HomeMy WebLinkAbout2007-3147.Waring.08-09-17 Decision
Commission de
Crown Employees
Grievance Settlement
règlement des griefs
Board
des employés de la
Couronne
Suite 600 Bureau 600
180 Dundas St. West 180, rue Dundas Ouest
Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8
Tel. (416) 326-1388 Tél. : (416) 326-1388
Fax (416) 326-1396 Téléc. : (416) 326-1396
GSB#2007-3147
UNION#2007-5107-0038
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Waring)
Union
- and -
The Crown in Right of Ontario
(Liquor Control Board of Ontario)
Employer
BEFOREVice-Chair
Loretta Mikus
FOR THE UNION
Mary Anne Kuntz
Senior Grievance Officer
Ontario Public Service Employees Union
FOR THE EMPLOYER
Michael Horvat
Ogilvy Renault
Barristers & Solicitors
HEARING
June 12 and August 2, 2008.
2
Decision
The grievor, Terrence Waring, had been a Customer Service Representative with the LCBO for
17 years and had worked at Store 20 at Lakeshore and Islington for a year when he was
terminated for alleged improper cashiering procedures. He has grieved that termination and asks
that he be reinstated to his former position without reprisal.
The incident giving rise to the termination occurred on November 21, 2007 and involved the sale
of a $50.05 bottle of Prince Igor Vodka. On the day in question, at approximately 4:32 in the
afternoon, a customer had purchased the vodka and three cans of Molson Canadian beer. She
tendered three $20.00 bills and received the correct change from that $56.05 purchase. She
noticed that the vodka bottle had not come up on the register screen and when she reviewed her
receipt, she discovered that it did not include the promotional 15 bonus Air Miles offered with
the Prince Igor Vodka. She called back to the store and told the night shift manager, Krystyna
Szewczyk, that she had not been charged the correct amount for her purchase and that the cashier
had taken the money for himself.
Ms. Szewczyk called Mr. Mike Wojtasik, the store manager, and advised him of the customer
complaint she had received and he told her he would investigate the matter the next day. When
nd
he arrived at the store on the next morning, November 22, he was approached by the grievor,
who told him that the day before he had found $50.00 on the floor and had put it in his pocket.
He meant to put it in the safe but forgot about it until he had left the store. When he realized he
still had the money, he returned to the store to put the money in an envelope and place it in the
safe. Sometime later that morning Mr. George Babb from Customer Service and Store Support
called Mr. Wojtasik to tell him about the formal complaint that had been filed about this
purchase. Mr. Wojtasik told Mr. Babb about his conversation with the grievor and Mr. Babb
confirmed with the customer that she had not given the cashier a $50.00 bill but rather three
$20.00 bills. Mr. Wojtasik and Mr. Babb reviewed the sales receipt for the sale in question and
at 4:32 on November 21, 2007 noted a sale was recorded for three bottles of Molson Canadian
beer for a total of $6.00. There was no record of the Prince Igor Vodka. The receipt showed that
the customer paid $6.00 and received no change.
3
At about 1:00 pm Ms. Szewczyk asked Mr. Wojtasik to speak with her in his office. She told
him that a casual employee, Ashley Glavine had called the grievor the previous evening and told
him about the customer complaint. When Mr. Waring came back into the store he asked Ms.
Glavine if the bottle of vodka could be scanned in at the time. She told him she could not do that
and he asked her to place the money in the safe and to give him Mr. Wojtasik?s phone number.
Mr. Wojtasik prepared an incident report outlining the incident and asked the staff who had been
on duty that day to prepare written statements of the events.
In her evidence Ms. Szewczyk confirmed the phone call, which she thought had occurred
between 5:30 and 6:00 pm, from an upset customer who said she had been cheated out of the
bonus air miles offered on the purchase of Prince Igor Vodka. She asked for and was given the
phone number for the head office. Ms. Szewczyk called the store manager to advise him of the
complaint. Later in the shift Ms. Glavine and Mr. Eric Szulc had come into the office and Ms.
Glavine put a $50.00 bill in an envelope and placed it in the safe.
Ms. Glavine prepared a statement about her involvement in the incident. She was on the 4:30 -
9:30 shift that day and shortly after her arrival she went into the office for a sip of her tea. She
was told by Ms. Szewczyk about a customer complaint concerning a cashier?s failure to ring in
the sale of a bottle of vodka. From the description given by the customer, they assumed it was
the grievor. Ms. Szewczyk seemed uncertain as to what she should do so they called Mr. Szulc
into the office for his advice. They agreed that Ms. Glavine could call Mr. Waring about the
complaint. When she did, he told her he was on his way back to the store to return the money he
had forgotten to put in the safe earlier that day. He asked Ms. Glavine if she could scan the
bottle to make the inventory correct and she told him she would be more comfortable with him
leaving it in the safe. Later that shift he did return to the store to give her the $50.00.
Mr. Eric Szulc is also a Customer Service Representative and his shift that day began at 4:30 pm.
He testified that at approximately 5:00 pm he was standing outside the front of the store talking
on his cell phone when the grievor approached him, placed some money in his hand and asked
him to put it in the safe. Mr. Szulc noticed it was a $10.00 bill and put it in his pocket. When he
returned to the store his cash register had customers waiting to be served, so he immediately
resumed his duties as cashier and forgot about the money the grievor had given him. When there
was a break in the line-up he went into the office to put the money in the safe but Ms. Glavine
4
told him the grievor had come back with the right amount of money and that Ms. Szewczyk had
put it in the safe.
Mr. Scott Trenton is the District Manager for District 12. He reviewed the events outlined above
as well as a video tape of the grievor?s activities on the till and the print-out of transactions for
his till for the entire shift. He advised the grievor in a letter dated November 26, 2007 that there
had been a pre-disciplinary meeting set for November 30, 2007 to discuss the allegations against
him and referred him to the collective agreement provisions respecting his right to Union
representation at the meeting. He also asked him to provide a written statement explaining the
incident. Mr. Scott had prepared specific questions for the grievor for the meeting and took
notes of his answers. When asked about the transaction the grievor stated that he did and did not
remember the sale. He said he found a $50.00 bill under the counter near the bags and put it in
his pocket, intending to put it in the safe later in the shift. He was told that the video tape did not
show him picking up anything from the floor or the counter, nor putting anything in his pocket.
He had no explanation. He was also asked about the fact he had a $50.00 bill when the customer
who filed the complaint had given him three $20.00 bills. Again, he had no explanation.
Finally, when asked why he asked Ms. Glavine to scan the vodka, he could offer no explanation.
By letter dated December 13, 2007, the grievor was advised that his employment had been
terminated for theft. It was stated that he had committed a serious breach of trust which had
resulted in irreparable damage to the employment relationship.
The grievor?s version of the events is as follows: on the day in question he was working the day
shift from 8:00 am to 5:00 pm. Although he described his major duties as stock handling and
customer assistance, he also did cashier duties and, on that day, much of his time was spent at the
cash register. He explained that each CSR has his/her own cash drawer and each cash register
has two drawers. A cashier signs on to his/her own drawer and only that cashier uses that drawer
for the entire shift. The records of the register show that the grievor signed on at 8:41 am and his
first sale is noted at 11: 48 am. The tape of the till transactions shows a series of purchase
throughout the day, the last one at 4:41 pm. The record shows the grievor signed off at 4:41 and
a printout of the total of all cash, credit card and debit transactions was provided. The grievor
balanced his till in the office, was thirty cents out, which is an acceptable variance, and left the
store. Earlier in his shift he had found a fifty dollar bill in the area under the counter where the
bags are kept.
5
He picked up the money and put it in his pocket, intending to do what he had done before,
namely put it in the safe and tell Mr. Wojtasik about it in the morning. He forgot about it and
left the store at 4:51 pm with the fifty dollars in his pocket. He was in a hurry because he had
several errands to run, including picking up his children at his in-laws? house and getting home
by 5:30 pm to meet a chimney repair person. The first of his errands took him directly to a
nearby grocery store, which he estimated took him 5 or 6 minutes. He had just begun his
shopping when he received a call on his cell phone from his wife. When he pulled the phone out
of his front pocket, he pulled out the fifty dollar bill. He interrupted his wife to tell her what he
had found and she told him to call the manager and return the money to the store immediately.
He left the groceries in the cart and went to his car. As he was en route he tried calling the store
to get Mr. Wojtasik?s phone number to tell him what had happened. On the first call someone
answered his call but put him on hold. He got tired of waiting and hung up. That happened a
second time so on his third attempt he waited until someone could give him the number. When
he arrived at the store some 5 to 7 minutes later he saw Mr. Szulc outside the front of the store
talking on his cell phone. He waited for a short while and then placed a bill in Mr. Szulc?s hand
and asked him to put it in the safe for him. That exchange took place between 5:10 pm and 5:15
pm and took approximately 3 to 5 minutes.
He felt better at having dealt with the issue and went back to the grocery store to discover that he
still had the fifty dollar bill in his pocket. He had mistakenly given Mr. Szulc a $10.00 bill. By
then he had received the phone call from Ms. Glavine telling him about the customer complaint
and he realized he would have to go back to the store himself and return the money. In the
meantime he had tried to call Mr. Wojtasik but each time received a generic message telling him
to leave a message but not identifying the person or number he had called. He was not sure it
was the right number so he called back but got the same message and hung up again. He met
Ms. Glavine at the back door of the store, gave her the fifty dollar bill and asked her to put it in
the safe. They discussed the fact that the complaint had arisen from the failure to credit the
customer with the air miles bonus and the grievor suggested they scan the bottle to give her the
points. Ms. Glavine was uncomfortable with that and they decided to put the money in the safe
and speak to Mr. Wojtasik in the morning. He then decided it was too late to do the grocery
shopping and instead picked up his children and went home. The chimney repair person was still
waiting for him. He believes it was around 6:00 pm by then.
6
Since his termination he has only been able to find work as a security guard at a much reduced
level of pay. He described the past year as the worst in his life.
In cross-examination he was asked how his till could have balanced when a $50.05 bottle of
vodka was sold from that till. It was suggested to him that if the customer had tendered the
money but the bottle not scanned, his total should have been $50.05 over. He agreed that would
be true. When pressed about the various ways the missing money and/or the missing vodka
would be tracked, he stated he did not remember the transaction. He was asked whether he had
told any LCBO employee about finding the $50.00 bill and whether he had considered the
possibility it might belong to someone else. He said it never crossed his mind.
Before considering his evidence about the events of the day, it would be helpful to explain the
tape register record since it was relied on by both parties in their final argument. The record
shows the operator number and identifies the employee signing on, the number of the till and the
drawer in use, in this case Drawer A. It also gives the time of day, the date and the amount in the
cash drawer. Each transaction is numbered and begins with the name of the store manager and a
series of numbers that were not explained to me and, for purposes of this hearing, are irrelevant
except to note they are included on each individual transaction. Then the details of the
transaction are set out including the date and time, the name of the product, the number of units
purchased, the price per unit and the final total, including the deposit of 10 cents on each bottle.
The method of payment is noted. In the case of the 11:48 am purchase, the customer offered a
Master Card which was rejected and finally paid with a Visa card. The next transaction at 11:49
am is recorded as a cash purchase of $8.45, a tendering of $20.45 and change of $12.
With respect to the grievor?s activities on the till that day, there were six transactions between
11:49 am and 3:38 pm, some involving cash, some credit cards and a very large order to a
licensee involving the sale of numerous and various bottles of spirits. The next two transaction
show cash purchases of $44.30 and $9.95. In the first instance, the grievor cannot say with
certainty what money was tendered for this sale. It could have been a combination of fives, tens
and twenties to make up the fifty dollars. The next transaction, however, must have involved, in
his view, a fifty dollar bill because the customer was given $40.05 in change. If the customer
had given him any bill smaller than the fifty, he would not have been given so much change
therefore it was his conclusion that he must have been given a fifty dollar bill.
7
A similar sale took place at 3:41 pm when a customer made a purchase of $13.85 and received
$36.15 in change. It was assumed by the grievor that he received a $50.00 bill for this sale
because of the amount of change the customer was given.
The purchase at issue in the instant case is recorded at 4:32 pm and shows a sale of three bottles
of Molson Canadian beer at a cost of $1.90 per bottle and a ten cent deposit fee for a total sale of
$6.00. It appears the grievor was given the $6.00 in cash. There is no record of the Prince Igor
Vodka or a $56.05 purchase.
I was provided with the cell phone invoice for the grievor?s phone from November 19 to
November 25 inclusive and the grievor and his spouse were questioned about the number and
time of the calls on the invoice. The timing of the calls recorded on the invoice plays a
significant role in determining whether the grievor knew about the customer complaint before or
after he returned to the store with the money. It was the Union?s position that he had already
made efforts to return the money to the store before he was told about the customer complaint, an
indication of his lack of intention to take the money for himself. The LCBO asserts that he only
returned the money after he knew there had been a complaint and, absent the complaint, he
would have kept the money which is theft.
The call log for the period of time before and after the sale of the Prince Igor Vodka is as
follows:
# DATE Time FROM NUMBER TO CALL
CALLED LENGTH
92 21 Nov 16:13 Toronto On 905- 271-3831 Port Credit On 2:00
93 21 Nov 16:58 Toronto On 416-695-8190 Toronto On 6:00
94 21 Nov 17:03 Incoming 416-908-6010 Toronto On 3:00
95 21 Nov 17:07 Toronto On 416-251-2021 Toronto On 3:00
96 21 Nov 17:14 Toronto On 416-251-2021 Toronto On 1:00
97 21 Nov 17:22 Toronto On 416-251-2021 Toronto On 6:00
98 21 Nov 17:28 Toronto On 416-251-7996 Toronto On 2:00
99 21 Nov 17:29 Incoming 416-908-6061 Toronto On 1:00
100 21 Nov 17:30 Toronto On 416-251-7996 Toronto On 1:00
101 21 Nov 17:30 Incoming 416-908-6061 Toronto On 4:00
102 21 Nov 17:34 Toronto On 905-271-3831 Toronto On 10:00
103 21 Nov 17:47 Cooksville On 416-721-2174 Toronto On 10:00
He was questioned about the timing of several of the phone logs between 4 and 6:30 pm on
November 21, 2007. There is a 4:13 pm call to his home which neither he nor his spouse recall
but the grievor believed may have been a call to his home for his messages.
8
There was a six minute call to a friend from 16:58 to 17:03 and then an incoming call at 17:03
from his spouse lasting 3 minutes. There were three calls to the store between 17:07 and 17:22,
the last for 6 minutes. The next call was to Mr. Wojtasik at 17:28 and an incoming call at 17:29
from the same number his spouse had called from at 17:03, that is 416-908-6010. At 17:30
hours, there is a call to Mr. Wojtasik?s number and, at the same time an incoming call from his
spouse from 416-908-6061. That call lasted about 4 minutes and was followed immediately by a
call from the grievor to his home lasting 10 minutes.
The grievor?s spouse, Anastasakis Waring, testified on his behalf. She has been employed at the
LCBO for 17 years and has been a Product Consultant for the past ten. She testified that on the
day in question she had left work between 4:30 and 4:45 pm and gone to the Sherway Mall to do
some shopping. She forgot her cell phone in the car so she called her husband from a pay phone
to tell him what he needed to pick up on his errands. As she was talking to him he told her that
he had just found a fifty dollar bill in his pocket that he had found at the store earlier that day and
meant to put in the safe. She told him to call Mr. Wojtasik immediately and explain what had
happened. She went home because they had an appointment with the chimney repair person and
the grievor called her at about 5:30 pm. The grievor?s cell phone bill for that period of time
shows a call at 15:34 to his home lasting for 10 minutes. She agreed that was probably the call
she had referred to but she could not recall specifically what they had spoken about. She said
she was home for about 15 minutes and then left to continue her shopping.
In cross-examination she was shown two documents that indicated she was scheduled off that
day. She stated that her work day varied from day to day and that she is in and out of the store
on a regular basis. She maintained that she had worked that day.
SUBMISSIONS OF THE PARTIES
Mr. Michael Horvat, counsel for the LCBO, took the position that the evidence had shown that
the grievor is guilty of the theft of funds from the LCBO. It was a premeditated act involving the
failure to scan a $50.05 purchase and the taking of that $50.00 for himself. He claims he found
the money under the counter but at no time did he mention this find to his fellow workers or
make any inquiries about whether anyone had lost the money. If he found it where he said he
did, it could only have come from an LCBO customer or an LCBO employee. In either case it
belonged to the LCBO.
9
There is no direct evidence about the incident but the proof is in the timelines. The grievor
received a call from Ms. Glavine at 17:03 telling him about the customer complaint and he made
immediate efforts to call the store and get Mr. Wojtasik?s number. The Board, it was said, must
consider the high degree of consistency by the LCBO witness in contrast to the grievor and his
spouse, who were vague, forgetful and evasive.Ms. Glavine was clear that her phone call to the
grievor was at 17:05, which makes sense if you consider that the grievor made efforts to contact
his store manager immediately following that phone call. The grievor?s version, however, does
not make sense. He could not explain why he gave Mr. Szulc a ten dollar bill, why he did not
scan the bottle of vodka, why he asked Ms. Glavine to scan it in after the complaint and why he
did not put the money in the safe when he found it.
The LCBO referred to the case of Wells and the Liquor Control Board of Ontario, (1982), GSB
# 2/82 (Verity) in which a grievor was found guilty of stealing asmall bottle of Cherry Brandy
(valued at $4.90) and dismissed from his position as a Clerk 3. The issue before the Board was
the appropriateness of the penalty given that the grievor admitted after the fact that he was an
alcoholic and had been an AA member for years. In particular the LCBO relied on the Board?s
comments at page 9, which read as follows:
In assessing the evidence, the Board is aware that the Grievor?s offence and subsequent
conviction is a serious matter which cannot and should not be condoned. Theft or
attempted theft in any form from an Employer by an Employee, regardless of the value of
the stolen goods, does constitute just cause for the imposition of discipline by the
Employer. Dishonesty in any form is completely unacceptable in the Employer-
Employee relationship. Theft or attempted theft of the Employer?s property by an
Employee is a fundamental breach of the trust relationship between the Employer and the
Employee. The Liquor Control Board of Ontario has a right to anticipate a high degree
of honesty from its employees, and a deviation from that standard must be dealt with in
keeping with the gravity of the offence
It was the position of the LCBO that the grievor stole $50.00 of the LCBO?s money sometime
during his shift on November 21, 2007 and attempted to right the situation after he was told
about a customer complaint alleging theft. The grievor was unable to give a credible explanation
for his actions that day and has offered no alternative theory of the case that could persuade this
Board to believe him over the witnesses for the LCBO. It had met its burden and provided clear
and cogent evidence about the grievor?s conduct on the day in question. There are no mitigating
factors to persuade this Board to relieve against the penalty imposed and the Board should
dismiss the grievance.
10
In further support of its position the LCBO referred to the following cases: LCBO and OLBEU
(Di Pronio) (2005), GSB # 2004-2746 (R. Devins); New Dominion Stores and R.W.D.S.U, Local
th
414(1992), 28 L.A.C. (4) 35 (R. A. Grant) and 1293446 Ontario and U.F.C.W., Local 206
th
(Cruz) (2004), 127 L.A.C. (4) 436 (Trachuk).
Ms. Mary Anne Kuntz, representative for the Union, took the position that the LCBO has failed
to meet its burden of proof. The grievor?s evidence has been consistent.He has maintained that
he found a fifty dollar bill under the counter and he put it in his pocket intending to place it in the
safe. He forgot he had the money when he left the store and, as soon as he realized it was still in
his pocket, took immediate steps to correct his mistake. He is a long service employee with no
previous record of misconduct. There is no reason to doubt his version of the events.
It was submitted that the evidence of the other witnesses was not helpful to the LCBO. Ms.
Szewczyk was very nervous and needed assistance from her daughter to give her evidence. Her
original notes were not in English and may have lost something in the translation, especially with
respect to the time lines. She said the complaint came in between 16:30 and 17:00 hours. After
she had spoken to the customer, she spoke with Ms. Glavine and they decided to call in Mr.
Szulc to decide what to do. But Mr. Szulc testified that at about 5:00 pm he was outside the front
of the store on his cell phone and that he immediately returned to his till when he reentered the
store. The conversation between Ms. Szewczyk, Ms. Glavine and Mr. Szulc must have taken
place some time after 5:00 pm and is most likely the call recorded at 5:30 on the invoice. By
then the grievor had been back to the store and given Mr. Szulc the money for the safe. Clearly
he intended to return that money before he knew about the complaint.
The Union took the position that I should draw an adverse inference from the fact the LCBO did
not maintain the video tape of the entire shift and could only produce a clip for the last hour the
grievor worked. No explanation was given for that omission. If it intended to rely on the video
in its decision to terminate, it should have taken steps to preserve the entire tape. Mr. Trenton
reviewed the tape and testified there was nothing out of the ordinary in the grievor?s actions. He
was not seen to pick up anything from the floor but neither was he seen putting anything in his
pocket. The tapes did not assist the LCBO.
11
In addition, it was asserted, the LCBO?s investigation of the incident was superficial and
inadequate. It decided to discharge the grievor on the basis of circumstantial evidence without
any real proof that he had done anything wrong. It did not take any steps to verify his assertions
about his efforts to return the money. The LCBO is convinced that the grievor made a
premeditated decision to steal money from the till. The grievor could not have known who
would be in the store and what they would purchase. He could not have planned in advance to
take a fifty dollar bill because he could not have known that a customer would come in and buy a
fifty dollar bottle of vodka.
The Union asked the Board to reinstate the grievor with full compensation, subject to mitigation.
In the alternative, if the Board should find there are sufficient grounds for the discipline, the
Union urged the Board to have regard to ameliorating the penalty. She referred to several cases
in which Boards have taken a more forgiving approach to theft and asked the Board to consider
those cases. The grievor is a long service employee with a good record.
In reply, Mr. Horvat pointed out to the Board that in those cases where leniency was considered,
the grievor had admitted to his wrongdoing and was remorseful. No such considerations apply in
the instant case.
The cases relied on by the Union are: Re Canadian Broadcasting Corporation and Canadian
nd
Union of Public Employees (1979), 23 L.A.C. (2) 227 (Arthurs); Re Carling O?Keefe
Breweries and Western Union Brewery, Beverage, Winery and Distillery Workers, Local 287
th
(1988), 3 L.A.C. (4) 222 (Ponak); Re New Dominion Store and Retail, Wholesale Canada
th
Division of U.S.W.A. Local 414 (McCaul)(1997), 60 L.A.C. (4) 308 (Beck) and LCBO and
OLBEU (Reed) (1992), GSB # 1165/91 (M. Watters).
REASONS FOR DECISION
This case involves an allegation of theft of Company property. There were no witnesses and
whether or not there was a theft must be determined by considering the facts as they existed at
the time based on the evidence provided at the hearing. This determination also involves issues
of credibility between the witnesses for the LCBO and the Union. In the Di Pronio grievance,
supra, the grievor was accused of having taken $20.00 from the cash.
12
In that case the grievor had been returned to work after a similar incident under a very strict back
to work agreement that dictated that any further incident would be just cause for termination. At
page 8 of the award, the Board had the following to say:
?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 of the grievor warrants termination. Rather the
question is purely factual; has the Employer established that the grievor 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 such a finding that the grievor stole from the
LCBO as alleged. Finally, the parties agree that the truth of the story of a witness?must
be in 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.
The issue before me then is a factual question of whether the LCBO can demonstrate on a
balance of probabilities by clear, cogent and compelling evidence that the grievor stole $50.00 as
alleged.
Some facts are irrefutable. The grievor was in possession of a $50.00 bill that belonged to the
LCBO: he returned that money to the safe at the store; he tended to a customer who bought a
$50.05 bottle of vodka which was not recorded on his cash register record; no air mile bonus was
credited to the customer for the purchase of the vodka. Dealing with those facts first, the LCBO
contends that the grievor intentionally failed to ring in the vodka because he intended to take the
fifty dollars himself. The grievor maintains that he found the bill under the counter where the
bags are kept. There have been references to a video tape of the grievor?s time on the till around
the time of the transaction in question. That video shows the grievor ringing in various customer
purchases, including the sale of the vodka and three cans of beer. Unfortunately, it does not
show clearly whether the bottle of vodka was scanned, only that it was placed in a bag by the
grievor. Neither does it show the grievor placing anything into his pocket during that time. All
we can take from the tape is that the customer who made the complaint did buy a bottle of Prince
Igor Vodka and three bottles of beer at the grievor?s cash register. As well, we can see that for a
few short periods during the afternoon the grievor had breaks at the cash when he would stand
and wait for the next customer.
13
Since the tape does not assist me in determining what happened, I return to the evidence about
the incident that has been placed before me. The grievor?s version is troubling. First, he said
initially that he had found the money on the floor. That version seems to have been abandoned
early in the proceedings but no explanation was given for the change in his story. Second, if he
did find the fifty dollar bill under the counter as he has said, it raises a question about why he
made no effort to see if any of his co-workers had lost it. It seems to me that should have been
one of his first thoughts; that is, if it is not from my till, I wonder if someone else lost it. There is
no evidence he waited to see if anyone else?s till was fifty dollars short at the end of the shift. He
simply put it in his pocket. He stated that he intended to put it in the safe but forgot. His
evidence was that he found the money late in his shift and that he had been told to cash out. He
put the money in his pocket while he was doing so. From the tape we can see that he did not find
that fifty dollar bill in the last 1 ½ hours of his shift. He must have found it before 3:00 pm or
we would have seen him pocket it on the tape. If we assume he had to have found the money
before 3:00 pm, he had ample opportunity to deal with it in an appropriate manner, but he did
not.
No explanation was offered for the failure to tape the grievor for the entire shift, which might
have resolved that question for me. The Union has asked me to draw an adverse inference about
that failure but, in these circumstances I am not prepared to do, so for reasons to be explained
later in the decision.
If that were the end of the story, that is that the grievor forgot he had the fifty dollar bill in his
pocket and, as soon as he realized what he had done, he made efforts to return it to the safe, and,
absent any reason to doubt his word, I would agree with the Union that there was not the clear
and cogent evidence necessary to sustain such a serious charge. However, that was not the end
of the story, and it is the subsequent efforts of the grievor to explain his action that raises
questions about the probability that it occurred in the manner he asserts.
The LCBO has relied on the cell phone invoice as proof that the grievor only decided to return to
the store after he was told about the customer complaint. First, I cannot accept the times on the
invoice as exact, particularly where they seem to overlap. The billing, we were told, is done by
the minute, not the second.
14
Therefore, where the invoice states that he had a six minute call to a friend followed immediately
by the call he alleges his spouse made when he found the money in his pocket, the LCBO
suggested he would not have had time to put his phone back in his pocket between calls,
therefore he must be lying. It seems to me, however, that one call could have ended one second
into a new minute and the next call 59 seconds into the following minute. For that reason, I
cannot say with certainty that the call log is exact and cannot rely on it as proof of the actual time
the calls were made. However, it is helpful in determining what happened between 16:51 and
17:30 pm.
The grievor asserts that when he put his hand in his pocket to retrieve his phone, he pulled out the
fifty dollar bill and realized his mistake. That call from his spouse at 17:03, he said, prompted him
to make the next three calls to the store at 17:07, 17:14 and 17:22 to get Mr. Wojtasik?s number.
The fourth call was to Mr. Wojtasik. The next incoming call was from 416-908-6010, a number that
appears on the invoice several times after that call, namely at 17:29, 17:30, 18:27, 18:29 and so on
for a total of 24 calls, the last ending at November 25, 2007. Some of those calls are to Cooksville,
the majority to Toronto. The timing of these calls is crucial to the grievor?s assertion that he tried to
return the money before he knew about the complaint.
More specifically, there were two incoming calls that the grievor believes verify his version of the
events. One of those incoming calls was at 17:03 from 416-908-6010, which his spouse has testified
was made from a pay phone at the mall. However, there were other calls made within that relevant
time period that conflict with her evidence that she arrived at home at about 5:30 and received a
phone call at 5:34 from the grievor that lasted 10 minutes. She could not have made the calls from
that number at 17:29 or 17:30 because she was at home, not at the mall. The only other possible
explanation could be that 416-908-6010 is her cell phone number, which she testified she had left in
the car. The grievor testified that the incoming call at 17:29 was from his mother-in-law and the
17:30 incoming call was from Ms. Szewczyk but those calls were made from the same number as the
17:03 call, which was said to be made from a pay phone at the mall. From that phone invoice, it is
my view that the call to the grievor at 17:03 is the one Ms. Glavine testified she made to advise him
of the customer?s complaint and not from his spouse. That makes sense when you compare the cell
phone invoice with the evidence of the witnesses. There are only three incoming calls to the grievor
between 17:00 and 17:30 hours, all of them from the same number, 416-908-6061. His spouse
testified that she called him from a pay phone at Sherway Mall.
15
If she did not make the 17:30 call from that number, it is unlikely that she made the 17:03 call to the
grievor. It is much more probable that the 17:03 call was from Ms. Glavine. If that is the case, the
grievor knew about the customer complaint at 17:03 and any steps he made to return the money
occurred after that time.
That explanation is also consistent with the evidence of Ms. Glavine and Ms. Szewczyk. Ms.
Szewczyk testified that the complaint came in between 16:30 and 17:00 hours. Ms. Glavine said she
had just started her shift at 16:37 and had gone into the office to take a sip of her tea at around 17:05
when she learned about the complaint and called the grievor. The next incoming call is recorded at
17:30, much later than Ms. Glavine believed she first contacted the grievor. The evidence
concerning Mr. Szulc is somewhat troubling. He stated that he was outside the store around 17:00
hours when the grievor drove up and handed him some money to put in the safe. Ms. Glavine
testified that she and Ms. Szewczyk called Mr. Szulc into the office before they called the grievor at
17:03. Mr. Szulc did not mention that meeting in his evidence but I am of the view the timing of the
events supports the LCBO?s position nonetheless. The grievor left the store at 16:51 and went
directly to the grocery store, about 6 -7 minutes away. If he received a call at 17:03 telling him
about the complaint, it would have taken him at least another 6 ? 7 minutes to get back to the store,
placing him there around 17:10 or later. The times referred to by the witnesses were not exact,
merely approximate recalls of the events. It is the phone log that places the times in context.
The case law states that, in assessing credibility, a Board should find that the evidence is in 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. In this instant case, I do not believe the
grievor?s version meets that test. It is my view that the grievor did not find the money on the floor or
under the counter. The fact that he said nothing to anyone about finding the money and that he
placed it in his pocket suggests he intended to keep it for himself. I find that the 17:03 phone call
was from Ms. Glavine and that all of the grievor?s attempts to return the money were made as a
result of that customer complaint. His explanations about the phone calls he made to the store and to
Mr. Wojtasik are consistent with that finding. They were desperate attempts to fix what he knew
would be a serious problem.
Having come to the conclusion that the grievor intentionally took $50.00 from the LCBO, the issue
becomes whether discharge was the appropriate penalty in the circumstances.
16
I accept the case law provided by the Union that suggests that Boards of Arbitration are prepared to
consider the circumstances in case of theft and that discharge is not always warranted or necessary.
Those cases, however, always involve a grievor who has admitted to his/her wrongdoing and is
remorseful. No matter what other mitigating factors might apply, in the absence of an admission,
Boards have not reinstated an employee found guilty of theft. In this case, not only has the grievor
refused to acknowledge he did anything wrong, he has created a web of lies to exonerate himself.
Boards of Arbitration have consistently refused to help a grievor who is not honest. In this case, the
grievor?s actions during the shift on November 21, 2007 and his subsequent attempts to cover up his
misconduct leave me no alternative but to dismiss the grievance.
th
Dated at Toronto, this 19 day of September, 2008.
Loretta Mikus, Vice-Chair