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HomeMy WebLinkAbout2004-2746.Pronio.06-10-28 Decision (!l .,. --~ Crown Employees Commission de Ni - Grievance Settlement reglement des griefs Board des employes de la Couronne ~ Suite 600 Bureau 600 OntarIo 180 Dundas S1. West 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. : (416) 326-1388 Fax (416) 326-1396 Telk : (416) 326-1396 GSB# 2004-2746 UNlON# OLB649/04 V .- IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN o /-8 - b '{,1- 0 'f Ontario Liquor Boards Employees' Union (Di Pronio) Union - - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEFORE Reva Devins Vice-Chair FOR TI-lli UNION Larry Steinberg Koskie Minsky LLP Barristers and Solicitors FOR THE EMPLOYER Gordon Fitzgerald Counsel Liquor Control Board of Ontario HEARING January 1, May 5 and June 22,2005. ~ 2 -... Decision Mr. Di Pronio is a long service employee who was discharged for alleged theft. This was the grievor's second discharge for honesty related misconduct and his previous reinstatement was subject to a last chance agreement. The parties agreed that if I found that the current allegation of theft was substantiated, the grievance should be dismissed in accordance with the terms of the prior 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 grievor stole $20.00, as alleged. Background Mr. DiPronio is 50 years old, married and has three adult children, two who still live at home and one who is also employed at the LCBO. Mr. Di Pronio 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 grievor returned to work under the following condition: The Union and the Grievor understand and agree that the Grievor will be discharged by the Employer if the Grievor commits any future act of theft including "sweethearting", without the ability to grieve, except for grieving the facts upon which the termination is based. As provided in the MOS, Mr. Di Pronio 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 period 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 Pronio. Mr. Di Pronio testified that his relationship with Ms. Marshall was initially 'OK', however, their relationship soured after Ms. Marshall returned to Store 416 in September 2004. The grievor testified that when she returned he made unprofessional comments to other staff members regarding Ms. Marshall's appearance. The grievor 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 grievor got along well. She denied having any dispute with the grievor prior to October 2, 2004. She was never told that Mr. Di Pronio had made insulting comments about her appearance and she specifically denied confronting the grievor 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 grievor, neither was aware that Mr. Di Pronio had made any negative or insulting remarks about Ms. Marshall, nor did they know of any reason why the grievor would have cause to apologize to Ms. Marshall. CSR duties CSR duties generally include customer service, cash and stocking shelves. During 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 verify 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 retrieve the deposit envelope: one key is kept at the store, the other is provided by security upon pick up. Events of October 2, 2004 - the alleged theft On Saturday, October 2,2004, Mr. Di Pronio 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 grievor 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 I, 2004. The grievor believed that Ms. Cook approached him about her 4 .- ~~- 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 Pronio told Ms. Cook that they wouldn't be able to tell what happened until security arrived later that day. Ms. Marshall was also working on October 2, 2004. At approximately 2:00 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 Pronio was in the office at the time and she asked him to double count her deposit. Ms. Marshall testified that she watched Mr. Di Pronio count her cash and that he subsequently confirmed that her totals were accurate. Once the grievor verified 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 surprised to see Mr. Di Pronio 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 right hand. The grievor 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 right 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 grievor 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 Pronio put $20.00 from her deposit into his pocket. Ms. Marshall wanted Mr. Darch to count her deposit when security arrived. Mr. Darch testified that he was approached by Ms. Marshall and advised that she had witnessed the grievor steal funds from her deposit. He described Ms. Marshall as visibly upset when she - 5 - 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 opportunity 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 Pronio that there were a couple of deposits he wanted to check and that they should notify him when security arrived. 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 grievor approached her and asked if everything was all right. 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 grievor and so she told him that everything was fine. Before finishing 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 Pronio before leaving for the day. On cross examination, Ms. Marshall was steadfast in her evidence that she witnessed the grievor put money from her cash deposit into his right, front pocket. Ms. Marshall was aware that the employer had previously disciplined Mr. Di Pronio. 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 Pronio denied taking any money from Kim Marshall's deposit. He also denied approaching Ms. Marshall that afternoon or enquiring about her conversation with the store manager. He recalls going into the office and seeing Ms. Marshall preparing her deposit. Other staff were in the office at the time but no one was double counting to verify her totals. It was a very busy day with customers lined-up and the grievor 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 Pronio also denied 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- 6 examination he was insistent that he did not have any communication 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 entries 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 period. The grievor testified that during the day he had asked Don Darch if he 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 if he could help count the funds when security arrived 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 Pronio told him that he wanted to be around when Barb Cook's deposit was checked. When security arrived to pick up the day's deposits, Don Darch retrieved 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 of Ms. Marshall's envelope, he counted it first in front ofLui 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 District 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 write 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, I 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 $20.00 in his right 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. . 7 ~ - That evening Mr. Aquino was working as the shift leader. He recalled receiving two phone calls. First, Mr. Di Pronio 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 brief and according to Mr. Aquino, nothing else was raised by the grievor during their conversation. Mr. Aquino noted that Mr. Di Pronio 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 computerized 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 fme and he mentioned that Mr. Di Pronio had called to see if Mr. 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 grievor would call as he was not running the shift and he did not have any managerial responsibilities. Mr. Di Pronio admitted calling the store that evening but said that his primary 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 Pronio also asked about Barb Cook's deposit as he promised her he would. In describing the phone call, the grievor explained that he was "just showing concern for another employee" and trying to demonstrate initiative. 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 grievor believed that it had been a productive meeting and that there might be openings the following spring. 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 Pronio was relieved from duty with pay pending an investigation of the alleged theft. Mr. Di Pronio responded by letter dated October 8, 2004 and denied any knowledge of an improper deposit or theft of LCBO funds. He advised that he was prepared to meet with management and that he wished Steve Saysell, ofOLBEU, 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 District Manager while Jeff Misener, the District Manager, was away. Mr. Recchi conducted the investigation into the grievor's alleged theft and interviewed the grievor, Kim Marshall, Don Darch and Lui Aquino. He had not met the grievor before and was unaware that he had been previously disciplined or that he was subject to a last chance agreement. Prior 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 Pronio were the two employees involved. He believes he also received the written statement prepared by Kim Marshall and a copy of the Notice of Intended Discipline. During the interviews, he took notes and generally asked each person for their version of events, asking a few questions for clarification. He did not have a set script 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 Pronio, Steve Saysell and Lou Recchi. At the meeting, the grievor 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. During his interview, Mr. Di Pronio initially said that he had counted Ms. Marshall's deposit and that the totals were accurate when the envelope was placed in the safe. During the course of the interview the deposit procedure was explained in some detail to Steve Saysell. The grievor subsequently admitted that he was not sure ifhe had in fact counted Kim Marshall's deposit. Mr. Di Pronio was also unsure if he had called the store that evening, however, he believed that ifhe had called it was to inquire about Barb Cook's deposit. At Arbitration, the grievor testified that he was worried 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 severity 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 Pronio 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 Pronio 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 Pronio had approached her while she was having a cigarette. Ms. Marshall did not include this incident in her initial written 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 initial written 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 questioning 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 Pronio 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 of LCBO funds on October 2, 2004". In accordance with the Last Chance Agreement entered as a term of Minutes of Settlement, Mr. Di Pronio's employment with the LCBO was terminated effective immediately. In the alternative, Mr. Misener also concluded that Mr. Di Pronio 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 probabilities 1. The Employer acknowledged that in cases where serious 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. And United Cement, Lime and Gypsum Workers (1978),20 LAC. (2d) 87; Re Steel Co. of Canada and U.S. W.A., Loc.l005 (1991), 21 LAC. (4th) 242; Re McMaster University and S.E.I.U., Loc 532 (2000), 86 L.A.c. (4th) 129. 10 "- such a fmding2. 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 fmding that Mr. Di Pronio stole $20.00 from Kim Marshall's deposit on October 2,2004: Ms. Marshall was adamant in her testimony that she witnessed the grievor pocket $20.00, she was not shaken on cross examination and her evidence had the ring of truth to it. Moreover, there was absolutely no reason why Ms. Marshall would lie to incriminate the grievor. She denied that she had experienced any difficulties with Mr. Di Pronio and none of the other witnesses were aware of any conflict between them. The grievor's suggestion that she was getting back at him for negative comments that he made about her appearance was a total fabrication. Nothing specific was put to Ms. Marshall and no other witnesses were called to support the grievor'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 $20.00 was missing from her deposit. In the Employer's submission, all of the grievor's conduct was consistent with his guilt: he approached Ms Marshall when he was worried that she might have reported him to the store manager, he called the store that evening 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 evening. Moreover, the grievor 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 grievor's failure to corroborate his version of events is significant and a negative inference should be drawn from his failure to do so. 2 Re Loblaws Supermarket Ltd. And u.F.c. w., Loc 175 (1994), 45 LAC. (4th) 120; Cara Operations Ltd. And HERE, Loc 75 (1992), 31 LAC. (4th) 1; Re Treasury Board (Solicitor General Canada - Correctional Service) and Renaud (2002), 106 LAC. (4th) 371. 3 Re Treasury Board, supra; Faryna v. Chorney, {1952} 2 D.L.R. 354 (B.C.C.A.). . 11 .. -~. - ., Finally, it was submitted that although it is surprising that the grievor 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 verified by a subsequent count of her deposit. In contrast, the grievor's behavior was consistent with his guilt and he failed to adduce any independent corroboration that supports his denial 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 Pronio stole $20.00. The Union 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 fmding of theft. In the Union'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 grievor stole LCBO funds as alleged. In counsel's submission, one must ask why a 50 year old employee, on a last chance agreement, would risk 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 grievor allegedly pocketed the funds. If the grievor was intent on stealing, he had a much more secure opportunity to do so earlier in the day when he was preparing 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 initiative. Mr. Aquino confrrmed Mr. Di Pronio'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 night of the alleged theft did not include the allegation that Mr. Di Promo approached her after she reported him to the store manager. Her initial statement was also silent about whether the grievor actually counted her deposit and which . 12 " ~ - pocket, right or left, the grievor used to conceal the cash. These omissions are significant and, in the Union's submission, give reason to seriously question the truthfulness of Ms. 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 grievor approached her later that day. The first time that Ms. Marshall recounted this incident was several days later when she was interviewed as part ofmanagement's investigation into her allegations. Her delay in reporting this episode is inconsistent with her previous reaction of immediately contacting the store manager to apprise 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 grievor steal part of her deposit. In the Union'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 of Ms. Marshall's evidence, she acknowledged that Mr. Di Pronio'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 grievor'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 grievor's evidence was given in a clear and straightforward manner. He acknowledged that he made a terrible mistake when he originally 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 grievor'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 Union's submission, the employer has not demonstrated by clear and convincing evidence that the grievor stole $20.00. The Union 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 grievor is a mature man with significant responsibilities, He has worked for the LCBO for many years and he has already been disciplined for honesty related misconduct. The grievor was reinstated and demoted on the express understanding that he would be discharged without recourse if he engaged in any further acts of dishonesty. Mr. Di Promo has now been discharged for taking $20.00 in circumstances that were clearly high risk: 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 grievor. 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 grievQr engaged in theft? The parties have agreed on the applicable legal principles. 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 grievor 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 grievor took $20.00 from Kim Marshall's deposit on October 2,2004. I accept the testimony of Ms. Marshall as a credible eyewitness account of the theft and find it is 'in harmony with the preponderance of probabilities'. Ms. Marshall described how she prepared her deposit in accordance with the standard procedure. She did the first count and then asked the grievor to verify her entry by performing a double count. She saw him count her money and then walk away with her cash. 4Faryna v. Chorney, supra, at 356. 14 ~ . - - Although Mr. Di Pronio 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 grievor 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 District Manager and at this arbitration. All of the evidence, with the exception of the grievor'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 verified that $20.00 was missing HUlU 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 security arrived later in the day. When the deposit was retrieved, Mr. Darch verified 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 verification and by the consolidated report, the relevant balance sheet and deposit entries. 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 Union suggested that Ms. Marshall's testimony was suspect because her initial report was not as detailed as her later description 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 initial written report was abbreviated, I do not consider that surprising in light of the circumstances in which her statements were made. Ms. Marshall prepared her written statement by herself, at home with virtually no direction beyond a request from her manager that she writes 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 - opportunity to observe the grievor'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 initial 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 original 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 characterization of her evidence nor do I question the appropriateness of her response. Employees in the retail industry fully understand the significance 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 risk 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 surprising that she was shocked and dumb founded by what she saw. I do accept that, given her original reaction and approach to Don Darch, one might have expected that she would similarly let him know that the grievor approached her while she was out back. However, she did not suggest that the grievor 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 grievor suggested that Ms. Marshall was motivated to lie by disparaging comments that he made about her appearance. I do not accept his explanation. The grievor'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 denied being told about any negative comments and denied that she confronted the grievor. 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 Pronio were feuding. Although their lack of knowledge does not prove that Mr. Di Pronio did not insult Ms. Marshall, I would have expected that either his manager or his co-worker might have heard rumors of a conflict if Ms. Marshall had confronted the grievor in the manner that he described. 16 t 'f - - 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 grievor's version of events. The deficiencies in Mr. Di Pronio's evidence, the absence of any evidence to corroborate his claim and the contrary evidence offered by Ms. Marshall all support my rejection of Mr. Di Pronio's testimony on this point. Much of Mr. Di Pronio's evidence was fraught with difficulty. He appeared to change his account of events whenever it best served his needs. For example, he originally 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 grievor's explanation for his original 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 Pronio 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, during his initial interview, he said that he wasn't sure if he phoned the store the evening 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 brief phone call during which the grievor asked about Barb Cook's deposit. At arbitration, the grievor provided a new explanation; he testified that the primary 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 managerial responsibilities would take the time on a Saturday night 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 fmding that Mr. Di Pronio engaged in misconduct. The change in the explanation that he provided to clarify why he made the call is, however, another example of the grievor changing his account of events. , 17 ;;/--:..::.. 1 , Nor am I persuaded by counsel's suggestion that Mr. Di Pronio'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 grievor 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 Pronio' 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 grievor changed over time and was indicative of a pattern ofunreliability. Ultimately, it is impossible to know why the grievor 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 grievor'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 grievor. 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 grievor stole LCBO funds on October 2, 2004. The grievance is dismissed and the discharge of Mr. Di Promo is upheld. Dated at Toronto this 28th day of October, 2005. " \2-. Reva Devins Vice-Chair t