2 $ 2047 Shortage None noted Relevant Information and Activities on August 17, 1994 . Ms. Bzdyl was on a scheduled day off. THURSDAY AUGUST 18, 1994 USE OF RETURN FUNCTION AND CUSTOMER REFUND SLIP BEGAN Staff workmg, accordmg to the schedule Ms. DanIels 0830 to 1700 hours Ms. Bzdyl 1000 to 1800 hours Ms. Archambault 1200 to 2000 hours Ms Provenzano 0900 to 1600 hours Ms. Poole 1600 to 2000 hours Accordmg to Ms. Bzdyl's testImony, she was not on a regIster thiS day Register 1 VOIds 16 $ 149 14 Shortage None noted Register 2 VOIds 7 $ 1999 Shortage None noted Relevant Information and Activities on August 18, 1994 . Ms Damels would receive the weekly mventory pnntout on this day . Followmg Ms Bzdyl s arnval, Ms. Damels, accordmg to her statement, reviewed void & return procedures with them at the cash registers. She stated that she explamed the procedures as follow' If it is a cashier error it is to be initialled by the cashier (original receipt) voided in the register & initialled by the supervisor 71 If it is a customer return then you press the return button & fill out a customer refund slip w/customer signature & original receipt and supervisors (sic] initials. A return is anytime mdse & money change hands & a void is a cashier error Ms. Daniels related in her statement that "After gomg through this at that time [she] asked If they both understood If anyone had any questIons. They both SaId no & Stephame went on to add that, that's the way It IS done at Table Rock & It should be done lIke that everywhere" She stated that Stephame worked at Table Rock for 8 years, so she was very familIar with their cash handlIng procedures." . Ms. Daniels noted that there were no unusual VOIds or return on thIS day . Ms. Arndt was mformed by Mr Adams of the mystery-shopper plan. FRIDAY AUGUST 19, 1994 THE DAY OF THE MYSTERY SHOPPER DAY MS. DANIELS CHECKED VOIDS WITH MS ARCHAMBAULT BY TELEPHONE Staff workmg, accordmg to the schedule Ms. Bzdyl 0830 to 1700 hours Ms Archambault 1200 to 2000 hours Ms. Chan 0900 to 1600 hours Ms Provenzano 1000 to 1800 hours Ms. Poole 1600 to 2000 hours Register 1 VOIds 4 $ 6288 Shortage None noted Register 2 VOIds 3 $ 2044 Shortage None noted Relevant Information and Activities on August 19, 1994 . Ms Damels was on a scheduled day off Mr Adams was not at work. on thiS day . Mr Adams had preVIOusly arranged With Mr Wallace for a Mvstery Shopper to come to Naturally NIagara on thiS day and she did so Accordmg to Mr Adams, 72 the purpose of this exercise was "to check on Stephame's cash register handlmg " Mr Adams stated m Ius report that he asked him [John Wallace] to direct the "mystery shopper" to purchase a CD m CanadIan Funds." He explamed that "ThiS way we could test If Stephame may be tempted to VOId this sale" . The journal tape of RegIster 1 shows the followmg relevant sequentIal transactIOns At 1017 hours 000010365020 appalach ta 1298 b SUBTL 12.98 PST 097 GST SL 12.98 GST 085 TOTAL 1395 CASH 2000 CHANGE 605 08/19/94 #001 COOl 10 17 TOOOl 7918 At 1021 hours 000010367400 CD FAVORIT 1895 b SUBTOTAL 1895 PST 142 GST SL 1895 GST 1.24 TOTAL 2037 CASH 3000 CHANGE 963 08/19/94 #001 COO01 10 21 TOOO 1 7919 73 At 10 24 hours VOID On back of void receipt 000010365020 in handwriting appalach ta 1298 - b "Change for SUBTL 12 98 - CD PST 097 - B GST SL 12 98 - GST 085 - TOTAL 1395 CASH 13 95 - 08/19/94 #001 - COOl 10.24 TOOOl 7920 . Ms. Archambault testified that at the time of the mCIdent, August 1994, she was a Student Supervisor, that she dId not consIder herself equal to Ms. Bzdyl who was an Adult SupervIsor, and that she "always took orders from StephanIe" She explamed to the Panel that It was her practIce on arnvmg at the store for her ShIft to "check all charges and VOIds" It was also, she stated, usual for Ms. DanIels to telephone the store on her days off "to see everythmg was OK" When she dId so, Ms. Archambault saId that she would go through the VOIds, her own mcluded and "usually [would] tell her the reason on the back"or, "If she would go through the VOIds and ask what s that about [she] would explam the reason" On thIS day Ms. Archambault testified, she was workmg from 1200 hours to 2000 hours, and she checked the voids as soon as she came m. She belIeved there was only one "for a tape done by Stephanie" and later stated that she belIeved that the only VOId transacted that day was the one m questIOn (#7920) She IdentIfied the wntmg and ImtIals on the back of the VOId (#7920) as Ms. Bzdyl sand testIfied that It was there on August 19th when she talked to Ms. Damels "dunng the day" and "told her about the VOId and what was on the back" She thought that she would have received Ms. Daniels' telephone call before she rang off, pOSSibly around 1745, although she acknowledged that she was not able to recall [ThIS must have been Register 2, as the Journal tape for RegIster 1 shows that Ms Bzdyl rang off at 1624 hours] Ms. Archambault testified that she did not know about the suspicions surroundmg Ms Bzdyl pnor to August 19th and, she thought, her awareness may have even been subsequent to that. [The Panel finds thiS difficult to accept gIven the closeness of the work. environment and Ms. Damels request of August 6th for Ms Archambault to keep the cash bag key m her pocket untIl the polIce aITlved to pick up the day's sales revenue] She was certam that she was aware at the pomt at 74 which she was asked, and she did not say by whom, to submit a report. She also stated that she had "a conversatIOn with Ms Arndt after August 19th, although she could not recall the subJect. [No report from Ms Archambault was submItted m eVidence] . Ms. Daniels testified that on thIS day, she "had [her] SuspiCIOns" but had no real proof' of theft. She noted m her statement that she called the store to speak to the Supervisor around 1800 hours "to check & make sure everythmg was OK" She acknowledged m cross-exammatlOn that her mam purpose was to see If the Gnevor had done anythmg [ThIS would be Just after Ms. Bzdyl's departure] She also testified that she was telephomng "because of the recent transactIOn change to procedure" and because she "wanted to ensure the polIcy was bemg followed." She testIfied that she had called m preVIOusly on her days off, although she "used to leave Stephanie a note because she would have phone calls that were not all that necessary" She dId not clanfy what she meant by thiS comment. Ms. Damels spoke WIth Ms. Archambault, whom she belIeved was not aware of her SuspICIOns, and recorded the conversatIOn as follows 1 "asked how busy it was", and inquired about" the state of the store, the business and sales." It was then that Heidi reported to me the void in the register There was the original receipt & the void with Stephanie's signature on the back saying that customer had changed mind and bought CD The reason why Heidi reported this to me was because there was no pink customer refund slip filled out with the customer's signature on it." Ms. Daniels testified slightly later that Ms. Archambault "went through all the voids in the register [s?] and then told me this "no refund slip, no signature, and Stephanie's initials." She stated that she was given the name of the tape and CD sold and the tape voided, and the transactIOn tImes and told Ms. Archambault that she would look at It on the Sunday, when she came m. She testIfied that Ms. Archambault told her that she had not spoken to her [Ms. Bzdyl] " [Ms. Archambault's eVIdence was that Ms. Bzdyl's VOId was the only one for the day] She explained that she could not get the Journal tapes at that tIme smce they had gone to Cash Office and the mformatIOn from the computer (the mventory mformatIOn) was not avaIlable untIl the next Sunday She also explamed that the DistributIon Centre was closed from Fnday at 1630 hours untIl Monda) mornmg, and that while the Cash Office where the Journal tapes are sent closes before 1800 hours, It IS open on the weekends and the Journal tapes could have been checked that day although she was not work.mg on that day . Ms. Bzdyl described her work.day on thiS date as follows She aITlved around 0830 hours and opened up the computer by domg a VOId and then opened the cash. She had planned to do a display of T-shirts that day Ms Chal1 aITlved at 75 0900 hours and the two of them opened up the store When Ms. Provenzano aITlved around 1000 she directed her to work. with her on the display and Ms. Chan to remam on cash. Before startmg their work on the display, she arranged for Ms. Provenzano to replace Ms. Chan dUflng her mormng break (a ten-mmute break), Just before thls started, the Manager from the Ice-cream Store came m and asked for some "clencal papers" which Ms Bzdyl had to fill out. and Ms. Bzdyl was III the office With thiS mdlvldual for several mmutes Ms Chan s break. did not start untIl 1010 hours, Just after Ms Bzdyl came out of the office When Ms. Bzdyl came out of the office WIth thIS person, she testIfied there were 2 groups of 2 ladles at the disk/cassette lIstenIng display One of the ladles, according to Ms. Bzdyl, asked her for a specific disk WhICh was not m stock, Ms. Bzdyl suggested a substItute which the customer "asked [her] for" At approXimately 1015 hours, she left the ladles and went to the stock room to pick up the T-shIrtS to arrange the display When she was returnmg from the stock room to the floor to do the dIsplay, at the pomt at whIch she was stIll behmd the counter, Ms. Provenzano was stIll takmg Ms. Chan's place, and Ms. Bzdyl notIced that "she had foreIgners, paymg WIth Amencan currency [and] had a hard tIme to explain currency exchange to these people." Ms. Bzdyl testified that she did not get involved in this transaction, but as "Joanne still had a hard time with people, so as a courtesy and according to policy, [she] went on Register 1 to help these two ladies" who were coming towards the register In cross- examination, she agreed that Ms. Brisson, the "Mystery Shopper" had been speaking with one of them, an "English-speaking lady" She testified that the first lady gave her a cassette tape with a bird on it, that she put in the 8 numbers (PLU number) and the total came to $13.95. During this transaction, she heard the two ladies, as best as she could recall, discussing the difference between a disk and a tape and that one of them remarked that the disk is better and lasts longer She mentioned the price a second time. As the conversation between the two ladies continued, the first lady pulled out $20.00 from her wallet and held it in her hand. While she was doing this, Ms. Bzdyl went and picked up a bag to put the tape in from a location on the "left side by a drawer near the register" Just as she picked up the bag, and put the tape into it, someone called the lady from the front door saying "the bus is leaving" and the lady who was making the purchase "just turned around and ran out" According to her evidence, the lady never did hand her the $20.00 but left with it. For her part, she was left with the cassette tape in her hand and never did hand it over to the customer Ms. Bzdyl cleared the sale by pressing "the cash button" and left the cassette tape on the side of the register She did not remove the cash register receipt which was generated by this transaction at this time. 76 In cross-exammatlOn, It was put to Ms Bzdyl that the proper way for a Cashier to conduct a transactIOn IS to receive the amount tendered pnor to rmgmg It m WhIle Ms. Bzdyl agreed that thIS was the correct procedure, she testified that her actIOn can occur, and does so frequently at the NIagara Parks CommiSSIOn because people are 111 a rush to be served, that the Cashier, assummg that a customer Will pay wIth the amount he/she IS tak1l1g out or holdmg, nngs m that amount before the money has actually been tendered, 111 other words, before It IS m the possessIOn of the Cashier It may happen that the customer then, deCides It would be preferable to pay by debit or credit card. She testIfied that If you have rung in the total, you would not be able to clear the transaction as the computer would already have picked it up. Ms. Bzdyl then explained that after the register cleared, she took the next sale which was a compact disk. The customer was a woman. She rang in the PLU number and the total was $20.37 ($18.95 + tax). The woman tendered $30.00 and Mx. Bzdyl testified that she asked her if she had 37 cents. The woman looked unsuccessfully while Ms. Bzdyl picked up a bag and placed the disk inside. She then gave the woman change of $9.63. She ripped the receipts from the register, and separated them. She did not void the $13.95. She then, gave the customer who had purchased the compact disk the $20.37 receipt and the woman left the counter Ms. Bzdyl was not certain whether or not she left the store. She testified that she then voided the cassette tape transaction and initialled the original receipt tape (transaction #7918, timed at 1017 computer time) and the void tape (transaction #7920, timed at 1024 computer time). She then taped the original and the void receipts together and gave them to Ms. Chan who had now finished her break and was standing beside her She "went in and picked up the T-shirts and cassette tape. Ms. Chan went on the till and began to serve a customer Ms. Bzdyl thought that she had asked Ms. Chan to put the 2 receipts in her register with charges to keep as a record. Ms. Bzdyl then took the T-shirts and the cassette tape and replaced the tape in its display space and went to arrange the T-shirt display as she had originally planned. She could not recall at first whether or not she ImtIalled the Journal tape but then acknowledged, havmg seen the tape, that, although It was her habIt to 11l1tWllt she had made the mistake of failIng to do so on thiS occasIOn. [The ongmal receipt shows that she did not mltIal transactIon #7918, tImed at 1017 computer time the VOId receipt shows that she did InItial the VOId receipt of transactIOn #7920 the ongmal Journal tape shows that she did not Imtlal the Journal tape VOId of transactIOn #7920] 77 It was put to Ms Bzdyl m cross-exammatlOn for reJectIOn or confirmatIon that "when the customer came to the cash register the transactIOn was never, m fact completed, the customer never gave you the money and the customer left wIthout the tape and the customer stIll had the money" She confirmed that thIS was so Ms. Bzdyl also dellled m cross-exammatlOn that she had the $20 00 tendered by the customer who was mvolved m the cassette transactIon. She firmly mamtamed her versIOn of thiS transactIOn even though It was put to her that Ms. Bnsson, the Mystery Shopper, observed the change being gIVen to the customer When asked to explam her faIlure to brmg forward her explanatIon of the transactIOn on August 22nd dUrIng a meetmg WIth Mr Adams and Ms. Dalllels she tned to tell them the money was never exchanged but they dId not want to lIsten. She did, however, try to tell the polIce officer and he was qUIte wIllIng to speak WIth Mr Adams and Ms DanIels. There was, to her mmd, nothing out of the ordmary with eIther the tape or the compact dIsk transaction and she worked through the balance of her shift WIthout the occurrence of any notable mCldent WIth one exceptIOn. This was to be Ms. Chan's last day at work before commencmg her maternIty leave and she asked Ms. Bzdyl whether she would be able to retam her employee dISCOunt card, which was valid from May to October, even though she was gomg on maternIty leave Ms. Bzdyl told Ms. Chan that she could not answer her questIOn but that she would telephone Ms. Arndt and ask her, which she dId. Ms. Arndt was not able to answer the questIOn Immediately and telephoned later to say that Ms. Chan would be permItted to keep her card until the normal layoff date m Octo ber . Mr Adams testIfied, when asked to clarify the "thefts" m cross-exammatlOn, that he Viewed the "theft" of August 19th as the most slgmficant as he saw It as "a culmmatmg theft which was mcontrovertible" eVIdence mvolvmg a "senes of VOIds and cash shortages which were SUSpICIOUS enough to feel It was part of a pattern" and that "she was gUIlty of stealmg money" He clanfied that they "did not say that she stole $74.20" and that they "felt that they formed a pattern and that August 19th was the culmmatlOn of the SuspiCIOns" Mr Adams further testified that he "would not accuse someone of stealmg unless [he was] 100% sure" and acknowledged, m cross-examinatIOn that he felt 100% sure on August 19th and that "as far as [thev] were concerned, she was gUIlty of August 19th, - Irrefutable", and, "m lIght of the SuspiCIOns, It would foIlo\\ that [they] would conSider It naturally a senes of thefts" 78 SA TURDA Y AUGUST 20, 1994 Staff workmg, accordmg to the schedule Ms Bzdyl 0830 to 1700 hours Ms Archambault 1200 to 2000 hours M s Provenzano 0900 to 1400 hours Ms. Poole 1300 to 2000 hours Mr Broerse 1000 to 1800 hours Register 1 VOIds 8 $ 4236 Shortage None noted Register 2 VOIds 4 $ 3676 Shortage None noted Relevant Information and Activities on August 20, 1994 . Ms. Damels was on a scheduled day off Mr Adams was not at work thIS day . Ms. Bzdyl recalls workmg thiS day and testIfied that, she did not belIeve that anythmg out of the ordmary occurred. SUNDAY AUGUST 211994 MS. DANIELS SPOKE TO MS. BZDYL ABOUT THE VOID OF A CASSETTE SALE FROM AUGUST 19TH Staff workmg, accordmg to eVidence other than schedule Ms. Damels Ms Bzdyl There was no eVidence as to other staff workmg thiS dav Register 1 VOIds 6 $ 31 79 Shortage None noted Register 2 VOIds 4 $ 20 44 Shortage None noted 79 Relevant Information and Activities on August 21,1994 . Ms. Daniels checked the paperwork on her arrival at work and found the day's records of August 19th and the receipt and void hwith Stephanie's signature on it." She also pulled the "Summary Sheet [Charge Sheet) [ThiS was not submitted m eVidence] She spoke to Ms. Bzdyl when she aITlved for work and noted the conversatIOn as follows When Stephanie came in for her shift, [she) asked her about the void, because it should have been rung in under return & a customer refund slip [should have been) filled out as well. [Ms. Bzdyl) said she didn't know that had to be done when the customer returned it on the same day [Ms. Daniels) said yes & again reminded her that any time merchandise & money change hands a refund slip is required. Ms. Daniels went on to testify that when Ms. Bzdyl came m for her shift at approxImately 1200 hours, her usual practice bemg to aITlve early, she (Ms. DanIels) was m her office and mentIOned to Ms Bzdyl that she had the "summary sheet wIth copies" of August 19th and asked her about the transactIOn which she consIdered questionable. She testified that she asked her "If it was a return" and that Ms. Bzdyl said "yes, It was a Spanish family all there at once, a large group talkmg" and that "one woman bought the tape (Appalachian) and changed her mmd and wanted to trade for the CD" Ms. Damels testIfied slIghtly later that Ms. Bzdyl saId that there were ten people all around the register, but that basIcally, there was one customer and that she was not aware that she needed a customer's SIgnature Ms Daniels testIfied that "she (Ms. Bzdyl) dId not say anythmg else" She then stated that she "asked about the refund slIp" and Ms. Bzdyl replIed that "she thought she dId not need It on an exchange" She then, accordmg to her testImony, told Ms. Bzdyl that "anytime merchandise and money change hands, a refund slip is necessary with the customer's signature" At no time, she testified, did she tell Ms. Bzdyl that the refund slip with the customer's signature was not required for exchanges. Ms. Daniels was asked what conclUSIOns she would draw from the sequence of tape sale, CD sale and tape return, m the case of the "sale to the woman m the Spanish famIly" She testIfied she told Ms. Bzdyl that hthey are returning and purchasing", that "you do not pay twice and get money back" and that" you would refund the money and then change" Ms. Daniels spoke With Mr Adams who told her about the August 19th Mvstery Shopper and mformed her that "he wouldn t know the results untIl Mondav morning" 80 . Ms. Bzdyl testIfied that she aITlved at work slIghtly m advance of 1200 hours and that It was her responsibilIty to close up that night at 2000 hours She gave eVidence that It was a busy day, as Sundays usually are, and for that reason, there were not a lot of other thmgs to do Ms. Bzdyl testified that, m complIance With her evaluatIOn that she should commUnicate With Managers, she told Ms Daniels, at about 1400 hours, that she had been asked by Ms. Chan about keepmg her employee discount card untIl October and that, she, Ms. Bzdyl, had telephoned Ms. Arndt to enqUIre about thiS matter Ms. Bzdyl testified that Ms. Daniels became "really upset" when told of her contactmg Ms Arndt and Ms. Bzdyl pomted out that she had left no mstructIOns. She was told by Ms. Damels, accordmg to her testImony, that she had no nght to do so and that she should have telephoned her at home She was then told to go for her break and Ms. Daniels went to her office. She testified It was at approXImately 1430 hours that Ms DanIels called her mto the office and asked her about the VOId WhICh she entered on August 19th, (#7920) According to her, Ms. Daniels began by askmg her If she had entered the VOId and she replied that she had done so When Ms Bzdyl was handed the ongmal receIpt (# 7918) and the VOId (# 7920) by Ms. Daniels she asked what she had done wrong With It, looked at the numbers and compared them and SaId that there was nothmg wrong. According to Ms. Bzdyl, Ms. Daniels said, "Are you sure that this tape was not sold" and she replied "I'm sure it was not sold, I had it in my hand and that is why I had to void it" It was Ms. Bzdyl's testimony that Ms. Daniels then asked her why she had not prepared a pink slip for a refund, and that she had replied that it was not a refund, that the lady had not returned it, that she had simply left and did not buy the tape. She was then asked by Ms Daniels to explam what she recalled happening that day She was mmdful at that tIme of her evaluatIOn and Mr Adams tellIng her she was to do what her Manager tells her to do and smce she did not want any conflIct With Ms Damels which mIght JeopardIze her Job Ms. Daniels then told her that a pink slip should have been used while Ms. Bzdyl stated that in the particular situation, she did not think it should have been used because it was not a refund. According to Ms. Bzdyl, Ms. Daniels SaId that she needed a comment wntten on the slIp and that she asked her what she wanted her to wnte She testified that she tned to explaIn the situatIOn of the two ladleS standmg there dISCUSSIng which was preferable the tape or the CD Ms. Bzdyl thought that Ms Daniels SaId do you thmk. that only one lady chose to bu) a dlsk.?" and that she replIed that It was a POSSibilIty Ms Bzdyl testified that she was then asked by Ms Damels to write on the slIp that the customer changed her mInd for a CD Ms Bzdyl stated that 81 she did not put "mmd" because that never happened. Eventually, she testified, she wrote what Ms DanIels wanted, left It on the desk, and went to "do her Job" wll1le Ms DanIels stayed m the office It was her recollectIOn that Ms Daniels was not takmg notes at this meetmg. In cross-examination, Ms. Bzdyl confirmed her versIOn With respect to the notatIOn on the vOId receIpt, smce Ms DanIels told her she needed an explanatIOn and suggested one In spite of the fact Ms. Bzdyl knew that the explanatIOn was not true, she wrote It down rather than enter mto a discussIOn With Ms. Daniels which might lead to a confrontatIOn. Her explanatIOn for havmg lIed about the reason on the VOId receipt was that when she receIved her recent evaluatIOn from Mr Adams, he told her she was to aVOId conflIct WIth Ms. DanIels and was to do whatever Ms. Daniels told her It was then put to her that Ms. Archambault had testIfied that on August 19th, she saw the notatIOn and she replIed that she could "not believe that HeIdI would have any reason to look at [her] VOIds, because If there was a questIOn, she could ask [her] " Ms. DanIels went home at the end of her ShIft; Ms. Bzdyl remamed and closed the store at approXImately 2000 hours MONDAY AUGUST 22, 1994 THE DAY OF MS. BZDYVS MEETING WITH MR. ADAMS AND MS. DANIELS THE DAY OF MS. BZDYL'S SUSPENSION Staff workmg, accordmg to eVidence other than schedule which dId not extend thIS far Ms. DanIels Ms. Bzdyl AIT1ved at 1145 hours No eVIdence of which other Naturally Niagara staff were workmg thiS day Register 1 VOIds After end of summary Shortage None noted Register 2 VOIds After end of summary Shortage None noted Relevant Information and Activities on August 22, 1994 . Mr Adams was workmg thiS day 82 . Ms. Damels saw the tape which recorded the August 19th transactIOns for the first tIme on August 22nd, the day she and Peter Adams met with Ms Bzdyl . According to Ms. Daniels, she spoke with Mr Adams who asked her to telephone the Cash Office to arrange for the Journal tapes. They wanted "to look up the sale and venfy the sequence of events" Mr Adams m his turn spoke to Mr Wallace, picked up the Journal tape from the Cash Office and brought It to the store along with the CD and the origmal customer receIpt from the Mystery Shopper showmg the purchase of CD FA VORIT They revIewed the mformatIOn. She testified that the sales of the Appalachian tape and the CD from the SolItude Senes were sequential and four mmutes a part. She stated that "on the back of the tape [the Journal tape] were StephanIe's initIals" [ThIS Journal tape IS m eVIdence, however, Ms. Bzdyl's mltIals are not on the back.] Ms. Daniels acknowledged that she dId not go through all the tapes, or through the whole Journal tape of August 19th. It was not, she stated, necessary for her to do so as she could telephone the Dlstnbutmg Centre and they could then key up her mventory and prOVide a pnnt. Further, she herself, could undertake a phYSIcal mventory on Monday mornmg She recalled that she dId call the Dlstributmg Centre and dId do an mventory of all the CDS and cassettes and had It venfied by Derek Broerse although she was not able to recall when she dId so The phYSICal mventory dId not correspond WIth the record of the pnntout. Ms. DanIels testIfied that Peter Adams was to dISCUSS the matter WIth John Wallace, and that she was aware that there mIght have been a Mystery Shopper but that she had no detaIls. Mr Adams testIfied that he contacted Mr Wallace for the results of the Mystery Shopper's VISit to Naturally NIagara. He was gIven the CD WIth the receIpt and was told that $30 00 had been gIven to the Cashier called Stephanie, a CD was purchased and correct change was handed to the Mystery Shopper . Mr Adams then proceeded to the Cash Office and picked up the cash tapes for Register 1 and went to Naturally NIagara where he revIewed the SituatIOn With Ms Daniels. According to Mr Adams, she showed him the VOId m question and the "ongmal cash register receipt from the first purchase" on the back. of which was a signature that he belIeved to be Ms. BzdyI's and the note changed for CD" Mr Adams' testified that thiS ImplIed that a customer made a purchase of a cassette and changed Ihis/herj mind between the cassette and a void was done to refund the original sale of the cassette. There are 3 transactions and one customer 83 What should have happened, according to Mr Adams, was the followmg (1) the ongmal purchaser with the receipt would have come back (2) the Supervisor would have done the VOId (3) the Supervisor would have rerung the CD, got a balance and made change One more transactIOn should have occurred, accordmg to Mr Adams. The CD "WhICh was exchanged", Mr Adams testified, "was the one purchased by the mystery shopper" and "obviously 2 customers were involved in the transaction" This "suggested that the note on the void was incorrect and that Stephanie had lied" According to him, both he and Ms. Daniels felt that this was enough evidence to imply that "Stephanie was taking funds by an improper void procedure" Mr Adams testified that he did not recall the details of some minutes dUrIng the meetmg and that for a portIOn of that meeting "Stephanie was saying not much sense" and was upset. He acknowledged that he did not offer UnIon representatIOn to Ms. Bzdyl for thIS meetmg. He was asked in cross-examination that, if a customer had a change of mind and did not purchase anything, would Ms. Bzdyl then have to make up a void? He acknowledged that she would have to do so. He was further asked if the Mystery Shopper purchased a CD, and the Grievor did not process the void transaction until later, whether or not that would explain it. Mr Adams acknowledged that it would. He also agreed that, if one wanted to steal money from Naturally Niagara, the least risky way to do that was to take cash, because of the number of employees using the registers. He acknowledged that by signing her name to the voids, Ms. Bzdyl has, in effect, announced what she has done. . Ms. Daniels went on to relate her understandmg of the mystery-shopper mCldent. [Her knowledge of thiS mCldent IS third and fourth hand and came to her Via Peter Adams on August 22nd. He had received the mformatlOn from John Wallace, who had m turn received It from Laune Bnsson.] She stated that the Mystery Shopper came mto the store about 10 00 a.m. havmg been mstructed by John Wallace "to buy a CD and to purchase It from Stephame" She "hung around the mteractlve display (a dIsplay stand With tapes and CDS, With headphones and buttons) for about fifteen mmutes, and made use of the headphones. WhIle she was there another woman, who appeared to be Canadian or Amencan (not 84 Spamsh) came up and was lookmg at the CDS and tapes and trymg vaflOUS thlllgS. There was no large famIly She testified that she understood that Ms Bnsson spoke to her and actually helped her pick out a tape, the AppalachIan tape which the woman took to the regIster, where Ms Bzdyl waIted on her and rang lip the sale Havmg completed the sale, Ms Bzdyl then started to leave the counter however the Mystery Shopper stopped her and asked about a CD and at that pomt, Ms. Bzdyl recommended the CD FA VORIT whIch the Mystery Shopper then selected and took to Ms Bzdyl who went to the register and rang It m. The Mystery Shopper tendered $30 00 in cash, receIved change, and left the store When she dId so, no one was at the regIsters, and few people were in the store Ms. DanIels understood that the Mystery Shopper did not see the Appalachian customer at the counter at the tIme she was leavmg, nor "dId she notice them in the store" Ms. Daniels recounted the meeting with Ms. Bzdyl as follows Mr Adams concluded that they "had enough to proceed With a meetmg WIth Stephame" Therefore, before noon, at approximately 1140 hours, when Ms. Bzdyl arrIved at work she was mvited mto the office at Naturally Niagara so, as Ms. DanIels noted, "Peter could talk to her" She went on to testIfy about thIS meetmg at WhICh she, Mr Adams and Ms Bzdyl were present, and she made the observatIOn that Mr Adams was "m authonty" and "conducted the meetmg" She dId not make notes dUrIng the meetmg, and belIeved that Mr Adams only made notes after the meetmg. The meeting was, Ms. Daniels said, "very confusing" and a lot was said that day" She recalled that Mr Adams told Ms. Bzdyl, words to the effect that she could confess and be fired or, If she chose not to confess, that the Employer would bnng in the Niagara Parks PolIce She testIfied that when Ms. Bzdyl responded "bnng in the police, I am not confessmg", they were brought m, and, Ms. Damels, whIle she was not mformed of any mvestlgatIOn, given that she was at the store level and was not a Manager who commumcated With the polIce was under the ImpreSSIOn that "there was a polIce mvestlgatIOn", although she explamed that she did not know how they did It. It was her understandmg that Ms Arndt took over the mvestlgatIOn on the mstructIOns of the General Manager Ms Damels' only contact With the polIce was dunng their presence at Naturally NIagara followmg the meetmg With Ms Bzdyl and a consultatIOn which she attended on August 25th, WIth other members of Management. Ms. Daniels testified that Mr Adams confronted Ms Bzdyl With the CD receipt for the CD FA VORIT and the fact that they had had a Mystery Shopper purchase the CD She SaId that he explamed to Ms. Bzdyl that they knew that there was no Spanish family and that more than one person was involved in the transaction and that he had "caught her red-handed" Ms. Bzdyl, according 85 to Ms. Daniels responded "Let me see this woman, I didn't do anything wrong" Ms. Daniels testified that Ms. Bzdyl also said that she did lots of voids and could not remember them all, that she didn't do the void, had no knowledge of the void and did not see it until Sunday, (August 21st) when Ms. Daniels made her sign it (initial it on the back and write an explanation). This, Ms. Daniels testified, she had not done. In Ms Damel' s opmIOn, Ms. Bzdyl had lots of practIce domg vOIds and this was a Simple transactIOn for a small amount, the type of transactIOn whIch Ms. Bzdyl prevIOusly never had trouble with. According to Ms. Daniels, Mr Adams explamed to Ms. Bzdyl that they did not want to mvolve the polIce but that he would call them If necessary When Ms. Bzdyl continued to deny everything, Mr Adams called the Niagara Parks police. She was suspended on that day, With pay, pendmg an investIgation. . Mr Adams reported the meeting as follows Ms. Bzdyl went mto detaIl about the "SpanIsh family", that a cassette was purchased, that there was a crowd of them and that someone changed her mmd and wanted to change a cassette for a CD Mr Adams testified that Ms. Bzdyl SaId they dId, and that actually "they dId" He replIed that he dId not belIeve her story and explamed that he knew who had purchased the CD, and that he actually had the CD and the receipt for its purchase. He testIfied that he then told her that, as far as he was concerned, she was lying about the void and that she had used the void procedure to take the money for herself. Mr Adams stated that he did not recall the details of the next few minutes, except that "Stephanie was obviously upset as would be natural" and he told her that "unless she came up with a good explanation, they would consider it as theft." He testIfied that he went on to tell her that he "was convmced that she had stolen funds, as was LIsa Damels, and that she could confess and leave the employ of the Niagara Parks CommiSSIOn, and If not that [he] would have to call the NIagara Parks PolIce Force to begm an mvestIgatlOn" Her response was that he should do so, and he dId. ThIS was between 1220 and 1230 hours. Mr Adams testIfied that the polIce could not understand the tapes and that at thiS pomt, Ms. Arndt took over the mvestIgatIOn. . Ms. Bzdyl related how she perceived the meeting of August 22nd She aITlved at work and Mr Adams SaId he wanted to talk to her and she told him that If there was a problem, she wanted to have her Umon Steward present. The conversatIOn took place 111 the office and Ms Damels was present. Mr Adams told her that the trouble she was m, no one could help her and refused to allow her to use the telephone m the store to place a call to her Steward. When she SaId that there was stIll 15 mmutes remammg before she was due to start work and that she 86 was gomg out to use a pay phone, he then told her, that she could not leave the office She related that Mr Adams stated that Ms. DanIels told hIm that she, Ms Bzdyl, was stealIng and that on Fnday, August 19th, there had been a Mystery Shopper purchasmg from her, whereupon he brought out a CD from a brown envelope and then produced the ongInal receIpt, the 2 receipts mltIalled by her for $13 95 and the Journal tape, and asked her to explam the VOId. She testified that she "tned to explaIn how It happened as far as [she] she could recall but each tIme she trIed "to explam proper" he saId "that s not the way It happened" She gave eVIdence that "he referred to SpanIsh people" and that she "saId It could be pOSSible that SpanIsh was referred to by another cashier but not by [her]" but that "he did not belIeve [her] that" Ms. Bzdyl went on to testify that when Mr Adams pulled out the dIsk [CD] receipt from the brown bag he told her that the comment she put on the slip was a lIe because the cassette was never changed for a disk, since the customer who purchased the disk was a Mystery Shopper When she replied that thIS was not true and that the tape was never sold, Ms. Bzdyl stated that Ms. Daniels told her she had a printout of the inventory, which she did not show to Ms. Bzdyl even though she had it in her possession, and that the tape was missing from the inventory Ms. Bzdyl then asked Mr Adams to have the three of them go mto the store and do a count, but thIS request was denied. Ms. Bzdyl gave evidence that she was told that they had enough eVIdence to charge her but that they would give her the opportumty of confessmg. It was her understandmg at that tIme that she was bemg accused of stealmg the tape She was told by Ms DanIels If she dIdn't confess that her name would be m the newspapers, that her famIly would be embarrassed and that she would never find a Job workmg With money agam. At thiS pomt, Ms. Bzdyl recounted, she demanded to be allowed to contact her Umon Steward and she was once agam refused. She stated that she asked them to call the polIce because she knew that she had not taken anythmg and felt that they should charge her If they thought she had, and she told Mr Adams that Ifhe would not contact the polIce, she would do so Mr Adams did so, accordmg to Ms Bzdyl, and at that pomt she asked once agam for the opportumty of contactIng her Umon Steward and thiS was once agam refused. Dunng the 20 mmutes It took the PolIce Officer to amve, Ms Bzdyl sat m the office With Mr Adams, and Ms Damels went out on to the floor of the store Ms Bzdyl was told by him "Honey we got you red-handed" She asked a third tIme to be allowed to call her Umon Steward and Mr Adams refused once agam. 87 . When the PolIce Officer John Audlbert, arrIved, according to Ms. Bzdyl, Mr Adams and Ms. Dame[s InitIally spoke with him In the store, and he then came mto the office to speak with her She tned to explam the cashIenng problem but Officer Audlbert did not understand the system. She also asked to go with him, Mr Adams, and Ms. Damels, to check the mventory and see If the tape were mlssmg. At that pomt he went out lllto the store and spoke agaIn wIth Mr Adams and Ms. Damels. He returned and mformed Ms. Bzdyl that Mr Adams and Ms Damels would not agree to do a count of the tapes. She was then told to move from the office to the store, where she stayed for at least half and hour whIle the busmess of the store contmued, and whIle Mr Adams spoke WIth Officer Audlbert m the office Ms. Bzdyl was not aware of Ms. Damels' whereabouts dUrIng that time. Fmally, she recounted, Officer Audibert came m [to the store] and told her that they had suffiCIent evidence to charge her and she replIed that she WIshed to be charged but that before he dId that, she wanted to speak With her Umon Steward. He then SaId that he could not charge her, but faIled to explam why She gave eVIdence that she then asked Officer Audibert whether or not she was to go home, or to stay and fimsh her shift. The Officer went and brought Mr Adams who told her in front of Officer Audibert that she was suspended WIthout pay and that he wanted her SupervIsor's key The key was, she stated, hangmg on her belt, and Mr Adams trIed to grab it; and she told him to "Just WaIt I wIll gIve it to you" Once she had done that, Officer Audibert told her that she could use the telephone to call her Union Steward, WhICh she dId, only to find that her Umon Steward was not home, (She did not telephone her at work.) and she therefore left a message on her Union Steward's answermg machine. Ms. Bzdyl testified that she then left the store, went home and called Mr Schafer, the General Manager, and left a message with hIS secretary She related that she was "really upset" He returned her call 2 mmutes later, and, accordmg to her, stated that he could not understand and she thought this was perhaps because she was crymg In any event, he told her to leave the matter WIth hIm, and that he would take care of It. She then telephoned the famIly lawyer and explamed the SItuatIOn. He told her that If there were any charges, she should contact him and he would assist her Ms Bzdyl testified m cross-exammatlOn that "they [Mr Adams and Ms. Damels] dId not want to lIsten to what happened that day (August 22nd) In cross-examInatIOn she was presented WIth the report of Peter Adams m which he referred to the meetmg on August 22, 1994 and wrote that ""She (Ms Bzdyl) SaId that a Spamsh famIly had bought the cassette, had changed theIr mmd and returned It for the CD mstead." It was also put to her that Ms. Damels testIfied to the Spamsh famIly story Ms. Bzdyl stated that she knew "100% that she did not say that about Spamsh people" and that 88 he [Mr Adams) never asked me, [rather) he told me to confess, that they have 100% proof I am guilty and if my famIly does not want to suffer it was to my benefit to confess. Ms. Bzdyl testified that she dId not have a purse With her m the store, that she was not searched, nor was her purse or access to her car requested for mspectlOn, nor was she ask.ed for the whereabouts of the tape. Dunng thIS meetmg she was not accused of anythmg other than the allegatIOns relatmg to August 19th. She was never arrested for thIS alleged theft, had never spoken agam WIth the PolIce Officer who attended, nor With anyone else from the Niagara Parks CommISSion PolIce [There was no eVidence of a NIagara Parks CommIssion PolIce mvestIgatIOn, or of a Niagara RegIOnal PolIce mvestIgatIOn. Charges were never laid. ] . Ms. Arndt testIfied that Peter Adams mformed her during the afternoon that the Mystery Shopper had completed her assignment, that he had been through the Journal tapes and the transactions and that it had "become apparent that an employee had fraudulently VOIded a sale and it happened that It was the mystery- shopper sale" [Ms. Arndt's version ofMr Adams' part of the conversatIOn] She testified that when he came to her for adVIce on how to proceed, he gave her a copy of the voided register tape and receipt, as well as the back of the VOId [ExhibIts 10 and 11] and told her that he was convinced that he had enough eVIdence to dismISS the employee. His explanatIOn to her ofMs Bzdyl's verSIOn of the August 19th mCIdent as recounted at the meetmg earlIer that day was that "a Spanish famIly had come in and bought a tape and changed [theIr] mmd and exchanged It for a CD" She stated that he also told her that Ms. Bzdyl requested that the polIce be brought m and that he had called Officer Audibert. Ms. Arndt testified that she adVIsed Mr Adams to hold Ms. Bzdyl out of service With pay pendmg dIrectIOn from Mr Schafer and that by the time she spoke to Mr Schafer, he had already spoken WIth Ms. Bzdyl. It was deCided that the best course was to do an mvestIgatlOn. TUESDAY AUGUST 23, 1994 MEETING BETWEEN MS. ARNDT AND MS. BZDYL . Ms. Arndt testified that she thought she SaId somethmg to Ms Bzdyl about Peter and Lisa" saymg she mentIOned a Spamsh family It IS reasonable to conclude from thiS comment that Ms Arndt had spoken With both Mr Adams and Ms. Damels pnor to meetmg With Ms Bzdyl 89 . Ms. Bzdyl testified that Ms. Arndt telephoned to arrange a meetIng wIth her smce she had been requested to do so by Mr Schafer Ms. Arndt mSlsted on meetmg that day and Ms Bzdyl stated that, If the meetIng had to take place on that day, the only place she was able to meet was at her home, smce she was carmg for a nelghbour s chIldren. . Ms. Arndt described the meeting as follows. When she telephoned to arrange a meetmg wIth Ms Bzdyl for the followmg day, to dISCUSS August 19th and harassment, Ms. Bzdyl explamed that she felt uncomfortable commg mto the workplace and when she replIed that a neutral locatIOn was acceptable, Ms. Bzdyl suggested her home She arrived there and met Ms. Bzdyl for the first time. She attended there from approximately 1100 hours to 1330 hours. Ms. Arndt testIfied that she explamed that she had come to talk about the "alleged theft and some harassment Issues WhIch she had brought up" Ms. Arndt described her as very agItated and commented that she was poppmg up and down lookmg after chIldren. Ms. Bzdyl, accordmg to Ms. Arndt's testImony, started talkmg about stealmg a tape, and saymg that she did not take a tape and contmued to state that she did not steal a tape while Ms Arndt was trying to go through the cash regIster documents from August 19th, WhICh she dId 2 or 3 tImes. After some time, Ms. Arndt managed to dIrect the conversatIOn from the tape to money and asked for an explanatIOn. She wanted Ms. Bzdyl to be certain she was talking about money Ms. Arndt testified that Ms. Bzdyl told her that Lisa Daniels asked her on Sunday what the void was and that she had said that it was about a lady who had purchased a CD and [t)hen she said that a lady was holding a tape and that she [Stephanie) rang it in and the lady changed her mind about the tape and left. Ms. Arndt also testified that Ms. Bzdyl said that she had not written anything on the journal tape when it was voided, except for her initials. [The journal tape was presented in evidence and there was no writing of any kind on the CD sale, the appala tape sale, or on the appala tape void.] Ms. Arndt did not recall any mention of a Spanish family She also heard from Ms. Bzdyl that she had always had a problem With VOIds and that up untIl a week before, all the receIpts were thrown away Ms Bzdy I also stated to Ms. Arndt that she was not even sure that she was on the cash at that tIme because she was dOIng display and she knew that Ms Provenzano was not domg T-shirts ThiS diSCUSSIOn was 90 lImIted to August 19th. Ms. Arndt had no specific mformatIon about the other allegatIOns at that tIme She was only aware of the SuspicIOns. Ms. Bzdyl described the meeting as follows She invited Ms Arndt mto the dmmg room where they met for an hour to an hour and a half, and that dunng the meetmg a two-year old chIld whom she was canng for was runnIng around. Ms. Arndt SaId that Mr Schafer wanted to know what had happened and that she wanted to hear specIfically about August 19th. She explamed that there was a lot of theft gomg on wlthm the Commission and that people were fired for theft. Ms. Bzdyl testified that she told her that she did not take anything at anytime during my work for the Niagara Parks Commission, that she respected her job and did anything to protect their products against theft anytime there was a crime committed" , and that she was a witness for crimes on a few occasions in the police investigation and in court as a witness" The harassment Issue came up and was dIscussed and then Ms. Arndt returned to the Issue of the mlssmg tape. At that point Ms. Bzdyl related, she thought that It was possible that she was being accused of stealmg a demonstratIOn tape of which both she and Ms. Archambault had been gIven a copy by Ms. DanIels. She brought it out and asked Ms. Arndt If thIS was the mIssing tape and because Ms. Arndt dId not know exactly which tape was missmg she was unable to answer that partIcular questIOn. Ms. Bzdyl testified that she explamed the SItuatIOn of the 2 ladles to Ms. Arndt and that she wrote it down. She dId not respond to Ms. Bzdyl's recounting. Ms. Arndt testified that she had some dIfficulty smce she was gettmg so much dIfferIng mformatIOn, and she ended the mtervlew feelmg that she needed more mformatIOn. She gave evidence that she asked Ms. Daniels to telephone Ms. Archambault and ask her to put in writing when she saw the reason for the void. She made this request because Ms. Bzdyl had told her that she did not write a reason on the Friday, that is on August 19th. [Ms. Archambault testIfied that she was asked to WrIte a report, although there was no eVIdence that she did so ] [There was no eVidence that Ms. Arndt had the Journal tapes or other transactIOn slIps with her or that if she did that she showed them to Ms Bzdyl] 91 WEDNESDA Y AUGUST 24,1994 Relevant Information and Activities on August 24, 1994 . Ms. Bzdyl went to a doughnut shop at 1500 hours to attend a preVIOusly arranged meetmg concermng harassment with Ms Arndt. She was accompamed by her fnend. Ms. Arndt did not attend and Ms. Bzdyl did not receive an explanatIOn for her failure to do so Ms. Arndt testIfied that thIS meetmg was to take place on August 23rd and the meetmg at Ms. Bzdyl's home replaced It. . Ms. Arndt spent 3 to 4 hours with Ms. Damels, havmg her recount her experIences from when she first had SUspIcIons or doubts, the events of August, and then, makmg her go through each step of the cash register operatIon and the cash bags. She also spoke with Ms. Archambault briefly to ask if she saw "writing on the back of the void on August 19th" Ms. Arndt testified that Ms. Archambault said that "she saw writing of the reason on August 19th" Ms. Arndt testified that she also spoke with Ms. Brisson, [the Mystery Shopper] who, in reply to one of her questions, stated that "she didn't know if Stephanie was the cashier who cashed out the lady" and that "she could have misunderstood" Ms. Arndt stated that because of the Spanish reference she asked Ms. Brisson what she did. She believes she did so without conveying to Ms. Brisson whether or not Ms. Bzdyl had made a Spanish reference. She recalled asking if "Stephanie had waited on the tourist" and Ms. Brisson replying that "she did not know if Stephanie had" [ThIS contradIcts Ms BrIsson's testImony] Ms. Arndt did not ask Ms. Brisson about the inconsistency between the information which she provided directly to her, and her report. THURSDAY AUGUST 25, 1994 INVENTORY OF CDS AND CASSETTES CARRIED OUT BY MS. DANIELS MEETING OF MS. ARNDT, MR. ADAMS, & MS. DANIELS WITH SGT HOLLIDGE Relevant Information and Activities on August 25,1994 . Ms. Daniels camed out an mventory of CDS, and cassettes, lookmg at a total of 36 Items ThiS related to the transactIOn of August 19th. There were shortages m 23 Items, overages m 4 and the correct number accordmg to the pnntout, m 9 92 Items. There was a total of 52 shortages The mventory was venfied by Derek Broerse . Barbara Arndt, Peter Adams, and Lisa Damels went to the polIce offices and consulted Sergeant Fred Holhdge at the request of Mr Schafer who wanted them to get a polIce perspectIve It was the understanding of Ms. Arndt from Mr Schafer that Sergeant Holhdge of the Niagara Parks PolIce, was an officer With FBI mvestIgatIve trammg. According to Ms Arndt, she wanted to make sure that "our mformatIOn gave us a bona fide case" They showed him, according to Mr Adams, the shortages and transactIOns from July 30th to August 19th lIsted on the first page of his statement, and asked hIm If he felt there was enough eVIdence to pursue a charge of theft. Assuming they were correct, and based on their mvestlgatIon and their verbal report to him, Sergeant HollIdge "felt that It would stand up m Court." According to Ms. Daniels, Sergeant HollIdge was of the opmlOn that they "had a case of fraud" According to Ms. Arndt, If Sergeant HollIdge had saId that they "didn't have enough here, we would have said to DennIS Schafer, we do not belIeve we have enough eVIdence here" She testIfied that they "dId not want to make the deciSIOn lIghtly" However, Sergeant HollIdge, according to Ms. Arndt, SaId "If I had thIS case, I would say you have enough evidence to charge and conVICt." She testified that Sergeant HollIdge "did not speak to the suspect" but heard her (Ms. Arndt's) version of what Ms. Bzdyl had SaId and that she made sure that everyone there knew that Ms. Bzdyl mamtamed that she was Innocent. Mr Adams did not know whether or not the polIce undertook a further mvestlgatlOn followmg the attendance of Officer Audibert on August 22nd, nor dId he know If Sergeant HollIdge had spoken With Ms. Bzdyl. Ms. Daniels testIfied that she thought a pollee mvestIgatlOn was carried out by the CommiSSion, although she dId no know how FRIDAY AUGUST 26, 1994 SATURDAY AUGUST 27,1994 SUNDA Y AUGUST 28, 1994 93 MONDAY AUGUST 29, 1994 MEETING IN THE ADMINISTRATION BUILDING DECISION TO DISMISS MS. BZDYL AND NOTICE TO MS. BZDYL Relevant Information and Activities on August 29,1994 . Mr Adams testified that he spoke to Ms Bnsson by telephone and obtamed detaIls of her VISit to the store (ThIs conflicts with Ms BrIsson's testImony that she did not speak to hIm prIor to February 22, 1995 ] . A meetmg was called at the ImtIatIve of Mr Schafer for the mornmg of August 29, 1994 Ms. Bzdyl was mformed of the meeting by Ms. Arndt and It was Ms. Bzdyl's understandmg that Mr Schafer would attend. He dId not do so. She was also mformed that she could brIng her Umon Steward. The following mdlvlduals attended. From Management: Barbara Arndt who took notes ofthe meetmg Peter Adams Lisa Damels From the Umon. Stephame Bzdyl - did not take notes of the meetmg Colleen McComb Page . Ms. Arndt described the meeting: Ms. Arndt testIfied that she explamed to those present that they were at the meetmg "to show Stephanie all the eVidence which [they] belIeved that [they] had and the SuspiCIOns and to give her an opportumty to explam what was gomg on" [Ms. Arndt testified that It was not a dlsclplmary meetmg. It was, rather, an mformatlon meetmg and her role was to gather mformatIOn for Mr Schafer] She stated that Ms. Daniels went through the tapes and mCIdents, methodIcally and thoroughly and that at first, Ms. Bzdyl agreed that all the mltIals on all the VOIds were hers - film, gardemng books, dog sled and CD She then IdentIfied the ImtIals on the back of the void slIp for the Appalachian tape (#7920], stated that she could not explam It and demed domg anythmg. At one pomt, accordmg to Ms Arndt, Ms Daniels pomted out that there were 2 or 3 explanatIOns and Ms. Bzdyl replIed that "there may be 2 or 3 by the time she fimshed." [Ms Arndt s versIOn of Ms. Bzdyl's statement] Ms. Arndt stated that on a couple of occaSIOns Ms. McComb Page remmded Ms Bzdyl that thIS was her opportumty to explam and that when the Umon Steward asked her "Is It your SIgnature')" Ms. Bzdvl SaId that "It mIght not be" . Ms. Daniels described the meeting: It was her understandmg that thiS was a meetmg set up by the General Manager followmg a "thorough mvestIgatIOn" by Ms. Arndt, to allow them to "disclose all 94 the eVidence to [Ms. Bzdyl] and get a response" She testIfied that "we were there to hear her side of the story" She stated that at the outset of the hour-long meetmg, the Umon brought up the Issue of dlscnmmatIon relatmg to Ms Bzdyl's PolIsh ancestry and her accent and tned to make a connectIon between the dIscnmmatlOn allegatIOns of Ms Bzdy I and the money allegatIOns of the Employer She stated that Ms Arndt dealt With the matter by explammg that each mdIvIdual possessed an accent and that a comment on someone's accent "IS not meant as a slur of any sort" Ms. Daniels testIfied that she [Ms. DanIels] "did the phYSical eVIdence", "gomg through everything" [There IS no eVIdence that thiS mcluded either the mventory pnntouts or the mventones WhICh Ms. DanIels had undertaken.] She laId out the Journal tapes and the summary sheets [Only one was presented m eVidence.] and then went through the relevant transactIOns of August 19th, her conversatIOn WIth Ms. Bzdyl and the actions of the Mystery Shopper [Ms. DanIels was not present on the day the Mystery Shopper came] Ms. McComb Page also went through the transactIOns WIth Ms. Bzdyl who, once agam, had no explanatIOn. Durmg the meetmg, accordmg to Ms. Daniels, Ms. Bzdyl confirmed all her ImtIals on copIes of all VOIds ( the Garden books, the dog sled and the AppalachIan tape) and gave no explanatIOn for any of these Ms. Daniels testified that she did not volunteer the information that Ms. Archambault had relayed to her on August 19th that her initials and explanation were on the back of the Appalachian tape void slip. Ms. Bzdyl spoke of a Spanish family, claImed that she had no knowledge, that she did not do the VOId, that Ms. Damels had made her sign, and then saId that she mIght change "three tImes, who knows?" Ms. DanIels testified that Ms. Bzdyl kept repeatmg that the Employer should go ahead and press charges, while the umon representatIve kept explammg to Ms Bzdyl that the Employer did not want to press charges. At the end of the meeting Ms. DanIels' ImpreSSIOn was that a lot had been SaId and that the atmosphere of the meetmg was stressful In her opmlOn, the SIgnatures were Ms. Bzdyl's, she had changed her story, and, she was gUIlty Followmg the meetmg she, along With Ms. Arndt and Mr Adams spoke With Mr Schafer who, authOrIzed the termmatIOn of Ms. Bzdyl, based on the mformatlOn and recommendatIOn prOVided to him. . Mr Adams described the meeting: From Mr Adams' pomt of View, the purpose of the meetmg was "to summanze the mvestIgatIOn done dunng the prevIOus week and most of thiS was directed by the General Manager He wanted [us] to treat It as faIr as we could. The pomt was to give Stephame a chance to hear the findmgs of the mvestlgatIOn and give her another chance to explam VOIds and problems we had drawn before her We 95 wanted to gIve her a chance to explam If there was a mlsunderstandmg , confusIOn or a genume mlsunderstandmg, or, perhaps we were wrong" He stated m cross- exammatlOn that, m hIS opmlon, It was fair to Walt 28 days to confront an employee who would serve approxImately 1200 customers over that penod, with an alleged dIscrepancy, although he tempered this by addmg that "If no one had brought any of the vOIds to her attentIOn, that [he] would say yes', it would be unfaIr" He was not able to recall if the shortages were brought to her attention and explained that they "were not sure enough about those", although, he stated, "[they] were suspicious and remain suspicious to this day" There was, he testified, some dIscussion between Ms. Arndt and Ms Bzdyl concernIng the harassment Issue, and to hIS mmd, this was not pertment. "She had the opportunity to see all the evidence and signatures" but "did not give any explanations for the evidence we presented." He observed that the umon representatIve told Ms. Bzdyl that thIS was her chance to explam but at that pomt, Ms. Bzdyl said no more. In the end, when Ms. Bzdyl saId, "do what you have to do" [quotation from Mr Adams], he testIfied that they concluded they had "good reason to believe that Stephanie was guilty of stealing this money and, although it was not a large sum, [they] felt she had breached trust" . Ms. Bzdyl described the meeting: She recalled that Ms. Arndt started to read from her notes and brought up the Issue of harassment. ThiS was upsetting for Ms. Bzdyl as she understood she was there to dISCUSS August 19, 1994, and she believed that thIS Issue of harassment should be for another tIme Ms. Bzdyl was told "Just to listen" [She did not say by whom.] and Ms. Arndt stated that she dId not find any harassment or dlscrImmation towards Ms. Bzdyl m the workplace She then read a statement of the "Mystery Shopper" Accordmg to Ms. Bzdyl, It dIffered from the typed statement of Ms. BrIsson that was entered m eVidence (Ex. 18) m that Exhibit 18 does not say that Ms BrIsson observed the lady buying the tape, saw Ms. Bzdyl givmg change, saw the bIlls she gave in change and saw her vOIdmg the $13 95 transactIOn. Ms. Bzdyl testified that Ms. Daniels showed her entnes on the three Journal tapes and asked her to identIfy her Imtials. Some she acknowledged, others she questioned. She was not shown any other sectIOns of the Journal tapes except the sectIOns where the mitIals whIch Ms. Damels produced were located She was also shown two of the three receIpts for August 19th, and asked to give an explanatIOn but she testIfied that she tned to explam but "they had mmd set up [she] did It" and "each tIme I tned to explam It they mterrupted and Said what happened" and "the more [she] explamed the more mterruptIOn and therefore It became confused and the Umon Steward adVised me not to say anythmg" Ms Bzdyl testified that at that tIme It was her understandmg that she was accused of stealmg a tape and that she was never told whether the register was short or over and she stIll did not kno\\- thIS at the tIme of the arbItratIOn hearIng 96 It was Ms. Bzdyl's recollection that durmg the meetmg neIther the Issue of the film vOId nor the cash shortages was mentIOned. She recalled that the Issue of the gardemng book.s was brought up but that she did not respond smce she was not shown the vOId slIp for them. She remembered the Issue of the dog sled commg up, but could not recall whether or not she had been shown the vOId slIp for that Item, nor for the compact disk Issue of August 5th/6th. Ms. Bzdyl maintained that rather than bemg asked to proVide an explanatIOn, as was suggested to her, she "was specIfically asked to confess and if, as she put It, I do not confess I wIll be charged and my family WIll suffer" ThiS explanatIOn was challenged m cross-exammatlOn and it was put to Ms. Bzdyl, that she did not explam durmg the meeting of August 29th, for the SImple reason that she had yet to come up With an explanatIOn. Her response to thIS suggestIOn was that she was not offered an opportunity to explam, that what she was offered was an opportumty to confess to something which she dId not do She testIfied that she had already trIed to explam it to the PolIce Officer At the end of the meetmg, Ms. Bzdylleft WIth her Steward and when they were outSIde Oak Hall, she asked why Mr Schafer was not there. When she left, It was with the hope that she had explamed things sufficiently clearly so that Management understood that she did not commit any kind of theft on August 19, 1994 She had no knowledge there were other allegations, which had not been presented. . According to Ms. Arndt, she, Mr Adams and Ms. Damels "did not feel [they] had a reasonable explanation for the incident on the 19th except that money had been taken. [There was no eVIdence that money had been taken.] Based on past practIce It was the view of all that termmatlOn was appropriate and WIth that perspectIve, they went to Mr Schafer, who asked them for theIr opmions and whether or not they had the eVIdence They replIed that they did. Followmg the departure of Ms. Daniels and Mr Adams, Mr Schafer and Ms. Arndt discussed the situatIOn and Mr Schafer made the final deCISion to termmate Ms. Bzdyl. TUESDAY AUGUST 30,1994 . On thiS day (or the prevIous day) "a confidential, personal letter" for Ms Bzdyl was hand-delIvered to her husband. It was her letter of dismissal for havmg engaged in a series of thefts from the Naturally Niagara Store as well as violating the trust that The Niagara Parks Commission accorded [her] as a Seasonal Supervisor 97 IMPACT OF THE ALLEGATIONS AND THE DISMISSAL ON MS BZDYL Ms Bzdyl testified that the allegatIOns of theft and the consequentIal dismIssal, as well as the hunulIatIOn she suffered m the presence of customers, have had both physical and emotIOnal repercussIOns for her She lost a considerable amount of weight and at the tIme of the heanng was stIll seeing both a SOCIal worker and a psychIatnst for assIstance III dealmg WIth the effect that the SituatIOn had, and contmues to have, on her She put It that "[her] lIfe IS Just destroyed by this" She gave eVIdence, that the repercussions were not limIted to her alone, but that the other members of her famIly were affected as well. Her husband sees her as obsessed by the allegatIOns agamst her, her son worries that she will be arrested and her daughter has been told by one of her peers that her mother is a thIef. ARGUMENT The Employer Counsel for the Employer, Christopher Riggs, submItted to the Board that most of the eVidence WhICh was heard was not helpful m a declSlon on the fundamental Issue whIch IS the termmatIOn of employment of the Gnevor, Ms. Bzdyl, "as a result of theft from the Niagara Parks CommiSSIOn on August 19, 1994" Much of the eVIdence concernmg mCldents prior to that date IS, he argued, eVIdence of reasonable SuspiCIOn which led to the deCISIOn to "have someone come m and purchase a CD to determme whether or not the Employee was stealmg from the Employer" Mr Riggs emphaSized that thIS employee was m a pOSitIOn of trust, gIVen that she worked m a retaIl settmg where a number of people have access to both cash and merchandise and where It IS easy to steal Further she was m the pOSitIOn of knowmg how the system worked. From the Employer's perspectIve, It IS very difficult to conclude who IS responSIble m such SItuatIOns for the theft of product or money and the Employer's use of the "Mystery Shopper" IS Justified under such CIrcumstances Laune Bnsson, he offered, was an appropnate person for the mystery-shopper assignment m that she had no connectIOn With Naturally NIagara 98 or Its staff, and whIle she was a member of the same bargammg umt as the GrIevor, she undertook the assignment straIghtforwardly and carrIed It out to the best of her abIhty Her eVidence was not, Mr Riggs argued, challenged m any respect and was supported by her notes which were submitted as part ofthe eVidence Her eVidence wIth respect to the purchase of a cassette by a woman who was accompamed by her husband, and her eVIdence regardmg the fact that the woman was EnglIsh-speakmg should, therefore, be accepted. The Panel should also accept the eVidence of LIsa Daniels, Peter Adams and Barbara Arndt as It was conSIstent where It overlapped and was gIven, by all three duectly and without hesItatIOn. The eVIdence of Ms Archambault, and Ms. BrIsson was the evidence of WItnesses called by Management but not from Management. They were both, he pomted out, Simply witnesses domg a Job and recountmg m a straIghtforward way what had occurred, and their eVIdence should be conSIdered with thIS m mmd. Mr RIggS submItted that the eVIdence of the GrIevor is inconsIstent and cannot stand up to the eVidence of the management WItnesses. He went on to set out the areas of her testImony WhICh he conSidered problematiC . Ms. Bzdyl s mentiOnIng of the Spanish family on August 22nd and her failure to mentIOn It on August 29th. . The propositIOn put forward on August 22nd by Ms. Bzdyl flIes m the fact ofthe eVIdence of Ms. Bnsson that she was the one who had purchased the CD and that the famIly m questIOn was Enghsh-speakmg. . The Gnevor's explanatIOn that the transactIOn was never completed and that the purchaser had changed her mInd prIor to the transactIOn's completIOn was not suggested to Peter Adams, Lisa Daniels, or Barbara Arndt when they were glvmg eVIdence [Because of this, the Counsel for the Employer was permItted to recall these witnesses m reply However he chose not to do so ] ThIS explanatIOn does, he argued, conflict WIth the eVIdence of Ms BrIsson, who was qUIte explICit m statmg that the transactIOn was completed, that change was prOVided and that the purchaser went out of the store WIth her purchase m a bag . There are two problems WIth the Gnevor's eVidence respectmg the signIng on the back. of the VOId slIp The first, Mr Riggs submitted, was Ms Bnsson's eVidence that she was the one who had purchased the CD, the second. the Gnevor s 99 explanatIOn of the manner m which the statement on the back of the vOId slIp came mto eXistence that IS, that she wrote the reason for the vOId on August 2 I st, at the behest of Ms. Daniels, because she was dIrected to provide an explanatIOn and did so even though she knew It not to be true He submitted that her response to the questIOn of why she would wnte somethmg down that she knew to be untrue, - "When your Job IS m Jeopardy you wnte It down"- IS Illummatmg and was "a defimng moment" . The Gnevor's theory of her havmg WrItten the comment on August 21st, must be reJected m the face of Ms. Archambault's eVidence that she recogmzed the Gnevor's wntmg and her mltIals and recalled that It was there on August 19th. Mr RIggS made the pomt that Ms. Archambault had nothmg to gam from the gIVmg of this eVIdence . The Gnevor's recall of the meeting of August 29th is mconsistent with that of Ms. Arndt and others III that Ms. Arndt recalled Ms. McComb-Page, the Gnevor's UnIon representatIve at the meetmg, tellmg Ms. Bzdyl that now was her chance to "tell what happened" and that the GrIevor's recall was that she was prevented from provldmg an explanatIon. It IS clear, Mr Riggs put forward, that, at the August 29th meetmg. The Niagara Parks CommIssIOn gave the Gnevor the OpportunIty to provide a more honest response of the events of August 19th. The Board cannot, accordmg to Mr Riggs, aVOId the conclusion that the Grievor, whIle occupymg a pOSItIOn of trust, has demonstrably stolen from her Employer and has consIstently lIed m her eVidence to the Board. Her failure to own up to the theft and her consistent lymg to the Board make It clear that the Board should not exercise ItS remedial authOrIty to remstate The Union Rebecca Murdock, Counsel for the Union, stated that the Umon's pOSitIOn IS that the Gnevor Ms Bzdyl, IS mnocent; that no admISSIOn of gUIlt has been forthcommg pnor to or dunng her eVidence, that she has not commItted any fraud or been responsible for theft from her Employer and that her eVIdence IS conSIstent and coherent. When one lIstens to her eVidence m totaht) Ms. Murdock submitted, all the parts fit together The onus lS on the Employer she argued, to show first, that a theft or a cnme has been committed and second, that Ms. Bzdyl committed that cnme The Employer has stIll not SaId whether the Gnevor IS accused of stealmg a tape, a 100 $20 00 bIll or $13 95 the pnce of the tape The absence of a cnme leaves a gapmg hole m the Employer's case Ms Bzdyl was never caught m the act of takmg money or merchandise from the Employer, no one ever dIscovered money or merchandIse m her purse or on her person, nor has anyone observed her pocketmg money or merchandIse whIle m the store or leavmg the store WIth merchandise The most that IS there IS that somethmg funny happened on August 19th" and from that the Employer IS askmg the Panel to draw an mference that Ms Bzdyl stole either money or merchandIse Ms. Bzdyl has never understood what she IS bemg accused of. The Employer has, Counsel for the Umon argued, at the conclusion of Its case, narrowed the grounds of dismIssal from the letter of termmatIOn which refers to 4 grounds . 1 cash shortage . 2 VOIds . 3 items of missmg merchandIse . August 19th mCldent involvmg the Mystery Shopper Ms Murdock mamtamed that the Employer has shifted the emphaSIS of Its case, because durmg the hearmg It has become eVident that there IS no substance to the first three allegatIOns. It IS the Umon's pOSItIOn that there IS no substance to the fourth ground although It acknowledges that there IS a factual dIspute and, she submItted, the Employer IS seekmg to hang ItS whole case on thIS dIspute of fact. The SuspICIOns whIch the Employer had about Ms. Bzdyl arose, she stated, because of two factors . 1l1ferIor cash handlmg procedures that protected neIther the Employer nor the Employees. and . the mexpenence and lack oftram1l1g of the Store Manager, Lisa Damels, who was havmg penodlc episodes of conflict With the Gnevor Ms Murdock submItted that the allegatIOns pnor to August 19th, that IS, the shortage and VOId allegatIOns, were used b\ the Employer to discredit Ms Bzdyl and to lend greater weight to the Employer s allegatIOns respect1l1g August 19th. It IS alwavs easier Ms. Murdock mamtamed, to suspect a troublesome employee than one With whom you have a great relatIOnship It IS clear 101 she stated, that the suspicions surroundmg Ms. Bzdy I arose agamst a backdrop of Ms Damel' s not gettmg along with Ms Bzdyl Ms Murdock then made submissIOns on the separate grounds for dismissal set out m the Employer's letter of August 29, 1994 Shortages The Employer alleged the Gnevor was responsible for 3 cash shortages m Peter Adams statement of August 24, 1994 In that respect one should consider the followmg, she submItted . The cash registers are rung off dally at approXimately 1630 hours and as part of that procedure the money, uncounted by the Naturally Niagara staff, IS put mto the cash bags and IS sent to the Cash Office . CashIers are not informed of shortages or overages unless the Cash Office consIders them SIgnificant. . At Naturally Niagara potentIally a dozen people each day could have access to the cash drawers at dIfferent stages dunng the cash process. . A Cashier scheduled to work from 0900 to 1600 hours would operate a tIll that had been operating smce 1630 hours the preVIOUS day . Cashiers are not reqUIred to count the float, they SImply assume that the reqUIsite amount is m the drawer and that the balance of the sales from the prevIOUS evemng had been removed from the till. . The cash, once pIcked up, IS exposed to stIll more people dUrIng the transportatIOn and cash office processmg stage It was the Umon's submiSSIOn that, given such an mfenor system of cash handlmg, there IS no way that an mdlvldual CashIer could ever be Imked to cash shortages, barrmg direct eVidence, that IS direct observance of a Cashier pocketmg money out of a cash drawer Ms Murdock submitted that the Board should apply the same logiC set out m the Employment Standards Act s 8, that IS that If you do not have 100% control over a cash drawer, you cannot be held lIable The sectIOns of the Act and the RegulatIOns are set out below' Except as permitted by the regulations, no employer shall claim a set-off agamst wages, make a claim against wages for liquidated or unliquidated damages or retain. cause to be returned to 102 himself, or accept, directly or indirect, any wages payable to an employee [R.S.O 1980, c. 137, s.8] and RegulatIon 325, s. 14 J4 (I) Despite section 8 of the Act, an employer may set off against, deduct from, claIm or make a claim against or retain or accept the wages of an employee where, (a) a statute so provides, (b) an order or judgment of a court so requires, or <<.;) subject to subsection (2), a written authorization of the employee so permits or directs. (2) No written authorization of an employee shall entitle an employer to set off against, deduct from, retain, claim or accept wages for faulty workmanship, or for cash shortages or loss of property of the employer where a person other than the employee has access to the cash or property [Emphasis added] (3) Where an employee has been given or paid a vacation with payor payment for vacation in excess of the requirements of Part VIII of the Act, no employer shall set off or deduct such excess against or from any vacation with pay, pay for vacation, or payment under section 30 of the Act. [R.R.O 1980, Reg. 285, s. 15 ] Ms. Murdock submitted that on the Issue of shortages, Ms. Bzdyl' s evidence is credible and that she did not take money from her Employer Voids The Employer, Ms Murdock submItted, alleged that allegatIOns were made agamst Ms. Bzdyl With respect to 5 vOIds m the statement of Peter Adams. She went on to state that It IS clear from the compIlation of dally VOIds prepared by her that VOIds at Naturally Niagara were a huge problem, reflectmg a senous accountmg problem that was never addressed by Naturally Niagara. Ms. Bzdyl acknowledged that she had difficulty With VOIds at thiS store and that difficulty seemed to stem from the fact that she was not famIlIar With processmg them electrOnIcally She was not, Ms. Murdock noted, the only one emploved on the registers as the frequency and the amounts of the voids which are listed m the compIlatIOn of VOIds mdlcate Everyone m the N aturall) NIagara store had difficulty With the system, they made a lot of mistakes WhICh were however corrected through the vOIdmg procedure Many mistakes occurred and were corrected on the davs on which Ms. Bzdyl was not present. Pnor to thIS tIme, Ms. Murdock explamed, Ms Bzdyl had done VOids manually on a balance sheet. Ms. Bzdyl recognized that she had a 103 problem With processmg vOIds and asked for more traInmg and a lIst ofwntten InstructIons but was, stated Ms Murdock, demed both by Ms Damels. Ms Murdock maIntaIned that In the mstances of vOIds due to error or a customer changlllg his/her mmd, whIle the Supervisor would do a vOId, It would not be appropnate to reqUIre the customer to sIgn a Customer Refund SlIp Ms. Murdock submItted that when one looks at any of the Journal tapes, some of which were exhibits, all of the vOIds (of which there were hundreds over the summer of 1994) that the Employer alleges were SUSpICIOUS accordmg to Mr Adams' statement submitted m eVIdence, match up to orIgmal sales that were identifiable on the journal tape When one looks at the Journal tapes, there IS no way ofknowmg, Ms. Murdock submitted, WhICh CashIer made the origmal error and, smce It was Ms. Bzdyl's Job to InItial vOIds on the journal tape, there IS nothmg SUSpICIOUS m finding her mltIals there frequently Ms. Murdock acknowledged that It was common ground that It would be problematIc if the VOIds did not match up to an OrIgInal sale up and that such a discrepancy would be mdlcatIve of a CashIer vOIdmg Items on the register Without explanatIOn. Such a dIscrepancy would, however, be easy to trace because one could look at the precedmg Journal tape and see that the orIgmal sale was not there. Such a discrepancy could be difficult to prove If the void mvolved a return from another store because the ongInal sale would not show up on the tape at the store in WhICh the Item was bemg returned. These circumstances do not apply m this case, however, since, Ms. Murdock stated, m all mstances CIted by the Employer m Mr Adams statement, the OrIginal error has been identified on the journal tape and It IS followed by the approprIate VOId. The pattern of ongmal sale/vOId IS the same pattern that one would find on exammmg the hundreds of VOIds recorded on the Journal tape on other days. In thiS case, the Employer has smgled out Ms. Bzdyl and suggested that somethmg IS Improper WIth her VOids, and It would be just as easy to do that With any other employee m the store, partIcularly those who are m a pOSItIon to mItIal the Journal tape when a VOId IS entered, such as Ms. Daniels. The Employer, Ms. Murdock submItted, could pOInt to a VOId mltIalled by any Supervisor or Manager and say, we beheve thiS VOId IS SUSpICIOUS, we thInk you have VOIded somethmg WhICh was an actual transactIOn. The Employer could also pOInt to an earlIer sale and say, thiS was not an error It was an actual sale She explamed she was 104 mak.mg this pomt because she mamtamed there IS no way the Employer can prove one way or another If It was a mlstak.e, smce the system IS not set up to accommodate that type of thmg Unless there IS direct eVidence of a Cashier pocketmg money whIle completmg a vOId, It IS simply Impossible to conclude that the vOId IS Improper The Umon submitted that on each of the vOId allegations, Ms. Bzdyl was sImply correctmg a legltlmate error and that there IS nothmg but mnuendo to suggest otherwise, -- only the Employer's SuspicIOn that the VOIds were not m fact proper VOids correctmg an ongmal error There IS, she argued, no eVidence WhICh demonstrates the alleged Impropriety Missing Merchandise According to Counsel for the Union, the Employer alleged that two gardenmg books and a dog sled were mIssing based on the phYSical inventOrIes to WhICh Ms. Daniels referred m her eVidence. The Union takes the pOSItIon, Ms. Murdock submitted, that such an "eyeball" mventory IS madequate It IS not tenable or credIble for a Manager to wander around the store and eyeball what the mventory or stock IS. A real physical mventory mvolves, she stated, a team of people domg a proper accountmg, dunng which the cash regIster IS rung off just prIor to the commencement of the mventory and dIrectly following Its completion, and that It IS balanced agamst all the stock counted mdlvIdually m the store. Such an mventory was not carrIed out here The eyeball mventory here, was even done several day later ThiS left open the possibIlIty of customer pilferage (a frequent occurrence m a tOurIst store), the erroneous placement of an Item, and the possibIlIty of mternal theft by another employee. It is, Ms. Murdock submitted, an unreasonable conclUSIOn based on the eVIdence, to say that Ms. Bzdyl took either the gardemng books or the dog team when so many others had potentIal access to those Items for 2/3 days before the mventory was carrIed out. The only way, Ms Murdock argued, to lmk a Cashier to the loss of merchandIse, IS through dIrect eVidence, that IS, observmg an mdlvIdualleavmg the store \vlth the Item or later find it m her posseSSIOn, m her car or at her home It IS the UnIon s posltlon, Ms Murdock submitted, that the customer m the lme-up m front of the Mystery Shopper would have been of no mterest to her, and m fact, that sale was of no mterest smce It 105 was not mentIOned m her report. The Umon has difficulty with the accuracy of her recollectIOn 3 days later because of the length of tIme before It was brought to her attentIOn and also the lack of mformatlOn respectmg the context m which the recollectIOn was extracted from Ms Bnsson. It IS, Ms. Murdock mamtamed, a sItuatIOn m which the Employer unable to "naIl" Ms Bzdyl m a surpnse audit or m the mystery-shopper transactIOn which both came out clean, was committed to reachmg for and findmg somethmg to whIch they could "pomt their finger" and this led them to scrutImze the Journal tape before and after the Mystery Shopper, hopmg they would have some direct eVidence, that IS, the Mystery Shopper would have observed somethmg whIle standmg mIme. Looking at the journal, Ms. Murdock submItted, there IS nothing unusual m that serIes of transactIOns, and the Employer's whole case turns on Ms. BrIsson seemg Ms. Bzdyl taking money for thIS sale. Further, it IS understandable, where CashIers are rmgmg m hundreds of sales a day, that as a matter of course, Cashiers will not themselves remember why they VOIded a partIcular sale and m a store as busy as Naturally Niagara, WIth a constant stream of customers, mIstakes happen and are corrected throughout the day through VOIds, and it IS unlikely that a CashIer Will have a clear recollectIOn of why she made an error and why a particular VOId appears. Ms. Murdock put forward another possibIlIty for the Journal tape sequence on August 19th, notmg that it was a plausible theory which would mesh WIth Ms. Bnsson's verSIOn, and she suggested that the couple purchased a CD [sic] and got back m lIne behmd the Mystery Shopper and dealt WIth the purchase agam. Under that scenarIO, she pOSited that Ms. Bzdyl's error would have been that "she filled the VOId mstead of a refund slIp" The net result m the tIll would be the same whether It was a VOId or a refund. There are, Ms. Murdock argued, 6 mconslstencles between the recollectIOns of Ms. Bzdyl those of the management witnesses . The Spanish family ThiS IS a red herrmg and IS not determmatIve of anythmg. Ms Bzdyl stated that pnor to the Mystery Shopper commg m she had aSSisted on the other register for several transactIons and, If she had mentIOned a Spamsh famIly, It was probabl} 106 III relatIon to what had gone on at the other regIster, and all thiS IS agamst the back.drop of several hundred customers a day . Purchase or No Purchase Ms. Bnsson states that there was an actual purchase by the customer m front of her whIle Ms. Bzdyl mamtams that there was not. Ms. Bnsson claIms It was completed and Ms. Bzdyl that It was not. . Transaction Completed or not Completed The Employer states that Ms. Bzdyl dId not raIse the matter of the tape untIl the heanng, whereas, the Umon takes the pOSItIon that throughout, the Employer was not mterested m heanng from Ms. Bzdyl concernmg what had happened. The theory suggested above IS a possible resolutIOn to thIS factual dIspute. At the meetmg of August 29th, which was not as the Employer has stated a fact findmg meeting, Ms. Bzdyl was confronted WIth a dozen or so allegatIOns of VOIds, mlssmg merchandIse and refunds all related to specIfic transactIOns over a penod of several weeks and asked for her confeSSIOn. She was not confronted With an eye-wItness saymg she left the store WIth something. The Employer, accordmg to M. Murdock, was convmced by August 29th that ItS suspicions were true and was not mterested m heanng what had happened. Further, It could take a Cashier, based on cashIer memory, hours or even days gomg over documents to recall, even m part, what had occurred. . Back of the Void Slip Ms. Bzdyl stated that she was told by Ms Daniels to wnte the explanation on the back of the VOId slIp (#7920) and the Employer IS vOIcmg disapproval that Ms. DanIels was not cross-exammed on the tImmg of the wrItmg of the explanatIOn. Ms. Murdock submItted that while there IS some factual discrepancy, and that Ms. Archambault's eVIdence was that she remembered It on FrIday, one cannot take from that, that Ms. Bzdyl did somethmg Improper relating to that particular sale or that she stole somethmg Ms. Murdock put forward the pomt of VIew that It was most lIkely Ms. Archambault who was mcorrect, and that It was unlikely, gIVen the number of VOIds accumulatmg on a daIly baSIS, that she would recall thiS particular VOId. Further, there IS no eVIdence of the circumstances under which thiS mformatlon was extracted from her Employees mterested m keepmg theIr Jobs, she stated, tend to recount thmgs to please When Ms. Bzdyl was asked about that VOId on August 22nd, the Employer had already learned that Ms Bzdyl had "come out clean" on the mystery shopper assignment and, gIven ItS theory of VOId discrepancIes, Ms Adams and Ms. Damels were not committed to findmg mconslstencles that the Mystery Shopper could have observed when she happened to be m the Ime 107 The defimng moment referred to by Counsel for the Employer IS certamly not that m the sequence of events, accordmg to Ms. Murdock. The Umon submits that It IS highly unlIk.ely that under most Circumstances, a CashIer could remember what happened on a particular vOId transactIOn two days earlIer Ms Bzdyl stated she was to told to wnte "change for CD" and "when your Job IS m Jeopardy you wnte It down" This statement IS not a confeSSIOn of anythmg, Ms. Murdock emphaSized. Ms. Bzdyl had been told a few days preVIOusly m a performance appraIsal, which put her on notIce that insubordmatIOn was a problem and that she should tow the lme, that If her Manager SaId the sky was green she was to agree With that. There was absolutely no reason, Ms. Murdock stated, for an Innocent and busy Cashier to know that this VOId was of such cntIcallmportance, given that one did not hear about problems from the Cash Office untIl the day after There was nothing, she mamtained, that was conclusIve about the exchange between Ms. DanIels and Ms. Bzdyl m the office on Sunday, August 21st. . Timing of the Notation on the Back of the Void Slip The mconsIstencIes between the timing of the notatIOn on the back of the VOId slIp between Ms. Archambault and Ms. Bzdyl. . Failure of the Union to Call Ms. McComb Page The fact that Ms. McComb-Page was not called by the Umon has been brought forward by the Employer as an Issue. Ms. Murdock explamed that because Ms. Bzdyl had serIOUS problems WIth how she was represented on August 29th has resulted m "more of a procedural mIsfortune" m that several things were takmg place simultaneously, whIch made It, m the Union's opmion, Impossible for Ms. McComb-Page to be a wItness in the case at hand. It was argued by the Umon, on behalf of Ms. Bzdyl, that the graVIty and serIousness of raIsmg cnmmal allegatIOns agamst the GrIevor and the effect that they wIll have on her future employabilIty, and have already had on her employabilIty, on her personally and on her famIly warrants mtense scrutmy of the eVIdence WhICh IS bemg put forward. In Ms. Bzdyl s attempt to find employment she has already expenenced some difficultIes. The Employer has never SaId that cash was mlssmg on August 19th, nor has It found Ms Bzdyl m posseSSIOn of money m fact, the Employer has not made out that a CrIme has been committed. It IS the Umon's case that the CommiSSIOn, whIle It may have had legitImate reasons for SuspiCIOn, was Irresponsible m that there was a senous accounting problem With VOIds m the Naturally NIagara Store, ItS 108 faIlure to have checks and balances 111 place has meant that Ms. Bzdyl has become a casualty of the Employer's faIlure 111 thiS regard. Ms Murdock lIsted a number of the procedural defiCienCIes . a faIlure to provide cashier codes to employees to IdentIfy Cashiers, . a faIlure to supply keys to CashIers that gIve exclUSive access to one Cashier per drawer . a faIlure to permIt or reqUIre Cashiers to count the cash m the drawer at the begmn1l1g and end of a shift . a failure, which was remedied in August 1994, to retaIn refund receipts and obtain customer SIgnatures Ifthe Employer suspected Ms. Bzdyl of theft, it should have observed her, used surveIllance eqUIpment, marked or dusted bIlls along With a Mystery Shopper in order to attempt to accumulate direct eVIdence, accordmg to Ms. Murdock. None of these means was employed here and It IS the pOSItIon of the Umon, she stated, that the Employer has put forward no eVidence of a cnme, let alone who might have committed the CrIme If It took place, and has, as a result, not come close to establIshmg Just cause. The Umon seeks remstatement, plus lost wages, benefits and semonty on behalf of the Gnevor The Employer's Reply Mr Riggs submItted that thIS case IS not an evaluatIOn by a Management Consultant as to whether or not the CommissIOn's accountmg system IS good, bad or In need of Improvement, nor of the way m WhICh the cash system works. He acknowledged that there was some valIdity on thiS pomt, however, he argued, the cash arrangements do presuppose a conSIderable level of trust by the Employer in the way m whIch transactIOns are completed, and It may be necessary to have a completely self-contamed system for employees whIch would negate the need for trust. That, however, accordmg to Mr Riggs, IS not the Issue 109 The Employer had SUspiCions, Mr RIggS submitted, and set about findIng out whether or not the Gnevor was actmg appropnately and whether the vOIds were legitimate errors or whether they mvolved dishonesty Counsel for the Umon has not been able to address any of the mconsIstencles m the eVidence, but could only acknowledge that factual disputes eXIst. Further, It IS not that the Gnevor IS not able to remember about the transactIOns that day, but that she offered vanous deceitful and changmg explanatIOns which were mternally mconsIstent, dId not comcIde WIth the truth as set forth by Ms. Bnsson and others. One cannot conclude that Ms. Bnsson, Ms. Damels, and Mr Adams are all provldmg deceitful answers to the Board. As well, they were explanatIOns which came out months after the mCldent. The Gnevor's explanatIOns of the tImIng of the reason on the VOId and the non-completIOn of the transaction are m thIS category As to the suggestion that the Employer has fabncated eVIdence, there IS, he emphaSIzed, no eVIdence whatsoever of any such fabncation. Mr RIggs submitted that, given the eVidence agamst Ms BzdylIS clear, cogent and compellIng, the only rational constructIOn that the Panel can put on the evidence it has heard is that the Gnevor IS a dIshonest employee whose verSIOn of the transactIOns IS not to be belIeved. DECISION ARBITRAL CONTEXT In ItS declSlon the Panel IS followmg well-establIshed arbitral JUrIsprudence m two partIcular areas. It IS accepted m arbltraljunsprudence that wlthm the retaIl mdustry, theft of product or money dIrectly or through fraudulent means, attracts dISCiplIne at the upper end of the diSCiplIne scale That dlsclplme IS frequently dismissal It IS also accepted that in such cases, progressive dISCIplIne IS not necessanly a prerequlSlte to dIsmissal As well, pOSItIOns m the retail mdustry which mvolve access to product and money are conSidered pOSitIOns of trust and there IS even greater trust which IS mtegral to a supervisory pOSItIOn. Further, the balancmg of the mterests of Emplover and Employee, m the result, If the allegatIOns of theft are proven, weighs more m favour of the Employer In other words, the personal Impact on the mdlvIdual of the commission of theft or fraud and ItS consequences does not weigh heavIly m the outcome GIven that the 110 potentIal outcome for the Employee IS extremely severe, that IS, loss of Job, lIvelIhood and future Job prospects, It IS accepted that when dismissal, particularly dlsmlssallllvolvlllg cnmmal allegatIons, IS faced by the Employee, that the standard of proof whIle not "beyond a reasonable doubt" falls with III the upper range of the spectrum of proof which runs from the CivIl standard of "on a balance of probabIlitIes" to the cnmmal standard of "beyond a reasonable doubt" Therefore, the Panel wIll reqUIre "clear, and cogent eVIdence" to find the Gnevor responSible for the allegatIOns brought agamst her The Panel has also taken mto account that an Employer s mfenor accountmg system or an mexpenenced SupervIsor/Manager does not mitIgate agamst proven theft or fraud. Such shortcommgs, however, sometImes make It more difficult for the Employer to discharge Its onus of proof which must be based on "clear and cogent" eVIdence. FINDINGS As a result of ItS conSIderatIOn of the eVIdence set out above, and Its deliberatIOns, the Panel has made the followmg findmgs . Naturally Niagara was m Its second year of operatIOn. . Ms. Daniels, the Manager, had preViously been an Adult Seasonal Supervisor m Naturally Niagara for a two-month penod m 1993 She had been aSSIgned to her present managenal pOSitIOn for 7 months as of July 30th, 1994, and had been actIvely functiOnIng as a Manager for 4 months. She had expenence on the computenzed system durmg her 1993 employment at Naturally Niagara. There was no eVidence of her trammg on the computerized system. . From 1987 at the pomt ofhmng, to July 30, 1994, no eVidence was offered mdlcatlllg anv concern or any questIOnable mCldent respectmg the Gnevor's honesty . The Gnevor was a trusted SuperVIsor at the tIme of her transfer to Naturally NIagara and was expenenced on the cash system which pre-dated the computenzed system. . ConflIct and tensIOn had been growmg between Ms Damels and Ms Bzdyl Slllce early summer of 1994 111 . The work schedule (Exhibit 3) was not amended or challenged and the Panel accepts that this schedule accurately reflects the pen ods worked by the Staff at Naturally NIagara. . Theft of product at Niagara Parks CommissIOn retaIl outlets IS an ongomg problem. . Cash shortages were a major concern at the Niagara Parks CommissIOn retaIl outlets, particularly m lIght of a recent, large shortage of over $4,000 . The Gnevor was new to the computenzed cash system at the tIme of her transfer to Naturally Niagara and her trammg on thIS system, gIven by the Manager, Ms DanIels, was lImIted to 5/6 hours generally, one of WhICh was speCIfically concerned WIth VOids. The Panel conSIders this trammg madequate for an employee expected to functIOn as a "semor" Supervisor . The increase m the number of returns WhICh caused Ms. Daniels concern, comclded With the mcrease m revenue and the peak season. . The computer pnntout mventones are not accurate for accountmg purposes. . The discrepancIes WhICh are manifested m the mventories, and the condItIons under WhICh the mventones were undertaken by Ms. DanIels demonstrate that the mventory mformatIOn is maccurate and cannot be relIed upon. . The cash system at Naturally NIagara does not aSSIgn cash drawers to mdIvlduals. Ms Damels testified that "It IS a store polIcy" that there IS "one person on one regIster" While It may be true that Cashiers are assigned to a smgle regIster, one cannot conclude that thIS prOVides any effective restnctIOn of personnel usmg the registers, gIven that Cashiers are replaced whIle on break. The Manager and Supervisors work on both registers, and ShIft changes and register closmgs do not comclde In fact, wIthm a given cash day there could be 8 mdivIduals usmg a smgle regIster . While the Panel does not condone the keymg m of the amount receIVed pnor to the money actually bemg m the hands of the Cashier m a retaIl sales transactIOn, It accepts that m a busy retaIl operatIOn, thiS expedIted procedure can occur and become habitual CashIers key m the amount yet to be tendered when that amount IS observed by them. At that pomt m time, the cash amount IS still In the customer's hands and has not actually been received by the Cashier 112 . The processmg of vOIds and returns In all the possIble sItuatIOns m whIch they occur IS not a SImple matter . If Ms Bzdyl were creatmg a fraudulent VOId and takmg a lIke amount of money from the cash register that would not show up as a cash shortage at the end of the day The Panel finds that there IS no lInk. between the cash shortages of which Ms. Bzdyl was suspected and the VOIds which were part of the allegatIOns . There IS nothmg unusual or untoward when there are several transactIOns between an origmal sale and a VOId of that sale. . The VOId system at Naturally Niagara, up to August 18, 1994, was defiCIent, from the standpomt of recordmg and the retentIOn of records. . Ms. Daniels' VIew that the new system for dealmg with VOIds was the same as the Table Rock system was only correct in part. . Ms. DanIels' presentatIOn to the SupervIsors of voids occurring m only 2 SItuatIOns - cashIer error and customer returns- was maccurate and lImited. . There was no eVIdence that SupervIsors at Naturally Niagara were ever mstructed to note reasons for voids on the reverse SIde of eIther the VOId or the ongmal receIpt. Nor was there eVIdence that thiS was expected of them. . The mstructIOns whICh Ms. DanIels gave to the Supervisors concernmg VOIds and returns on August 18th left considerable room for mlsunderstandmg. [See below] . Ms. DanIels founded her SuspiCIOns on an mcrease m the number of returns, certam cash and inventory shortages, and what she perceIved as an unusual pattern of VOIds. It was her conclUSIOn at that tIme that the Gnevor took money from the tIll, and had also rung m VOIds and taken the money Further, she mterpreted certam behavlOurs of Ms Bzdyl as SUSpICIOUS and as eVIdence of her guilt. . Ms. Damels was convmced from early m the first week of August, 1994, that the Gnevor was responsible for cash shortages and cash system fraud and she concentrated her efforts on provmg thIS. Her SuspICIOns of the Gnevor appear to predate even thiS, smce she mdlcated she was concerned that m undertakmg the audIt of July 30th that "S Counted first alone m office - HeIdi venfied short 74.20" . Mr Adams belIeved from the first week In August, 1994 there was an employee- theft problem at Naturally NIagara, there was a dishonest employee and that 113 Ms. Bzdyl was that employee From that pOlllt, he concentrated his efforts on provmg her responsible for theft and dishonesty . Ms. Damels concluded that because several of the vOIds and one of the shortages was around $20 00, thIS formed part of a dlstinctlve pattern. She did not offer eVidence of the relatIOnship between the number of Items stocked by Naturally Niagara and the sales of those Items m the store to support her contentIOn. She also testified that CDS which cost $20 37 mcludmg tax were one of the Items most frequently stolen. The Panel accords no Significance to the $20 00 figure . The Concise Oxford DictIOnary defines "pattern" as a "regular form or order" and defines "regular" as "conSIstent" Ms. DanIels referred to requesting Journal tapes "to venfy the pattern." Mr Adams referred to "part of a pattern", "a pattern of SuspIcIOns", and "they formed a pattern" The Panel finds that there was no regularIty, conSIstency or pattern m the transactions which Ms. DanIels found SUSpiCIOUS. There were Simply not enough conSIstent "suspicious" transactions to establIsh a pattern. The transactions were deemed suspicious for a varIety of reasons. However, It appears to the Panel that these transactIOns had eIther reasonable explanatIOns or there was madequate mformatIOn presented to explam them, because no tImely mqUIry had been made. Further, no eVIdence was presented to demonstrate the proportIOn of CanadIan to US sales, the number of sales m the $20 00 range in companson to others, or the number or type of VOids made by Ms. Bzdyl compared to those of Ms. Daniels and Ms. Archambault. . It IS expected, the Panel believes, that an Employer wIll draw to the attentIOn of an Employee any shortcommgs or allegatIOns promptly followmg an inCident whIch mIght generate dlsciplme This is done in order that the Employee may have the opportumty ofrespondmg to the Employer's concerns Within a space of tIme which allows reasonable recall. There was a faIlure of the Employer m thIS case to do so followmg the occurrence of most of the mcidents. . The meetmg of August 22, 1994, attended by Ms. Bzdyl, Ms. DanIels and Mr Adams, and conducted by Mr Adams was mtImldatmg for the Gnevor Mr Adams described her as "saymg not much sense" and "obVIOusly upset" to the extent that he "did not recall detaIls of the next few mmutes" In the Panel's opmlOn, the manner in which the meetmg was conducted would have been found mtImIdatmg by any reasonable employee. It was as Ms. DanIels SaId, "confusmg" It was not, therefore, condUCive to the Employer and the Gnevor commumcatmg, that IS, speakmg and lIstenmg, sensibly With a view to arrIvmg at a determmatlOn of what had occurred on August 19th and at other tImes which were mentIOned. 114 . The meetmg of August 22nd was clearly disciplInary Dunng It, accusatIOns were made directly agamst Ms. Bzdyl and pressure was applIed to her to "confess and go qUIetly Ms Bzdyl should not have been refused the opportumty for UnIon representatIOn. . The meetmg of August 29th was clearly dlsclplmary To charactenze It as a factfindmg or mformatIOn shanng meetmg Ignores the potentIal outcome for the Gnevor . The Employer stressed that It had, at the meetmgs, provIded all the eVIdence to Ms Bzdyl, when in fact, she was not provIded WIth the mventory eVidence on August 22nd. She had been told by Ms. Daniels that she, Ms. DanIels, had a pnntout of the mventory which Ms. Bzdyl understood showed that the tape was mIssmg from the inventory [It IS not clear to which inventory Ms. DanIels was referrmg.] There was no mentIOn ofmventories as part of the mformatIOn proVIded to Ms. Bzdyl on August 29th. Ms. Daniels testIfied that she dId not volunteer the mformation to Ms. Bzdyl that Ms. Archambault had reported that she saw the wntmg on the back of the cassette VOId receIpt on August 19th. The question arIses as to whether this mformation was deliberately WIthheld from her m a meeting which purported to present her with all the mformatIOn. . There were allegatIOns about SUSpiCIOUS behavIOur not presented to Ms. Bzdyl untIl the tIme of the arbItration heanng, long after her dismIssal. This resulted III her not knowing the preCIse nature of some of the allegatIOns bemg made agamst her, m some cases not untIl the actual arbitratIOn hearing. The Panel conSiders that this IS preJudIcial to the Gnevor smce tIme Impedes one's abIlIty to recall the details of inCIdents about which allegatIOns are made . It IS not unreasonable, the Panel belIeves, for a CashIer or a SupervIsor, when faced With transaction records, to need tIme, peace and quiet, m order to recall the details of transactIOns. The Panel belIeves that, unless there IS somethmg whIch dlstmgUIshes a customer or a purchase, such as a very large purchase, a scene, or a conversatIOn of partIcular mterest, most CashIers or SupervIsors would have very lIttle memory of particular transactIons and the mdIvlduals who made them. It would also follow that the bUSIer the day, the less lIkely the Cashier or SuperVIsor would be to remember particular customers. Further, the lIkelIhood of recall dlmImshes, accordmg to the length of the mterval between servmg the customer and the request for recollectIOn. The Panel belIeves that It IS not unexpected that Ms. Bzdyl could not recall or had difficulty or confuSIOn m recallIng some of the numerous transactIOns presented to her Further, the Panel does not belIeve she was ever afforded the tIme, peace, and qUIet while m posseSSIOn of the documentary eVidence which might have aSSisted her With a tImely recollectIOn of some of these transactIOns m August 1994 115 . Ms. Bzdyl was set 2 tests by the Fmance Office (a) the surprIse audIt, and (b) the purchase by the Mystery Shopper to see If she would vOId the Mystery Shopper s purchase followmg It. She passed the audit (The register balanced wlthm 6 cents) and did not VOId the sale to the Mystery Shopper . Ms. Arndt, Mr Adams and Ms. Damels, at the suggestIOn of Mr Schafer sought Sergeant HollIdge's opmIOn on the mformatIOn they had gathered. They placed a great deal of faIth m hIS opmIOn and some of this faith was based on mformatIOn that he had had "FBI mvestIgatIve trammg" ThIS trammg could have been two months, or two days. There was no eVidence that they were mformed of the extent, but thIS qualIficatIOn seems to have added conSIderable weight to the value of Sergeant HollIdge's opimon m the mmds of the four members of Management. Ms. Arndt stated that if Sergeant HollIdge had saId that they did not have enough eVIdence, that would have been conveyed to Mr Schafer, and the outcome for Ms. Bzdyl might have been quite dIfferent. The Panel dId not have the opportunity of hearing from Sgt. HollIdge to be able to assess his understanding of the cash system and the mformatIOn presented to hIm. It IS noteworthy that he had a cruCIal role as an adVIsor to the declson makers, m whether or not to proceed with dismissal. . When specific allegatIOns were made agamst Ms. Bzdyl m August 1994, she responded m several ways. (1) She refused to confess. (2) She demed any wrongdomg. (3) She asked for the polIce to be called. (4) She asked for a polIce mvestlgatIOn. (5) She mVIted the Employer to charge her (6) She asked to participate m an on-the-spot mventory (7) She asked for a face-to-face meeting With the Mystery Shopper The polIce were called on August 22nd, but not to act on her request for an mvestIgatIOn. No polIce mvestIgatIOn was camed out and there was no eVidence that such an mvestlgatIOn was requested by the Employer; no crImmal charges were laId, the Employer was not wlllmg to carry out an on-the-spot mventory; and, whIle she was given the name ofthe Mystery Shopper by Ms. Arndt and could have confronted her herself, no meetmg between Ms. Bzdyl and the Mystery Shopper was ever arranged by the Employer The Panel finds that Ms Bzdyl s response to the allegatIOns was, from the outset, consistent demal and showed a wlllmgness to be mvestIgated. 116 ALLEGATIONS It IS the Panel s Intention to deal with the allegatIons made agamst the Gnevor from July 30th to August 19th, mclusive, and to make a findmg respectIng the Gnevor on each. It has decided to take this approach as It belIeves that the allegations precedmg the allegatIOn of August 19th provided a of suspicion agamst the Gnevor and that those SuspiCIOns need to be dealt WIth smce they were, from early on, presented as allegatIOns by the Employer Further, Mr Adams testified that SUspiCIons remam that Ms Bzdylls responsible for the cash shortages. At the hearmg, he and Ms Damels were convmced that the Gnevor was gUIlty of both theft and fraud. As well, the eVIdence demonstrates that the Employer had concluded early on, that IS, durmg the first week m August, that the Gnevor was stealing, and the efforts subsequent to that were dIrected at provmg her gUIlt. While the Employer has mdicated It IS not relymg on certam of the allegatIOns, It has not stated clearly that it has Withdrawn them. The result of thIS faIlure is that a cloud of suspIcion remaInS over the Gnevor and WIll do so untIl the allegatIOns are WIthdrawn or are determmed to be WIthout proper baSIS. CASH SHORTAGE ALLEGATIONS There was no documentary eVIdence presented of the three cash shortages, ($74.20, $20 63/$20 00 and $30 00 US) However, the Panel accepts that these cash shortages showed up m accountmg smce their eXistence was not challenged. The Panel noted that a consIderable number of mdlvlduals has access to the cash at Naturally Niagara, and from the tIme of pick-up throughout the processmg at the Cash Office CASH SHORT AGE OF $74.20 ON JULY 30TH CASH DAY (Pages 45 to 46) Although Mr Adams and Ms Damels did not belIeve they could prove Ms Bzdvl was responsible for thIS shortage, they clearly belIeved that she was. The allegatIOn remams In her file The only eVidence relatmg to the audits came from Ms. Damels. However no documentary eVidence confirmmg the audits or the shortages was submItted 117 The cash day for July 30th mcluded July 29th, from register clOSlllg tIme to register closmg tIme on July 30th. Ms Bzdyl, Ms. Archambault and Ms Poole were workmg July 29th, after 1600 hours Ms Damels, Ms. Bzdyl, Ms. Archambault, Ms. Provenzano and Ms. Poole were all workmg on July 30th. Their ShIftS differed but overlapped. Accordmg to Ms. Damels, an m-store audit was undertaken on both cash regIsters on July 30th. She was the only wItness to testify to the audIt. No details were submItted on the regIster closmg tImes. It was not clear whether the audIt was carned out before the Z report on July 30th or after although the tImes suggest that It was after She testIfied that RegIster 2 was audited by her and Ms. Archambault. It must have been audIted pnor to 1700 hours, since that was the departure tIme of Ms. DanIels. RegIster 1, she testified, was audited by Ms. Bzdyl and Ms. Archambault followmg her departure. This must have taken place between 1700 and 1800 smce Ms. Bzdyl' s departure time that day was scheduled for 1800 hours. Accordmg to Ms. Daniels, the audIt of RegIster 2 showed no shortage, while the audIt of RegIster 1 showed a shortage of $74.20 She also told Ms. Arndt that "StephanIe counted first alone m office - HeIdi venfied short 74.20" It IS reasonable to conclude that Ms. Damels gleaned the informatIOn that Ms. Bzdyl counted the money alone m the office, from Ms. Archambault. She was not there to observe that herself, nor was she there to venfy the audit. Further, there was no eVIdence of instructIOns that both Supervisors were to be present dunng the audIt [although it makes sense for them to be together] and actIVity m the store may have been such that Ms. Bzdyl determmed that It was not appropnate to stand there and count the cash m the tIll. Ms. Damels stated that the Cash Office notIfied her Immediately "ImmedIately" must refer to the realIzatIOn of the shortage at the Cash Office, and that would have been on the followmg da) Sunday, July 31st, assummg the Cash Office was open, and Ms. Damels' eVidence suggested that It was. Ms Damels reVIewed the Journal tape whIch she had requested and received from the Cash Office On recelvmg It, which would have been 1 or 2 days later, she found everythmg m order 118 Ms. Damels also recalled a diSCUSSion between Ms. Poole and Ms. Bzdyl which took place on Juh 30th, and the tIme must have been between 1600 and 1700 hours, given the schedule of the three lI1dlvlduals concerned. In thiS dIscussIOn, the Gnevor was offered two concert tIckets of a value of approximately $60 00 Accordmg to Ms. Damels, the offer was accepted and Ms Bzdyl Indicated that she would repay Ms Poole the followmg day Ms. Damels found thiS mformatlOn suffiCiently SUSpICIOUS to mclude It m her report wrItten after August 22nd. Her explanatIOn for ItS InclUSIOn as a "memory-Jogger" IS not one which the Panel IS wIllmg to accept. The Panel belIeves It was there If not to establIsh, at least to suggest, a lInk between the cash shortage and the purchase of tIckets. The eVIdence does not show whether or not Ms. Bzdyl took the tickets, paId the money or went to the concert that mght, or If she dId, whether she repaId Ms. Poole on the followmg day Further, there was no eVidence that Ms. Daniels conSIdered any other pOSSibilItIes. There was no evidence of anyone witnessmg the Gnevor removmg money from the tIll or pocketmg money It is the Panel's conclusion that there is no evidence to support a link between the concert tickets and the shortage, nor is there any evidence to support the finding that the Grievor was responsible for the cash shortage of $74.20 on the July 30th cash day CASH SHORTAGE OF $20.63 (MR. ADAMS) /$20.00 (MS. DANIELS) ON AUGUST 7TH CASH DAY, VOID OF CD SOLD ON THE PREVIOUS CASH DAY (Pages 59 to 60) Ms. Damels lInked thIS WIth the VOId of a CD ($20 37) ThIS transactIOn was on Register 1 and the Gnevor explamed to Ms. Damels followmg her enqUIry, that a man purchased a CD and returned It but that because of the tlmmg, the VOId and the onginal sale were not on the same cash day The eVIdence did not speCify which register had the shortage Ms Bzdyl was not asked to explam thiS shortage, although she was asked to explam the VOId and she only became aware that she was bemg held responsible for the shortage on December 12, 1994, when viewIng Mr Adams statement m her Personnel FIle 119 There is no evidence which would lead the Panel to conclude that there is a link between the void of the CD and the cash shortage, nor is there evidence to demonstrate that the Grievor is responsible for the shortage of $20.63/$20 00 on August 7th cash day CASH SHORTAGE OF $30.00 US ON AUGUST 10TH CASH DAY (Pages 62 to 63) The eVIdence dId not provide the mformatlOn as to whIch register was short. There was no eVIdence that anyone observed the Gnevor takmg thIS money Ms. Damels, who on that day, had had a confrontation WIth Ms. Bzdyl m front of customers, and who was focussmg on Ms. Bzdyl as the person responsible for 2 prevIous cash shortages. She mterpreted the Gnevor's behavIOur m the office as SUSpICIOUS and guilty and thIS ImpresSIOn was confirmed for her when there was the subsequent report of a shortage on that same day In her report, she described the behavIOur' I had afeeling something wa. [Words in italics struck.] I waited a few minutes & followed her into the office. She jumped when I came in. She was huddled practically inside the safe with the brown bag open. Her hands were inside, (where the green bags were) I stood behind the desk but my view was obscured by the safe door I heard her put the elastic bands back on the money & repack the brown back [sic] and zip it up Ms. Bzdyl testIfied that she was upset at havmg been, as she saw It, humIlIated m front of customers. Although she dId not offer thIS eVIdence as an explanatIOn for her conduct m the office, It IS conSIstent With her bemg upset, trying to aVOId facmg Ms. DanIels, and makmg an effort to control her emotIOns. It is the conclusion of the Panel that there is no evidence here to prove that the Grievor is responsible for the shortage of $30.00 US on the August 10th cash day There were three cash-shortage allegations and the Panel has concluded that the evidence does not demonstrate that Ms. Bzdyl was responsible for them. 120 VOID ALLEGATIONS THE FILM VOID ON AUGUST 1ST, AUGUST 2ND CASH DAY (Pages 49 to 52) This vOId was questIonable accordll1g to Ms Damels, because there were 14 transactIOns on Register 1 between the ongll1al sale of the film and the VOId. The} took place between 1 71 7 and 1728 computer tIme. That IS a space of 11 mmutes and 14 transactions wlthm 11 mmutes must mdlcate that Ms. Bzdyl and Ms Poole were qUIte busy ThiS does not mclude any transactIons which mIght have occurred on Register 2 It would have been reasonable to postpone processmg of thiS vOId. The Panel finds nothing questionable or suspicious concerning this void. THE GARDENING BOOK VOIDS ON AUGUST 1ST, AUGUST 2ND CASH DAY (Pages 49 to 53) When Ms. DanIels revIewed the Journal tapes on the mornmg of Tuesday, August 2nd, her attentIOn was drawn to a sale and VOId of2 gardenIng books (total $21.38) which were transacted around closmg tIme on the preVIOUS evening. She concluded that the sale was made, the customer left, and "the VOId would have been put through after the store should have been closed" ThIS, suggested to her, "SuspIcIOn, somethmg fraudulent" There was no eVidence for her to base her version of thiS transactIOn on, nor was there evidence of a rule that at preCIsely 2000 hours, SupervIsors were responsible for tellIng people to leave We have no mformatIOn as to when the customers came or went except that Ms. Daniels testIfied, presumably from her conversatIOn WIth Ms. Poole, that there were 2 customers In the store "after she left" at 1955 hours. Ms Damels' verSIOn of the scenarIO IS, as far as the Panel could determme, based on her own assumptIOns Further, there was no eVidence of a rule whIch stated that a VOId had to be completed while the customer was stlllll1 the store ThiS IS partIcularly true of an aborted transactIOn or an error From the Journal tape of RegIster 1 one can see that there were 9 sales on thiS register between 1902 computer time and 1944 computer time We cannot, however determll1e how busy Ms Bzdy I and Ms. Poole were With sales, smce we do not have the Journal 121 tape from register 2 We are, nonetheless, able to establIsh some activIties and theIr tImes (all times converted to real times on the basIs of the computer reglstenng 7 mInutes slow) 1939 - "sale" of gardenmg books 1943 - second to last sale on Register 1 1951 - last sale on RegIster 1 1955 - departure of Ms. Poole accordmg to Ms Damels - 2 customers still there, accordmg to Ms. Poole/Ms. Damels 2000 - official store closmg tIme 2006 - VOId of gardenmg books 2010 - X report closing on RegIster 1 by Ms. Bzdyl Close to the tIme of Ms. Poole's leavmg Ms. Bzdyl as the Supervisor would have had to do an X report and close that register, see Ms. Poole off and tend to any other end-of-day items. There IS no eVIdence of when Ms. Bzdyl actually closed and left the store, although it must have been at least 15 mmutes after offiCial closing time It was Ms DanIels' view that smce Ms. Bzdyl was alone m the store and because she, Ms DanIels, was unable to account for the 2 books in the mventory she belIeved that "the Gnevor cancelled the sale and took the money" Ms. Damels testIfied that the mventories "should match WIth the computer pnntout" When she got the computer pnntout on August 4th, It confirmed for her that the gardenmg books were mlssmg. But the Panel heard from Mr Adams that It would be unlikely for the computer pnntout to match With the actual mventory The Inventones were not submitted. However, the Panel has, m any case, declared them unrelIable Ms Damels checked out the VOids on the other register With Ms. Poole who was not a SupervIsor but dId not check them With Ms Bzdyl who was the SuperVISor that evemng and the one who would have camed out any VOids transacted on eIther regIster Ms. Bzdyl s absence the day follOWIng a questIOnable transactIOn, should not have meant that the transactIOn of which Ms. Damels was SUSpICIOUS was not brought to Ms. BzdyI's attentIOn, particularly smce she was the SupervIsor and therefore responSIble Ms Bzdyl, who had no recollectIOn of the sale or the VOId, testified that the sale would have been camed out by herself, or the Cashier, [Ms Poole] and she 122 ack.nowledged that smce her ImtIals were on the vOId receIpt, she would have camed out the vOId transactIOn. She suggested that the vOId could have been as the result of either a purchase or a mistake There IS no eVIdence of Ms. Bzdyl takmg money, or of money mlssmg. (A cash shortage would not show at that tIme If Ms. Bzdyl had entered a sale, then a vOId, and taken the money) There was no vOId slIp or wrItten reason on the back of the vOId receipt smce the vOId slIp was, no doubt, accordmg to the practIce at the tIme discarded, and there was no rule that a reason be gIven. It is the determination of the Panel that the fact the void was done a few minutes after the official store closing time, the fact that Ms. Bzdyl might have been alone in the store at the time the void was done, the fact that the sale was in the $20.00 range, and in Canadian dollars, is not conclusive of theft or fraudulent voiding of the transaction. THE SALE AND VOID OF THE "DOG TEAM" ON AUGUST 3RD AND AUGUST 4TH CASH DAY, RESPECTIVELY (Pages 53 to 58) On the evenIng of August 3, 1994, accordmg to the Journal tape of Register 2, a dog team was sold for $19.29 total at 1929 hours. Ms. DanIels testified that Ms. Archambault sold It. Ms. Archambault dId not testify to thIS, although the Panel was mformed that she would do so However, Ms. Provenzano and Ms. Archambault were the only staff on at that tIme and thIS eVIdence was not challenged and the Panel is prepared to accept It. Ms. Daniels testified that she could "go back to the Cash Summary Sheets by the Visa Summary Sheets" [There was no further mentIOn of Cash Summary Sheets throughout the hearmg and the Panel cannot follow Ms. Damels' explanatIOn of thiS smce the dog team sale was a cash sale and would not show on the Credit/DebIt Card Summary Sheets.] On the followmg day, a day off for Ms. Damels, pnor to Ms Archambault's noon-hour amval at work, the Journal tape shows that Ms Bzdyl completed a VOId transactIOn for a dog team on Register 2 Accordmg to her eVIdence Ms. Damels attentIOn was drawn to this on August 6th, and she stated she spoke to Ms. Bzdyl on August 7th. In cross-exammatIOn, however, she testIfied that she did not receive the Journal tapes untIl August 8th. Ms. Damels stated that when asked, Ms. Bzdyl Said the Item had been 123 returned Ms. Bzdyl claIms not to have heard of this allegatIon untIl August 29th, and when this was put to Ms Damels, she testIfied that. whIle It was highly unlIkely It was possible that she had not spok.en to her Ms Dal1lels testIfied that there was an mventory of 2, that 1 had been sold, and there should have been 1 remammg There were at least 2 days between the tIme the vOId transaction was carned out and Ms. Damels checked the mventory The Item could have gone mlssmg dunng that penod - the store was open 7 days a week and theft was a recogmzed problem at all the retail outlets. Further, there IS a vagueness m the mventory mformatIOn and the lack of rehabllIty of the mventones generally There was no record of the VOId bemg a return because there was no reqUIrement for a wntten reason and the void and sale receIpts were routmely discarded. There was no evidence that money was stolen or that the VOId was fraudulently transacted, only the SUspICIons of Ms. DanIels The Panel has determined that there is no reason to conclude that Ms. Bzdyl stole money or fraudulently transacted the void of the dog team. THE SALE OF THE RABBIT HOOK AND THE CD-FA VORIT SELECTIONS ON AUGUST 4TH AND THE VOID OF CD-FA VORIT SELECTIONS ON AUGUST 5TH (Page 56) The sale of these two items m a smgle transactIOn took place at 1630 hours on August 4th on the August 4th or 5th cash day ( the eVidence does not show when the RegIster was closed off), on Register 1 Anyone of Ms. Archambault, Ms. Provenzano or Ms. Bzdyl could have made the ongmal sale. The VOId for one of the same Items, CD FA VORIT, took place the followmg mornmg, August 5th at 1001 hours, transactIOn # 4640 The VOId on the Journal tape bears ImtIals SImIlar to those of Ms Bzdyl, although she testified that she was uncertam they were hers However, based on the slmIlanty With the other mltIals on documents submItted, the Panel IS prepared to find that thiS VOId on the Journal tape was Imtialled by Ms. Bzdyl and that It was a transactIOn that she camed out. Ms. Dal1lels lmked thiS VOId (#4640) to sale (#4616), although the only foundatIOn for thIS appears to be on the Journal tape where the Item and pnce are IdentIcal However one cannot. WIth certamty make that connectIon, although the Panel acknowledges that gIven the fact that the bulk of the customers are short-stay tounst customers, It IS not unreasonable to conSIder that It IS a possibIlIty There was no ongmal or VOId receipt 124 aVailable, SInce both would have been discarded accordmg to practIce, nor was their any reason for the vOId stated anywhere Ms. Bzdyl had no recollectIOn of the transactions. There was no eVIdence that money had been stolen, or that there was anythmg fraudulent about the transactIOns. The Panel finds that there is no evidence here to support an allegation of theft or fraudulent voiding of a sale. THE SALE AND VOID OF THE "SOUWEST DIS" ON AUGUST 6TH AND ON CASH DAYS AUGUST 6TH AND AUGUST 7TH RESPECTIVELY (Pages 59 to 60) The fact that the sale and vOId of thIS Item were not on the same Journal tape caused Ms. Damels to questIOn the vOId. She testIfied that Ms. Bzdyl stated that a man had come m and returned a purchase made earlIer that afternoon. According to Ms. Daniels, she dId not accept that explanatIOn, because the store gets very few returns and if a person does come back it is for an exchange. The only time a CD is returned is when people buy the sampler album which has no music in the background, just nature sounds. While that may have been her expenence, one cannot draw the conclusion from Ms. DanIels' explanatIOn that all returns are exchanges, or that all CD returns are exchanges of the nature- sound-only CD Such conclusIOns would be unreliable and unrealIstIc Ms Bzdyl testIfied that she could not recall either transactIOn and was unaware an allegatIOn arose out of It until It was mentIOned at the Pre-hearmg. On revlewmg the transactIOn tapes, she stated that she thought the most lIkely explanatIOn was that the VOId had been entered to correct an error There were 23 transactIOns between the sale and the VOId of the "souwest dIS" They took place over 55 mmutes dunng WhICh tIme one staff person, It appears to have been Ms. Daniels, was occupied takmg off the registers and readymg the cash for pIck-up, thIS occurred followmg the departure ofMs Poole at 1600 hours. If all were sales, and there IS no reason to conclude that most were not, then approXimately 23 customers were served dUflng a penod of 55 mmutes. that IS, approXimately 2 Yz mmutes per customer In other words, the store was busy dunng that time 125 and It would not have been unreasonable for the SupervIsor to have left the vOId untIl later Accordll1g to the eVidence, Ms. Damels stayed on for an extra half hour and left Just pnor to the vOId bell1g entered. She dId not provide any eVIdence as to why she remamed, except that she stated she "worked on the floor all day mom to red sales and stayed untIl both registers were taken off and money packed m brown bag" ThiS was also the day on which she entrusted to Ms Archambault, the key to the cash bag. She could have stayed because she did not trust Ms. Bzdyl With the takmg-off ofthe registers and the handhng of the cash. No reference was made to mventory m thiS mstance, however, even If had been, the Panel has found all the mventones presented to be unrelIable and therefore would have had no mfluence on the conclusIOn. The Panel finds no link established between the cash shortage of $20.63/$20.00 on August 7th, the day of the void, and the Souwest CD void of $20.37 on that same cash day Further, with either explanation, the return or the error, there is no evidence of anything untoward with this sale and void. CASH SALE OF CD FA VORIT, VISA SALE OF DISC APPALA AND CASH VOID OF CD FAVORIT ON AUGUST 15TH AND AUGUST 15TH CASH DAY (Pages 67 to 69) The Journal tape shows that there was a cash sale # 7156 (total $20 37) of one "CD FA VORIT" on Register 1 at 1443 hours. The ongmal receIpt confirms thIS. Ms. Bzdyl mdICated she had wntten the words "change the tape and by VISA paId" on the reverse of the receipt. There was no reqUIrement at thiS tIme that she do so The journal tape and the Charge Record also show a VISA sale # 7167 ($20.3 7) of one "dISC appala" at 1517 hours. The journal tape shows a cash VOId # 1519 ($20 37) of one "CD FA VORIT" at 1519 hours These transactIOns captured Ms. Damels attentIOn because there was a penod of 34 mmutes between the ongmal "CD FA VORIT" cash sale and the "diSC appala VIsa sale Ms DanIels was also troubled by the sequence of sale, sale, void Accordmg to her, Ms Bzdvl explamed that a man had made the ongmal cash purchase and the Wife came later and explamed that they wanted to change their purchase from 'CD FA VORIT" to "diSC appala", an Item Identically pnced, and at the same tIme as the\- were short of cash, they Wished to pav by VISA. ThiS would mean that they would, 111 effect, retneve the $20 37 cash that the husband had prevIOusly paId Ms Damels testIfied 126 that she would expect to see sale, void, sale, as she explamed It, "the normal procedure would have been to refund the cash and then fe-nng the sale" Ms Bzdyl re-rang the sale and refunded the cash, m that order The Panel has concluded that there is nothing unusual about the explanation offered by Ms. Bzdyl nor is there anything untoward about the 34-minute time lapse in the sequence. While the order of transaction is not the order which Ms. Daniels considers "normal", there was no evidence to suggest that it was incorrect, or that Ms. Daniels' order would have been the preferred order under the circumstances. The Panel has concluded that there is nothing problematic with this series of transactions. FRAUDULENTLY VOIDING A TRANSACTION AND POCKETTING THE MONEY ON AUGUST 19TH, AUGUST 19TH CASH DAY (Pages 71 to 95) August 19th was the first day followmg that when Ms. Daniels' new, mandatory instructions on returns were gIven to both Supervisors. Neither Ms. Daniels nor Ms. Archambault was present the mornmg of August 19th, Ms. Daniels being on her regularly scheduled day off and Ms. Archambault not bemg scheduled to come III untIl noon. Ms. Bzdyl, therefore, was the only person working that mornIng WIth authonty to deal WIth VOIds and returns and the new, procedural instructIOns. Ms. Chan was scheduled to begm work at 0900 hours and Ms Provenzano, at 1000 hours. Accordmg to the evidence, they were there as scheduled. As the semor staff person on that day, Ms. Bzdyl was responSIble, withm her superVISOry dutIes, for the operatIOn of the store She was accused of fraudulently VOIding a transactIOn for a cassette at 1024 hours and pocketmg the money The Employer's allegatIOn arose out of the sequence of the transactIOns - sale, sale, VOId, the reason wntten on the back of the VOId receIpt, the dIsputed time of ItS notatIOn, the mventory of cassettes and CDS, the "completIOn of the transactIOn, and the faIlure of Ms. Bzdyl to proVIde a prompt and clear explanatIOn these procedures. An understandmg of the eVIdence reqUIres a conSIderatIOn of the new rules, as well as each aspect of the Employer's allegatIOn. 127 V oid and Return Instructions and Procedures There was, m the opmlOn of the Panel, a considerable opportumty for mlsunderstandmgs to anse around the mstructlOns which were gIven by Ms. Damels to the SupervIsors. Ms. DanIels testIfied that the vOId which Ms Bzdyl was processmg was "a Simple vOId" The processmg of VOids and returns IS not Simple, as the history of problems suggests In fact, It IS qUIte complex. The Panel can attest to thIS. There was eVIdence that Sergeant Audlbert dId not have an understandmg of the functlOnmg of the tapes Ms Arndt testIfied to the tIme she spent WIth Ms Damels trymg to get a grasp of the system. Her understandmg then relIed on Ms. DanIels explanatIOn. Ms. Damels' explanatIon of vOIds and returns appears to have involved only reference to cashier error and customer returns. It does not appear to have mcluded aborted sales. Ms. Daniels also stated that the system was the same as the returns system at Table Rock. In part, she relIed on Ms. Bzdyl's comment that the change set out on August 18th was like the system at Table Rock. While some aspects may have been, the fundamental difference was that returns were to be keyed mto the regIster at Naturally Niagara as returns not as VOIds, whereas at Table Rock, the regIster was not mvolved m the processmg of eIther voids or returns. The one person who might have had a thorough understandmg of these procedures, John Wallace, was not mvolved m the mvestIgatIOn of the VOids. He was only asked to carry out a surpnse regIster audit and to supply the Mystery Shopper As of August 19th, the retentIOn of origmal and VOId receIpts, had been m place at Naturally Niagara smce August 10th. On August 8th and 10th, Ms. Damels mtroduced Phase 1 of the changes and asked all supervisors to keep the original receipt and the void receipt and that the} be kept and initialled b} a supervisor and a cashier At that tIme there was no dlstmctIOn made between the vanous reasons for the VOIds (I e errors and returns) Ms Damels testified that the ongmal receIpt and the VOId receipt were to be kept m the cash drawer ThiS was also Ms Bzdyl's recollectIOn of the mstructIOns Accordmg to Ms 128 Damels, at the end of the day these would get attached to her paperwork. Mr Adams testified that these receipts from customers or cashier errors would be kept along with the corrected receipt on file by the week or month for IMs. Daniels') reference. Ms. Damels wrote In her statement that all original receipts [were to) be kept along with the void copy & attached to the daily summary sheets The retentIOn of the receIpts meant that, m the case of cashIer error, the lInk between the mcorrect transactIOn and the vOId WhICh provided the correction, could be made with more certaInty Pnor to thIS, the only mformatIOn that was aVaIlable was the Journal tape, and m makmg the lInk between the ongmal mcorrect sale and the correctmg or adJustmg VOId, it was only possible to arrIve at a conclusion by takmg the mformatlOn on the Journal tape, that is, the Item, the pnce, and the sequence, and fittmg the mformation together As part of the new mstructIOns, there was still, however, no mstruction to record the transaction number of the origmal on the VOId receipt and/or the transactIOn number ofthe void on the onginal receipt, on the other ThIS new procedure made the Manager and the Supervisors responsible for provldmg documentary proof of the link by retammg, together, both receipts. There was no eVidence that Ms. Damels as part of her mstructions on August 10th told the Supervisors . to process voids m a particular sequence . to process voids m a partIcular tIme frame. . to process VOIds on the same cash day . to process VOids on the same register . to wnte the reason for the VOId on the ongmal receip~, the VOId receipt or the Journal tape On August 18th, Ms Daniels mtroduced Phase 2 ofthe changes and gave mstructIOns to the Supervisors that there were to be 2 dlstmct categones (1) A void which was "a cashier error" (2) A return which was "anytime mdse & money change hands" At thiS pomt, she gave them the followmg mstructIOns concermng the VOId/cashIer error' 129 If it is a cashier error, it is to be initialled by the cashier (original receipt), voided in the register & initialled by the supervisor and the followmg mstructIOns concermng the processmg of "returns" If it is a customer return then you press the return button & fill out a customer refund slip w/customer signature & original receipt and supervisors [sic] initials. Anytime merchandise and money exchange hands over the counter a refund slip with a customer signature should be used. This mstructlon reqUIred that whenever merchandIse and money exchanged hands, a Customer Refund SlIp was to be used and customer signature was to be secured. Merchandise and money are not exchanged over the counter when an aborted transactIOn occurs, or when there is an exchange which does not involve a monetary variance An item may be returned for . a refund . an exchange for an item of the same pnce . an exchange and partIal refund . an exchange and addItIonal payment. An exchange of merchandise and money only happens when there IS a return for refund, return for exchange and partial refund, and exchange and additional payment. If the transactIOn IS aborted because a customer changes hiS or her mmd, there is no return, no refund, no additIOnal payment, and no exchange. The Customer Refund SlIp reqUIres the customer's SIgnature The customer signs, acknowledgmg that he or she has receIved somethmg - a refund or an Item m exchange If there IS an aborted sale, the customer receIves nothmg and therefore, the obtammg of the customer's SIgnature would not appear to be appropnate Ms. Damels appears to have assumed that everythmg that was not an "error" was necessarily a "return", and that every tIme there was a "return" both merchandIse and money would change hands, which IS an erroneous assumptIOn. Ms Damels placed pads of pnnted, numbered Customer Refund SlIps, used throughout the commiSSIOn retaIl outlets, at each register There was no eVidence that lI1structIOns were given 130 to Include a reason on the ongInal receipt, the vOId receipt, or the Journal tape The refund slIp has spaces for provldmg the followmg InformatIOn. Register Number Date Article Sale Tax Total Exchange [Dollar value] Total It also provided a space for The customer's signature The Clerk's [Cashier's] signature [not necessary, accordmg to Ms. Daniels] The Supervisor's signature There was no place on the Customer Refund SlIp designated for the reason the customer returned the particular Item. The example which was submitted in evidence and WhICh was filled out by Ms. Daniels' did give a reason under the headmg "Article" However, wIth this exceptIOn, there was no eVIdence, m chIef, cross or re-exammatIOn of Ms. DanIels, or m her wntten statement, where she stated that a reason was eIther a reqUIrement or a practice when processmg a return. Ms. Bzdyl testIfied that as a Supervisor at Table Rock, when a customer returned an item, she would attempt to determme the reason. She also wrote a reason on the back of a receIpt submitted m evidence for August 15th, "Change the tape and by VIsa paId" Once agam there was no eVIdence that Ms. DanIels mstructed Ms. Bzdy I and Ms. Archambault . to process VOIds in a partIcular sequence . to process VOIds m a particular tIme frame . to process VOids on the same cash day . to process VOIds on the same register . to wnte the reason for the VOId on the ongmal receipt, the VOId receIpt or the Journal tape Smce dunng Ms Bzdyl's employment at Naturally Niagara, there was no reqUIrement to record a reason the questIOn must be raised of whether It IS reasonable to assume that Ms. Bzdyl had wntten the reason "Changed for CD" pnor to meetmg With Ms. Damels Accordmg to her there 131 was no exchange, no return, and no connectIOn wIth the CD sale If there had been an exchange II1volvmg money or a refund, her Table Rock expenence would, one would expect, lead her to fill out the Customer Refund SlIp Ms. Daniels emphasIzed that there were 3 necessary elements of the returns process (1) The Refund Slip (2) The original receipt (3) The void of the return Ms. Daniels' mstructIOn about "the vOId of the return" IS on ItS face confusmg as she also gave an mstructIon to key m "return" instead of "void" m the case of returns. The above reasons lend credence to Ms. Bzdyl's explanatIOn of why she dId not fill out a Customer Refund Shp There was no refund and no return in the explanatIOn she offered and her reasonmg IS not lackmg m lOgIC Sequence of Transactions The three transactIOns in question were as follows cassette sale, CD sale, and cassette VOId. Ms. DanIels testIfied that she would have expected to find, as a matter or normal procedure, cassette sale, cassette VOId, and CD sale. The Panel has previously concluded that the practice of not transacting a void immediately following the transaction necessitating it is not evidence of any wrongdoing or fraudulent activity and reaffirms its conclusion in the case of this allegation. Inventory On Apnl 25th, Ms Damels camed out an mventory of CDs, and cassettes, lookmg at a total of 36 Items. ThiS related to the transactIon of August 19th. Her mventory, when compared With the computer prmtout and the stock, showed that there were shortages m 23 Items, overages m 4 and 132 the correct number m 9 Items. There was a total of 52 shortages. The mventory was venfied by Derek. Broerse The Panel has previously concluded that all the inventories were unreliable, and this one is particularly so, given that it was carried out 6 days after the "questionable" transaction. Completion or Abortion of the English-speaking Woman Customer's Purchase of the Appalachian Cassette Ms. Bzdyl's explanatIOn for the VOId of the above sale IS that the notatIOn on the back of transactIOn #7920 has nothing to do with the real reason WhICh is, that the transactIOn # 7918 was mcomplete She maintams that transactIOn # 7918 was aborted at the pomt when the customer, an EnglIsh-speakmg lady who was engaged m a conversation With her female frIend, took a $20 00 bIll to hand over the counter, and at the point when she, Ms. Bzdyl, havmg seen the bill, rang m the sale and had placed the AppalachIan tape in a store bag. Just at that moment, someone, accordmg to Ms. Bzdyl, called from the door to say the bus was leavmg, WIth the result that the purchaser left suddenly, takmg her money and leavmg the AppalachIan tape behmd. If one does not consIder the notatIOn, this explanatIOn is compatible WIth the documentary eVidence the ongmal sale receipt, the VOId receIpt and the CD sale receIpt, as well as the Journal tape. In practical terms, It IS a situatIOn whIch, at Naturally Niagara, given ItS clIentele, could have occurred. One could, therefore conclude, that Ms. Bzdyl's explanatIon was plausible, If one countenances Ms. Bzdyl' s version of the notatIOn, or believes that she might have wntten the reason on August 19th, and noted a false reason. The Employer challenges Ms Bzdyl's verSIOn based on the testimony ofMs Bnsson, the Mystery Shopper Ms. Bnsson was asked to purchase a CD from Ms. Bzdyl and to observe that transactIOn She dId so, reportmg to Mr Wallace that there was nothmg out of the ordmary The pomt of the exercise was to see If Ms. Bzdyl, havmg made a CD sale, would then VOId that sale 133 If the Journal tape had shown that, the Employer thought It would then have confirmatIOn of Its SuspiCIOns that Ms. Bzdyl had a practice of makIng a sale and followmg the customer's departure, transactmg a VOId and pockettmg the money ThIS would not have shown up as a cash shortage The Journal tape did not show that Ms Bzdyl transacted a vOId for a CD at anytIme dunng that cash day In other words, the ongmal premise on which Ms. Bnsson' s assignment was based, was not proven. However, accordmg to Mr Adams, the aSSignment did, nonetheless, "bear fruit" Three days after her aSSIgnment, Ms. Bnsson was asked by Mr Wallace If there was arIyone else m the store makmg purchases and asked her to mclude anythmg she remembered about that in her report. She acknowledged that she had not gIven her aSSIgnment any thought smce she completed It on Fnday mornmg, (although she had m the mtenm, written a draft of her report) Ms. Bnsson added the followmg to the mltIal verSIOn of her report: I spent the next 15 minutes at the display for the Solitude music. I listened to demos of several tapes and spoke for a while with a tourist about the music. This woman was approximately 50-60 years old and was english speaking. I kept pressing buttons to hear what the different tapes sounded like The lady and her husband kept coming back to listen to the music and had decided to purchase a cassette tape (I think it was titled "Wilderness" or something like that.) The husband seemed to be "hovering" which led me to believe he was ready to leave, and they made their purchase. I did not see them leave the store because my back was turned, but I didn't see them again. I did not see the tourist return to the store, return her cassette purchase, or pass her on the walkway ThiS IS the complete excerpt concernmg the EnglIsh-speakmg lady customer The report does not say that Ms. Bzdyl served thIS customer It says "they made their purchase" It also says that "Stephame then walked by commg from the cash counter" ThiS was while Ms Bnsson was still at the CD/cassette display ThiS establIshes that Ms Bnsson was not m the Ime-up at the register WaItIng to transact her purchase She had not testIfied speCifically that she was In the Ime-up, however one could draw that conclUSIOn when she testified that she was waltmg to make her 134 purchase, If one did mclude her further testImony, that Ms Bzdyl came over to the display stand and they discussed which tape to purchase Ms Bnsson testified that she thought there were 2 groups of 2 people and 2 Cashiers m the store but acknowledged that she was not sure how many people were there. She referred to an ImpatIent and hoverIng "husband" who seemed ready to leave, whIle Ms. Bzdyl spoke of someone at the door announcmg that the bus was ready to leave This could be one and the same person. Ms. Bnsson dId not recall when she spoke With Ms. Arndt, other than she dId not speak With her on the Tuesday, (August 23rd) She could not recall exactly what Ms. Arndt asked her or If Ms Arndt took notes. She recalled speakmg to her about the mcident, but dId not recall saymg that "she did not know whether or not it was StephanIe who cashed them out" Ms. Arndt testified that Ms. Bnsson had told her, m reply to one of her questIOns that she "dId not know If Stephanie was the cashier who cashed out the lady" Ms. Arndt recalled asking Ms. Bnsson If "StephanIe had WaIted on the tourist" and she testIfied that Ms Bnsson replied that "she dId not know If StephanIe had" Ms Bnsson testIfied as follows I know Stephanie cashed out those people. I would not have said I didn't know Stephanie cashed them out because after she cashed them out I waited for them to leave the register to make my purchase. In her report she Said "they made theIr purchase" but testIfied at the heanng that she recalled further detaIls. She was not able to determme the denommatIOn the woman paId m, but confirmed that she saw the Gnevor gIve money to Ms. Bzdyl, saw Ms. Bzdyl give change back and saw the cassette m a whIte opaque bag. She also received her CD m a white opaque bag. We do not know how the questIOns were put to Ms. Bnsson, by either Mr Adams or Mr Wallace Ms. Bnsson' s recollectIOn 18 months later ofthe unrecorded details of the purchase whIch were seemmgly ummportant at that tIme, stnkes the Panel as unusual, m part, smce neither the observatIOn of the other customers, nor that of Ms. Bzdyl's mteractIOn With other 135 customers was part of her asslgnement. Furthermore, dUflng that penod, she testIfied that she was still at the display stand, and whIle there, she testified, she wore a headset and was pressmg buttons and trymg out varIOUS demonstratIOn tapes Ms Bzdvl testified that she waIted on two older women who were conversmg and were EnglIsh- speakmg, one of whom handed her a cassette WhICh she rang m and then, when she observed the purchaser take out a $20 00 bIll for payment, she rang that m as the amount tendered before the amount had actually been gIven to her She put the cassette in a whIte opaque plastIc bag and It was at that pomt, she stated, that someone called to the women from the door saymg the bus was leavmg. With that, accordmg to Ms. Bzdyl, the women left the cash desk, and the store, and that was the last she saw of them. After removmg the cassette from the bag, she placed It beSIde the cash regIster and went to the dIsplay stand and assIsted Ms. Bnsson WIth her CD selectIOn, returned to the cash desk, as dId Ms. Brisson, and completed that cash transactIOn. Ms. Bnsson then left. Ms. Bzdyl testified that she then rang m a VOId for the cassette, put the ongmal and the VOId receipts together and returned the cassette to ItS place in the display The Employer claims thiS explanatIOn IS a fabncation created by Ms. Bzdyl dunng the intervenIng penod. The Umon mamtams that It is a credible, valId explanatIOn. The explanatIOn put forward by Ms. Bzdylls one which fits WIth the documentary eVIdence Further, on certam pomts It coinCIdes WIth the testimony of Ms. Bnsson. ThiS was an explanatIOn which Ms. Bzdyl gave to Ms Arndt on August 23rd and claIms to have explamed to Sgt. Audibert on August 22nd. She also testIfied that she tned to explam It to Ms DanIels and Mr Adams but that they were unwIllmg to lIsten. It IS unclear whether she mamtamed thiS explanatIOn at the meetmg on August 29th. She gave the matter thought followmg August 22nd. Ms Bnsson, however, accordmg to her testimony, had not given the matter any thought from the tIme she \\Tote her report of August 22, 1994, until the hearmg date at which she testIfied, Februarv 22, 1996 These detaIls, that IS, the handmg over money and recelvmg change, were not m her report, were not asked of her at the tIme, and were not part of her assignment. It IS 136 difficult to accept that she has a recollectIon of these detaIls, as opposed to an assumptIOn that they occurred as part of a normal transactIOn. Mr Adams was asked m cross-exammatlOn whether, If a customer had a change of mmd and did not purchase anythmg, would Ms. Bzdyl then have to make up a vOId? He acknowledged that she would have to do so He was further asked If the Mystery Shopper purchased a CD, and the Gnevor dId not process the VOId transactIOn until later, whether or not that would explam It. Mr Adams acknowledged that It would. He also agreed that, If one wanted to steal money from Naturally Niagara, the least nsky way to do that was to take cash, because of the number of employees usmg the regIsters. He acknowledged that by slgmng her name to the VOIds, Ms. Bzdyl has, m effect, announced what she has done The Panel has concluded that the evidence presented by Ms. Brisson is not sufficiently strong to override the explanation offered by Ms. Bzdyl and the Panel accepts Ms. Bzdyl's explanation of an aborted transaction. The Notation, "Change for CD", and Time it was Written on the Back of Transaction # 7920 Ms. Damels claImed that Ms Bzdyl wrote "Change for CD" on the reverse of transactIOn # 7920, the $13 95 VOId of the Appalachian cassette tape on Friday, August 19th at 1024, before 1800 hours. Ms. Archambault testified that she saw thiS reason on August 19th at least by 1800 hours Ms. Bzdyl claImed to have wrItten these words on Sunday, August 21st at Ms. Damels' behest to satIsfy Ms Damels' apparent need for a reason when she was asked to come to Ms. Damels' office to explam the VOId. The Employer submitted that Ms Bzdylls lymg, that she has, over tIme, managed to concoct a story which SUItS her purposes, and that the Panel should prefer the eVidence of the management witnesses smce It was given directly and Without heSItatIOn, and was, 111 the case of Ms. Arndt, Mr Adams and Ms Damels, consistent where It overlapped One would expect, however, a certam consistency s1l1ce the source of most of the overlappmg eVidence of Mr Adams and Ms Arndt was Ms Damels. 137 The Panel notes that Ms Bzdyl's eVIdence was also given directly and without hesItatIOn, but that she was not m a posItIon to have anyone whose eVidence would corroborate hers, as the Employer was when It presented Ms. Archambault's eVidence The Employer submitted that the fact Ms. Bzdyl testified to wntmg a reason which she knew to be untrue to satIsfy the demands of her Manager should put her credibIlIty m senous doubt. The accusatIOn of msubordmatlOn and the order from Mr Adams to comply With Ms. Daniels' requests and demands was the explanatIOn given for her actIon, If one belIeves that thiS versIOn ofthe notatIOn wntmg IS the truthful one Ms. Bzdyl acknowledged her lIe m that mstance, to the Panel. The Panel notes that Ms. Bzdylls not the only witness who has interests to protect. Ms. Archambault would find It dIfficult to testIfy against her Manager, partIcularly when she must contmue to work With her and from her perspectIve, and what she must have heard, to support Ms. Bzdyl agamst Ms. DanIels would have been to support a fellow employee whom Management was convmced had been stealIng and commlttmg fraud. For her part, Ms Damels, as a relatIvely new Manager, was no doubt feelmg some pressure to produce pOSItIve results m her performance as a Manager, and she would not want to be seen to have told an employee to supply a reason to satIsfy what she perceIved as a faIlure m the ImplementatIOn of the new procedure In her statement, Ms. Daniels stated that the reason why Heidi reported this to me was because there was no pink customer refund slip filled out with the customer's signature on it. ThIS seems to be an assumptIOn on Ms. Damels' part. Ms. Archambault testified that she belIeved that thiS VOId was the only "VOId" for the day, whIch was not true She did not refer to It as a return" She then SaId nothmg about the failure of Ms Bzdyl to fill out a Customer Refund SlIp ThIS report on VOIds was ImtIated by Ms Damels and the Panel belIeves from the eVIdence that ItS purpose was to find out If Ms Bzdyl had undertaken any SUSpICIOUS transactIOns. The Panel IS also of the opmlOn that Ms. Archambault knew what Ms. DanIels was seekmg, that IS, some fault With Ms Bzdyl's VOids. Ms Bzdyl's failure to fill out a Customer Refund SlIp was 138 the most ObVIOUS, and Ms Archambault gave that mformatlOn to Ms. DanIels She would have had the ongmal receipt of the transactIon, and the VOId receIpt attached to the paperwork of the prevIOus cash day aVaIlable to her The Journal tape would have already been sent to the Cash Office or would have been m the cash bag ready to be picked up Ms. DanIels testified that Ms. Archambault went through all the voids m the regIster However, It IS a reasonable assumptIon that the vOIds were attached to the paperwork of the August 19th cash day, not calendar day It would not be reasonable to have some of the cash system workmg on the cash day, and other parts on the calendar day If that IS so, then It IS dIfficult to gIVe credence to Ms. Daniels' testImony concernmg all the VOIds m the till, WhICh she belIeved mcluded the cassette VOId transacted by Ms Bzdyl The VOIds from the August 19th cash day would have been removed from the tIlls at the tIme the Z Reports were completed and put With the paperwork. It would have been unusual for them to remam m the tIll WIth the August 20th cash day Journal tape and revenues. Ms. DanIels went on to report that [oln Sunday, August 21st '94 when I came in to work I checked the paperwork records from Friday When Stephanie came in for her shift I asked her about the void, because it should have been rung in under return and a customer refund slip filled out as well. Ms Damels had given as one of the essentIal elements when mstructmg the SuperVIsors "the VOId of a return" and she had also told them that returns were to be keyed m by usmg the return key It IS not unreasonable for someone who claims not to have an Item returned but to have had an 1I1complete transactIOn not to key m under "return" and not to fill out a Customer Refund SlIp as Ms. Bzdyl dId. Further, Ms. Damels mstructlOns of "VOId of a return" when one was not to key III 'VOId" for return but rather to key m "return" for return, could have created confUSIOn. In her report which Ms Damels testified she wrote on August 22nd and on a couple of subsequent davs, Ms Damels notes that 139 [o]n Sunday August 21 st 94 when I came in to work I checked the paperwork records from Friday The receipt & void were there, that Heidi described to me, with Stephanie's signature on it. When Stephanie came in for her shift I asked her about the void, because it should have been rung in under return & a customer refund slip filled out as well There was no mentIOn of the note on the back "Change for CD" At that pomt the problem seemed to be that Ms. Bzdyl had not filled m a Customer Refund SlIp aIld had rung the transactIOn m as a VOId mstead of as a return. When revlewmg the transactIOns of August 19th m chIef, Ms. DanIels stated loIn the back of the tape were Stephanie's initials; Stephanie rang this in. [Ms. Archambault] went through all voids in the register and then she told me about this - no refund, no signature, Stephanie's initials Once agam, there IS no mentIOn of the notation on the back of the VOId receipt. Ms. DanIels later testified that she "dId not have her make the notatIOn" Ms. Archambault was asked by Ms. Arndt, through Ms. Daniels, to wnte a report settmg out her recollectIon of when she saw the explanatIOn on the back of transactIOn # 7920 Whether or not she did, the report was not establIshed m eVidence, and no report was mtroduced. When presented durmg her exammatlOn-m-chlefwlth the VOId receIpt of thIS transactIOn WIth the wntmg on the back, Ms. Archambault testified that she was sure It was Ms. Bzdyl's wntmg, and her mltIals. She was qUIck to state thiS, although there was only a letter "B" whereas Ms. Bzdyl, m all other mltIal signatures m eVidence Signed With "SB" She further testified that she was certam that she saw the explanatIOn on August 19th, and that It could not have been put there later, and that she told Ms Daniels about the VOId and what was on the back. She as well testIfied that she recalled speakmg With Ms Arndt but could not recall the subJect of their conversatIOn. Ms Archambault further testified that she usually mformed Ms. Damels of the reason for the VOId on the back when she telephoned on her days off In August 1994, pnor to August 10th, the receipts were routmely destroyed followlllg the transactIOns further, when the 140 reqUIrement to retam them was establIshed, there was no reqUIrement to wnte the reason for the vOId to be wntten on the back of the recelpt~. It IS, therefore, difficult to accept that Ms. Archambault's statement refers to the penod of August 1994, m particular, when she testIfied that at that time, that IS, pnor to and subsequent to August 19th, mformmg Ms Damels of the reason which she gleaned from the back, was her usual procedure On Monday August 22nd, Mr Adams and Ms. Damels met With Ms. Bzdyl Mr Adams referred m hIS testimony to the note on the vOId, statmg that he suggested the note on the void was incorrect and that Stephanie had lied. It was not clear whether hIS suggestIon was made followmg an explanatIOn by Ms. BzdyI. Ms Bzdyl dId testIfied that the note on the VOId receIpt was not true and explamed how she came to wnte It. Further, there was nothmg m Mr Adams' testImony regarding the dIsputed tImmg of the notatIOn, although there was consIderable evidence on the meetmgs of August 22nd and 29th. Ms. Daniels attended both of these meetmgs and testified that at the meetmg of August 22nd, Ms. Bzdyl SaId that [s]he didn't see the void until Sunday when [she] made her sign it. [Ms. Daniels' testimony of what Ms. Bzdyl said] Ms. Damels testified that Ms. Bzdyl stated once agam at the meetmg on August 29th, that she, Ms. DanIels, had made her wnte the explanatIOn on the back of transactIOn # 7920 on Sunday, August 21 st, which she demes Ms Arndt began her mvestlgatIOn by meetmg With Peter Adams on the afternoon of Monday, August 22nd. He gave her a copy of the "VOIded register tape", and "receIpt" and the "back of the VOId There was no eVIdence that he mentIOned a concern about the notation on the back of transactIOn #7920 She referred to speakmg WIth "LIsa" m her testimony pnor to her meetmg WIth Ms. Bzdyl She then met WIth Ms. Bzdyl for about 1 to 1 Y2 hours and wrote m her notes made SImultaneously at thiS meetmg on Tuesday, August 23rd, that Ms Bzdyl Said that she 141 "dldn t wnte on the tape of Fnday", and testIfied that she said "she didn't wnte It on the Fnday" Ms. Arndt also testIfied that she went through the 'tapes 2 or 3 tImes" and that Ms. Bzdyl told her that she had not wntten anythmg on the tape when it was VOIded - except for her Imtlals [The Panel accepts that the tape here IS actually the VOId receipt rather than the Journal tape. It was confirmed m eVidence that Ms. Bzdyl failed to mltIal transactIOn # 7920 on the Journal tape] Ms. Arndt testified that at the time she mtervlewed Ms. Bzdyl she "dId not know about the cash registers" The next day, Wednesday, August 24th, Ms. Arndt met With Ms. DanIels for 3 to 4 hours to review the SItuatIOn from the tIme of her mItIal SuspiCIOns m order for the situation and procedures at Naturally Niagara to be clear m her mmd. At that meetmg she noted that Ms. Daniels told her that Ms. Bzdyl Signed receipt on fri noLSun with reason for void - (as per Heidi) Ms Arndt wrote m the notes which she submitted that Heidi - saw writing of reason on back of void. She dId not note when Ms Archambault said she saw the wrltmg. Ms. Arndt testIfied that she spoke to Heidi at the store briefly to ask if she saw the writing on the back of the void on August 19th. .She saw the writing of the reason on August 19th. She dId not, it appears, ask her If she saw any wrltmg on the back of the receIpt, and If so when. In other words, her questIOn suggested the answer she was seekmg. Ms Arndt also testified that she had had Ms. DanIels telephone Ms. Archambault and asked her to put that in writing. There was no eVidence about the sequence of these events, and there was no eVidence concernmg who was workmg at Naturally Niagara on August 24th. It IS reasonable, however to assume that because Ms. Archambault was the only other Supervisor at Naturally Niagara and because she was familIar With the computer system, that she was actmg as Supervisor dunng the penod Ms Damels and Ms. Arndt were meetmg on August 24th. The schedule shows that she had preVIOusly come m on her days off when requested, so that even If It were her scheduled day off It IS pOSSible that she was workmg. Ms Damels telephone call requestmg wntten confirmatIOn 142 would have been, It appears, after Ms. Arndt's bnef conversatIOn with Ms Archambault, not before There was no eVidence of a reqUIrement for a reason to be wntten on the back of the receipts, or on the Journal tape The eVidence dId not demonstrate that thiS had been the procedure at Naturally Niagara nor that It was part of the changes which were mstltuted. It was clear from the VOId of August 15th, however, that Ms. Bzdyl did wnte an explanatIOn at least on one occasIOn. and from the Customer Refund SlIp WhICh Ms. Damels completed whIch was submItted as an example, that she wrote a reason on at least one occaSIOn. The questIOn anses as to why Ms. Bzdyl would wrIte an explanatIOn If one were not reqUIred. The Panel IS faced WIth 2 conflIctmg and plausible verSIOns of thiS partIcular aspect of the case The two verSIOns were presented soon after August 19th. There IS no dIspute that the notatIOn was written by Ms. Bzdyl. She also IdentIfied the mltIal, m spite of the fact that It appears different from the other mitlals Signed on other documents submItted m eVidence. There IS, however, a dIspute about the substance of the meetmg held between Ms. DanIels and Ms. Bzdyl on August 21 st, and on the tlmmg of and the reason for the notatIOn. The weaknesses m the testimony of Ms. Archambault Cited above negate the pOSSIble value that her testImony might have had as corroboratIve eVIdence The Panel does not belIeve that thiS difference m verSIOns IS Simply a difference of recall. One of the verSIOns IS an untruth. Followmg conSiderable scrutmy of the eVidence, and diSCUSSIOn, the Panel has concluded that the eVIdence before It does not pomt clearly m the directIOn of either verSIOn and It has therefore determmed that It IS not appropnate for It to select one as the true versIOn. The nsk of domg so WIthout clear and cogent eVidence IS that of labellmg the wrong person a lIar The Panel belIeves that Ms. Bzdyl and Ms Damels know very well which versIOn IS the untruthful one and the Panel Wishes to emphaSize that the senousness of Ivmg to the Panel IS compounded by the untruthful versIOn bemg put out early m the mvestIgatIOn. Further the selectIOn of one verSIOn would not alter the outcome 143 The Panel has concluded that, on this point, the Employer has failed to satisfy the onus of proving Ms. Daniels' version with clear and cogent evidence, and on a balance of probabilities. Explanations Offered by Ms. Bzdyl Ms. DanIels testIfied that on Sunday August 21 st, she enqUIred about a "questIOnable" transactIon on a Summary Sheet from August 19th. She stated that this was the same transactIOn about which she spoke to Ms. Archambault about on August 19th, although Ms. Bzdyl would not have made that connectIOn smce she was unaware of theIr conversatIOn, It havmg taken place after her departure on August 19th. Although Ms. Bzdyl and Ms. Archambault were workmg together on August 20th, the questIOmng of her by Ms. DanIels about the August 19th transactIOn, appears not to have been brought up by Ms. Archambault. Accordmg to Ms. DanIels, when she asked Ms Bzdyl on August 21 st If It was a return, the latter replIed, m Ms. DanIels' words, [y]es, it was a Spanish family all there at once, a large group and talking one woman bought the tape (Appalachian) and changed her mind and wanted to trade for the CD Ms Bzdyl demes that she mentIOned a SpanIsh famIly Ms. Bzdyl testIfied that pnor to her waltmg on the two ladles at the store, she observed that that Ms Provenzano was havmg difficulty explammg currency exchange to a non-EnglIsh-speakmg customer Accordmg to Mr Adams, at the meetmg of August 22nd, Ms Bzdyl went mto detail about the Spamsh family, and stated accordmg to him that a cassette was purchased, that there was a crowd of them and that someone changed her mind and wanted to change a cassette for a CD and that actually they did. Ms. Damels stated that Mr Adams told Ms. Bzdyl that they knew there was no Spamsh famIly Accordmg to Ms. Bzdyl at the meetmg on August 22nd. she tned to explain how it happened as far as [she] could recall [but each time she tried] to explain proper [he said] that's not the way it happened. 144 In Ms. Bzdyl's testImony, Mr Adams "referred to Spanish people" and It could be possible that Spanish was referred to by another cashier but not by [her]" but that "he did not beheve her that" Accordmg to Ms Bzdyl, when It was put to her that a Spanish famIly had bought the cassette, had changed their mmd and returned It for the CD mstead", that she knew "100% that she dId not say that about Spanish people" Mr Adams told Ms. Arndt that Ms. Bzdyl s verSIOn ofthe August 19th mCldent centred on a SpanIsh family and one woman makmg a purchase. However, Ms. Bzdyl dId not, accordmg to Ms Arndt's recollectIOn and notes, mentIOn a SpanIsh famIly to her on August 23rd. Ms. Bzdyl testIfied that she told Sgt. Audibert only about the mcomplete sale of the tape, and Ms. Arndt testIfied that Ms. Bzdyl mformed her that she told Ms DanIels on August 21st, first, about "a lady who purchased a CD" and then spoke of "a lady holdmg a tape and she [Ms. Bzdyl] rang It m and the lady changed her mmd about the tape and left" The Employer beheves that Ms. Bzdyl concocted the SpanIsh family to cover up her fraudulent vOIdmg and pocketmg of the money The Union sees the SpanIsh famIly story as "a red herrmg" and "not determmatIve of anythmg" Ms. Murdock made the pomt that there were several hundred customers each day and that, If Ms. Bzdyl did mentIOn a Spanish famIly, It was probably m relatIOn to what had gone on at the other register The Panel belIeves that as part of her discussIOn WIth Ms. Daniels, Ms. Bzdyl dId mentIOn a Spanish famIly, and that a woman bought a CD The Panel would not go so far as to say that at the meetmg of August 22nd, mentIOn of the Spanish family was InitIated by Ms Bzdyl But, based on the testImony ofMs Daniels, and the wordmg of her report of thiS, whIch says "one woman bought the tape" It does not say "one of those women" "one of the SpanIsh women" or even, "one of the women" The words reported by Ms. Daniels are not mconslstent With forelgn-speakmg customers bemg around, and a woman, other than a woman With a foreign accent makmg a purchase Further, when the questIOn of this transaction was first put to Ms Bzdyl, It was three days after the transactIOn occurred and Ms Bzdyl had worked the day between as well By that tIme she would have dealt WIth a conSiderable number of customers and a number of other VOids Unless there were somethmg about the transactIOn which would 145 have brought It to her attentIon and recall, she would very probably not have remembered It the moment It was presented to her The Panel belIeves that the Spanish family did stand out m her mmd, that she mentIOned them, as one mCldent of general confusIOn. Its presence could even have been at a different tIme There was no eVidence about the other VOId transactIOns around that tIme, nor did we have eVIdence from other cashiers workmg m the store dunng the same penod. The Panel has concluded that there is not clear and cogent evidence to demonstrate that Ms. Bzdyl was lying to the Employer about an explanation of the transaction on August 19th. There was no eVIdence of cash stolen or money mlssmg on August 19th, nor was Ms. Bzdyl found to be Improperly m possessIOn of monies. She did not have her purse m t he store, and she was not searched nor was a request for access to her purse, or car presented to her Further, she cannot be held responsible for any dIscrepanCIes m inventory for the reasons stated above. It is the conclusion of the Panel that the evidence presented by the Employer does not prove that on August 19th, 1994, Ms. Bzdyl fraudulently voided transaction (# 7920) and pocketed the money In summary, the Panel has determined that the Employer has not proven any of the allegations that it raised against Ms. Bzdyl and for which she was dismissed CONCLUSION In the letter of dIsmissal sent to Ms Bzdyl by DenniS Schafer the then - General Manager of The NIagara Parks CommiSSIon, Ms. Bzdyl was accused ofhavmg engaged in a serIes of thefts from the Naturally Niagara Store as well as VIolating the trust that The Niagara Parks Commission accorded [her] as a Seasonal Supervisor 146 It was stated and/or mferred that she had done this by stealmg "commission funds by fraudulently vOIdmg a customer purchase and claImmg that the customer had returned one Item and purchased another" by vOIdmg sales and "supposedly" refundmg money to the customer, by wntmg on the back of a vOId that a purchaser "changed her mmd" [She wrote "changed for CD"] and purchased a compact dIsk, when the compact disk was purchased by "an mdlvldual sent by NPC" The letter also referred to the "occurrence of a large cash shortage" The Panel has conSidered the eVidence of the allegatIOns brought agamst Ms. Bzdyl m detail, and where there was conflIctmg eVIdence has weighed the dIfferent versIOns and their plausibilIty carefully It has also noted Ms. Bzdyl's, diSCIplIne-free record and her persistent and conSIstent denial of any wrongdomg. As well, It has been cogmzant of the tenSIOn and conflIct between Ms. Daniels and Ms. Bzdyl and the mfluence thiS may have had on Ms. Damels m her search for answers to the cash shortages and transactIOns WhICh she questIOned. The Panel has come to the conclUSIOn that the eVidence does not support the allegatIOns and they are, therefore, not proven. Ms. Bzdylls to be remstated m her pOSitIOn as an Adult Seasonal Supervisor With back pay and mterest at 8.36%, benefits, and senionty The rate of mterest IS pnme + 1, based on the average of the pnme rate for 1994 1995 and the first 8 months of 1996, accordmg to StatIstICS Canada. The tIme which she mIght have worked dunng the wmter season IS to be based on an average number of wmter hours from 1991 to 1993 inclusive. The Panel belIeves that It IS Important that Ms Bzdyl s rem statement be posItIve and WIth that m mmd It IS ordenng that certam condItIOns be attached to the ImplementatIOn of ltS order and the rem statement. They are the followmg . Ms Arndt IS to assume the responsIbIlIty of overseemg the remtegratlOn of Ms Bzdylmto the workplace . All documentatIOn relatmg to the allegations agamst Ms Bzdyl, mcludmg the "Performance Appraisal" camed out on August I st, IS to be removed from Ms Bzdvl s Personnel File and any other file m which It may be located. 147 . Ms BzdylIs not to be given an assignment for some consIderable tIme (years, not months) where she would be supervIsed by Ms. Damels. . It would be preferable If Ms. Bzdyl did not have to work under Mr Adams, although the Panel IS not prepared to place that restnctlOn on the Employer . Ms. Bzdylls to be placed on the call-m lIst for the 1996-1997 wmter season and IS to be offered her fair share of days based on the current system of assigning them. . Pnor to Ms Bzdyl's return to work thiS fall, the Employer and the Union are to post for a period of one week, or place m the commISSIOn newsletter, on a one- time basis, a notIce welcommg her back and notmg that she has been exonerated of the allegatIOns agamst her The posted notIce or newsletter notIce IS to be repeated at the start of the spnng season. . Ms. BzdylIs to receive trammg SUItable for a SupervIsor on the computenzed system whIch, we UfIderstand, has been mstalled throughout the CommIssIOn's retaIl operatIOns. . Any problems WIth or conflIcts arlsmg from Ms. Bzdyl's remstatement are to be promptly referred to Ms. Arndt. . The remtegratIOn of Ms. Bzdyl mto the workplace Will also reqUIre a commitment on her part With respect to movmg forward pOSItIvely With that m mmd, the Board recommends to her, that she personally make every effort to aVOId unoffiCIal dISCUSSIOns m the workplace about her dismIssal, the process and the parties' mvolvement m that. Further, we adVIse her not to mltIate such dISCUSSIOns m the workplace and to mform those who may mqUlre unoffiCIally about her dIsmIssal, the process and the parties' mvolvement, that she has been adVised to aVOId dlscussmg these matters m the workplace by the Gnevance Settlement Board. 148 The Board wIll remam seized of this matter to aSsIst the parties m the event that dlfficultles anse with the ImplementatIOn of ItS order Date,d.at Kmgston November 25, 1996 H.S. Fl~VlCe-ChaJr ~~,ll~) Addendum attached. G MaJesky, Member , ~}j~ ~.~ " DC Montrose, Member 149 IN A MATTER OF ARBITRATION UNDER THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT OPSEU (BZDYL) GSB # 1215/94 BOARD MEMBER ADDENDUM I have carefully reviewed the award in the above noted matter and concur with the findings that Ms Bzdyl (griever) did not co~~it the alleged offences of theft Further, I also support all the evidentiary conclusions, and the reinstatement conditions This case presented a number of diffilulties There was a series of allegations corcerning theft There were also iss~es concerning per~on~lit} conflicts And ~here were post termination issues in that the grievor pursued a number of avenue~ in order to raise cuncerns about the quality of union representation at her greatest moment in need in the early stages Throughout che course of the hearing, it was not hard to ~pprsciatH the employer's LOIICern reg~rding theft and pilferage .t appeared that th~ Niagara Parks Commission had concerns about these issues, but, in thA final analysis did not present clear and cogent evidence in ~hich to validat8 t~e~c a~tions to dismiss the gri8vor I believ~ tre award speaks to all nf these issues and I do not think I can add anything of significance by way of this addendum However, the Board has clearly made it's determination based on the facts, and concludes quite properly, that the grievor was improperly terminated without just cause The award vindicates the grievor on all counts and allegations which were raised against her But more importantly, the award takes a very sen~1tive and humanistic approach, and provides an important back to work protocol that should alleviate any problems concerning the mechanics of the grievor'S reintroduction to the workplace The grlevor throughout these proceedings presented herself in a consistent and emotionally aggrieved manner She was unhappy with the treatment she received and was concerned about the long term stigma that her dismissal would cause, especially when theft was alleged The grievor's life was clearly destroyed, and no award can heal or take away the hurt, anxiety, and frustration that plagued not only the grievor, Dut her fa~ily She is 8 person who shares her emotions, and one can only imag~ne the anguish to which the grievor was exposed In that respect, our award should provide some support and Vindication for the grievor, especiall} in the eyes of her family and friends However, the grievor at the very early stages at her 2 dismissal, was confused and unsatisfied with the quality of union representation she was receiving One can only assume that the grievor did not feel that her trade union at the local level was handling the matter to her satisfaction Although there was some suggestion during the evidence at the hearing that some problems were experienced by the grievor, these did not form an essential part of the union's overall defense of the grievor As indicated earlier, the award is a complete vindication of the grievor on the charge of theft She is going to get her job back, and certain conditions will apply concerning not working vii th Ms Daniel's More importantly, a notice will be posted twice for one week or will appear twice in the Niagara Parks Coxmission newsletter, advising that the grievor was cleared of all allegations brought against her, and that she is formally being welcomed back I, cannot think of any better way to clear one's name with one's peers and co-workers That notice will go a long way to erasing the doubts and suspicions that this whole unfortunate situation created But more importantl}, our decision permits the parties to forge ahead and resume a product:ve working relationship based on mutual respect and understanding That's good labour relations 1D fact, the spirit of the award applies the principles of good labour relations so that the grievor can go bac~ to work and conmence her employment and once again become a valued member of the Niagara Parhs Commission 3 ---. --- With that in mind, I would caution the grievor to ride the tide and begin her personal process of forgiving and forgetting As unbearable and traumatic as these events have been on her, she must recognize that she was eAonerated by an independent board of the charges levelled against her There is no question that the grievor was provided good and reliable counsel at the hearing, as was the employer I believe, in light of the arbitration decision, the grievor must lay her sword and shield down because the war is over, and it's time to make peace Peace with herself Peace with the Niagara Parks Commission And peace with the trade union I do not believe it would serve the grievor's short or long term interests to be distracted by focusing her attention on the past and treatment she received during the early stages of her dismissal For this reason, I would recommend that the grievor focus her energies on going back to work with the knowledge that her character, reputation, and right to dignity and fair treatment have been resolved in her favour 5, 1996 Ontario 4