HomeMy WebLinkAbout1997-0406.SMITH98_01_03
ONTARIO EMPLOYES DE LA COURONNE
CROWN EMPLOYEES DE L'ONTARJO
1111 GRIEVANCE COMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST SUITE 800, TORONTO ON M5G tZ8 TELEPHONEfTELfPHONE (416) 326-1388
180, RUE DUNDAS OUEST BUREAU 800, TORONTO (ON) M5G tZ8 FACSIMILEfTELfCOPIE (41(1) 326-1396
GSB # 0406/97
OLB # 088/97
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRTEV ANCE SETTLEMENT BOARD
BETWEEN
OLBEU (SmIth)
Grievor
- and -
The Crown In RIght of Ontano
(LIquor Control Board of Ontano)
Employer
BEFORE S Kaufman Vice-Chair
FOR THE M McFadden
UNION Counsel
Koskie Minsky
FOR THE M. Smyth
EMPLOYER Counsel
Genest Murray DesBnsay Lamek
HEARING August 12, 1997
November 26, 27, 1997
\ December 3, 1997
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DECISION
The grievor was discharged from hls employment as a
full-time Customer Service Representative (CSR) and occasion-
al Actlng Manager/Night Manager at Store 362 on April 4, 1997
for theft of rolls of coin from the store safe The letter
of ternllnatlon (Ex 3 ) states that he was "responslble for
the theft of LCBO funds" These allegatlons arise from dis-
coverles whlch occurred between March 1 to 5, 1997 that rolls
of coin were missing from the store safeJ and from subsequent
events Evidence was glven by Store 362 Manager Sharon Cra-
ven, District 12 Manager Gerry Beuk, CSRs Susie Kosic, Nadine
Buda and Lee Thompson, and the grlevor As the sufficiency
of the evidence as well as the onus to be met were strongly
dlsputed, the evidence lS set out In some detail.
The EVldence.
Sharon Craven has been Manager of Store 362 for approxl-
mately three years Her usual shift, she said, is "basical-
ly" from 8 a m to 5 p m and she usually arrlved at work
"around 7 30 am" She manages the store during the day-
shlft, and an Asslstant Manager, usually the most senior CSR
on the shift, runs it In her absence She advised that the
grievor worked a dayshift from 9 a m to 6 p m , and the
afternoon shift from 1 p m to 9 30 P m He also was Acting
Manager during the latter half of some of the afternoon
shifts, about 4 30 to 9 30 P m , for whlch he was pald the
rate for Acting Manager, and during whlch time he was fully
responsible for the store
Ms Craven advised that the store is located In a mall,
that the store closes its doors at 9 p m , and the mall doors
are locked between 9 30 and 9 45 P m She advised that staff
do not have a key to the mall doors and "it's a very bad
neighbourhood" She can enter the store outside mall hours
" only by call1ng security to open the mall doors, which then
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then are locked behind her She advised that "they open all
the doors" to the mall at 7 30 a m She advised that she and
her Assistant Manager Mr Laszczuk, and Mr Emmerson and Mr
Chlni have a set of keys for the store, and that "the person
running the night shift also has the keys" She advised that
the key is required to open the store doors and that the
person opening the store is expected to lock the door once
they are in and key ln a code to disarm the alarm system
Ms Craven sald in chief that the safe is located in the
manager's office, a small room adjacent to the front end of
the store, separated from the store by a door with a window
and that cashlers can see into the manager's offlce from
their registers, through the window in the door The door
can be locked The safe lS about five feet high, and has two
compartments Seven cash register drawers are kept in the
top part of the safe She advised that "at the bottom of the
safe" she keeps a second safe, on the left side, "with its
own comblnation" The second safe is "about one quarter of
the size of the larger safe", and is "not removable"
In cross-examinatlon Ms Craven agreed that both the
main door to the safe and the interior safe have different
combinations, which are changed from time to time. She
agreed that all full-time employees have the combinations,
and added "those that run shifts" In re-examination she
said that Ms Bryant was the only full-time employee who does
not run Shlfts and does not have the combinations She
agreed that when the combinations are changed, someone from
the LCBO delivers envelopes with the new combinations on
slips of paper, and that she "gives it to them" When it was
suggested to her that she gives the slips of paper to the
employees who need them and some employees memorize them and
some do not, she replied "normally they keep them in thelr
wallets" She agreed that she does not requlre the return of
\ the papers, and has no system to control the papers once they
are given out.
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Ms Craven advised that one- and two-dollar coins are
kept in bundles of ten rolls at the back of the safe The
bundles are stacked vertically Bundles of less than ten
rolls of coins are kept in bundles "in front of" the bundles
of ten rolls Bundles of less than ten rolls of coins "will
Slt at the bottom right", she said Ms Craven advised she
"can get four high and four deep" in the small safe She
agreed that quarters, dlmes and nickels are kept to the right
"in bundles of ten" rolls Five bundles of quarters could be
stacked on top of the other--"five high", she advised A
petty cash box is also kept in the safe She later said that
the "twonies" and "loonies" are kept in "the little safe",
and that quarters, dimes and "loose loonles and twonies" are
kept outside "the little safe"
Ms Craven advised that "in the morning" she checks her
E-mail and "pulls off a safe count" "While the computer
shuts down" she does a count of the safe and ensures that she
has a balance of what the computer indicates she is supposed
to have She said that before March 1, 1997, she "did a
vlsual" count of the cash in the safe e g if she saw three
bundles of "twonies" she automatically counted them as
$500 00 per bundle and declded she had $1500 00 in "twonies"
She said that she did not "check each one" She agreed that
that was her practice with "all the coins" She agreed that
that was the practice of "other people" In cross-examina-
tion she agreed that it was a common part of store culture to
do 2 visual count, that missing rolls are not noticeable when
the bundles are viewed from the slde, and the person doing
the count assumes all rolls are present in the bundle She
said that she dld not pullout the bundles and ensure that
they each contained ten rolls because ''It never occurred to
[her] that money would be misslng from the mlddle" She said
\- that she had only seen bundles pulled out when the auditors
came In, "The auditors do it that way" she advised
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Ms Craven advised that when the store needs more coins,
she or her assistant, and, on occaSlon, clerks, order them by
filling out an IVR Coin Order Form (Ex 4 ) Loomis delivers
the coin to the store She said "we count it and then sign"
She advlsed that she calls in a cashier and asks her to do a
cash recelpt indicating they are acceptlng an amount of coin
The cashier specifies thlS amount on a blank IVR Coin Order
Form, which, Ms Craven advised, is also used as a cash re-
ceipt indicating the amount received from Loomis She "sells
the money back to the safe" The coins "usually" arrlve ln a
box, which is sealed. She advised that when the ordered coin
arrlves, "we'll usually put the boxes in the safe". If she
has time, she said, she "will break them down into bundles of
10 rolls, and stack them in the safe" and said that any of
her staff may break them down, if she is not around
Ms Craven was not working in Store 362 durlng the last
week of February, 1997; she was conducting interviews at the
Weston Road and 401 Store
Ms Craven gave evidence as to statements made to her by
Assistant Manager Wally Laszczuk (and others). Mr McFadden
indicated that he maintained a standing obJection to the ad-
mission of such statements as hearsay In adrnlnistrative
proceedlngs the rules of evidence are somewhat relaxed, and
hearsay statements may be permitted to be made in the course
of oral evidence, subject to two important qualifications
1 They should be confined solely to collateral
matters, and caution should be taken as to
the weight given to such statements
2. In the absence of agreement of the parties as
to the truth of such statements, they cannot
be used as proof of the truth of the very
lssue(s) in dlspute
I ruled that I would adrnlt buslness documents created by Mr
Laszczuk into evidence, and mark them as exhibits, as proof
of the fact that they were made, but not of their accuracy,
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in the absence of direct evidence given by him I ruled that
Ms Craven could give evidence as to what she understood from
Mr Laszczuk as to what occurred in the store during her ab-
sence, but that in the absence of direct evidence given by
him, the accuracy of her understanding, based on his state-
ments to her, would not be established
A Coin Order Form (Ex 6 ) appears to have been created
on February 28, 1997 by Mr Laszczuk and was introduced by
Ms Craven into evidence It indlcates that $5,350 00 in
coin was ordered on February 28, 1997, and a delivery date of
March 3, 1997 was entered A computer "cash receipt" dated
March 1, 1997 indlcates a cash tender of $5,350 00 at 13 11
Hs Craven agreed that the Coin Order Form was prepared by
Hr Laszczuk, that the coin was delivered on Harch 3, 1997
and that she was in the office on that day She then advised
that the coin did not come in on Harch 3, 1997, that the "ca-
shier's prlnt-out" indlcated It came in on March 1, 1997
The grlevor advlsed that hls understanding of store
practice was that it was appropriate to put rolls of coin
into bundles of ten rolls ( "bundle cOln") immediately after
It had been recelved from Loomis He said that once the per-
son receiving the boxed coin has signed for it, slhe must
ensure that slhe "has everything" and that initially this is
done visually The Loomis guards do not remain while he opens
the box to conflrm its content He sald that the guards are
"there" for "15 minutes, 20 minutes tops" and it was not his
experience that the Loomis guards remain while coins are
counted and placed in bundles In cross-examination, he
agreed that while the Loomis guards are there, he vlsually
checks to see that the boxes Loomis indicates have been
dellvered are In fact there, and counts the contents later
He agreed that If the store lS busy, there is nothlng unusual
about putting the boxes lnto the safe and countlng their
\,-- contents later He sald that he worked from 9 to 6 p m
a m
5
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on Wednesday, February 26, 1997 had not "taken in" the coin
order on that day
Ms Craven advised that attendance of staff is recorded
on sign-in sheets which are kept "by the large safe, not the
Loomis safe, by the wall" Staff is "supposed to sign out
when they leave" She sald "it proves they were at the
store" She agreed that each employee is expected to sign
the sheet when they come in, and said that the sheets show
the tlme the employee arrives and goes for lunch She ad-
vised that the employees' names appear on the sign-in sheets
in order of thelr seniority in full-time and casual class
Ms Craven agreed that on Monday, March 3, 1997 she
worked at Store 362, that the grievor worked 9 a m to 6 p m
that day, and that Mr Loschiavo was Night Manager that day
The sign-in sheet for Monday, March 3, 1997 (Ex 7 ) indicates
that Mr Loschiavo arrlved at 1 p m and left at either 9 or
9 30 P m that evening
Ms Craven said that she did not remember the time she
arrlved at the store on Monday, March 3, 1997 At the
suggestion of her counsel, she looked at the sign-in sheet
for that date in Ex 7 and advised that she carne in at 7 10
a m She advised that when she arrived she "locked the doors
again" , shut off the alarm and turned on the computer She
said that on Monday March 3, 1997 she "probably would have"
checked the E-mail and then pulled up a "Safe Inqulry Report"
(SIR) from the computer She advised that the SIR indicates
to her the amount of money that should be in the safe and
that the report is prepared by the person-in-charge of the
previous shift She advised that "another full-timer may do
it for the person-in-charge" and that "on Saturday it was
probably Mr Laszczuk", who, she sald, would have been ring-
lng off the cashiers and selling back the cash which would
- become part of the office safe She agreed that when Mr
Laszczuk rings off the cashiers and sells it back to the
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safe, he enters lt lnto the computer, and added "at any given
time" She agreed that "at any given time" she could come
and make a Safe Inquiry Report, which should tell her accu-
rately the amount in the safe at that time She advised that
one SIR is done "first thing in the morning". She then said
that she opens up "all three safes, the Loomls, the petty
cash, and the small safe within" and said "all the safes have
comblnations" She sald that she opens the Loomis safe "up
to the slot so they can make thelr deposlts--not the whole
safe" She then advised that the SIR is "a blank sheet"
which "says 'Safe' at the top and says how much is in it".
She said that the computer generates the SIR and that she
"only makes entrles ln it after I do a balance in the safe"
She then agreed that she prints the SIR and lt gives her a
number, and that she then opens the safes She said that she
then takes "a visual count of what's in the safe", writes
down "the totals of each denomination", goes to a caculator,
adds it up, and "if it balances", removes the calculator tape
and staples it to the SIR and hangs the SIR and the tape on
the lnside of the petty cash safe, which is also referred to
as the "store safe"
Later in chief Ms Craven agreed that she came in at
7 30 or 7 15 a m on Monday, March 3, 1997, punched in her
code and disarmed the store security, visually checked the
SIR balance against the contents of the safe, and determined
that they balanced, and stuck the SIR and calculator tape
inside the safe door She advised that her first SIR of the
day would remain inside the safe door until "the night crew
comes ln at 1 p m -- then they do their own" She said that
she throws the previous SIR away and agreed that the most
recent SIR is kept inside the safe door
Ms Craven advised that thereafter, she "sets up" the
cashiers' trays, and then takes "another count of what's in
- the safe" She advised that she subtotals the amount in the
safe and adds the amounts ln the cashiers' trays that she has
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made up for the day, and that the total should be equal to
the figure in the SIR She then said that as long as every-
thing balances she "would go to the computer and advance each
the amount of money for which they will be responsible"
Thereafter she said that once she has made up the cashiers'
boxes, she "counts what is in the safe" and subtotals the
contents of the store safe and the contents of the cashiers'
trays She said that the figure she would arrive at would
not be the same as the amount in the first Safe Inquiry
Report taken in the morning She said that she was "going to
sell the money to the cashier, and the store safe will be
less those amounts" When asked if Acting Managers perform
the same dutles regarding the safe, she replied "I would hope
so I think so They have to balance with the Safe Inquiry
Report " In re-examination, Ms Craven advised that in order
for cashiers to obtain coin, they come to her and lndicate
the denomination of coin they need She denied that cashiers
can go to the safe and get the coin themselves
Ms Craven advlsed that on Saturday, after the cashiers
"come to Wally" (Mr Laszczuk) with their trays, he prepares
the deposits, "whlch would be bills down to twenties and any
odd COln out of the tray while the cashier is counting the
tray" She continued "Then they do a sell-back to the safe
of what is left In the tray That becomes part of the office
safe " She agreed that "Wally enters that in the computer"
She advised "he doesn't count it" When asked whether Wally
counts what is in the cashiers' trays, she advised that she
did not know
Ms Craven said "it would have been 8 a m when" Mr
Laszczuk and Mr Emmerson came into the office on Monday,
March 3, 1997 and that they asked her "did you balance?" to
which she replied "yes" She advised that Wally said "we've
got a really big problem, we're short $100 00" She then
'-' said ''It would have been shortly after 8 a m that they came
to me, together" She said "They pulled the $2 00 coin
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bundles out of the small safe" and that the last bundle,
which was at the bottom, at the back, was composed of eight
rolls of coins, and that two rolls were missing from the
mlddle of the bundle She said "he said if he'd had $100 00,
he would have replaced it, and that he didn't know when this
happened"
Ms Craven said that there were boxes of coin in the
safe, and that "they" hadn't "broken down" the coin order
WhlCh had arrived on Saturday, March 1, 1997 into bundles
She understood that the delivery had occurred at about 1 p m
and that the store had been busy at the time She understood
that "he" had put the boxes of coin into the safe and placed
the already bundled rolls of coins "in front of it". She un-
derstood that when "he" was reaching in to pull the bundles
out, he found the two rolls of $2 00 coins, worth $100 00,
were mlsslng She said "I proceeded to pull the whole safe
apart and have a good look at everythlng to see that we
hadn't mlssed anythlng else, and at the end agreed we were
$100 00 short " She locked the safe and told Mr Laszczuk
and Mr Emmerson to leave it with her "for now" She went to
the office "behind my main office" and phoned Gerry Beuk, her
District Manager She sald that she advised him of her
conversation with Mr Laszczuk and Mr Emmerson and asked
for dlrection On his instruction, she said, she "left
everything the way it was" and "monitored the safe" over the
next 24 hours "to see what happened"
District 12 Manager Gerry Beuk has been a District Mana-
ger for 12 years He advised in chief that Ms Craven in-
formed him on Monday, March 3, 1997 that a $100.00 coin shor-
tage had been discovered at Store 362 and that he believed it
had occurred on either Saturday or Monday morning He under-
stood that the store safe was missing rolls of coin from the
IDlddle of the bundles of ten rolls He said that he told her
\~ with her Asslstant Manager, that they balanced the
- to ensure,
safe, and to do frequent counts throughout the next few days
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for "any unusual ongoings wlth the safe" In cross-examina-
tion, he said that he could not recall Ms Craven having men-
tioned any names of employees who she suspected when he spoke
wlth her on March 3
In cross-examlnation, when asked whether she assumed
that the money she learned was missing on March 3, 1997 was a
recent occurence, Ms Craven said "I honestly didn't know
when it happened"
Ms Craven advised that Mr Loschiavo was running the
night shift on Monday, March 3, 1997 and was aware of the
missing rolls of coin, and said that Mr Laszczuk had asked
hlm about them In cross-examination, in reference to her
statement that Mr Loschiavo "knew the shortage was there. "
in her report (Ex 13, page 1, para 6) , she said that she
was told that Mr Loschlavo was questioned on Saturday She
said that Mr Loschiavo had broken down the coins when they
came in on Wednesday (presumably February 26, 1997) and he
was asked whether he knew there was a shortage, so, she
concluded, he knew about it before she dld She said that
she gave Mr Loschiavo a "quick-cheque" for $100 00 and told
hlm that after everyone on dayshift had left, he was to cash
the cheque and put the money in the store safe, in the petty
cash box with the gift certificates and bundles of $5 00
bills She sald that she did not replace the two mlssing
rolls of coins, just told Mr Loschlavo to put the cash In
the safe She said that she did so because he is her "most
junior employee" and she "did not want him to be nervous dur-
ing the night shift" She said that she did so "to put him
at ease more than anything" In cross-examination, when
asked whether she put Mr Loschiavo at ease that he was not a
suspect, she replied "we all were" She denied havlng ad-
vlsed him he was not a suspect or anything similar She de-
nied suspectlng anyone at that tlme When asked whether she
.-: suspected everyone, she replied "I didn't know who had done
It'' When asked why she told Mr Loschiavo to wait until the
1 0
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grievor had left before puttlng the $100 00 ln the safe, she
replied that the grievor was to leave at 6 pm, that she
wanted to leave the safe balanced, that Mr Loschiavo was
"junior" when asked whether she told him to hide the
$100 00 in the safe, she replied "The $100 00 belonged to
me" She denied having given Mr Loschiavo a strong message
that the grievor was suspect, and said that Mr Loschiavo was
to put the $100 00 in the safe She agreed that Keith Ben-
nett had worked in the store until 5 p m that day and that
the grievor had remained at the store after Mr Bennett had
left She indicated that she did not think that telling Mr.
Loschiavo to wait until after 6 p m gave hlm the message
that the grievor was the suspect She then said that she
gave Mr Loschlavo the money, that she felt he would feel
better if the safe was "back up to a balance" while he was in
charge, and that that was why she did it In re-examination
she agreed that she had written in her report (Ex 13) that
she had instructed Mr Loschiavo not to cash the cheque until
after the grievor had left, and had sald that she wanted the
last dayshlft person to have left before he cashed it She
agreed that she would have wanted Mr Loschiavo to defer
cashing the cheque if another person had been the last person
on dayshift to leave With respect to wanting Mr Loschiavo
to have a balance when she left, she said that Mr Loschiavo
was the most Junior employee, and that he was nervous about
running shifts, but that it was good experience for him If
he had been a more senior employee, she said, she would not
have been so concerned She said that sometimes auditors
corne ln and it would not have balanced
Ms Craven agreed that after discovering the $100 00
missing on Monday, March 3, 1997, the bundles of coins were
put back lnto the safe, and added, "as the safe looked on
Saturday" She said "we dldn't touch the boxed coins WhlCh
came in on Saturday I thlnk there was an earller box of
_. quarters " She agreed that the bundle of eight rolls of
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$2 00 coins was returned to the safe and said "we put it at
back, under a bundle of ten rolls of $2 00 coins " She
advised that there were bundles of ten rolls of coin on top
of the bundle of eight rolls, and that the bundle that was
short two rolls was not noticeable
Ms Craven advised that on Monday, March 3, 1997 casuals
Lee Thompson, Susie Kosic and J Mammoliti worked "the even-
ing shift" until 9 p m with Mr Loschiavo, that the grievor
worked from 9 a m to 6 pm, and that she did not tell "any
other store staff" that coins were missing from the safe.
Lee Thompson has been a casual CSR for approximately 5
years He recalled working at Store 362 on Monday, March 3,
1997 He agreed that he came In at 5 p m and said that he
left at 9 05 P m He agreed that he saw the grievor "work-
ing" When asked what the grievor was doing, he replied "his
normal job of counting, breaking down of coins" He said
that he observed the grievor doing this "at one of the desks
facing the entrance to the store" He agreed that he was
referring to a desk In the offlce In cross-examination he
agreed that by hls statements in chief he meant that he ob-
served the grievor taking coins out of boxes and putting them
into bundles at a desk in the office He agreed that he
"went in and observed him" and that the "office door wasn't
locked" When asked whether it appeared that Mr Smith was
making any attempt to conceal what he was doing, he replied
"no, absolutely not" He agreed that Mr Loschiavo was Night
Manager on that day He said that Mr Loschiavo "most like-
ly" rang him in on Monday and agreed that Mr Loschiavo
"would have" rung him off as well Mr Thompson said that he
could not recall where Mr Loschiavo was while the grievor
was breaking down the coins When asked whether he had ever
told Ms Craven that he had seen the grievor breaking down
-~.. COlns, he replied "she didn't ask" When asked whether he
had ever told Mr Lasczcuk that he had seen the grievor
breaking down coins he replied "he didn't ask" He said he
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had not told anyone, and that no one had ever asked He said
"it's not an unusual occurrence" He said that the first
time he had been asked was when LCBO counsel asked him at
this hearing
Mr Thompson agreed that Mr Loschiavo was the only
full-time CSR who was working after 6 p m on Monday, March
3, 1997 according to Ex 7 He agreed that the full-tlme CSR
rlngs off the casuals He said that he had seen balancing
off done at night He said "it's possible" that he, Mr
Thompson, was involved in assisting in balancing on Monday
night, and agreed that he did not recall whether he had done
so that evening
The grievor agreed that the sign-in sheet for March 3,
1997 indlcatlng that he arrived at 8 50 a m and left at 6 00
P m on that day was accurate He said that he did not re-
trieve his tray from the safe when he came in to work and
said that the trays had been prepared and calculated and left
slttlng on a desk with a name on each of them He said that
Mr Loschlavo was in charge after he, the grievor, left and
that he, the grievor, was not in charge of or responsible for
the safe on March 3, 1997 He said that he did not recall
balanclng the safe that day He acknowledged that he could
not specifically recall what he did before he left that day
When asked what he "likely" did, he replied that he remained
on the floor, assisting customers, "facing up" the shelves
He agreed he would have been rung on and rung off cash that
day He said that he did not have a specific recall of who
rang him off, he said that it likely would have been Mr
Loschiavo In cross-examination he said that at 5 30 pm,
when he was rung off, Mr Loschiavo was the only one in the
store with the authority to ring him off
The grievor said that he did not recall anythlng unusual
- either whlle ringlng ln or ringing off.
that day, When asked
whether he recalled Mr Thompson seeing him breaking COln
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down into bundles, and whether he had any specific recall of
doing that, he replied "not specifically" He denied having
taken any money from the safe. He denied having gone into
the safe In cross-examination, he agreed that he had heard
Mr Thompson testify that he saw him breaking down coin on
Monday, March 3, 1997 and that he, the grievor, had no recall
as to havlng done so on that date He agreed that it was
possible that he broke down coin on Monday, March 3, 1997.
He said that he could not recall when he last took a coin
delivery from Loomis, but that it had been within the 2 weeks
prevlous to his suspension He said that he had handled coin
deliveries "with a certain amount of regularity, with who-
ever's there" In cross-examination he confirmed that he
would not have returned the cash tray to the safe himself on
Monday, March 3, 1997, because he was not "in charge" and
there would have been no reason for him to go into the safe.
He agreed that it would be unusual for him to go into the
safe when he had not been in charge, and that others would
have found it unusual as well
Ms Craven advised in chief that on Tuesday, March 4,
1997 her shift was from 8 a m to 5 pm, and that she was at
the store at 7 15 a m She agreed that she left at 4 25 P m
that day She advised that the grievor worked the evening ,
shift as Night Manager, with casuals Lee Thompson and Nadine
Buda from 4 30 pm, and Susie Kosic from 5 p m
Ms Craven later said that when she came in on Tuesday, n
March 4, 1997, the computer was already up and ready "be- d
cause" Jerome Emmerson and Wally Laszczuk "were unloading
trucks" The computer was on, she explained, because "they
have to load a scanner gun" and "scan what is coming in" from
the warehouse into the computer She agreed that Mr Lasz- 0
czuk had turned on the computer She said that she worked on
~," the computer and said "I shouldn't have maybe" She agreed l.Y
that she took a SIR She identified a SIR dated 04 Mar 97
tlmed at 07 55 with Operator No 00000202 as the one she took
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that mornlng (Ex 9 ) She said that the figure $13,965 00
which appears on the SIR taken at 07 55 on 04 Mar 97 and on
the calculator tape which accompanies the report (Ex 9 )
represented the amount that "should be" in the store safe
She said that she opened the safe and "noted irrunediately that
boxed coin had been broken into bundles of ten and placed in
the safe" She called Mr Errunerson and Mr Laszczuk into the
office and proceeded to pullout all the bundles of coin to
see what happened, too see whether everything was intact or
not She said that she discovered "we were short two more
rolls of $2 00 coins, $200 00 was now missing, we were now
four rolls short" She said that the bundles with rolls of
coin mlsslng "were placed at the back" and that on top of the
bundle of eight rolls of coin was a second bundle of eight
rolls of coin The $1 00 COlns were intact She said, of
the quarters, that six rolls were mlssing, a total of $60 00,
and that three bundles of eight, rather than ten, rolls of
quarters were at the back of the safe No other coin was
mlsslng, she advlsed
In cross-examlnation, she advised that no record or log
was kept notlng each time someone entered the safe She ac-
knowledged that she was unable to know if the safe had been
opened before she arrived on the morning of Tuesday, March 4,
1997 She did not clearly indicate whether she had asked Mr
Errunerson or Mr Laszczuk whether either of them had opened
the safe before she came in She stated "that's not normal
procedure" She agreed with the suggestion that Mr Errunerson
and Mr Laszczuk were not likely to have opened the safe, and
added "They're in for 7 a m loads"
Ms Craven sald that Mr Loschiavo had sWltched shifts
with the grievor for Tuesday, March 4, 1997, and was going to
be working on a warehouse load that mornlng She said that
she had told Mr Loschlavo not to break down the COln the day
before, that she wanted to know why coin had been broken
down, and that Mr Loschiavo was running the shift and was
15
I
responslble for that. She said that when she asked Mr Lo-
schiavo why the coin had been broken down, he asked her why
she was asking, and that at that point she told him that a
further $160 00 was missing She said that Mr Loschiavo
told her that he had rung the grievor off cash at 5 30 pm,
that when he was finished doing so he went to the washroom,
and that when he returned, the grievor was unboxing the coin
and bundling it, "so he didn't say anything" When asked in
chief whether Mr Loschiavo was responsible for the missing
money, she replied "no", and then said that the Acting Mana-
ger lS "responsible for the safe" When asked whether Mr
Loschiavo offered an explanatlon, she sald that he had said
that the grievor had broken the coin down when he went to the
washroom
Ms Craven agreed in cross-examination that she was
aware "at the tlme" that Mr Loschiavo was engaged to be mar-
ried and taking instructions through his church in prepara-
tion for his marrlage She agreed that she had obtained the
information in her report (Ex 13, dated March 7, 1997) as to
Mr Loschiavo having rung the grievor off at 5 30 P m on
March 3, 1997 and having left the offlce to use the washroom,
and having returned and found the grievor breaking down boxes
of coin, and that Mr Loschiavo "did not disturb the coin",
but "left it as it was," from Mr Loschiavo She agreed that
Mr Loschiavo was in charge of the safe from 6 to 9 pm, and
added "he basically takes over when I leave" Ex 7, for
March 3, 1997, indicates her time of departure that day was
4 50 P m She said that when she returned the next morning
and looked in the safe, not all the coins had been bundled,
and "I think there was still some left in boxes" She agreed
that it was immediately obvious to her that morning that the
coin configuration had been changed from the way she had left
it with Mr Loschiavo She agreed, with reference to the
- March 4, 1997 sign-out sheet, that Mr Loschlavo arrlved at 8
a m and that she sought him out and asked him why coin had
16
[.
been removed from the boxes and bundled and that Mr Loschi-
avo told her that he had gone to the washroom and the grlevor
had bundled the coin She sald that she had asked him about
the boxed COln "as soon as he walked in", "as soon as I knew
he was in". When asked to recall what Mr Loschiavo said
about the coin havlng been broken down into bundles, she said
that Mr. Loschiavo said that the grievor was breaking down
the coins when he came back from the washroom
Ms Craven agreed in cross-examlnation that the boxed
coin should be bundled immediately after Loomis dellvers it,
and added "if we have time, it depends on what is going on"
When it was suggested to her that Loomis guards do not usual-
ly wait for a count of the delivered coin and that the store
has 24 hours to raise an issue as to the amount received, she
replied that she counts the coin "then and there when I sign
for it" She then agreed "we rely on the label on the box"
She agreed with the suggestion that the store has 24 hours to
raise the issue if the coin received in boxes is not the same
as the amount marked on them She advised that if the boxes
do not contain the amount of coin marked on them, she does
not call the bank She advises head office that there was a
shortage of coin, and sends the boxes back at the next pick-
up with a note in it, and takes steps to ensure that the safe
balances She said that staff can bundle coins when she is
not present, but this duty is restricted to full-time perma-
nent employees rather than part-time employees No record is
kept of who has or has not done the bundling
In chief, Ms Craven said that on Tuesday morning, March
4, 1997, she called her District Manager and "told him what I
had discovered", and asked for further direction again In
cross-examination she said that she had asked Mr Loschiavo
why the coin had been broken down, that Mr Loschiavo told
'- her the grievor had done it, and that she went to her office
"""
and told Mr Beuk what Mr Loschlavo had told her, and that
Mr Loschlavo and the grievor had switched shifts She sald
1 7
that she was asked (by the District Manager) if she could
"isolate the safe" when it was handed over to the grievor at
1 p m that day, and that she told him that she could. She
later advised that she understood "isolate the safe" to the
grievor meant that "only the grievor would be responsible for
the safe, from when he walked in for the day and night
shift". She said that she was instructed to get Mr Lasz-
czuk, her Assistant Manager, to verify the proper count. As
Mr Emmerson was to be in on Tuesday, March 3 and Wednesday,
March 4, and Mr. Laszczuk would not be in on Wednesday, they
decided to get Mr. Emmerson "to confirm the next day's
count". They dlscussed Mr Emmerson and her coming in early
to do the count the next day In cross-examination, Ms
Craven agreed that when she spoke with Mr Beuk, the grievor
was her main suspect "at that point" She then said "I was
reporting what Wally reported to me" She denied having
mentioned the grievor as a suspect earlier
Mr Beuk advised that on Tuesday, March 4, 1997 Ms Cra-
ven phoned hlm and informed him that another $160 00 in COln
had gone missing from the safe. He agreed that the manner in
which they had gone missing was the same He advised that
she indlcated that she had done frequent counts and was sure
the coin was there when she left at 5 p m but was informed
that the grievor was "seen breaking coin down from bundles "
He said that told her to make sure that the count was accu-
rate and to "isolate the safe" to ensure that only the grie-
vor had access to it after he came on duty He said that at
that point, they really didn't know who the suspect was, and
were trying "to isolate It down and weed out suspects" He
advised that Ms Craven told him she and her Assistant would
count the safe and no one would have access to the safe dur-
ing the time that the grievor was on duty He agreed that
casuals are not given the combination In cross-examination
i.
- he said that durlng his conversation with Ms Craven that day
he understood that her Asslstant Manager (Mr Laszczuk) and
18
Jerome Emmmerson, a CSR, were aware that rolls of coin had
gone missing. He acknowledged that it was possible that she
had advised him that Mr. Loschiavo was aware of the missing
rolls, and said that he had no recollection of whether she
had so advised him
Ms Craven sald that at 11 30 a m on March 4, 1997 she
called Mr Laszczuk and Mr Emmerson in to the office and did
a visual count to establish what appeared to be in the safe,
"as well as what actually was there" In cross-examination
she said that she, Mr Laszczuk and Mr Emmerson had done the
count of the safe at 11 35 am, and that a SIR "would have
been done at the time of the count" She identified a SIR
dated 04 Mar 97 tlmed at 12 18 bearing Operator No. 00000621
as the one she did at that time (Ex. 10) She identified
herself as the operator She later said that she took
another SIR at around noon and that her cbmputer is "out 15
to 18 minutes". In cross-examination, she said that she is
Op 00000621, indicated in Ex 10 She then said "Each of us
did the count There was a lot of COln broken down in that
safe" She sald that she was unable to remember whether the
computer was ahead of or behind the correct time She said
that the 07 55 SIR (Ex 9 ) "would have been done around 7 15
when I arrived because that's what I do" She then said "some
time after I arrived, 7 15 to 7 30, I pulled it off" the com-
puter.
Ms Craven said that the figure $10,920 00 which appears
on one of the two cash register tapes with the 12 18 SIR (Ex
10) was the amount which "appears to be there" on a visual
! account She said that $10,660 00 on the other tape was the
l amount "actually there" She advised that the 12 18 04 Mar
1997 SIR (Ex 10) was not amended to reflect the amount actu-
ally in the safe She said that the safe was "restored" to
\ "the way it had been when we came in in the am" and that on
\.',""",
observation, she could not discern that COln was missing
i
19
i.
r
Ms Craven advised in chief that the grlevor came in to
the store at 1 p m on Tuesday, March 4, 1997, and that no
one went into the safe between "the time of the count" and 1
pm, and that that was not unusual because she sets up the
night cashiers' trays in the morning, and the cashiers have
enough coin for the day She said that she knew that no one
went in to the safe during that period because she told Mr
Enunerson and Mr Laszczuk to babysit the floor, and if the
cashiers needed anything, Mr. Enunerson and Mr Laszczuk
"would be there to take care of them" She said that Mr. Em-
merson and Mr Laszczuk "would be near the front that after-
noon" and that they both understood how important it was that
she not leave the office She agreed that she was speaking
of the office with the safe in it She said that no one
could have gone in to the safe without her having seen it
She then said "Except for Sam He was the only one that used
it that afternoon "
In cross-examination, she agreed that the sign-in sheet
for Tuesday, March 4, 1997 indicates that the grlevor arrived
at 12 55 p.m. She said that she was in the offlce from noon
to 12 55 P m She recalled that she had not eaten lunch that
day, "because it was important that the money was secure".
She said that no one went into the safe between the time the
last count had been done and the grievor's arrival She
later said that she did not go to the washroom between 11 35
a m and 1 p m that day She said "I knew that morning what
was going to happen so I had nothlng to eat or drink" She
agreed that it was necessary to go into the safe 3 or 4 times
a day, initially to set up, again about midday and possibly
one other time for cash, and "maybe to do a COln list" She
dld not agree that it was not unusual for a cashier to need
cash, and said "It's not that busy until Frlday I give them
enough" She later said that no one came into the offlce to
~ use the safe that afternoon, wlth the exception of the grle-
vor who came in at 1 p m and "balanced the safe" She said
20
that the grievor "may have come in to check stock on the com-
puter" but no one "went near the safe"
In cross-examination Ms Craven said that from 1 p m
until the time she left on Tuesday, March 4, 1997 she did not
go to the washroom She agreed that she left at 4 25 p.m
She said that she signed out when the grievor returned to the
office from his dinner break, and that she went to the wash-
room and then left She later agreed that she left the store
around 4 30 to 4 35 P m. She said that at 4 25 P m. the
grievor "had taken over" and he had two cashiers and had to
get them their coin trays and had to ring off the dayshift
cashiers When asked whether, when nlghtshift staff are
replacing day-shift staff, each dayshlft cashier is rung off
one at a time, and then his or her replacement is rung in,
she replied "it depends--you can only ring one cashier off at
a time" She agreed dayshift cashiers would have been rung
off some time after 4 30 and that Mr Chini and Mr Bennett
worked from 8 a m to 5 p m (Neither Mr Chini, Mr Bennett
nor Mr Loschlavo entered hlS "depart" time on the March 4,
1997 slgn-in sheet [Ex 7 ] ) She agreed that it should be
assumed from the sign-in sheet that Mr Loschiavo was there
until 5 p m. The sentence on page 2 of her report "Sam was
in complete control of Safe until he left at 9 30 pm" was
drawn to her attention In re-examination she stated that
she had wrltten that sentence to express that the grievor was
in charge of the shift and the safe and all LCBO assets, all
the employees were part-time casuals and do not have the
combination to the safe It would be highly unusual, she
advised, for her "clerks" to give out the combination, as
they are responsible for all assets, and they would not give
it out to other people
Ms Craven advised that on Tuesday, March 4, 1997, the
\ grlevor, Ettore Chini, Keith Bennett and Saverio Loschiavo
-
contlnued to work at the store after she left They were the
full-time people, who, she advised, "would have had the safe
21
combination" She said that Mr Chini, Mr Bennett and Mr
Loschiavo finished at 5 p.m and that Micheal Calder, a casu-
al, was in the store tlll 5 P m She said that Mr Thompson
and Nadine Buda, casuals, "would have arrived" at 4 30 and
Susie KOSlC "would have arrived" at 5 pm. She said that
Mr Smith "came back at 4 25" P m and "would have started to
ring off" Mr Loschlavo, Mr Bennett and Mr Calder, who had
been cashlers She said that Mr Chini "would have been on
the floor helping customers" and "would not have been on
cash" She said that Mr. Smith "would have started giving
out cash trays" to the night people
Ms Craven agreed that the grievor "would have rung off"
Mr Loschiavo, Mr Bennett and Mr Calder one at a time, and
said that this "would have taken place" at the computer in
the office in which the safe is located She said that the
night cashiers would be expected to count off their trays in
the little office behind hers, and then go out to the custo-
mer area and set up their cash register She said that she
could not see how Mr smith could get out of the office the
entire time durlng which the dayshift is being rung off and
the night cashiers are being given their trays, as "there's
too much going on". When asked whether the grievor had to
make computer entries when ringing the cashiers off, she
replied "it is only done in the office for security reasons"
and said that there is a screen "at customer service" In
cross-examination, she agreed that when she is "ringing off"
a cashier, the cashier will count the money which goes into
the Loomis night deposit, and she, the Manager will count the
float, and vice versa, and she, the Manager, will put the
I float in the safe When asked whether any of the casuals
working the night shlft with Mr Smith on Tuesday, March 4,
1997 had the combination to the store safe, Ms. Craven said
"deflnitely not"
-
Susie KOSlC, a part-time casual CSR, said that she
worked the night shift on Tuesday, March 4, 1997 She said
22
that her "usual procedure" on entering the store is to walk
in through the front end of the store, the entrance for the
customers, walk to the back, put away her coat, walk to the
office and wait for her tray from the full-time employee who
is the Night Manager, start counting her money in the office
with the safe in it, make sure she has the exact amount, and
go out and choose a cash register She said "some other
casuals and that's about it" might be in the office at that
time When advised that evidence had indicated that dayshift
staff were being rung off and nightshift staff being rung in
at the same time she agreed, and said "they would be there".
She said "maybe if the office was full I'd count my money in
the smaller office" In cross-exarninatlon she acknowledged
that she had no specific memory of who was with her when she
was rung in that evening. She later stated that that evening
she put her coat in "a back area" and agreed that she got to
the back area through the office She agreed that the stor-
age area could be accessed through a back door in the office
and that the storage room runs parallel to the office She
said that the staff signs in "when we go through the office"
She agreed that she could also access the storage area
through double doors in the retail area of the store She
described "her usual duties", once she put her tray in the
cash register, as working on the register and, if the store
is not busy, puttlng away stock, facing up bottles, and
answering customers' questions
Ms Kosic said that on Tuesday, March 4, 1997 she worked
the night shift with Nadine (Buda) and Lee Thompson and that
she received her tray from the grievor She said that that
evening the casuals did not have the keys to get into the
cash reglsters She said that the grievor left to get the
keys, and that she was not certain of the time he left for
them She recalled that he left "a little after I got there"
- and before her break started and said that her break was usu-
ally between 6 45 and 7 p m
23
Ms Kosic had little recall of the length of the grie-
vor's absence from the store She said that she didn't think
it was "too long, it might have been an hour". When asked
what she was doing she replied that she was either on the
register or on the floor, helping the customers She said
that she did not see any full-time permanent employees come
on to the floor while the grievor was not in the store and
during her entire shift She agreed in cross-examination
that she did not have a specific memory of what she did while
Mr smith was out of the store and said that she did not
remember whether it was busy during his absence. She later
said that she had no specific recall of having started
working on cash that evening She said that that was her
"assumption" and added "This is what I do" She agreed that
some nights are busier than others, and that Fridays are
busier that Tuesdays. She agreed that Tuesday would have
been one of the less busy nlghts.
In cross-examination Ms Kosic agreed that she is in the
office at the start and the end of her shift, and added that
she is also in the office to do a deposit during the shift
She agreed that when she reaches a monetary threshold she
puts it in the Loomis drop She agreed that she reaches the
monetary threshold on Friday evenings, and added "more quick-
ly" She acknowledged that she had no specific memory having
made a deposit that night, but said "I know I would have"
She said that she specifically recalled that she was not in
the office making a deposit while the grievor was away She
advised that the "full-time person must be present when we
count, and to sign the envelope into which the money is
placed" She advised that sometimes they "go in there, count
our money, and then call them to make the drop" She then
agreed that she was only in the office at the beginning and
the end of the shift
-
Ms Kosic denied that she had the combination to the
store safe When asked why she did not have it she replied
24
,
"casuals aren't given the combination" She denied that any
other casuals she was working with had the combination She
said that "probably" the full-time employees in charge of
running the shifts have the combination She denied that the
full-time employees "write it down anywhere" She said that
she obtains change during her shift from other cashiers and
exchanges other denominations for the change, or alternative-
ly, requests change from the full-time CSR, who obtains it
for her She denied ever having gone into the safe herself
or having seen a casual at the safe by him or herself She
said that she did not see any casuals open the safe or go in-
to it while Mr Smith was away from the store, and did not
see any casuals open the safe at any point that evening She
denied having gone into the safe that evening In cross-exa-
mination she agreed that she does not look at the office when
working at the cash She said that she did not recall being
the only casual on cash after the full-t~e staff had left
She said that Nadine (Buda) was on the floor and that it
"would have been Nadine" (on cash) between 5 and 7 p m She
agreed that that would have been the case if Lee had not been
on cash, in which case Lee would have been out working on the
floor. She agreed that if there had been a lull in business,
one or both would have been "on the floor" She said that
she could not recall whether it had been busy when she enter-
ed the store that evening She agreed that if she is stan-
ding at the cash, and two casuals are working at the other
end of the store, it is not always possible to see them She
agreed that if she is not looking for them, often she is not
aware of where they are in the store She agreed that it is
not improper for a casual to merely enter the office, and
that that would not cause alarm She agreed that if it had
occurred, she might not have noticed it, and that it did not
stick out in her mind as having occurred that evening
~ Nadine Buda has been a casual CSR since November of
1996 She conflrmed that she slgned in to work at 4 30 p.m
25
on Tuesday, March 4, 1997 She advised that she "usually"
goes "to the back", takes off her coat, puts her purse in her
locker, comes "back" , gets her tray from the full-time person
there, "Saverio or Sam", and goes "to the next room to add up
and see if it's correct because the first office is usually
crowded with the day people coming off" who are adding up
their money, deblt and credit slips and putting "it" in an
envelope for deposit and glving it to the person in charge
who puts it in the computer and that way sees if they are
short or over
Ms Buda said that the grievor was "in charge" on Tues-
day, March 4, 1997 and "I think Saverio was leaving at that
time" She said that the dayshift staff could have rung off
with either SaverlO or the grievor, that she could not re-
call She sald that dayshift Manager usually rings off the
dayshift staff, but that sometimes the Night Manager will
take over She estimated that it takes 10 to 15 minutes to
rlng off a cashier, and that rlnging off "takes place one
cashier at a time". She said that sometimes there are two
people in the office ringing off When asked when she was at
the cash on March 4, 1997 Ms Buda replied that it took her 5
minutes to count, that she was "on at twenty to five" and
"then they'd call someone in from cash". When asked where
the grievor was, she replied "I thlnk he was in the office"
She agreed that he might have been ringing off the cashiers,
and said "I really can't remember".
Ms Buda said that on March 4, 1997 she was "on cash"
first, and Mr Thomspon was "on the floor", and Ms Kosic did
not arrive until 5 p m She recalled that the grievor left
the store during the shift, and said that while she was in
the office she heard him say to Mr Chini that Saverio hadn't
left him the keys, that he told "us we could not do returns"
She did not recall how long he was absent from the store
26
-
She was not sure how far Mr Chini lived from the store. She
said that while the grievor was out of the store, she was on
cash and bottled up the small bottles at the cash.
Ms Buda advised that if she needed change, she would
tell the gr~evor the denomination of coins she needed, and
the grievor gets it for her
She said that she did not see either Mr. Thompson or Ms
Kosic go into the safe while Mr. Smith was away or at any
time during the shift She agreed that it would be unusual
for them to have gone into the safe and said that none of
them had the combination Ms Buda denied having gone into
the safe during the Tuesday, March 4, 1997 night shift She
sa~d that she did not see any other full-time CSRs in the
store during Mr. Smith's absence or during the shift She
estimated that "the last full-time CSR" left the store at
about 5 p m In cross-examination she acknowledged that she
did not have a strong and specific memory of the particular
night of March 4, 1997
Ms Buda said that she could see the office from the
cash register where she was working In cross-examination,
she acknowledged that if she was working on cash, her main
view was not of the office She did not recall the store
being busy on March 4, 1997 When asked whether she recalled
see~ng Mr Smith go into the safe, she replied that he pro-
bably went into it to get change for somebody or other She
agreed that it would not be unusual for him to go into the
safe She said "they get the boxes ready for the next day"
She said that the grievor would close the door to the office
if he was going into the safe When asked whether she
thought anyone could go into the safe unnoticed while she was
working, she replied "not really The l~ght is on in the
\ office I've seen Wally The door is shut " When asked
-' even w~th the door shut?"
"can you see then, she replied
"Yes There's a big window The door bangs A lot of the
27
tlmes the door is locked, so then we know they're in the
safe " In cross-examination she agreed that it was likely
that the grievor would close the door if he was in the safe,
and that that was the practise of all full-tlme CSRs She
said that that was "because otherwise a customer could walk
in" She acknowledged that she would not have noticed whe-
ther someone had gone into the office if she had been in the
washroom, and that someone else might have been on cash at
the time When asked whether it was possible that she might
not have noticed whether someone had gone into the office if
she had been on the floor, she said that it was unlikely that
she might have been on the floor, and that customers have
complained when there is no one on cash, so she stays "there"
and tidies up
When asked "what happens at the end of your shift", Ms
Buda said "He pulled me first so he would then make sure the
door was locked One of the cashiers would be next. We pre-
pare for deposit Then we count out debit and credit slips
and see if we balance " When asked "are you in the offlce
alone" she replied that she was not alone, "Sam is with you
at the time He's on the computer He's putting all the
informatlon in"
When asked whether she "worked very often with" the
grlevor, Ms Buda replied that she did When asked whether
she knew whether the grievor "gambled" she replied "He and
Joe used to do the Proline once in a while" When asked
"anything else?" she replied "the bunch of us went in on one
649 when it hit $10 million" In cross-examination she
acknowledged that the purchase of the 649 ticket was a "one-
time" occurrence in which she and four or five other staff
participated.
When asked ln cross-examlnation whether she was assuming
that other casuals do not have the safe combination, she
replied "we've talked about lt, all of us" She sald that
28
she and the other casual staff talked about not having the
combination and agreed that their discussion occurred after
March 4, 1997 when Ms Craven asked them about it, and said
that they talked of it among themselves She said that she
had in fact spoken to each casual "about the combination".
She agreed that by the time Ms. Craven asked her about the
combination, she knew that the grievor had been suspended.
She said she did not know why he had been suspended and that
she "was told nothing" She said that Ms Craven "asked if
we went into her safe" and said that she concluded someone
might have taken some money She then agreed that she had
concluded that the grievor had taken some money
Ms Buda acknowledged that she had prepared a handwrit-
ten note with a date on it of March 4, 1997 (Ex 16) She
agreed that March 4, 1997 was not the date she had written
it She said "but that's what I was told to put on". She
agreed that she had been so directed by Mr Laszczuk and said
that Mr Laszczuk had asked her to write the note She said
that she could not remember when she wrote it She sald that
"3 or 4 days later, before I wrote this note", Ms Craven had
asked her about the combination to the safe and whether she
had gone into it
Mr Thompson agreed that he had worked at Store 362 from
4 30 to 9 25 P m on March 4, 1997 He said that he recalled
that the grievor "needed to retrieve some keys to close up
the store at that time" He said that he could not specifi-
cally recall the length of time the grievor was out of the
store, or when he left, and estimated that 30 to 40 minutes
passed before he "saw him again"
Mr Thompson denied having the combination to the safe.
When asked whether he went into the safe at any time that
night, he sald he "might have gone in to get his box That's
" the usual occurrence" He agreed that "this would have
occurred" at the start of his shift. He said he dld not see
29
any full-time CSRs at the start of his shift He said he did
not see Nadine or Susie go into the safe on his sh1ft, and
said that he was "working at the back, so if they did "
.
When asked if he was at the back for the entire shift, he
replied "pretty well" He said that two people "are on cash"
and that he "was pretty well back there most of the time".
In cross-examination he said that when he rang in, he inunedi-
ately took a cash tray He agreed that he had said that on
Tuesday he worked mostly at the back
In cross-examination, Mr. Thompson acknowledged that it
was "poss1ble" that he had assisted the grievor in balancing
When asked whether he did not recall havlng assisted him, he
replied "usually if I stay that late I'm assisting If some-
one doesn't balance, I'll count their float, or stick around
if asked" When asked whether he recalled whether the grie-
vor asked him to stick around, balance and close up on March
4, 1997, he replied that that was "possible" He said he
could not recall whether he had ever done so with the grie-
vor He asked what Mr McFadden meant by "balance" He then
agreed he had been in attendance on an occasion when the
grievor had balanced the safe, and said that he could not
recall a specific date He agreed that the store practice is
that two people "stick around, balance and close up". He
agreed that the partnering of a CSR and a casual occurs
because there is only one full-time CSR working evenings, and
the rest of the staff are casuals
The grievor agreed that the entries on the sign-in sheet
for Tuesday, March 4, 1997, indicating that he arrived at
12 55 P m and left at 9 25 P m. were accurate. He said that
he was originally scheduled to work 9 a m to 6 p m on Tues-
day, and that he believed that Mr Loschiavo asked him on
Monday afternoon to sWltch shifts with him the next day In
cross-examination he agreed that he understood that Mr Los-
chiavo wanted to switch shifts because he was taking marriage
preparation classes He said that a shift switch was not
30
I
unusual and that he does not always seek the Store Manager's
approval to switch a shift He said that he was in charge
during the night shift. He recalled that when he arrived, he
signed in, put his coat in a locker, put on his name tag, re-
turned to the office, did a SIR and opened the safe. He said
that the latter two functions were "procedural for those in
charge"
The grievor said that he did not recall anything unusu-
al, that "it was all accounted for" when he checked the safe,
and that he did a visual count of what was in the safe He
dld not pull the bundles out to look at them He said it was
not hlS practise to do so He said he had done SIRs and safe
balances at the store previously, when he had been in charge,
WhlCh was, he said, a "reasonably corrunon" occurrence In
cross-examination, he agreed that he counted the safe when he
arrived to confirm the amount Ms Craven told him he was
being given
The grlevor said that he recalled Ms Craven leaving the
store on March 4, 1997 shortly after his lunch break. He
agreed that she left about 4 25 pm, addlng that that
"sounds about right" He agreed that Mr Loschiavo, Mr. Chini
and Mr Bennett were still in the store when Ms Craven left.
In cross-examination, he said that he came back from lunch at
4 30 P m The grievor said that after 5 p m three casuals,
Mr Thompson, Ms Kosic and Ms Buda staffed the store with
him He later agreed that he "would have been involved in
rlnging cashiers on and off between 4 30 and 5 pm" in the
office He said that he could not recall whether he had not
been in the office at some point between 4 30 and 5 p m He
said that that was possible, as employees would come to him
regarding anything which occurred in the store. He gave the
examples of a customer who was impaired, a cashier who had a
problem, someone with a liquor permit who needed attention
and said that thlngs of that nature were hlS responsibility
and could take him out of the office In cross-examination
3 1
-, he agreed that he dld not recall whether he had left the
office between 4 30 and 5 p m or that any of the examples he
gave had occurred that day, and that he did not tell anyone
on April 2, 1997 that such had occurred on March 4, 1997. He
agreed that his shift on Tuesday, March 4, 1997 had not been
very busy
In cross-examination the grievor agreed, observing the
sign-in sheet for March 4, 1997 (Ex. 7), that there were
three dayshift cashiers to ring off at 4 30 P m. He said
that he "believed" he started to ring them off at 4 30 p m
He agreed that when he is ringing someone off they bring
their tray to the office, sort the credit card slips by type
and count them and the cash, the gift certificates, cheques
and returns He agreed that they are all counted in the
office, and compared to the tape, and should balance When
asked what the cashier does, he replied that the cash for the
night deposit is put in an envelope, the cashier's total and
- his are confirmed, he counts the cashier's cash and puts it
in the night safe, and then "we confirm the cash tray" He
confirmed that he makes an entry in the computer for each
cashler, one at a time He advised that it would take an
average of 10 minutes to ring off each cashier, and that
ringing off is done in the office where the safe is located
He did not agree that no one would be able to go into the
safe without him seeing them He said that when he is facing
the computer, he is unable to see the safe, and that he must
turn around to see the safe He said that the office itself
is locked, but the safe may not be locked while he is ringing
cashiers off He later agreed that he would have finished
ringing off the first cashier by twenty minutes to 5 He
said that sometimes cashiers leave the store immediately
after being "rung off", but not always In re-examination,
he referred to the sign-in sheet and said that he "rang off"
\ casual Mike Calder, and two of either Mr Loschlavo, Mr
.J'
Bennett, or Mr Chini
32
.
The grlevor agreed in cross-examination that his other
responslbility at 4 30 P m was to "set up" the three night
cashiers He agreed that he takes their trays, which are
sometimes "done by morning staff, " from the safe and counts
them to confirm that they are accurate and "it balances". He
agreed that Ms Kosic would have been "on the floor about 10
past 5" He agreed that the three casuals would have all
been "set up" by 5 10 P m and that the dayshift would have
been "finished" by 5 P m.
The grievor agreed that he left the store during his
shift and said that that had occurred because he did not
"have the keys like I would have if I'd been in charge for a
week Saverio forgot to leave me them So I contacted Ett
Chini " who lives closest to the store He said "it would
have been" between 5 30 and 5 45 P m. when he left He said
he was gone approximately 30 to 40 minutes He sald that he
could not recall anything unusual happening that evening
except for the keys In cross-examination he agreed that it
was not normal for hlm to have left the store for the keys
He said that he checked and the safe was locked before he
left and when he returned He sald that he did not count the
safe when he returned He sald that he had been concerned
about leaving the casuals in the store alone with the safe,
but said that he hadn't much choice He denied having been
specifically concerned about one of the casuals going into
the safe and said that to the best of his knowledge, none of
them had the combination He said that he didn't "specifl-
cally" see any full-time CSRs in the store after 5 p m In
re-examination he said that by "specifically", he meant he
was not watching for it He said that someone "must have
been" in the safe before him He agreed that he had been in
the store except for the period of time he left to obtain the
keys In cross-examlnatlon he said that he did not recall
Mr Loschlavo having been in a rush when he left wlthout
leaving hlm the keys, but that he knew Mr Loschiavo had
33
somewhere to be He agreed that Mr Loschiavo would probably
not "stick around" the store, and that it was possible that
he left before 5 p.m.
The grievor agreed that when he is "in charge" on a
night shift, he does not have a cash set up. He did not
agree that he "wanders through the store" He agreed that he
has more responsibility when he is "in charge" He did not
agree that it would be unusual to be in the office during
such a shift, and agreed that there were times he needed to
be in the office, such as when a cashier needs to make a
deposit He agreed "absolutely" that he would do that with
the office door closed.
The grievor said that the last cashier left about 9 10
P m. The sign-in sheet (Ex. 7 ) indicates that Ms Buda
signed out at 9 00, and Ms. Kosic at 9 15 P m He said that
Ms. Buda signed out first, and that Ms. Kosic and Mr. Thomp-
son were in the store "while I counrted off her money" He
said that he rang out Ms Kosic next, that Mr. Thompson re-
mained in the store to let out the last customer and that he
then "would have gone on" to Mr Thompson. He said that Ms
Buda and Ms. Kosic left after he cashed them out and that Mr
Thompson stayed with him after he cashed him out, for "secu-
rity reasons and a witness" He said that Mr Thompson was
present when he did the SIR and balanced the safe The grie-
vor was shown a copy of a SIR for 04 Mar 97 at 21:42 with
Operator No. 00000204 and a calculator tape with handwriting
beside it (Ex 11) . He said that 00000204 was his Operator
number and identified his handwriting on the copy and said
that he had prepared that calculator tape the evening of
Tuesday, March 4, 1997 He said that he had counted the
coins in the safe visually, as he had done earlier
The grievor said that he had experienced one or two
occasions previously when the safe did not balance on clos-
lng, one of which had occurred at Store 362, in January,
34
1997 He said "chat American money had not been handled
properly when tendered at the register and it didn't balance
and a note was left regarding the shortage He explained
that he "would have" left a note on the cashier's tray that
she had not entered U.S currency as U S currency and "would
have" entered that oversight on the Safe Inquiry Report which
hangs on the inside of the safe.
Ms Craven agreed that on Wednesday, March 5, 1997 she
arrived at the store at 7:30 a.m , and that that was the day
the grievor was suspended. She said that she had arranged
beforehand to meet Mr Emmerson outside the store at 7:30
a m on Wednesday March 5, 1997, that they met and entered
the store together, disarmed the alarm, turned on the compu-
ter, called up the SIR, unlocked the safes and proceeded to
pullout all the coins She said that she "thought" that
they did a visual count first of what appeared to be in the
safe, and that that balanced to the SIR Then they pulled
out all the coins. She said that two bundles of eight rolls
of $2 00 coins were still at the back of the safe and that
one bundle of $1 00 coins was composed of 8 rolls, and that
therefore $50.00 was missing The three bundles of quarters
containing 8 rolls per bundle were in the same condition at
the back of the safe At the bottom of the safe, a bundle of
dimes which should have had ten rolls contained only eight
rolls Thus, she concluded, a further $10 00 was missing.
No rolls of nickels were missing. A total of $60 00 dollars
was missing, which had not been visible by a visual account
Ms Craven advised that a SIR had been done before the
gr~evor left the previous evening. She identified a Safe
Inquiry Report dated 4 Mar 97 at 21 42 (Ex 11) as the one
that she took from the computer the morn~ng of Wednesday
March 5, 1997 and advised that $13,299 00 was entered in the
computer as the Safe Total on it She said that the calcula-
tor tape which totals $13,299 00 as well, (reproduced with
the 21 42 4 Mar 97 SIR [Ex 11]) represented her visual count
35
of the contents of the safe. She identlfled two photocopied
pages, on the first of which appear some handwritten numbers
and a calculator tape, as "the manual count" (Ex. 12) She
advised that the handwritten numbers were Mr. Enunerson's.
Ms. Craven advised in chief that she and Mr Ennnerson
recorded the coin that they pulled out on Wednesday, March 5,
1997. She advised that they went into the small safe, and
"did the ~undles first, then the small stuff She agreed
that they were both counting together and said that Mr. Em-
merson was "on the floor with a piece of paper" She said
that "probably" Mr Enunerson worked the adding machine, and
that she did not recall She initially advlsed that the num-
bers ln the middle column on page 1 of Ex 12 represented
what "should have been" in the bundles She then agreed that
the middle numbers represented the amounts "actually" in the
safe on that occasion. She agreed that rolls were missing
from the bundles of $1.00 and $2.00 coins, and of quarters
and dimes.
In cross-examlnation the suggestion was put to Ms Cra-
ven, on the basis of the appearance of Mr Ennnerson's time of
arrival on the sign-in sheet (Ex. 7, p. 9 ) that Mr Ennnerson
arrived at 7:45 and that someone wrote 7 30 over 7 45, that
the original entry appeared to have been changed, she replied
"I can't say" and added "He might have written in the wrong
tlme It was changed by him We came in at the same time
I can't honestly say" When asked whether the initially
entered tlme of arrival after Mr. Emmerson's name had been
something other than 7 30, she replied "he was with me when I
came in"
Ms Craven said that she called the District Manager to
tell him that they were at that pOlnt short two rolls of
$1 00 coins, four rolls of $2 00 coins, six rolls of quarters
and two rolls of dlmes, and that "$60 00 had gone missing the
nlght before at some point" and asked for directions In
36
response to lnstructions she received, she sald she prepared
a Notice of Intended Discipline (Ex 2 ) and handed it to the
grlevor and asked him to take it outside the store and read
it out there
Mr Beuk advised that after his telephone call from Ms
Craven on March 4, 1997, he next heard from her on Wednesday,
March 5, 1997, at which time she advised him that the safe
was short a further $60.00 in coin, and that again the mis-
sing coin was in the form of rolls missing from the middle of
bundles He said that he asked her if she was certain of the
shortage and that she told him she and her Assistant had
counted it He said that he told her to issue a Notice of
Intended Discipline to the grievor pending the outcome of an
investigation He advised that his next involvement occurred
in April, 1997
Ms Craven said that the grievor returned to the store a
couple of minutes after receiving the Notice of Intended
Discipllne and said that he said that he did not know what
she was talking about She said that she asked him to leave
the store again, possibly twice, and that he left In her
report (Ex 13) Ms. Craven wrote that the grievor returned to
the store and "asked if he could discuss the letter because
he does not know what I was referring to in the letter" In
cross-examination she agreed that it is important to include
everything relevant when she makes such a report, as it is
the foundation of senior management's investigation She
agreed that her report would likely be a more accurate re-
flection of what she knew then, than what she recalled at the
date of the hearing She agreed that she had written that on
Monday, March 3, 1997 she "had a balance" in the safe (wlth
the safe lnquiry report) and that in writing those words, she
meant that she had a balance based on a visual count
The Notice of Intended Dlscipline, dated March 5, 1997
states
37
I
This letter is to advise you that effective immediately you
are hereby relieved of duty with pay pending an
investigation into the alleged theft of LCBO assets
Within three (3 ) calendar days from receipt of this letter,
you are asked to submit a written statement to my attention,
Sharon L Craven Manager, Store #362, explaining the matter
mentioned above, which has prompted this letter
Should a meeting be scheduled following the receipt of your
written statement, please be advised that you are entitled
to Union representation, as discipline may result from this
meeting
Should you choose not to respond as requested, you should
understand that Management will act on currently available
information
The LCBO's decision concerning this matter will be made
known to you in due course
Sharon L Craven
Manager, Store #362
The grievor said that he was "very surprised" to receive
the above Notice The grievor said that at about 5 30 P m
he prepared a letter dated March 5, 1997 (Ex 19) with the
intention of sending it by Registered Mail However, he
learned that it would possibly arrive past the 3 calendar
days within which he was requested to "submit a written
statement It Consequently, he said, he wrote a second letter
dated March 6, 1997, and sent it by courier (Ex 20) . He
said he was unable to simply send a copy of Ex. 19 because he
had been unable to find it
His first letter states
I am responding as instructed within 3 days, but I am
unaware of what I am responding to, since you refused to
tell me I have however not taken any LCBO assets, as your
letter claims
I would appreciate further communication from you in
regards to what the alleged charges are Please find
enclosed the store keys which you neglected to ask me for
when I was asked to leave the store
Yours truly
S smith
His second letter states
38
In response to your letter, I am unaware of what
I am responding to You refused to discuss it with me I
have not taken any LeBO assets, as your letter claims
Further communication regarding these allegations would be
appreciated
The store keys you didn't ask for are being sent to you
by registered mail
Yours truly
Sam smith
Ms Craven said that on Wednesday, March 5, 1997 she
"stayed late" and the District Manager came in She said
that he wanted to do a safe count She advised that she and
her District Manager did the necessary paperwork to adjust
the records for the missing $320 00 and to balance the safe.
Mr Beuk confirmed that he went to Store 362 in the afternoon
of Wednesday, March 5, 1997 He said that in Ms. Craven's
presence he counted the store safe to verify that the missing
funds were indeed mlssing. He said that there was no sign of
a break-in
Ms Craven said that she was present at the pre-discip-
linary meeting "if they needed to ask a question" She ad-
vised that Milly Briffa, John Harris, Jerry Beacom and the
grievor attended it She said that she recalled that the
grievor was asked if he was aware of money missing She said
that "they" talked about the first amount of money missing,
$100 00, and was the grievor aware of it, then about the
$160 00 that went missing, then the final $60 00, was he
aware of that. She said that the grievor replied that he
wasn't aware of any of the missing money She said that the
grievor was not accused of stealing $320 00, and that he was
not accused of stealing anything When asked whether the
grievor provided an explanation for the missing $60 DO, she
replied that he had not, that he wasn't aware of it When
asked whether the grlevor offered any possibilltles, she said
that he told them he was coverlng the evening shift for Mr
Loschiavo, that Mr Loschiavo had taken the store keys home
39
instead of givlng them to him when he left, and that when he
dlscovered this, he decided to call Ettore Chini, who lives 5
minutes away from the store, that he left the store, picked
up the key and returned to the store. While he was away, Mr
Thompson, Ms Kosic and Ms. Buda remained in the store. She
understood that the grievor was away from the store no longer
than half an hour. Ms Craven said that as a result of lear-
ning this from the grievor at the pre-disciplinary meeting,
she asked each of the casual employees for a letter advising
whether any full-time employees had come into the store in
his absence. She said that the casuals all wrote letters
saying only the three of them had been in the store during
the grievor's absence She said that Mr Loschiavo was get-
ting married shortly and that the grievor took his night
shift She said "I guess Saverio's head was in the clouds
and he just forgot to give him the keys" She agreed that
she had written a report dated March 7, 1997 (Ex 13) and
that she prepared it on Friday She said that she had been
keeping notes all along of what was occurring She said that
she dld not make the decision to terminate the grievor's
employment, but that she supported the declslon "because by
isolating the money, we did prove [the grievor] was respon-
sible for the theft of $60 00 "
Mr. Beuk advised "Some time in April we held a meeting
with Mr Smith to ascertain whether he had a knowledge of the
mlssing funds, so we could make a determination in this mat-
ter " He sald that the grievor, Union Representative Mildred
Briffa, Human Resources Advisor John Harris, and Ms Craven
were present at a meeting on April 2, 1997 He said that the
purpose of the meeting was to ascertain if Mr Smith had any
knowledge of the missing funds and to assist us with the out-
come of the Notice He said that the grievor had been sus-
pended with pay He advised "we asked him a series of ques-
tions regarding the incidents at the store during that time"
" He said "we asked hlm about the $60 00 missing" and that he
40
-
said he had no knowledge of the missing funds When asked
whether the grievor offered any explanation, he advised that
the grievor had no idea of the missing funds, that when he
balanced the safe, it balanced. He said that the grievor in-
dicated he left the store for half an hour in the early eve-
ning as he was left to run the store without a set of store
keys. He advlsed that he made notes during the meeting and
identified 2 pages of hand-written or -printed notes. He
identified the first page (Ex. ISa) as "my pre-meeting notes"
and the second page (Ex ISb) as the grievor's "responses to
our questions" When asked what he asked the grievor about
the three items at the top of Ex. ISa, i e
$100 00 missing from safe on Sat March 1/97 in $2 00 coin 2 rolls
$160 00 missing from safe on Tues March 4 a m
$60 00 missing from safe on Wed March 5
he replied that he asked the grievor whether he was aware of
funds missing from the safe He said that the grievor
replied that he had no knowledge
When asked what he asked the grievor regardlng the note
On Monday March 3 Sam was breaking down full boxes of coin from
coin order at 5 30 P m worked 9 to 6
in Ex ISa, Mr Beuk said that he asked him if he had gone to
the safe to break down whole boxes of coins into bundles and
that the grievor replied that the only t~e he breaks down
coin lS when he is the only one there who receives the coin.
(This response appears as the third item in the ISb notes).
When asked whether
can t recall breakdown of coin at 5 30 P m on Monday March 3/97
which appears as the first line on Ex. ISb was the grievor's
response, he replied "yes" When it was suggested to him
that the grievor then went on to the third statement written
on Ex ISb
only time he breaks down coin is when he is only one there to
receive coin order
he replied "yes, that's correct" When asked what he asked
(
the grievor regarding
41
on Tues a m short 2 rolls $2 00 -
6 rolls - 25c = $160 00 March 4th
in Ex l5a, he replied that he asked him if he was aware the
store safe was short, that he was Acting Manager Monday He
advised that the grievor's answer was that he balanced the
safe. When asked whether this reply was with respect to
Tuesday morning, Mr Beuk replied that the grievor said that
on Tuesday, March 4 he balanced his safe at the beginning and
the end of his shift He said that he recalled that the
grievor was running the shift on both Monday and Tuesday,
March 3 and 4 When asked what he asked the grievor regard-
ing
how do you explain the fact that you were responsible for safe
after 1 p m on March 4 & next day safe short
on Wed a m short 2 rolls of $1 00 coin
2 rolls of 10c coin = $60 00 March 5
which appears as the fourth item in Ex 15a, he said that he
asked the grievor if he had an explanation for the safe being
short $60 00 when he was responsible on Tuesday, March 4, and
said ~We isolated the safe after 1 p m Tuesday, March 4 No
one had access to the safe except him~ He then said that
the question was that no one had access to the safe, could he
explain why it was short $60 00 He sald that the grlevor
said that he had no knowledge and he had balanced the safe
and it balanced to the best of his knowledge When asked
whether the grievor provided him any information regarding
the safe, Mr Beuk said that the grievor told hlm that the
safe was locked at all times, and that he indicated that
casuals do not have the combination and he was the only one
on duty that had it, because he was running the night shift
Mr Beuk said ~In view of the fact that the grievor ob-
viously had been in charge and had complete control of the
safe on Monday, March 4, 1997 and $60 00 was misslng, I re-
commended termination for theft,~ and that he did not consi-
der whether someone else had been responsible, that it was
I ObV10US to hlm that the grlevor was responsible, that he was
'\......._~ the only one with access to the safe on the evening the money
42
went mlssing and he sald the safe was locked at all times,
that he was the only one with the combination, that he was
accountable and responsible for the mlssing funds. He said
that the LCBO's response to theft is termination, in all
cases and that the LCBO considers this to be a severe breach
of trust. He agreed that that was the LCBO's view, regard-
less of the amount He added that whether stock or assets
were missing, such were considered a severe breach of trust
resulting in termination. He advised that the matter was
reported to the police by Ms Craven He advlsed that he
understood that no criminal charges had been laid and that he
guessed that that was due to their work load and the matter
not being very important to them
In cross-examination, Mr Beuk agreed that at the April
2, 1997 meeting, the grievor did not accuse anyone in parti-
cular When asked if the grievor had been adamant that he
had had nothlng to do wlth the mlssing money, he replied that
the grievor clalmed that he had no knowledge of it He was
unable to recall whether, at the start of the meeting, he had
told the grievor that he had been seen breaking down coin on
Saturday, March 1, 1997 When it was suggested that the
grievor had replied that he was not there on Saturday, and
that he, Mr Beuk, had checked with Ms. Craven and confirmed
that he was not there on Saturday, he stated that it was pos-
sible that this had occurred at the meeting He added "but
on a review of my notes, it was obvious that it was the Mon-
day, not the Saturday" He said that Ms Craven had told him
that Mr Loschiavo had observed him doing so
When asked in cross-examination whether, ln relation to
no comment on two other people saw him break down coin
which appears in Ex. ISb, he had told the grievor that two
people saw him break down coin, Mr Beuk replied "I don't
recall That's his response" He then said "I belleve the
, - question was other employees saw him breaking down coin " He
~'
said that he did not recall whether he said "other employee"
43
.
or other "employees", and that he did not recall the phrase
he used. with respect to
on March 4 statement from 2 other employees that safe was isolated
exclusively to you how do you explain $60 00 shortage then
in Ex. 15a, his pre-meeting notes, Mr. Beuk advised that the
statement "would have been" that of Mr Laszczuk and Ms Cra-
ven He agreed that he "had the impression" that Mr. Lasz-
czuk and Ms Craven had "isolated the safe" When asked how
he had acquired that impression, he replied "they counted the
money" When asked how he formed the conclusion that they
had isolated the safe, he replied "they informed me no other
employee was to enter the safe during this time period"
The grievor said that he recalled the April 2, 1997
meeting He said that Mr Beuk did not limit his inquiry to
the $60 00 that was at issue on Tuesday, March 4, 1997 and
that Mr Beuk asked him about 3 specific dates and 3 specific
amounts He agreed that Mr. Beuk raised an issue with him
about breaking down coin on Monday March 3, 1997. He said
that initially Mr Beuk said that he, the grievor, had been
seen breaking down coin on Saturday, March 1, 1997. He said
that when he, the grievor, said that he had not been in the
store on March 1, 1997, Mr Beuk "referred to" Monday, March
3, 1997 He sald that he was given no names
The grievor agreed in cross-examination that at the Ap-
ril 2 meeting, Mr Beuk asked him if he had any knowledge of
coin which had gone missing on Saturday, March 1, Tuesday,
March 4 and Wednesday, March 5 and that Mr Beuk asked him
about the shift for which he had been responsible He agreed
that Mr Beuk asked him how, if the cash balanced on Tuesday
night, it did not balance on Wednesday, March 5, 1997 He
agreed that Mr Beuk had asked him how $60.00 could be
missing, if the safe was isolated to him
f Beuk agreed in cross-examination that he knew Mr
" Mr
Smith had not been at work on February 28 and March 2, and
44
that the first thefts occurred on March I, 1997, and that he
learned of this on March 3, 1997 When asked whether he
thought the grievor had something to do with the first thefts
that were discovered, he replied "I have no idea". When
asked whether he was investigating or had investigated the
other $260.00 of the total $320 00 that went missing, he rep-
lied "we could not substantiate whether any other employees
were involved". When asked "other than who?" he replied
"those who had access to the safe" He said that they had no
idea when those funds went missing
In cross-examination, Ms Craven acknowledged that on
February 27, 1997, neither Mr Chini, Mr Bennett, Mr Bry-
ant, Mr Loschiavo nor the grievor indicated their "depart"
time on the sign-out sheet She agreed, with reference to
the Friday, February 28, 1997 sign-out sheet (Ex. 7, p 5 ) ,
that Mr smith was not at work that day She agreed, with
reference to the Saturday, March 1, 1997 sign-out sheet (Ex.
7 , P 6 ) that the grievor was not at work that day, and that
Mr Loschiavo had been at work that day
The grievor advised that he was initially hired by the
LCBO in 1983 as a part-time temporary employee He worked at
the Durham warehouse from June of 1986. He worked as a Clerk
3 at the Jane-Finch Store from the fall of 1989 for a little
less than 5 years Because he was finding the commute from
his residence in Etobicoke to his workplace in Whitby diffi-
cult, in 1989 he requested a transfer from warehouse to the
retail division In 1994 he transferred to the Queensway-
Islington store and worked there until June of 1996 when he
transferred to the Albion Mall Store (362) He produced a
letter dated October 1, 1994 (Ex. 17) which accompanied his
receipt of "an LCBO Service pin ~n recognition of (his] con-
tribution, dedication and loyalty to" the LeBO as well as a
s~milar letter dated October 1, 1996 (Ex 18) . He said that
{
he received Ex 17 when he was work~ng at the Queensway
Store, and Ex 18 while he was work~ng at Store 362.
45
In cross-examination he advised that he had been working
ln retail for the LCBO since 1989 He agreed that he was
aware of the importance of protecting LCBO assets and of
counting and receiving money. He agreed that he was aware
that the safe was to be locked at all times, and that casuals
were not to be given the combinatlon, and that to the best of
his knowledge they were not given it He later denied having
given any casuals the combination to the safe when he was in
charge of it. He agreed that he was aware that the LCBO
takes theft very seriously. He agreed that when he is in
charge of a shift he counts the funds in the safe at the
start of the shift to ensure that he is actually receiving
the funds he is expected to have, as if funds go missing
during a shift, he is responsible. He agreed that that is a
heavy responsibility, not to be taken lightly He said that
he does not take any of his responsibilities lightly He
agreed that he would not let anyone go into the safe unless
he knew why they were going in to it He agreed he did a
visual count and that "others" did it the same way. He did
not agree that a visual count was done to save time. He
advlsed that that was the only way he had ever seen a count
done, and that when he came into retail that was the method
which he was shown to do a count. He agreed that it "defi-
nitely" would be a worthwhile practice to count each indivi-
dual roll He said that there was normally not enough coin
in the safe to necessitate the removal of the bundles onto
the floor in order to see them all.
The grievor said that he was home with his family on
Friday, February 28, and Saturday, March 1, 1997 and that he
did not go into the store on either of those days He agreed
that he worked the 9 a m to 6 p m shift on Monday, March 3,
1997 He said that he had been married for seven years, and
has two sons, age 5 and 3 He has owned his own home for
"-
'-
46
.
about 6 years, and has a mortgage Prior to March, 1997, he
had no difficulty meeting the mortgage payments
The grievor said that he occasionally plays the 649
lottery, and that he plays the store football pool and
Proline weekly He said that he spends $5.00 per week on the
football pool, and at most $20.00 per week on Proline He
said that he is a social drinker, and does not drink very
often He does not consume narcotics He denied taking any
of the money missing from the store.
Argument for the Employer:
The employer accepts that the evidence has to be clear
and cogent However, that does not change the standard of
proof The standard of proof is not the criminal standard,
but rather, the civil standard, on balance of probabillties
This means the board cannot act on fragile and tenuous
evidence The issue in this case is whether the employer has
discharged its onus
Where the employer relies on circumstantial evidence,
the board must determine whether there are other explanations
which are equally or more probable than the one advanced. If
there are no such reasonable alternatives, the allegation,
supported by circumstantial evidence, is proven. In this
case there are no such reasonable alternatives equally or
more probable than the allegation that the grievor took the
$60 00 in coin
The evidence established that $60 00 went missing some
time after 4 30 P m. on Tuesday, March 4, 1997 and was found
missing on Wednesday, March 5, 1997 at 7 30 a.m Ms Craven
testified she went to the store before it opened, pulled bun-
dles of coin from the safe, and found some rolls missing from
the centre of some bundles This shows a deliberate removal
Whoever took the mlsslng rolls knew the bundles were counted
47
visually and was relying on them not to be pulled out and
counted roll by roll Ms Craven was adamant, and unshaken
on cross-examination, that no one other than Mr. Smith went
into the safe between 1 and 4:30 p m on Tuesday, March 4,
1997 She counted the safe early in the afternoon, balanced
it, turned it over to Mr Smith when he arrived at 1 p m.
Mr Smith counted it visually and confirmed the amount Ms
Craven sat in the office until 4 30p m No one else went
into the safe. After 5 p m. on Tuesday, only Mr Smith and
the casuals were in the store
The evidence was clear and consistent that casuals are
not given the combination Mr Thompson, Ms. Buda and Ms.
Kosic all testified that they did not have the combination
Ms. Buda and Ms Kosic testified that they didn't see any
other casual going into the safe. All three casuals and Mr
Smith testified that they did not see any other full-time CSR
in the store after 5 p m After 5 p m Mr Smlth was the on-
ly person in the store with the combination to the safe. He
could go into the office and into the safe without causing
any of the casuals to find it unusual Ms Buda testified
that she would find it highly unusual to see a casual going
into the safe. No one, however, would question Mr. Smith
doing so No one other than Mr. Smith had the opportunity
and ability to go into the safe.
Between 4 30 and 5 p m. Mr Smith was ringing off three
cashiers in the office where the safe is located Between
4 30 and 5 pm, three casuals picked up their trays and were
either in the office with the safe or in the back office. To
get to the registers from the back office, they must pass
through the office with the safe Ms Buda's eVldence was
that it took 10 to 15 minutes to ring off a cashier. Mr
Smith confirmed that It took 10 minutes on average and that
it was done one at a time A lot of activity took place in
i
\~,; the office with the safe at this time. Mr Smith testifled
to the responsibility he has when he is in charge It is
48
neither probable nor plausible that someone else would go
into the safe between 4 30 and 5 p m with Mr Smith sitting
in the office Although Mr. Smith testified that it was
possible that he was not in the office the entire period
between 4:30 and 5 p.m , he does not remember something
having happened to take him out of the office, and on April
2, 1997, did not tell anyone something took him out of the
offl.ce The proper conclusion is that such an occurrence is
not plausible
Further, if Mr Smith had left the offl.ce, it is not
plausible that someone else would go to the safe, open it,
pullout bundles of coin and remove 2 rolls from the middle
of some bundles Six rolls of quarters were removed from the
middle of three bundles In the time that Mr Smith was in
the store, the bundles would have to have been returned to
the safe so that it appeared they had not been touched, while
other CSRs were in the store and other casuals were in the
off.l.ce This is not a reasonable alternative explanation
In our view, there was no opportunity for anyone else to have
done it between 4 30 and 5 p m
Mr Sm.l.th did not remember whether Mr Loschiavo was on
cash that even.l.ng. He remembered that Mr Loschiavo had to
get somewhere and left the store hastily, possibly before 5
p m
The evidence indicated that after 5 p m Mr. Smith left
the store to pick up the keys When questioned about April 2
about how the $60 00 went missing, the only thing he said was
"maybe when I left the store " However, his evidence was
that when he left the store the safe was locked, and he'd
checked it before he'd left, the casuals testified they did
l not have the combination, there was no evidence which contra-
dicted them. The casuals also testified that they did not
, see anyone go into the safe while Mr Sm.l.th was away There
! '--
is no eV.l.dence that any of the casuals knew that the count
r 49
would be done visually at the end of the shift They would
have to be relYlng on that if they did take the money They
know Mr smith balances at the end of the night They would
not have taken it They knew they were the only people in
the store
No explanation equally or more probable than the em-
ployer's exists Discharge is the appropriate penalty The
onus has been discharged with clear and cogent evidence
There is no other explanation equally probable or more
probable than that the grievor was responsible for the funds
The grievance should be dismissed
The employer submitted the following cases in support of
its position Zellers Inc and U F C W , Loc 175 (1996) 54
LAC (4th) 176 (R L Levinson) , Steel Co of Canada and
U S.W A , Loc 1005 (1991) 21 LAC (4th) 242 (Rayner) ,
Loblaws Supermarkets Ltd and U.F C W Loc 1000A (1990) 10
L A.C (4th) 425 (Thorne) ; Molson Breweries (Toronto) and
Canadian Union of Brewery and General Workers, Component 325
(F~llmore) (1994) 44 LAC (4th) 398 (Mitchnick) , Honey Bee
sanitation Inc and US WA (1991) 20 LAC (4th) 103) (H D
Brown) ; Durkin 426/81, Menzies 102 & 126/83, McWilliams
860/87.
Argument for the Union:
This case is based entirely on circumstantial evidence.
No one saw the grievor take any money No money was found in
his possession There has been no admission that he took any
money
The employer says the civil burden must be met on clear
and convlncing evidence However, the graver the offence,
the clearer the evidence must be
r
"-. This case is about opportunities and probabilities The
~-
employer says lt only has to show no equal opportunity or
50
-
probability exists The union relies upon "the additional
hurdle" In such a case, found at pp. 8 - 9 in Irwin, 1377/86
The employer must meet an additional hurdle brought
about by virtue of the fact that the evidence against the
Grievor is entirely circumstantial There was no eye wit-
ness to testify that he or she saw the Grievor take the
money The money itself was not found on the Grievor's
person For better or worse, no one proposed at the time
searching the Grievor The evidence is exclusively direc-
ted to the issue of opportunity If we accept as a given
that the money in the cash drawer at some time during the
mid-afternoon, but missing by the end of the day, then one
does not have difficulty concluding that the Grievor had
more than ample opportunity to take the money What we are
being asked to do is also conclude that it is unlikely that
anyone else had the opportunity If we so find, then the
conclusion would become inescapable that the Grievor
pocketed the money
The weighing of circumstantial evidence is thus
largely a process of excluding alternative possibilities
In so doing we have to take notice of what is humanly pos-
sible in the circumstances We cannot cast an onus upon the
Grievor to prove to us that there are alternatives, although
he would certainly help his own cause with every plausible
alternative he proposed Rather, the onus is still on the
Employer to prove by clear and convincing evidence that
there are no such alternatives
When reviewing the evidence the board should not look
for whether an equal explanation or a better or more compel-
ling alternative exists. Rather, it should look for whether
there lS an alternative explanation
In this case, other people had opportunity to take the
money. We know that $100.00 was discovered missing on Satur-
day, March 1, 1997, that $160 00 more was missing on Tuesday
a m , March 4, 1997 and $60 00 more was missing on Wednesday,
March 5, 1997 Although the employer says it is relying only
on the $60.00 missing on Wednesday, March 5, 1997, the board
cannot ignore the other missing money. These facts mean that
it is extremely unlikely that Mr Smith took the money that
was found missing on Saturday, March 1 and Tuesday, March 4,
1997
51
I
The grievor is the least likely suspect regarding the
first two thefts He was not at work February 28 or March 1,
1997 We accept that it is possible that the money found
missing on March 1, 1997 may have gone missing before that
date, but the board does not have to conclude that The
grievor's evidence that he did not do the coin intake on Feb-
ruary 26, 1997 was not challenged Coin went missing before
Monday, March 3, 1997 and was dlscovered missing while the
grievor was not at work. We know that Mr. Loschiavo was at
work on Monday, March 1, 1997, as were Mr. Bennett, Mr Lasz-
czuk and Mr Enunerson, and Ms. Craven said they had the com-
bination Mr Smith left at 6 p.m on Monday, March 3, 1997
After he left, Mr. Loschiavo was responsible for the safe
that night. Mr. Loschiavo was the last person in the chain
of control before Tuesday, March 4, 1997
Ms Craven's evidence was that she gave Mr Loschiavo a
cheque, told him to cash it, and not to tell the grievor It
would have been easy for Mr Loschiavo to conclude that
someone other than he was the prlIDe suspect
The grievor was seen bundling coin on Monday afternoon
It is important to bear in mind that Mr Thompson agreed that
the grievor was bundling coin openly, with the door unlocked,
and not ln a surreptitious manner Ms. Craven testified that
Mr Loschiavo knew he had been bundling coin. That's awfully
convenient
Ms Craven's discussions of her conversations with Mr
Loschiavo are surprising The evidence did not establish
that he came to her and told he was $160 00 short Instead,
Ms Craven said that on Monday, March 3, 1997 she told Mr
Loschiavo not to change the coin and the following morning
asked him why coin in the safe was different from the manner
in which she'd left it
\
52
The grievor was the Night Manager on Tuesday, March 4,
1997 Ms Craven said she isolated the safe to the grievor
for the whole day. That is not an accurate statement. Ms.
Craven was stretching her 4 30 P m departure, and may have
left earlier At 4:30 pm , Mr Loschiavo, Mr Bennett and
Mr. Chini were there, and they had the combination to the
safe As well, the grievor was absent from the store for 30
minutes to an hour. The casuals are clearly not vouching for
one another None know if the others do or don't know the
combination. That none of them know it is an assumption.
The casuals do not know who was in the office at all times
Ms Kosic said that the office can be accessed through the
back Ms Craven has no control over the combination which
is issued on slips of paper Although all the casuals who
worked that night said that they dld not know the combina-
tion, Ms Buda said that they talked about it immediately
thereafter and knew someone was suspected It would be sur-
prising for any of them to admlt that they knew the combina-
tion, as it would cast suspicion on them Thus, they would
have a motlve to lie and are not innocent witnesses They
all started to talk about it once the grlevor was suspended
As a result, it cannot be said that only the grievor had
the exclusive opportunity to take the coin rolls It cannot
be said that he had the best opportunity to take the money
that went missing on Saturday and probably Monday night. The
grievor had no better opportunity that Mr. Loschiavo, Mr.
Chini or Mr Bennett, and the casuals had a better opportuni-
ty than he did that night
The evidence was that ringing off of cashlers could take
10 minutes The grievor's lack of recall is consistent with
his innocence. As an innocent person, he had no reason to be
concentrating on what he was dOlng every single moment, and
he could have left the office There were three cashlers to
rlng off and three cashiers to rlng on. Ms Kosic was to be
rung on after her arrival at 5 p m It is clearly possible
53
that the grievor left the office during that time At least
three people in the store after 4 30 P m had the combina-
tion Someone could have sllpped the coins out, knowing that
it wouldn't be noticed, and knowing that the grievor was the
suspect and was being watched
The evidence of Mr Loschiavo, Mr Bennett or Mr. Chini
was not before this board, which should have had the opportu-
nity to hear it. In Canada Post Corp and CUP W (Seymour)
(1992) 25 LAC (4th) 137 (Shime) it was held that an ad-
verse inference was to be drawn from the failure to call a
certain witness In that case identification was the issue
The case dealt with the common law on the subject, at pp 141
and 142
One of the leading cases on the failure to call a
witness is the decision of the saskatchewan Court of Appeal
in Murray v Saskatoon, [1952 ] 2 D L R 499, 4 W W R (N S )
234, where Martin C J S stated as follows at pp 505-6
During the course of the argument considerable
attention was devoted to the question of the effect
which should be given to the action of a party in not
calling a witness who could give evidence which it was
in his power to give and by which the facts might be
elucidated Reference was made to the remarks of Lord
Mansfield in Blatch v Archer (177 4) , 1 Cowp 63 at
p 65, 98 E R 969 where he is reported as follows
"It is certainly a maxim that all evidence is to be
weighed according to the proof which it was in the
power of one side to have produced, and in the power
of the other to have contradicted "
The subject is dealt with at length by the learned
author in Wigmore on Evidence, 3rd ed , vol II, pp
162 et seg On p 162 it is stated in part -- The
failure to bring before the tribunal some circum-
stance, document, or witness, when either the party
himself or his opponent claims that the facts would
thereby be elucidated, serves to indicate, as the
most natural inference, that the party fears to do so,
and this fear is some evidence that the circumstance
or document or witness, if brought, would have ex-
posed facts unfavourable to the party These infer-
ences, to be sure, cannot fairly be made except upon
certain conditions, and they are also open always to
explanation by circumstances which make some other
hypothesis a more natural one than the party s fear of
exposure But the propriety of such an inference in
general is not doubted
54
The party affected by the inference may, of course,
explain it away by showing circumstances which pre-
vent the production of the witness; but where the
failure to produce the witness is not explained, the
inference may be drawn that the unproduced evidence
would be contrary to the party s case or at least
would not support it
Mr ShllTIe I s logic, at p 142, should be considered
Applying those principles to the instant case, where
there is a very difficult issue of identity, it is my view
that the failure to elucidate the facts which was within the
corporation's power is not without significance and, accor-
dingly, I am prepared to draw the inference that the calling
of Mr Scarselletta would have exposed facts which were un-
favourable to the corporation Even if one were to examine
the facts of the incident as related by the corporation s
witnesses, there are serious problems of identity which
might be assisted or elucidated by another person who wit-
nessed the events The identity issue is critical and the
facts relied on by the corporation are difficult and include
the lack of recognition of the assailant by those who wit-
nessed the incident, the difficulty of making an identifica-
tion in the melee and the subsequent manner in which the
grievor was identified It is not for the board to draw a
hypothesis that failure to call Mr Scarselletta would not
have advanced the corporation's case, as the corporation has
suggested--the board should not be placed in the position of
speculating where the witness was readily available In
this case, given that identity is critical and difficult,
the failure to call a witness who might assist with that
issue leads to the clear inference that the witness would
not have supported the corporation's case
Given that the issue of identity was critical and
given the suggestion in the affidavit that there might be
some difference among supervisors in describing the assail-
ant, it is my view that the failure to call Mr Scarselletta
not only entitles me to draw an adverse inference, but al-
most compels me to draw the inference that the evidence if
called would not only not support the corporation's case,
but would be contrary to it
The Canada Post case is much like ours Three people
who are believed by the employer to have known the combina-
tion were present after 4 30 P m on Monday, March 3, 1997
The board should infer from their absence that they will not
say that they were only in the office with the safe when Mr
Smith was present
55
The union does not accuse anyone of the CSRs of having
stolen the money. Rather, the union takes the position that
the employer has the burden of disproving alternative possi-
bilities By not calling one or the other of those three
CSRs, it has not met the burden
The evidence suggests that the employer "tipped off" Mr
Loschiavo as to the identity of the prime suspect. It also
suggests that from the questions they were asked, other
employees quickly knew that there was a connection between
knowing the combination and the theft
According to Ms. Buda, Mr. Laszczuk told her to write a
date on her document which was not the day upon which she
wrote it The sign-in sheet for March 5, 1997 indicates that
Mr Emmerson's time of arrival was changed from the initial
entry Mr. Emmerson was not called to testify Ms. Craven's
evidence was that she did not know about the change. The
sign-in sheet shows that she arrived at 7 30 am, but it
appears that Mr Emmerson may have initially entered 7 45
a m and someone changed it to 7 30 a m
When Ms. Craven spoke to Mr. Beuk on Monday morning,
March 3, 1997, she did not tell Mr Beuk that she had "tipped
off" Mr. Loschiavo Her report (Ex 13 says that Mr Loschi-
avo saw the grievor breaking down coin However, Mr Thom-
pson testified to having seen the grievor breaking down coin,
and Mr Loschiavo was not called
In Irwin, supra, the board rejected an alternative ex-
planation for a theft as "unlikely" At p 11, it stated
that where the evidence is circumstantial, the board is en-
titled to consider motive. The grievor has received two
commendations The board should consider whether a married
family man would risk his job for some rolls of coins In
I
Irwin, supra, the board considered that the grievor was "en_
56
titled to the benefit of the very significant doubt" that it
felt
This case is about opportunity. The employer must prove
exclusive opportunity, on clear and cogent eVldence. It is
imposslble for the employer to do so, where the board does
not hear from three people who had the combination and were
present in the store at a relevant period of time The board
would be able to make findings of credibility if those people
had been called The employer's evidence has not excluded
other possibilities. Its evidence is not sufficient, especi-
ally where the results for the grievor are so grave This
board's jurisprudence should be followed The appropriate
remedy is reinstatement and compensation with full retroac-
tlve pay and interest
Reply Argument for the Employer:
If those three CSRs had testified, the union would tell
you not to glve weight to their evidence, they have reason to
lie They were not called because the evidence of the wit-
nesses was that it was hlghly unlikely that anyone could go
lnto the safe without anyone else noticing. The grievor him-
self testified he would not let anyone go into the safe.
The employer has stated the law correctly Zellers, at
p 188 - 89 says that Hodge's Case
is no longer good law in Canada even its original Criminal
law context
That is not the proper burden of proof The company has
the onus to establish its case by clear and convincing evi-
dence on the balance of probabilities and not the criminal
burden of proof, namely, beyond a reasonable doubt
It also, at 189, states the law (as set out by Arbltrator
I
Swan in Re Canada Packers Inc and U F C W , Loc 114P
(1989), 6 LAC (4th) 25)
57
.
there is a general consensus among arbitrators that,
where criminal conduct is alleged, the onus of proof is only
met if the proof is "clear and convincing This does not
connote a change in the standard of proof from the civil
standard of a preponderance of evidence to the criminal
standard of proof beyond a reasonable doubt, but rather
relies upon the generally accepted view that, the more
serious the conduct which is alleged, the more important it
is that the conduct be demonstrated by "proof commensurate
with the gravity of the allegation", to use the language of
the supreme Court of Canada in Continental Ins Co v
Dalton Cartage Co Ltd (1982), 131 D L R (3d) 559 at p
563, [1982] 1 S C R 164, [1982] I L R 1-1487 (S C C )
Durkin, supra, states at p. 7 that the board must ask whether
there is any rational conclusion based on evidence, other
than that the grievor committed the theft.
Reasons:
Theft in the workplace is a serious problem and a seri-
ous offence It undermines the trust relationship between
employers and their employees so fundamentally, that when an
employee has been found clearly to have stolen, it is rare
that termination of that relationship is not justified.
Where, as in this case, the thief has not been identified by
an eye-wltness, an atmosphere of suspicion arises in the
workplace as management attempts to sort out the logical
possibilities and attempts to determine the identity of the
culprit or culprits. If the employer's conclusion as to the
identity of the thief is correct, justice may prevail. H~-
ever, in relying on circumstance and motive and in drawing
inferences from it, the risk is always present that errors
and overslghts can result, which may result in injustice
In order to determine if the employer's conclusion as to
the grievor having committed the theft on March 4, 1997 is
sufficiently supported by the evidence, the first matter
which must be determined is the onus which an employer bears
in a case of alleged theft in which the evidence is entirely
circumstantial
,
58
Durkin, supra, states, at p 7, that in posing the test
as "the board must ask whether there is any rational conclu-
sion based on evidence, other than" that the grievor commit-
ted the theft, it was "applying the test of Hodge (1838), 168
E R. 1136" As, according to Zellers, supra, Hodge is "no
longer good law in Canada", it follows that the test in
Durkin should not be applied.
In Zellers, the onus was stated as
The company has the onus to establish its case by clear and
convincing evidence on the balance of probabilities and not the
criminal burden of proof, namely, beyond a reasonable doubt
and
there is a general consensus among arbitrators that,
where criminal conduct is alleged, the onus of proof is only
met if the proof is clear and convincing This does not
connote a change in the standard of proof from the civil
standard of a preponderance of evidence to the criminal
standard of proof beyond a reasonable doubt, but rather
relies upon the generally accepted view that, the more
serious the conduct which is alleged, the more important it
is that the conduct be demonstrated by "proof conunensurate
with the gravity of the allegation , to use the language of
the Supreme Court of Canada in Continental Ins Co v
Dalton Cartage Co Ltd (1982), 131 D L R (3d) 559 at p
563, [1982] 1 S C R 164, [1982] I L R 1-1487 (5 C C )
Zellers also indicates that the board may consider other ex-
planatlons for an alleged theft, and reject them if it deter-
mines them to be "implausible" However, Zellers is distin-
guishable from this case, as in that case there was a direct
witness to the alleged theft, and the arbitrator specifically
stated, at p 189
the evidence here is not entirely circumstantial
I conclude that the reasoning in Zellers provides a general
statement of the onus of proof which must be met in theft
cases However, the manner in which a board should determine
whether the onus has been met in a case resting entirely on
circumstantial evidence and opportunity must be derived from
a careful consideration of the cases provlded
59
stelco, supra, indlcates that "clear and cogent" evi-
dence will discharge the burden of proof on the employer, but
that that standard requires the board "not to act solely on
fragile and tenuous evidence" Where sufficient evidence was
lead to establish that the grievor had knowledge of the
presence of stolen property on his father's farm, from the
volume of the stolen property, from outside identification
marks which had been ground off of an appliance in the
kitchen, from a 4-foot high bottle of propane marked with the
employer's name attached to a barbeque on the back patio, and
from the grievor's own statements of ownership of certain of
the stolen property, the board was of the view that the onus
shifted to the grievor for a more credible explanation than a
bare denial The grievor in this case was not found in
possession of rolls of coin; consequently the facts in this
case do not support the approach in Stelco
In Loblaws, supra, another theft case, the board was of
the Vlew that "the standard of proof required is the civil
standard of the balance of probabllities" and
a slight preponderance of evidence in favour of the
employer s case will not suffice The requirement has been
variously stated as being for clear and cogent evidence, for
a stringent standard of proof, and for a standard estab-
lished in relation to the seriousness of the consequences
which might flow from the findings of fact
The reasonlng in Molson and Honey Bee, supra, primarily
deals wlth the failure of the grievor to admit a theft found
on the evidence, and its effect on mltigation of penalty, and
does not assist in determining whether sufficient circumstan-
tial evidence has been presented to discharge the burden of
proof on the employer
Mcwilliams, supra, at p 15, states that it was decided
"especially based on a close examination of the credibility
of the grievor" and on extensive evidence from a major Wlt-
,
- whose evidence was accepted, who saw some of the alle-
ness, gedly stolen product in a car belonglng to a friend of the
60
gr~evor, shortly after the grievor had approached the car and
had resisted the witness' quest~oning The board stated that
it found the ev~dence "clear and convincing".
In Durk~n, supra, at p. 5, Arbitrator Barton cited
Arbitrator Swinton in Douglas 28 LAC ( 2d) 332 (Swinton 1981)
as stating the applicable burden of proof:
the allegation of untrustworthiness carries implications
of theft or dishonesty, and consequently, the standard of
proof should be higher than the civil standard The
employer must show by clear and convincing evidence that the
employee has knowingly broken the rules and so harmed the
employer s interests It should be noted, however, that in
such cases where there has been deliberate misconduct and
, therefore untrustworthiness, the conduct mayor may not
justify discharge Where there has been breach of rules
without proof of actual dishonestly (i e theft) the
employee may be subject to discipline but not necessarily
discharge The penalty will no doubt vary with the
importance of the rule, the number of violations and the
employee s record
The board in Irwin, supra, at p 8, stated that the
standard of proof required was the civil standard and the
there is a sliding scale within the civil standard of
proof on a balance of probabilities
and stated the test as follows
The weighing of circumstantial evidence is thus
largely a process of excluding alternative possibilities
In so doing we have to take notice of what is humanly pos-
sible in the circumstances We cannot cast an onus upon the
Grievor to prove to us that there are alternatives, although
he would certainly help his own cause with every plausible
alternative he proposed Rather, the onus is still on the
Employer to prove by clear and convincing evidence that
there are no such alternatives (emphasis added)
The board In Irwin also indicated that it was "entitled to
consider the element of motive" in "dealing with this matter
as one of circumstantial evidence"
The evidence ~n Irwin, as in this case, was entirely
circumstantial The test expressed in Irwin addresses the
difficulty in cases where there is no dlrect witness to the
" alleged theft, the alleged wrongdoing is so serious and
~ e
so fundamentally undermines the trust relationship between
61
employer and employee, and the consequences to the grievor of
discharge from employment are so serious, that great care
must be taken in assessing the eVldence to ensure that the
findings of fact and the conclusions based on those findings
do not result in a person who is innocent being discharged
from hlS employment, or in an employer being required to
retain in its employ a person who is probably untrustworthy
To avoid either of these unwanted possibilities, the board in
Irwin stated that the onus remains with the employer, rather
than the grievor, to prove that there are no alternative
possibilities to its allegation that the grievor stole the
money
The requirement In Irwin that the employer prove that
there are no alternative possibilities is a "supplementary
rule" , "refinement" or "corollary" of the general statement
of the standard in proof in the other cases provided by the
partles Irwin indicates that in weighing the circumstantial
evidence and "excludlng alternative possibilities" the board
may consider "what is humanly possible in the circumstances"
In Blake, 1276/87 etc , Mr Shime stated
each decision by a panel becomes a decision of the Board
and in our opinion the standard of manifest error which is
appropriate for the private sector is not appropriate for
the Grievance settlement Board The Act does not give one
panel the right to overrule another panel or to sit on
appeal on the decisions of an earlier panel While it is
our view that the manifest error" theory is too lax a stan-
dard, we recognize that there may be exceptional circumstan-
ces where an earlier decision of this board might be review-
ed At this point we are not prepared to delineate what
constitutes exceptional circumstances and the fleshing out
of that standard will be determined on a case by case basis
The onus will be on the party seeking review to establish
exceptional circumstances
The employer did not suggest that either "exceptional circum-
stances" or "manifest error" existed, such that the test sta-
ted In Irwin, supra, warranted review Consequently this
board is obllged to apply the test in Irwin to the facts of
62
.
this case in determining whether the employer has met the
onus of proof
It may be helpful at this point to consider the defini-
tions of some of the terms used in the cases considered above
to destr1be the nature of the evidence that must be provided,
and the nature of evidence that 1S not sufficient. The Ox-
ford Encyclopedic English Dictionary defines "clear" as
follows
-free from dirt or contamination
-transparent
-lustrous, shining~ free from obscurity
-distinct, easily perceived by the senses
-unambiguous, easily understood
-manifest~ not confused or doubtful
It defines "convincing" as
-able to or such as to convince
-leaving no margin of doubt, substantial
and "convince" as
-persuade (a person) to believe or realize
It defines "cogent" as
-convincing, compelling
and "compelling" as
-rousing strong interest, attention, conviction, or
admiration
It defines "stringent" as
-strict, precise~ requiring exact performance~ leaving no
loophole or discretion
It def1nes "fragile" as
- easily broken~ weak
- of delicate constitution~ not strong
and "tenuous" as
- slight, of little substance
- (of a distinction etc ) oversubtle
Those definitions and the Irwin test will be kept 1n
mind in examin1ng the evidence
The union d1d not strongly dispute that $100 00 in rolls
of coin was discovered missing from the store safe on Satur-
63
1
day, March 1, 1997, that a further $160 00 in rolls of coin
was discovered missing from the store safe on the morning of
Tuesday, March 4, 1997, and that a further $60 00 was dis-
covered missing from the store safe on Wednesday, March 5,
1997 Consequently, minor discrepancies and areas of un-
clearness as to how the coin was determined to be missing
will not be examined.
The employer attributes the dlsappearance of $60 00 in
rolls of coin discovered missing, on the evidence, on the
morning of Wednesday, March 5, 1997, directly to the grievor
It does not attribute the disappearance of the rolls of coin
discovered missing on March 1 and 4, 1997 to him It states
that it has come to no conclusion as to who was responsible
for those rolls of coin discovered to be misslng on those
dates At this point, those disappearances remain a mystery
The evidence which points to the grievor is indeed based
upon opportunity and motive It is also based upon some
underlying assumptlons which support the theory of the
employer
1 that the grievor was present in the office and
watching the safe at all times, from the time
of Ms. Craven's departure from the store from
about 4 25 P m March 4, 1997 until all the full
-time CSRs were rung off and all the nightshift
casuals were rung on, a period of approximately
40 - 45 mlnutes, such that if any of the casual
or full-time employees had been at the safe and
removing rolls of COln, he or one of the other
employees would have seen them do so;
2 that the office was too busy at all times
between 4 25 P m and about 5 or 5 10 P m for
any other employee to have entered the safe and
taken the rolls of coin wlthout havlng been
observed by the grievor or another employee,
64
!
,
3 that the grievor was correct and/or truthful
when he said that the safe was locked when he
left for the keys,
4. that none of the casual employees had the
combinations to the safes
The evidence established that on balance of probabili-
ty, between 1 p m and 4 25 pm, Ms Craven took no lunch or
washroom break and remained in the office with the safe and
no other CSR, including the grievor, in her words, "went near
the safe" in that period I am satisfied that between 1 and
4 25 pm, the grlevor was the only person besides Ms Craven
who accessed the safe The evidence established that Mr
Bennett, Mr. Chini, and Mr. Loschiavo, who each had the
combination to the safe, remained in the store after 4 25
pm and that they and Mr Calder were "rung off" some time
between 4 25 and 5 pm., and Mr Thompson and Ms Buda were
"rung on" some time between 4 30 and 5 pm, at which time
(approximately) Ms Kosic arrived and was unable to access
her cash reglster and the grievor had to locate and obtain a
set of keys This suggests that Mr Thompson and Ms Buda
accessed their cash registers with the keys of another CSR,
not the grievor, or did not require keys to access registers
Neither the casuals nor the grievor was able to recall
with any specificity who was where and when in relation to
the safe from about 4 25 to about 5 p.m on March 4, 1997.
Their evidence was based largely on supposition Neither the
grievor nor any of the casuals indicated that they had a
clear recall of where they were and what they in fact obser-
ved during this period There is the evidence of Ms Kosic,
who carne in at 5 pm, that there were no keys to permit her
to put her tray into a cash reglster, which strongly suggests
and I conclude that all the full-tlffie CSRs except the grlevor
had left by 5 P m The evidence of the casual employees was
65
not clear as to which full-time CSR rang which full-time CSR
off and which full-time CSR(s) rang which casual off that
afternoon, and whether the grievor was in the office with the
safe at all times or out of the office for any period of time
between 4 25 to 5 or 5 10 P m The evidence did not estab-
lish that the casuals were aware at all times of what was oc-
curing in the office with the safe during that period As
neither Mr. Chini, Mr Bennett nor Mr. Loschiavo testified,
and neither entered their time of departure on the March 4,
1997 sign-in sheet (Ex 7 ) , there is no clear evidence as to
how long each remained in the store, what they were doing,
whether and when they were each in the office, and in whose
company and in whose view, and no written record of when each
of them left
Ms Kosic said that she uses the side office to count
her tray, and there is no suggestion that anyone in the side
office could see what was going on in the office with the
safe However, the evidence did not establish whether in
fact any of the casuals or the CSRs were in the side office
Ms Buda said that she received her cashier's tray from
the full-time person. Ms Kosic said that she waited for her
tray from the full-time person In contrast, the evidence of
Mr Thompson, when asked whether he went into the safe at any
time that night was that he "might have gone in to get his
box" H1S answer suggests the possibllity that at least one
casual employee, if not others, goes into the safe to obtain
his/her tray at the start of the evening shift The circum-
stances under which he and other casuals may have "gone in"
to the safe were not examined
There was no evidence establishing that the safe was
locked at all times between 4 25 and 5 p m except when a
tray or another approprlate item was belng placed into or
taken out of it The evidence of the casual employees dld
not establish with any clarity or certainty that the grlevor
66
.
was in the office at all times between 4 25 and 5 p.m Not
to put too flne a point on it, the evidence did not establish
with any clarity or certalnty that the rolls of coin went
missing between 4 25 and 5 p m. or between 4:25 p m. and the
time that the grievor left to get the keys.
The evidence did not establish whether the bundle of
$1 00 coins and the bundle of dimes from which Ms. Craven
said two rolls were mlssing on Wednesday morning, were at the
front or the back of the safe If they were located at the
back of the safe, behind and/or under other full bundles,
that would suggest that the culprit(s) would have needed more
time to remove the rolls and place the bundles at the back
If they were located closer to the front, that would suggest
that the culprit(s) required less time. In the absence of
that evidence, no conclusion can be drawn as to the relative
length of time the thief or thieves required.
As a result of the foregoing, I conclude that the eVl-
dence was not sufficient to support assumptions #1 and #2,
and therefore to exclude the alternative possibilities that
another CSR or CSRs or one or more of the casual employees
removed the rolls of coin between 4 25 P m and the time that
the grlevor left for Mr. Chini's home The evidence does
not, in my view, establish that the grievor had the greatest
opportunity to remove rolls of coin from the safe during this
period It does not, in my view, indicate that it is entire-
ly implausible or that it was "not humanly possible" that one
of the other employees could have done so without detection,
notwithstanding that such a person or persons would certainly
have been "squeezed for time"
The evidence established that the safe combination(s)
are periodlcally dlstributed on strips of paper by Ms Craven
to each of the full-time CSRs with the exception of Ms Bry-
ant It established that once distributed, there is no
system to collect them or destroy them, or to maintain those
67
I
r
strlps of paper or those combinations secure and unaccessible
to a casual employee who wished to avail him- or herself of
it by indlrect means Had such a system existed, dependlng
upon its reliablllty, that mlght have established a greater
probability that a casual employee or employees had not obt-
ained the combination(s) I conclude that the proposition/
assumption that none of the casuals had the combination to
the safe is tenuous, at best As stated in Durkin, supra,
the onus is not upon the grlevor to prove the alternative
possibility that a casual employee or ~mployees had obtained
the combination(s) Rather, the onus remains with the
employer, to provide clear and convincing evidence which
excludes that alternative possibility
Another possibility is that the grievor was mistaken or
was misrepresenting the facts when he alleged that he checked
the safe before he left for Mr. Chini's home and that the
safe was locked As the grievor's evidence on this point was
not tested, and the employer relied upon the assumption that
the grlevor's statement was correct in argument, I conclude
that the employer does not challenge the grlevor's credibili-
ty on thls point However, there is no one else's evidence
to support the grievor's No one testified that they saw him
check the safe, and no one else tested the safe to ensure It
was locked. Loglcally, the possibility remains that the
grlevor thought the safe was locked and that it was not
locked The eVldence did not, in my view, exclude this
posslbility
The evidence raised the possibility that the fifteen to
thirty minute period of time in which the grievor was absent
from the store to obtain the keys provided an ample opportu-
nity for any of the casuals, who did not recall where each of
them had been or that they had each had one another in their
view throughout the tlme that the grievor was out of the
store, to have entered the safe, partlcularly if it had been
68
f
left unlocked, but also if that person had the combina-
tion(s).
The eVl.dence was that the casuals could see "into the
office" through the window of the door The dimensions of
the window in the office door and the extent of the cashiers'
view into the offl.ce through that window was not established
in evidence The evidence did not establish clearly that
they were able to see someone at the safe through the window
and/or what the person was doing at the safe. As a result,
the evidence did not clearly and convincingly establish that
the cashiers had a clear view of the safe and could observe
whether someone was at the safe through the window of the of-
fice door. It is reasonable to and I infer from the evidence
of the casual employees that in any case they were not aware
of any reason for them to be lookl.ng through the window into
the office at any pOl.nt during the shift, and there is no
evidence that at any point during that particular shift any
of them in fact looked through the window into the office.
As well, the evidence was that when the casuals were not
at a cash register, e g when they were in the washroom or on
the floor, or in the back of the store, they could not view
the office through the window in the office door The evi-
dence also established that the storage area was accessible
to any of the staff through a back door to the office. It
was not clear whether staff could enter the office from the
storage area through the back door
Thus, the alternative possl.bility that one or more of
the casual employees removed the rolls of coin without being
detected while the grievor was out of the store cannot be
excluded any more than can the possibility that the grievor
did so during the evening without detection
r; Revisiting this point, the grl.evor's approximately fif-
,
teen to thirty-minute absence provided a period of opportuni-
69
.
ty to any casual with the combination, or without it if the
safe had been left unlocked, to have entered the office and
the safe, without being observed by his or her fellow casu-
als On the other hand, the absence of vigilant observation
by the casuals of the grievor, of one another and of the safe
during the approximately 4 1/2 hours in which he was Night
Manager and in the store where he was expected to be at the
safe from time to time, provided the grievor with the same
opportunity on March 4, 1997. However, it does not logically
follow from the fact that the grievor had a lengthier oppor-
tunity on the March 4, 1997 shift to access the safe, that it
lS more probable that the grievor, rather than any of the
other employees, took the rolls of coin.
The evidence pertaining to the grievor's gambling was
quite limited It did not set the grievor apart from any
other employee as having a compulsion and/or a greater need
or motive than any other employee to take the rolls of coin
As such, it was neither convincing nor helpful in determin-
ing the grievance
The evidence wlth respect to Mr Emmerson having over-
written his initial time of arrival on Wednesday, March 5,
1997 was insufficient to enable any conclusion to be drawn
from it As Mr Emmerson did not testify, the only evidence
as to when he and Ms. Craven arrived and what each of them
did prior to concluding that $60 00 in rolls of coin was
missing from the safe, is Ms Craven's The possibllity,
however remote, that the coin was removed that morning before
the count, was not excluded by the evidence
The conclusion which the employer drew, that the grievor
took $60 00, is also based upon assumptions regarding the
relative credibility of the employees:
a that none of the casual employees would
mlsrepresent as to whether they had the
combinations and as to their recall of the
70
events of that evening,
b that only the grievor would have been moti-
vated to mlsrepresent or fall to recall in
detail the events of the evening of March 4,
1997,
c that the other full-time CSRs who were present
in the store between 4 25 and 5 p m did not
have any information which would have been
of assistance to the board
None of these assumptions, in my view, was supported by the
evidence
There was little In the evidence of each of the casuals,
Ms Craven and the grievor which would permit a trier of fact
to assess their relative credibllity If any of the casuals
had had the combination and/or had entered an unlocked safe
and taken the rolls of coin, it is unlikely that any of them
would have admitted to the theft As stated in Canada Post,
supra, at p 143, "slight inconslstencies or minor matters
tip the scales" and at times "the slightest inconsisten-
cy is sufficient to tip the balance" The evidence in this
case, in my view, did not disclose inconsistencies which
would tlp that balance The eVldence presented was as
consistent with the conclusion that the grievor took the
rolls of coin as that some other person or persons took
them
The evidence with respect to the Aprll 2, 1997 meeting
did not establish the exact and complete questions asked, the
order in which they were asked, and the exact and complete
responses given to each question with any certainty No
concluslon as to whether the grievor took the rolls of coin
can or should be drawn from the eVldence as to the questions
he was asked and as to the responses he gave
, In my view, the insufficlencles in the eVldence are
attributable largely to the passage of several months between
71
the events which lead to the grievor's discharge and the
dates upon which they gave thelr evidence, and the fact that
the witnesses, particularly the casual employees and possibly
the grievor, dld not make speclfic observations of what was
happening at the relevant tlme or times As they did not
expect or anticipate that their specific and detailed recol-
lectlon of the events of March 4, 1997 would be required,
they cannot have been expected to have made such observa-
tlons, or to have recorded them In detall They each gave
their evidence to the best of their ability and recall
The result, in summary, is that the evidence did not
discharge the onus upon the employer, and the grievance must
therefore be upheld In view of the result, it is not
necessary to rule on the issue of whether an adverse
inference should be drawn from the failure to call certain
wltnesses
In so concluding, It should be understood that the grie-
vor is not exonerated by the evidence A "cloud" of suspi-
cion as to his trustworthiness remains over him He is not
obllged to establish who took the rolls of coin However, it
should be pointed out that the evidence did not identify any
of the store's employee(s) as the likely perpetrator(s) Ra-
ther, it raised and did not exclude alternative possibilities
which may result in a "cloud" of suspicion lingering over all
of them equally, including the grievor This is an unfortu-
nate and unenvlable state of affairs for the employer and the
employees, and it is to be hoped that no further theft occurs
as thls store, and that the mystery is eventually resolved
A further matter should be addressed by the board The
employer argued that it dlscharged the grievor for theft of
$60 00 in rolls of coin It also stated in the letter of
termlnation that the grlevor was dlscharged because he was
"responsible for the theft of LeBO funds" The union did not
argue that thls constituted a change of grounds, although
72
thlS was alluded to On the other hand, the employer did not
argue ln the alternative that if the board concluded that the
eVldence did not support the discharge, that it should
conslder an alternative form of discipllne As the parties
did not deal with this matter, the board wlll refrain from
doing so
Accordingly, the grievor is to be reinstated forthwith
without loss of compensation, seniority or benefits, and wlth
lnterest I will remaln seised with respect to
implementation
Dated at Toronto this 3rd day of January, 1998
~ '--, /- - .----.
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-c- /:;:" / / ~. . .-- "-
~~ /-_.
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, , / .-::;.-
Susan D Kaufman
Vice-Chalr ~ .~
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.
73