HomeMy WebLinkAbout2004-2746.Di Pronio.05-10-28 Decision
Crown Employees Commission de ~~
Grievance Settlement reglement des griefs
Board des employes de la
Couronne
~-,...
Suite 600 Bureau 600 Ontario
180 Dundas Sl. West 180 rue Dundas Ouest
Toronto Ontario M5G 1 Z8 Toronto (Ontario) M5G 1Z8
Tel. (416) 326-1388 Tel. (416) 326-1388
Fax (416) 326-1396 Telec. (416) 326-1396
GSB# 2004-2746
UNION# OLB649/04
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontano LIqUor Boards Employees' Umon
(DI Prom 0 ) Union
- and -
The Crown In RIght of Ontano
(LIqUor Control Board of Ontano) Employer
BEFORE Reva DevIns Vice-Chair
FOR THE UNION Larry SteInberg
Koskie Minsky LLP
BarrIsters and SOlICItorS
FOR THE EMPLOYER Gordon FItzgerald
Counsel
LIqUor Control Board of Ontano
HEARING January 1 May 5 and June 22,2005
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DeCISIon
Mr DI Promo IS a long servIce employee who was dIscharged for alleged theft. ThIS was the
gnevor's second dIscharge for honesty related mIsconduct and hIS prevIOus reInstatement was
subject to a last chance agreement. The partIes agreed that If! found that the current allegatIOn of
theft was substantIated, the gnevance should be dIsmIssed In accordance wIth the terms of the
pnor agreement. The sole Issue before me therefore IS a factual questIOn can the employer
demonstrate on a balance of probabIlItIes by clear cogent and compellIng eVIdence that the
gnevor stole $20 00 as alleged.
Background
Mr DIPromo IS 50 years old, marned and has three adult chIldren, two who stIll lIve at home and
one who IS also employed at the LCBO
Mr DI Promo began hIS employment wIth the LCBO In 1978 workIng as an assIstant manager
untIl hIS dIscharge In 2003 In accordance wIth Minutes of Settlement dated July 7 2003 the
gnevor returned to work under the folloWIng condItIOn
The Umon and the Gnevor understand and agree that the Gnevor wIll be dIscharged by
the Employer If the Gnevor commIts any future act of theft IncludIng "sweetheartIng"
wIthout the abIlIty to gneve, except for gneVIng the facts upon whIch the termInatIOn IS
based.
As provIded In the MOS Mr DI Promo was demoted and reInstated as a Customer ServIce
RepresentatIve ("CSR") He returned to work as a CSR In mId July 2003 at Store 416 where
KImberley Marshall was also employed as a casual CSR. Ms Marshall was subsequently
successful In attaInIng a permanent posItIOn and transferred to another store for a penod of
roughly ten months CommencIng the week of September 27 2004 Ms Marshall returned to
Store 416 and resumed her professIOnal relatIOnshIp wIth Mr DI Promo
Mr DI Promo testIfied that hIS relatIOnshIp wIth Ms Marshall was ImtIally 'OK' however theIr
relatIOnshIp soured after Ms Marshall returned to Store 416 In September 2004 The gnevor
testIfied that when she returned he made unprofessIOnal comments to other staff members
regardIng Ms Marshall's appearance The gnevor dId not know how or when Ms Marshall
3
heard about hIS remarks, however sometIme around October 1 2004 she confronted hIm wIth
what she had been told and he apologIzed and reassured her that It would not happen agaIn.
Ms Marshall claimed that she and the gnevor got along well She demed havIng any dIspute
wIth the gnevor pnor to October 2,2004 She was never told that Mr DI Promo had made
InsultIng comments about her appearance and she specIfically demed confrontIng the gnevor or
reCeIVIng an apology from hIm Don Darch, the store manager and LUI AquIno another CSR,
were the only other staff members from Store 416 called to testIfy NeIther was aware of any
Interpersonal dIfficultIes between KIm Marshall and the gnevor neIther was aware that Mr DI
Promo had made any negatIve or InsultIng remarks about Ms Marshall, nor dId they know of
any reason why the gnevor would have cause to apologIze to Ms Marshall
CSR duties
CSR dutIes generally Include customer servIce, cash and stockIng shelves Dunng the course of
the day employees are also responsIble for theIr own deposIts, transferrIng money from theIr tIll
Into a safe In the central office The LCBO procedure reqUIres each CSR to count theIr own
deposIt and record the totals on the deposIt envelope, along wIth the date and theIr name and
employee number Before the deposIt IS totaled, another employee counts the funds to venfy the
entry When the second count IS completed, both employees sIgn the envelope and the amounts
are entered Into the computer The relevant totals are recorded on the top flap of the deposIt
envelope and a carbon copy of the entry IS transferred onto the envelope Itself The top flap IS
detached from the envelope and placed In a box on top of the safe and the envelope, contaInIng
the cash and duplIcate record of the totals, IS put dIrectly Into the safe Once In the safe, two keys
are reqUIred to retneve the deposIt envelope one key IS kept at the store, the other IS provIded by
secunty upon pIck up
Events of October 2, 2004 - the alleged theft
On Saturday October 2, 2004 Mr DI Promo was responsIble for mornIng office dutIes,
IncludIng settIng up the cashIers wIth theIr float for the day and balancIng the precedIng day's
sales and safe deposIts The gnevor testIfied that Barb Cook, a fellow staff member asked hIm If
he had any InformatIOn about the $80 00 overage that she had dIscovered when she balanced her
deposIts on October 1 2004 The gnevor belIeved that Ms Cook approached hIm about her
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deposIt because he was responsIble for office dutIes that day and staff generally prefers to aVOId
the manager on Saturdays when managers tend to be nervous In response to her InqUIry Mr DI
Promo told Ms Cook that they wouldn't be able to tell what happened untIl secunty arnved later
that day
Ms Marshall was also workIng on October 2,2004 At approxImately 200 p.m she went Into
the office to make a deposIt. She counted the money from her regIster and recorded the number
of bIlls, by denOmInatIOn, on the cash envelope along wIth the date, her employee number and
name Mr DI Promo was In the office at the tIme and she asked hIm to double count her deposIt.
Ms Marshall testIfied that she watched Mr DI Promo count her cash and that he subsequently
confirmed that her totals were accurate
Once the gnevor venfied her denOmInatIOn totals, Ms Marshall began to tally the total amount
of her deposIt. She was seated at the counter besIde the safe and was surpnsed to see Mr DI
Promo walk away wIth her cash stIll In hIS left hand. She approached hIm from behInd to gIve
hIm her deposIt envelope when she clearly saw hIm pocket $20 00 wIth hIS nght hand. The
gnevor turned around, took the deposIt envelope from her sIgned the envelope confirmIng that
he had counted the cash and told her that he couldn't log the deposIt Into the computer nght
away but would enter It when the computer was free When she handed hIm the deposIt
envelope he reacted In a manner that caused her to belIeve that "he probably knew that I saw
somethIng" Two other employees, LUI AquIno and BIll Hope were also In the office, facIng the
other dIrectIOn, throughout thIS exchange Ms Marshall testIfied that she was shocked by what
she saw and she ImmedIately left the office
Ms Marshall dId not say anythIng to the gnevor or confront hIm before leavIng; she was too
upset and hurt. After she left the office, she ImmedIately approached Don Darch, the store
manager to report what she had wItnessed. They went Into the backroom and Ms Marshall
advIsed Mr Darch that she had just completed her deposIt and that she saw Nick DI Promo put
$2000 from her deposIt Into hIS pocket. Ms Marshall wanted Mr Darch to count her deposIt
when secunty arnved.
Mr Darch testIfied that he was approached by Ms Marshall and advIsed that she had wItnessed
the gnevor steal funds from her deposIt. He descnbed Ms Marshall as VISIbly upset when she
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first approached hIm she was shakIng, nervous, had a tWItch In her VOIce and was on the verge
of tears Mr Darch dId not, however offer her an opportumty to leave, nor dId he gIve her any
other extraordInary consIderatIOn at thIS tIme Mr Darch subsequently went to the office and told
Mr AquIno and Mr DI Promo that there were a couple of deposIts he wanted to check and that
they should notIfy hIm when secunty arnved. He dId not IdentIfy whIch deposIts were of
Interest.
After speakIng to Mr Darch, Ms Marshall went out back for a cIgarette to regaIn her
composure She testIfied that whIle takIng her break, the gnevor approached her and asked If
everythIng was all nght. He mentIOned that he had seen her speakIng to Don Darch and he asked
If her deposIt was okay or was It too bIg. Ms Marshall dId not want to talk to the gnevor and so
she told hIm that everythIng was fine Before fimshIng her shIft, Ms Marshall balanced the day's
transactIOns and proceeds from her cash regIster and calculated that she was over by ten cents
Ms Marshall completed her regular ShIft and left the store at 5 00 p.m She dId not report her
further contact wIth Mr DI Promo before leavIng for the day
On cross eXamInatIOn, Ms Marshall was steadfast In her eVIdence that she wItnessed the gnevor
put money from her cash deposIt Into hIS nght, front pocket. Ms Marshall was aware that the
employer had prevIOusly dIscIplIned Mr DI Promo Although she dId not know the preCIse
detaIls, she thought that he had been In trouble and was now at the store on probatIOn.
Mr DI Promo demed takIng any money from KIm Marshall's deposIt. He also demed
approachIng Ms Marshall that afternoon or enqumng about her conversatIOn wIth the store
manager He recalls gOIng Into the office and seeIng Ms Marshall prepanng her deposIt. Other
staff were In the office at the tIme but no one was double countIng to venfy her totals It was a
very busy day wIth customers lIned-up and the gnevor testIfied that he wanted to ensure that Ms
Marshall got back on the retaIl floor as qUIckly as possIble to serve the customers Consequently
he dId not actually count Ms Marshall's deposIt but just went through the motIOns before tellIng
Ms Marshall that she could put the cash In the safe and return to the floor
Mr DI Promo also demed approachIng Ms Marshall whIle she was on break. He testIfied that he
dId not have any contact wIth Ms Marshall after she completed her deposIt. On cross-
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eXamInatIOn he was InSIstent that he dId not have any commumcatIOn wIth Ms Marshall after
she made her deposIt and that her testImony to the contrary was untrue
October 2, 2004 - events after Di Pronio and Marshall complete their shift
Once Ms Marshall completed her ShIft, Mr Darch checked the consolIdated deposIt report and
her balance sheet and confirmed that she had accurately recorded the amount of cash she
receIved that day Mr Darch was satIsfied that the entnes recorded In Ms Marshall's deposIt
envelopes substantIally corresponded to the amount of cash she claimed to have receIved and
then tendered In the same penod.
The gnevor testIfied that dunng the day he had asked Don Darch Ifhe could help count Barb
Cook's deposIt. He told Mr Darch that Barb Cook had "confronted hIm" about her deposIt from
the day before and he asked Ifhe could help count the funds when secunty arnved later In the
day He was unaware at the tIme that Mr Darch also wanted to count KIm Marshall's deposIt.
Mr Darch dId not recall thIS dIscussIOn nor dId he remember any occaSIOn when Mr DI Promo
told hIm that he wanted to be around when Barb Cook's deposIt was checked.
When secunty arnved to pIck up the day's deposIts, Don Darch retneved KIm Marshall's deposIt
envelope as well as Barb Cook's He counted Ms Cook's deposIt first and found that It was
accurate He then proceeded to count the contents ofMs Marshall's envelope, he counted It first
In front of LUI AquIno and Mr AquIno then recounted It. The results of both counts confirmed
that the envelope contaIned one $20 00 bIll less than was IndIcated In the recorded total
Mr Darch ImmedIately notIfied Jeff Misener the DIstnct Manager adVISIng hIm of what he had
been told by Ms Marshall and the results of hIS recount whIch confirmed that the deposIt was
$20 short. Mr Darch also spoke to Ms Marshall and asked her to wnte out an IncIdent report.
She prepared the folloWIng report and submItted It on October 4 2004
On Saturday Oct. 2/04 I went Into the office to make a deposIt
I counted my deposIt, I had 56 x $20 00 3 x $50 00 1 x $100 00
I asked Nick to double check my deposIt Nick said to me It was okay and walked away
wIth my depoSIt. I turned to gIve hIm my envelope and saw $2000 In hIS nght hand
gOIng In hIS pocket, whIch I thought was strange I left the office saw Don explaIned
what happened and asked hIm to check my deposIt.
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That evemng Mr AquIno was workIng as the ShIft leader He recalled reCeIVIng two phone calls
FIrst, Mr DI Promo phoned and asked whether they had found Barb Cook's money Mr AquIno
told hIm that he was too busy to talk and he would speak to hIm the next day when they were
both at work. The call was very bnef and accordIng to Mr AquIno nothIng else was raised by
the gnevor dunng theIr conversatIOn. Mr AquIno noted that Mr DI Promo also asked about
Barb Cook's deposIt the next day at the store
Don Darch also called the store to check on Mr AquIno They had recently Installed a new
computenzed cash regIster system and thIS was the first occaSIOn that It was beIng used wIthout
traIners avaIlable to provIde assIstance Mr Darch called the store to ensure that the system was
operatIng properly Mr AquIno told hIm that the new system was fine and he mentIOned that
Mr DI Promo had called to see IfMr Darch had found what he was lookIng for In the deposIt
envelopes Don Darch and LUI AquIno both testIfied that they thought It somewhat unusual that
the gnevor would call as he was not runmng the ShIft and he dId not have any managenal
responsIbIlItIes
Mr DI Promo admItted callIng the store that evemng but said that hIS pnmary purpose was to see
how Mr AquIno was makIng out wIth the new computer system SInce he already had hIm on
the phone, Mr DI Promo also asked about Barb Cook's deposIt as he promIsed her he would. In
describIng the phone call, the gnevor explaIned that he was "just shoWIng concern for another
employee" and tryIng to demonstrate ImtIatIve He was very eager to return to hIS former
posItIOn and had recently met wIth the RegIOnal DIrector to see If he could reapply for a posItIOn
as an assIstant manager The gnevor belIeved that It had been a productIve meetIng and that
there mIght be opemngs the folloWIng spnng. He was very keen to conVInce management that he
was capable of returnIng to hIS former posItIOn and was tryIng to demonstrate hIS value
Investigation and discharge
By letter dated October 5 2004 Mr DI Promo was relIeved from duty wIth pay pendIng an
InVestIgatIOn of the alleged theft. Mr DI Promo responded by letter dated October 8 2004 and
demed any knowledge of an Improper deposIt or theft ofLCBO funds He advIsed that he was
prepared to meet wIth management and that he wIshed Steve Saysell, of OLBEU to partIcIpate
and represent hIm In any meetIng that mIght take place as a consequence of the LCBO' s
InVestIgatIOn.
8
Lou RecchI was assIgned as actIng DIstnct Manager whIle Jeff Misener the DIstnct Manager
was away Mr RecchI conducted the InVestIgatIOn Into the gnevor's alleged theft and
IntervIewed the gnevor KIm Marshall, Don Darch and LUI AquIno He had not met the gnevor
before and was unaware that he had been prevIOusly dIscIplIned or that he was subject to a last
chance agreement. Pnor to commenCIng hIS actIng assIgnment he was advIsed that $20 00 was
mISSIng from a cashIer's deposIt at Store 416 and that KIm Marshall and Nick DI Promo were
the two employees Involved. He belIeves he also receIved the wntten statement prepared by KIm
Marshall and a copy of the NotIce ofIntended DIscIplIne Dunng the IntervIews, he took notes
and generally asked each person for theIr verSIOn of events, askIng a few questIOns for
cl anfi catIOn. He dId not have a set scnpt and the IntervIew was not conducted as a formal
questIOn and answer seSSIOn.
A pre-dIscIplInary meetIng was held on October 13 2004 wIth Shelly McIntyre, an HR advIsor
Nick DI Promo Steve Saysell and Lou RecchI At the meetIng, the gnevor was asked to respond
to the allegatIOn that he stole $20 He said that he knew nothIng about It and felt that Ms
Marshall accused hIm of stealIng because she was offended by the negatIve comments he made
about her appearance Although he had apologIzed, he belIeved that she was now tryIng to get
back at hIm
Dunng hIS IntervIew Mr DI Promo ImtIally Said that he had counted Ms Marshall's deposIt and
that the totals were accurate when the envelope was placed In the safe Dunng the course of the
IntervIew the deposIt procedure was explaIned In some detaIl to Steve Saysell The gnevor
subsequently admItted that he was not sure Ifhe had In fact counted KIm Marshall's deposIt. Mr
DI Promo was also unsure Ifhe had called the store that evemng, however he belIeved that Ifhe
had called It was to InqUIre about Barb Cook's deposIt.
At ArbItratIOn, the gnevor testIfied that he was worned at hIS pre-dIscIplInary meetIng about
admIttIng that he had not performed hIS dutIes as reqUIred. He had been counseled In the past for
faIlIng to follow the proper procedures and he dId not want to admIt that he contInued to Ignore
the reqUIrement of properly double countIng all deposIts When he fully apprecIated the seventy
of hIS sItuatIOn, he realIzed that he had to tell the truth and so he confessed to not countIng Ms
Marshall's deposIt before he sIgned off Mr DI Promo InsIsted that Ms Marshall was mIstaken
9
when she said that she saw hIm perform the count; It mIght have appeared to her that he was
countIng, however he was really only gOIng through the motIOns Mr DI Promo dId not know
why Ms Marshall would say that she saw hIm pocket $20 00 The only explanatIOn that occurred
to hIm IS that It was to get back at hIm for the comments he made about her appearance
Mr RecchI also IntervIewed KIm Marshall, LUI AquIno and Don Darch. It was at thIS meetIng
that Ms Marshall first mentIOned that Mr DI Promo had approached her whIle she was havIng a
cIgarette Ms Marshall dId not Include thIS IncIdent In her ImtIal wntten report and she had not
reported It to Mr Darch at the tIme that It occurred. At ArbItratIOn, Ms Marshall was asked to
compare the detaIls set out In her ImtIal wntten statement wIth the InfOrmatIOn provIded at her
IntervIew WIth Mr RecchI She explaIned that she had prepared the first document at home on
her own and that she had Just Included the basIc detaIls of what she had wItnessed. It was only In
response to more extensIve questIOmng at her IntervIew that she provIded greater detaIls of the
events of that day
Mr RecchI turned over the results of hIS InVestIgatIOn and hIS IntervIew notes to Jeff Misener
On October 25 2004 Mr Misener sent Mr DI Promo a dIscharge letter adVISIng that "After
InVestIgatIng thIS matter I have concluded that you faIled to correctly follow the LCBO's
polIcIes pertaInIng to deposIts, faIled to provIde a satIsfactory explanatIOn In response to the
allegatIOns, provIded InCOnsIstent statements, and were responsIble for the theft ofLCBO funds
on October 2,2004" In accordance wIth the Last Chance Agreement entered as a term of
Minutes of Settlement, Mr DI Promo's employment wIth the LCBO was termInated effectIve
ImmedIately In the alternatIve, Mr Misener also concluded that Mr DI Promo was termInated
for Just cause
Submissions
On behalf of the LCBO It was submItted that thIS matter was to be determIned In accordance
wIth the ordInary cIvIl standard of balance of probabIlItIesI The Employer acknowledged that In
cases where senous mIsconduct IS alleged It must be proven by clear and cogent eVIdence,
however It was submItted that a credIble eyewItness account can provIde a sufficIent basIs for
1 Re lndusmin Ltd. 4nd [Tnited Cement, Lime and G"psum Workers (1978),20 L.A.C (2d) 87 Re 'lteel Co of
Canada and [ 'l. W 4. Loc.l005 (1991), 21 L.A.C (4th) 242 Re McMaster [Tniversin and 'l.E.I [ Lac 532 (2000),
86 LAC (4th) 129
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such a findIng2 FInally In assessIng the credIbIlIty of the wItnesses before me, I must consIder
theIr eVIdence In lIght of all of the facts and CIrcumstances dIsclosed In thIS partIcular case and
determIne whether It IS In 'harmony wIth the preponderance of probabIlItIes,3
Counsel submItted that the Employer has met ItS burden of proof and that there was clear and
compellIng eVIdence to support a findIng that Mr DI Promo stole $20 00 from KIm Marshall's
deposIt on October 2, 2004 Ms Marshall was adamant In her testImony that she wItnessed the
gnevor pocket $20 00 she was not shaken on cross eXamInatIOn and her eVIdence had the nng of
truth to It. Moreover there was absolutely no reason why Ms Marshall would lIe to IncnmInate
the gnevor She demed that she had expenenced any dIfficultIes wIth Mr DI Promo and none of
the other wItnesses were aware of any conflIct between them The gnevor's suggestIOn that she
was gettIng back at hIm for negatIve comments that he made about her appearance was a total
fabncatIOn. NothIng specIfic was put to Ms Marshall and no other wItnesses were called to
support the gnevor's verSIOn of events
Ms Marshall ImmedIately reported the alleged theft and was VISIbly upset when she spoke to the
store manager Her deposIt was kept In a secure sIte the safe where deposIts are kept was
InaccessIble and a subsequent count by the store manager and another employee confirmed that
$2000 was mISSIng from her deposIt.
In the Employer's submIssIOn, all of the gnevor' s conduct was consIstent WIth hIS gUIlt he
approached Ms Marshall when he was worned that she mIght have reported hIm to the store
manager he called the store that evemng wIthout any credIble JustIficatIOn, he changed hIS
verSIOn of events both wIth regard to whether he actually counted Ms Marshall's deposIt and In
recountIng why he called the store that evemng. Moreover the gnevor faIled to call any eVIdence
to corroborate hIS verSIOn of events He dId not call Barb Cook to support hIS explanatIOn that he
promIsed her he would check on her deposIt nor dId he call any wItnesses to establIsh that he had
made dIsparagIng comments about Ms Marshall In the Employer's submIssIOn, the gnevor's
faIlure to corroborate hIS verSIOn of events IS sIgmficant and a negatIve Inference should be
drawn from hIS faIlure to do so
2 Re Lohlaws 'lupermarket Ltd. 4nd [.F C TV Loc 175 (1994), 45 L.A.C (4th) 120' Cara Operations Ltd. 4nd
H.E.RE Loc 75 (1992), 31 L.A. C (4th) 1 Re Treasun Board ('lolicitor General Canada - Correctional 'lervice)
and Renaud (2002),106 LAC (4th) 371
3 Re Treasun Board, supra' Farvna v Chornn (1952) 2 D.L.R. 354 (B C c.A.)
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FInally It was submItted that although It IS surpnsIng that the gnevor would JeopardIze hIS Job
for a relatIvely small sum of money all of the eVIdence supports that conclusIOn. An eyewItness
offered credIble testImony that he took $20 00 and her eyewItness account was venfied by a
subsequent count of her deposIt. In contrast, the gnevor' s behavIOr was consIstent WIth hIS gUIlt
and he faIled to adduce any Independent corroboratIOn that supports hIS demal of the allegatIOns
agaInst hIm In the Employer's submIssIOn, there IS clear and cogent eVIdence to establIsh on a
balance of probabIlItIes that Mr DI Promo stole $20 00
The Umon dId not dIspute the Employer's statement of the legal basIs upon whIch thIS matter
was to be determIned the applIcable standard of proof was a cIvIl standard, however clear and
cogent eVIdence was reqUIred to support a findIng of theft. In the Umon's VIew the eVIdence In
thIS case was neIther clear nor cogent. Enough questIOns were raised to undermIne the
Employer's eVIdence that It dId not afford a sufficIent eVIdentIary foundatIOn to determIne that
the gnevor stole LCBO funds as alleged.
In counsel's submIssIOn, one must ask why a 50 year old employee on a last chance agreement,
would nsk hIS career for a mere $20 00 The office In questIOn was small and there were at least
three other staff members reported to be In the office when the gnevor allegedly pocketed the
funds If the gnevor was Intent on stealIng, he had a much more secure opportumty to do so
earlIer In the day when he was prepanng the cash floats In the absence of any wItnesses
Mr DI Promo's efforts to regaIn hIS former posItIOn of assIstant manager must also be
consIdered In assessIng the eVIdence In partIcular hIS phone call to LUI AquIno should be
understood as part of an ongOIng effort to demonstrate hIS value and ImtIatIve Mr AquIno
confirmed Mr DI Promo's explanatIOn that he only asked about Barb Cook's deposIt and there
was no eVIdence that he referred In any way to KIm Marshall's deposIt. It would be Improper to
Infer an Impure motIve In these CIrcumstances
KIm Marshall was the only wItness of substance and her testImony raises real concerns The
IncIdent report that she prepared on the mght of the alleged theft dId not Include the allegatIOn
that Mr DI Promo approached her after she reported hIm to the store manager Her ImtIal
statement was also sIlent about whether the gnevor actually counted her deposIt and whIch
12
pocket, nght or left, the gnevor used to conceal the cash. These omISSIOns are sIgmficant and, In
the Umon's submIssIOn, gIve reason to senously questIOn the truthfulness ofMs Marshall's
statements
Ms Marshall's eVIdence IS also Internally InCOnsIstent. Although she claimed that she was very
upset and ImmedIately reported her allegatIOns to Mr Darch, she dId not mentIOn that the gnevor
approached her later that day The first tIme that Ms Marshall recounted thIS IncIdent was
several days later when she was IntervIewed as part of management's InVestIgatIOn Into her
allegatIOns Her delay In reportIng thIS epIsode IS InCOnsIstent WIth her prevIOUS reactIOn of
ImmedIately contactIng the store manager to appnse hIm of her concerns
It was further submItted that In gIVIng her VIve voce eVIdence, Ms Marshall often overplayed her
reactIOn, for example saYIng that she was "shocked" and "couldn't get anythIng out" after she
saw the gnevor steal part of her deposIt. In the Umon' s submIssIOn a close eXamInatIOn of her
testImony supports the conclusIOn that she tended to exaggerate what she saw and how she felt.
FInally wIth respect to the key portIOn ofMs Marshall's eVIdence she acknowledged that Mr
DI Promo's back was to her when she claims that she observed hIm place her funds In hIS pocket.
By her own admIssIOn, Ms Marshall would have had a lImIted VIew of the gnevor's actIOns and,
In lIght of her tendency to exaggerate, the relIabIlIty of her observatIOns must be vIewed wIth
skeptIcIsm
UltImately when Ms Marshall's eVIdence IS vIewed as a whole, her credIbIlIty IS suspect she
tended to exaggerate her eVIdence her capacIty to observe the alleged theft was by her own
admIssIOn obstructed and her report of events changed over tIme
By contrast, the gnevor's eVIdence was gIven In a clear and straightforward manner He
acknowledged that he made a ternble mIstake when he ongInally said that he had counted Ms
Marshall's deposIt and he subsequently admItted that he had not. He had been an assIstant store
manager for 17 years, had been demoted to CSR and was desperate to reclaim hIS former
posItIOn. When placed In context, the gnevor's conduct IS not consIstent WIth theft as suggested
by the Employer but IS reflectIve of a long servIce employee who was eager to demonstrate that
he was keen, responsIble and ready to go above and beyond what was reqUIred.
13
In the Umon's submIssIOn, the employer has not demonstrated by clear and conVInCIng eVIdence
that the gnevor stole $20 00 The Umon therefore seeks hIS reInstatement wIth full compensatIOn
for hIS losses
Analysis
There IS no doubt that there IS much about thIS case that IS perplexIng. The gnevor IS a mature
man WIth sIgmficant responsIbIlItIes He has worked for the LCBO for many years and he has
already been dIscIplIned for honesty related mIsconduct. The gnevor was reInstated and demoted
on the express understandIng that he would be dIscharged wIthout recourse Ifhe engaged In any
further acts of dIshonesty Mr DI Promo has now been dIscharged for takIng $20 00 In
CIrcumstances that were clearly hIgh nsk. he IS accused of stealIng from another employee's cash
deposIt whIle she and two other employees were In the room It appears IncomprehensIble that an
employee mIght end a lengthy career for such a relatIvely small sum and In such a careless
manner Nonetheless, another employee claims she wItnessed the theft and management relIed
upon her report and the surroundIng CIrcumstances to dIscharge the gnevor As accepted by the
partIes, the Issue before me IS not whether the conduct If proven warrants termInatIOn. Rather
the questIOn IS purely factual has the Employer establIshed that the gnevor engaged In theft?
The partIes have agreed on the applIcable legal pnncIples The Employer bears the burden of
establIshIng the alleged mIsconduct on a cIvIl standard of a balance of probabIlItIes GIven the
gravIty and nature of the allegatIOns, the eVIdence must be 'clear cogent and compellIng' In
order to sustaIn a findIng that the gnevor stole from the LCBO as alleged. FInally the partIes
accept that "the real test of the truth of the story of a wItness must be ItS harmony wIth the
preponderance of the probabIlItIes whIch a practIcal and Informed person would readIly accept as
reasonable In that place and In those condItIOns,,4
In thIS case, I am satIsfied, based on a balance of probabIlItIes, that the gnevor took $20 00 from
KIm Marshall's deposIt on October 2,2004 I accept the testImony ofMs Marshall as a credIble
eyewItness account of the theft and find It IS 'In harmony wIth the preponderance of
probabIlItIes' Ms Marshall descnbed how she prepared her deposIt In accordance wIth the
standard procedure She dId the first count and then asked the gnevor to venfy her entry by
performIng a double count. She saw hIm count her money and then walk away wIth her cash.
4Farvna v Chornn supra at 356
14
Although Mr DI Promo had hIS back to Ms Marshall, I accept that she approached hIm from
behInd, was In close proxImIty and could stIll see what he was dOIng. Ms Marshall had no doubt
that she saw the gnevor put $20 00 Into hIS pant pocket. She ImmedIately reported the theft to
her supervIsor and provIded a consIstent report of what she wItnessed as she retold her verSIOn of
events to her supervIsor to the actIng DIstnct Manager and at thIS arbItratIOn. All of the
eVIdence, wIth the exceptIOn of the gnevor's testImony supported her account.
Don Darch, the store manager confirmed that Ms Marshall was very upset when she told hIm
what she wItnessed and he venfied that $20 00 was mISSIng from her deposIt. He compared her
balance sheets, deposIt record and the consolIdated report and was satIsfied that the amount that
she entered on her deposIt envelope was substantIally the same as the amount tendered to her by
customers The deposIt In questIOn was placed In a secure safe wIthout access untIl secunty
arrIved later In the day When the deposIt was retneved, Mr Darch venfied the contents wIth the
assIstance of another employee and determIned that $20 00 was mISSIng.
I am satIsfied on the basIs of all the eVIdence that the shortage was not due to a countIng error or
other Innocent cause I accept the eVIdence of Don Darch and LUI AquIno that a $20 00 bIll was
mISSIng from Ms Marshall's deposIt envelope ThIS conclusIOn IS supported by theIr
Independent venficatIOn and by the consolIdated report, the relevant balance sheet and deposIt
entnes Indeed, no other explanatIOn was advanced and It appeared to be accepted by all the
partIes that there was a $20 00 shortfall In the funds deposIted by Ms Marshall on October 2,
2004
Counsel for the Umon suggested that Ms Marshall's testImony was suspect because her ImtIal
report was not as detaIled as her later descnptIOn of events, that she tended to exaggerate and that
she dId not respond consIstently on the day In questIOn. I am not persuaded by these submIssIOns
Although Ms Marshall's ImtIal wntten report was abbrevIated, I do not consIder that surpnSIng
In lIght of the CIrcumstances In whIch her statements were made Ms Marshall prepared her
wntten statement by herself, at home wIth vIrtually no dIrectIOn beyond a request from her
manager that she wntes out an IncIdent report. She subsequently provIded a more fulsome
account when she was questIOned, In person as part of an InVestIgatIOn Into her allegatIOns She
was not shaken on cross-eXamInatIOn and she was adamant that she had both the capacIty and
15
opportumty to observe the gnevor's actIOns There IS no doubt, as was conceded by the wItness,
that her recollectIOn of events would have been fresher on the day In questIOn. She dId not,
however provIde dIfferent or InCOnsIstent versIOns of what transpIred, she merely expanded on
her ImtIal account In response to dIrect questIOns I apprecIate that It would have been helpful If
she were asked to provIde a more detaIled account when she wrote out her ongInal IncIdent
report, however the two accounts are not In conflIct and the comparatIve level of detaIl IS
consIstent WIth the CIrcumstances In whIch they were produced.
As to the suggestIOn that Ms Marshall tended to exaggerate, I do not accept thIS charactenzatIOn
of her eVIdence nor do I questIOn the appropnateness of her response Employees In the retaIl
Industry fully understand the sIgmficance and ImplIcatIOns of dIshonesty In the workplace To
wItness a fellow employee steal from the employer and In a very real sense, be potentIally at nsk
for beIng ImplIcated In that theft, would undoubtedly unnerve any employee Ms Marshall
would have been put In a very dIfficult posItIOn and It IS not surpnSIng that she was shocked and
dumb founded by what she saw I do accept that, gIven her ongInal reactIOn and approach to Don
Darch, one mIght have expected that she would sImIlarly let hIm know that the gnevor
approached her whIle she was out back. However she dId not suggest that the gnevor threatened
her or made any dIrect reference to what she mIght have seen. Although dIstreSSIng to her thIS
IncIdent does not compare to what she wItnessed In the office and It was perfectly reasonable for
her to complete her ShIft wIthout further reportIng to her manager
The gnevor suggested that Ms Marshall was motIvated to lIe by dIsparagIng comments that he
made about her appearance I do not accept hIS explanatIOn. The gnevor's account was vague
and unsubstantIated. He faIled to provIde any detaIls whatsoever he dId not provIde partIculars
of the comments he made, to whom he made them, when he made them or the CIrcumstances In
whIch they were made Ms Marshall demed beIng told about any negatIve comments and demed
that she confronted the gnevor The other wItnesses, who worked at the same retaIl sIte,
IncludIng the store manager were unaware of any InsultIng comments or that Ms Marshall and
Mr DI Promo were feudIng. Although theIr lack of knowledge does not prove that Mr DI Promo
dId not Insult Ms Marshall, I would have expected that eIther hIS manager or hIS co-worker
mIght have heard rumors of a conflIct IfMs Marshall had confronted the gnevor In the manner
that he descnbed.
16
In any event, despIte hIS own assertIOn that he made hIS comments about Ms Marshall to other
employees, no other wItnesses were called to support the gnevor's verSIOn of events The
deficIencIes In Mr DI Promo's eVIdence, the absence of any eVIdence to corroborate hIS claim
and the contrary eVIdence offered by Ms Marshall all support my reJectIOn ofMr DI Promo's
testImony on thIS pOInt.
Much ofMr DI Promo's eVIdence was fraught wIth dIfficulty He appeared to change hIS
account of events whenever It best served hIS needs For example, he ongInally told hIS employer
that he counted Ms Marshall's deposIt and that It was accurate He subsequently changed hIS
story and claimed that he dIdn't actually count her cash because he was In a hurry to get her back
onto the floor The gnevor' S explanatIOn for hIS ongInal statement was that he dId not want hIS
employer to know that he had once agaIn faIled to perform the reqUIrements of hIS Job He had
already been warned about not double countIng deposIts and he dId not want to admIt that he
contInued to Ignore thIS dIrectIve It was only when he realIzed that the consequences were worse
Ifhe dId not 'confess' that he told hIS employer the truth. Taken at face value, whether or not Mr
DI Promo counted the deposIt before he sIgned off on the envelope, he was, by hIS own
admISSIOn, prepared to tell hIS employer whatever verSIOn was most lIkely to gaIn theIr
confidence
SImIlarly dunng hIS ImtIal IntervIew he said that he wasn't sure Ifhe phoned the store the
evemng of the alleged theft, however Ifhe dId, he was certaIn that It was only to check on Barb
Cook's deposIt. Mr AquIno confirmed thIS account when he recalled a very bnef phone call
dunng whIch the gnevor asked about Barb Cook's deposIt. At arbItratIOn, the gnevor provIded a
new explanatIOn, he testIfied that the pnmary reason for hIS call was to see how the staff was
makIng out wIth the new computer system It was only as an aSIde that he InqUIred about Ms
Cook's deposIt. The phone call Itself was rather strange and I find It hIghly unusual that an
employee wIthout managenal responsIbIlItIes would take the tIme on a Saturday mght when he
was not workIng to call and check on another employee's deposIt. I do not, however rely on the
call to support a findIng that Mr DI Promo engaged In mIsconduct. The change In the
explanatIOn that he provIded to clanfy why he made the callIs, however another example of the
gnevor changIng hIS account of events
17
Nor am I persuaded by counsel's suggestIOn that Mr DI Promo's conduct IS entIrely Innocent
and sImply explaIned by hIS desIre to reclaim a management posItIOn. That explanatIOn IS
InCOnsIstent WIth hIS claim that he dId not double count Ms Marshall's funds even though he had
been counseled about thIS faIlure In the past and does not adequately explaIn the flUId nature of
hIS explanatIOn of events I do not doubt that the gnevor wanted to return to hIS former posItIOn
or that he was In some Instances motIvated by that obJectIve I have already concluded that I
would not rely on Mr DI Promo's phone call to the store to ask about the result of the recount as
eVIdence of hIS gUIlt. His career obJectIves mIght account for makIng a call to the store on hIS off
hours, however It does not affect my conclusIOn that the explanatIOns for the call offered by the
gnevor changed over tIme and was IndIcatIve of a pattern ofunrelIabIlIty
UltImately It IS Impossible to know why the gnevor would JeopardIze hIS employment gIven the
sum of money Involved. The apparent IncomprehensIbIlIty of hIS conduct, however does not
provIde a sufficIent basIs to undermIne the cogency or the force of the eVIdence tendered by the
employer I accept Ms Marshall's eyewItness account as a credIble and compellIng account of
the gnevor's mIsconduct and I do not find hIS eVIdence that she had a motIve to lIe to be
credIble All of the surroundIng CIrcumstances support Ms Marshall's verSIOn of events and are
InCOnsIstent WIth the eVIdence offered by the gnevor On the basIs of my reVIew of the eVIdence
as a whole, I am satIsfied on a balance of probabIlItIes that there IS clear and compellIng
eVIdence to find that the gnevor stole LCBO funds on October 2, 2004 The gnevance IS
dIsmIssed and the dIscharge ofMr DI Promo IS upheld.
Dated at Toronto thIS 28th day of October 2005
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Reva DeVInS
Vice-Chair