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HomeMy WebLinkAbout2007-3120.Vesterfelt.08-10-08 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#2007-3120 UNION# 2007-0379-0009 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Vesterfelt) Union - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEFOREVice-Chair Randi H. Abramsky FOR THE UNIONErnest A. Schirru Koskie Minsky LLP Barristers and Solicitors FOR THE EMPLOYERGordon Fitzgerald Counsel Liquor Control Board of Ontario HEARINGJune 3, July 28, September 3, and September 22, 2008. 2 Decision [1]At issue is whether the grievor, Chris Vesterfelt, was discharged for just cause. The LCBO alleges that the grievor stole $2000.00 from the Campbellford store?s cash deposit of August 4, 2007. In the alternative, it alleges that the grievor?s actions in connection with the deposit violated the provisions of a Last Chance Agreement that was in effect. The Union disputes the allegations. Facts: [2]On March 21, 2005, the grievor was reinstated to the position of Customer Service Representative at the Campbellford store pursuant to a Last Chance Agreement. Paragraphs 5 and 12 of that Agreement read as follows: The Union and the Grievor agree that should the Grievor receive any letters of discipline or letters of suspension for improper cashiering procedures or related incidents for a three (3) year period following his reinstatement, his employment will be terminated immediately for cause. The Union and the Grievor agree that in the event the Employer terminates the Grievor?s employment pursuant to this Agreement, the only issue which may be the subject of a grievance and submitted to arbitration will be whether the Grievor has breached any of the terms and conditions of this Agreement. The Parties agree that the jurisdiction of any arbitrator to hear such grievance shall be limited to whether a breach of the terms or conditions of this Agreement has occurred. If the arbitrator finds that the Grievor has failed to adhere to the conditions of this Agreement, the Parties agree that the arbitrator must dismiss the grievance. [3]The grievor, Chris Vesterfelt, worked as a CSR at the Campbellford store from Mary 21, 2005 to August 4, 2007, without incident. The Campbellford store is a ?C? store, and had two full-time employees, the grievor and Store Manager Sandy Hunt, who is in the bargaining unit and is also Local Union President. In the absence of Ms. Hunt, Mr. Vesterfelt would serve as the Shift Lead. There were also two casual CSRs employed, and during the summer, two part-time student employees. 3 [4]During the August 2007 long weekend, the grievor worked on Sunday, August 7, along with the two casual CSRs. The store was closed on the Civic Holiday, and reopened on Tuesday. [5]On Sunday, August 5, 2007, Mr. Vesterfelt arrived at the store at approximately 11:30 a.m., with the store to open at 12:00 noon. After he turned on the lights and computer, he opened the safe to prepare the deposit slip for Saturday?s sales. As he was doing this, casual CSR Tracey Rowe arrived at the store. Mr. Vesterfelt did not recall if she was there or not, but Ms. Rowe testified that that she arrived at the store at approximately 11:30 or 11:40. She went into the office to put her purse away and saw Mr. Vesterfelt in the process of preparing the deposit. She stated that she ?assumed he was counting the deposit because the money was laying there? on the desk where he was working. [6]The grievor acknowledges that he did not ask Ms. Rowe to double count the deposit. He acknowleged that he could have done so, but did not. Instead, he counted out the cash bills, by denomination, and the cheques, and completed the deposit slip. He checked the total against the Consolidation Report (which includes all of the individual cash drops made by the cashiers), and then wrapped it up with the deposit slip, the Consolidation Report and elastics. He testified that he ?placed it in the safe to be checked before taking it to the bank.? [7]The deposit slip lists the number of each denomination and the value. For the August 4, 2007 deposit slip, the grievor wrote that there were ?106? $20.00 bills, for a total value of $4,120.00. He also listed the total number of other bills - 27 $50?s and 4 $100?s - together with any Canadian cheques and VISA charges. The total deposit was for $6934.34 in Canadian funds. Based on the Consolidation Report, that was the appropriate sum to be deposited. 4 [8]Ms. Rowe testified that she left the store at approximately 3:00 p.m. that day, one hour before closing time. She stated that she did not open the safe during her shift. The other casual CSR, Cathy Blay, was relatively new at the LCBO and did not have any access to the safe, nor was she aware of the combination. The employees who knew the combination to the safe included Store Manager Sandy Hunter, the grievor and Ms. Rowe. [9]The store was closed on Monday and reopened on Tuesday morning. On Tuesday morning, Ms. Hunter testified that the grievor was working on the Sunday deposit when she arrived. She made coffee and then double counted the Sunday deposit with the grievor. She and the grievor then discussed going to the bank to make the deposits. There were three deposits to be made ? from Friday, Saturday and Sunday. Normally, the grievor makes the deposits because he likes to have a smoke. But he did not want to go that morning. According to Ms. Hunter, Mr. Vesterfelt stated that he was concerned that the bank teller would ?freak? when he brought in three deposits all at once, so she agreed to go for him. She did not think that his request not to go was odd. According to the grievor at the hearing, he did not want to go in the morning because he wanted to give the bank teller time to catch up after a three-day weekend, not that he did not want to go at all. In his view, he was trying to be considerate of the bank teller. [10]Accordingly, shortly before the store opened at 10:00 a.m., Ms. Hunter took the deposits from Friday (which she and Ms. Rowe had prepared), the Saturday deposit (which the grievor had prepared) and the Sunday deposit, which she and the grievor had just prepared, to the bank. She did not double count the Saturday deposit.She testified that she ?did nothing with the Saturday deposit? ? just took it and went to the bank. 5 [11]It is undisputed that the grievor did not advise Ms. Hunter that the Saturday deposit had not been double counted on Tuesday morning, even though he had placed it in the safe ?to be checked before taking it to the bank.? He testified that it had been a ?long weekend? and he was ?not thinking about deposits.? He also stated that Ms. Hunter was the manager that day, not him. It was her responsibility to ensure that the deposit was double-checked, both as the manager and the person taking the deposit to the bank. It was not his job to tell Ms. Hunter what to do. [12]It was Ms. Hunter?s testimony that the person making up the deposit slip has the responsibility to have it double counted. She expected the Saturday deposit slip to have been counted by a second person when it was prepared, so she ?didn?t think about it? on Tuesday morning when she saw that the Saturday deposit was ready to go. She testified that she ?does not know why the deposit was not double checked on Sunday? when it was prepared. She acknowledged, however, that she erred by not recounting the deposit before she took it to the bank. [13]There was a significant amount of testimony about whether or not it was the regular practice to have a second employee double count a deposit. The Employer?s written policy, SO-0309-03, is entitled ?Prepare Cashier Deposit ? Non-Armoured Car Service?. The policy states, in relevant part, that ?[t]he Store Manager/Designate and one other staff member must verify the funds and sign Form LCB S-34.? [14]According to Store Manager Hunt, there is no Form LCB S-34, nor has there been one for about six years. Nor was she familiar with SO-0309-03. But she agreed that a second staff member had to verify the funds in a deposit. She acknowledged that, at times before this incident, deposits were not always double counted, but insisted that occurred only ?a few times, not many.? She testified that the policy is to double check deposits, usually 6 when the money was out being counted, and that the person who double counted would usually then take the money to the bank. She stated that deposits were to be counted by two people and the deposit slip signed by two people. [15]Ms. Hunter?s testimony was confirmed by casual CSR Tracey Rowe. Ms. Rowe testified that the grievor?s normal practice, as shift leader, was to have her double count deposits. [16]Preparing deposit slips on Sunday was somewhat unusual. During much of the year, there is only one employee working on Sundays. But during the summer months, there are two employees working, and sometimes three, as occurred on the long weekend in August 2007. When there was more than one employee working, then deposit slips could be prepared, but according to Ms. Rowe, it was not usually done on Sunday unless it was a large deposit. [17]The grievor?s testimony on this subject varied. He stated that a double count was the policy, if someone was there to do it..If it was a ?large deposit and someone was handy? it would be double checked. Then, he stated that ?the bank was the double check?, and that deposit slips are ?usually not double checked.? [18]In a pre-disciplinary meeting with Mr. Gus Loukas, District Manager, the grievor?s comments about double counting deposits varied even more. According to the contemporaneous notes taken by Mr. Loukas at the meeting, the grievor stated that it was ?common practice, in the small stores, not to double check.? There were times that they were double checked, but it was not common practice to double check. Night deposits, however, were always double checked. He agreed that where possible, ?deposits should be double checked?, and that ?when there are two or more employees working, it is possible to double check.? He stated that he was ?aware of the procedures.? 7 [19]An audit of the Campbellford store, dated August 21, 2007, revealed that ?13 of 50 (26%) deposits reviewed were not signed indicating that they have been checked by a second employee?, and ?2 or 5 (40%) night deposits reviewed were not signed for by two employees or noted otherwise.? [20]At the bank, Ms. Hunter brought the three deposits to bank teller Judy Drennar, who handles commercial accounts. Ms. Drennar testified that she handled each deposit separately. She used the counting machine, which counts the number of bills, by denomination. She then bundles the bills when the count hits 100. The August 4, 2007 deposit slip indicated that there would be 106 $20.00 bills and that was the number of bills counted. The number of $50?s and $100?s was also counted, and she placed a check mark on the deposit slip next to the denomination as she matched the numbers on the slip to the number of bills counted. The number of each denomination checked off as counted matched the numbers on the deposit slip. She testified that it was very rare to have a mistake with the counter. One or two bills might stick together, and it would be redone. She explained that if there had been more than 106 $20?s and the number counted did not match what was on the deposit slip, she would have manually counted the bills in front of the client. But in this case, the number of bills counted matched what was on the deposit slip. What she did not do, at the time, was add up the value of the cash deposited while the client was still there. At the time, because the LCBO?s deposits had always balanced, they did not post the deposit while the client waited, but did so afterward. Consequently, shortly after Ms. Hunter left, Ms. Drennar posted the deposit into the LCBO?s account and it did not balance. [21]Ms. Drennar scanned the deposit slip into the bank?s computer, which showed that the deposit should be $6934.34. The actual deposit, however, was $4934.34. It was $2000 8 short. She then reviewed the deposit slip and saw that the extensions were wrong ? 106 $20?s does not add up to $4120, but to $2120. [22]Ms. Drennar testified that she recalled what happened clearly because it was the first time that the LCBO?s deposit did not balance. Ms. Drennar has a ?top-security? clearance because of her work for the armed forces at Trenton, and her prior work for the Canadian Embassy in Cuba. She has worked for the bank since 1995. [23]Shortly before Ms. Hunter returned from the bank, Ms. Drennar called the LCBO. Mr. Vesterfelt answered the phone, and she advised him that the deposit was short $2000, and to have Ms. Hunter call her. [24]Ms. Hunter immediately did so. Ms. Drennar advised her that she received 106 $20?s which was listed as totalling $4120 on the deposit slip, but was actually $2120. Ms. Hunter said that there were 206 $20?s, for a total of $4120, and Ms. Drennar told her that she counted 106. Both agreed to check the matter out at their end. [25]Ms. Hunter, believing that a mistake had been made, then changed the store?s copy of the deposit slip to read 206 $20?s. She also contacted Mr. Loukas. The grievor testified that after receiving Ms. Drennar?s phone call, he looked in the safe and office for any missing money but did not find anything. [26]Ms. Drennar testified that she immediately searched her safe and area for the missing $20?s. Since it was shortly after 10:00 a.m., there were only 4 deposits, 3 of them from the LCBO. There were no extra bundles of money. At the end of the day, she and her supervisor physically counted all of the cash in the branch. It balanced, and there was no extra $2000 found. She had ?no doubt? that there were only 106 $20?s deposited. The bank then debited the LCBO?s account $2000.00. 9 [27]On September 27, 2007, both the grievor and Ms. Hunter were issued Notices of Intended Discipline (NOIDS) by the Employer. Mr. Loukas met with the grievor, along with a union representative, on October 11, 2007. He also met separately with Ms. Hunter. [28]During the meeting, the grievor said that he made a ?human error? because 106 $20?s is $2120. Then he said he bundled the $20?s into groups of 50 and that there were 4 bundles, with 6 bills left over, for 206 $20?s. The deposit ?had 206 twenties, as far as I can remember.? He said that he might have redone the deposit because he might have transposed the figures wrong. He also insisted it was a bank error. They had stamped it, but then said it was $2000 short. They stamped it, but ?the money is gone.? He knew that, at the bank, the money is put into a counter, which ?counts the number of bills, not the value.? He also stated that the ?details are checked?, the ?extensions are checked? and that the ?bank is checking the extension and the total, not the details.? [29]At the hearing, on cross-examination, the grievor denied knowing how the bank operates. He denied telling Mr. Loukas that the bank initially only counted the number of bills, not their value, although he acknowledged that Mr. Loukas may have heard that because he was very nervous at the time. He said that when he made deposits, he would just wait for the money to be counted, they would stamp it, and he?d leave. He ?didn?t consider? what they did. [30]It was the grievor?s view that he was unfairly being blamed for the missing money. He agreed that ?someone? should have double checked the money, but that it was not his responsibility to have done so. Instead, it was Ms. Hunter?s responsibility, as the manager on Tuesday and the person taking the money to the bank. Yet he was blamed because no one had double-checked it. He admitted, however, on cross-examination, that he could have had it double counted on Sunday when he did up the deposit, and that he 10 could have advised Sandy that the deposit had not been double counted on Tuesday. It was his view, that someone had to be blamed for the missing money, and they pointed the finger at him. He acknowledged that it was a significant coincidence that the exact error that he made on the deposit slip (100 $20?s) was the exact amount of the missing money, that he did not get that deposit double checked on either Sunday or Tuesday, and that he did not take the deposit to the bank that day, as he usually did. The grievor testified that he did not steal the money. He had no ?plan? when he mistakenly wrote up the August th 4 deposit slip and failed to have it double counted..He didn?t ?set up? Ms. Hunter by refusing to make the deposits on Tuesday morning. He would not jeopardize his job and career. He was almost past the three-year period and wanted to become a store manager. As a senior employee, he believed he had a very good chance of becoming a manager. [31]Mr. Loukas testified that he made the decision to discharge the grievor. His view was that the investigation established that the grievor stole the $2000. He considered others, particularly Ms. Hunter, as well as the possibility of a bank error. He concluded, however, that the grievor stole the money and that he failed to follow proper procedures in violation of the Last Chance Agreement. Through a vigorous cross-examination, he explained his reasoning: the grievor was involved throughout ? he wrote up the deposit slip to indicate 106 $20?s but put a value on that of $4120, so that the total value of the deposit matched the store?s consolidation report; he failed to have the deposit double counted, even though he could have and knew that it was required; he knew that the bank counted the number of bills, but not their value; he failed to take the deposit himself to the bank, as was his usual practice. Mr. Loukas investigated the possibility that the grievor had made a transposing error, as he suggested at the October 11, 2007 meeting, but found that none had been made. 11 [32]He also relied on Mr. Vesterfelt?s demeanor at the meeting. He started out nervous and became more and more upset and agitated as the meeting went on. He also found the grievor?s explanations to be inconsistent ? human error in math, but there were four bundles; a transposing problem; a bank error. [33]Mr. Loukas rejected the suggestion put to him by Union counsel that Ms. Hunter could have taken advantage of the grievor?s mistake on the deposit slip. He stated that Ms. Hunter took the deposit slip already wrapped up and prepared by the grievor and that she did not examine it. She should have, but did not, double count it. She just took it to the bank, in a rush to get there before the store opened. Ms. Hunter not aware of the deposit error until notified by the bank. He also rejected the suggestion that she could have lost two bundles of $20?s enroute.He thought it was ?highly unlikely? that she could have losttwo such bundles. He found her to be nervous but consistent, and she acknowledged her mistakes. [34]On December 3, 2007, the LCBO terminated the grievor. The letter, written by Mr. Loukas, outlines the findings of the investigation and concludes as follows: I have considered the information available to me and have determined that disciplinary action is warranted. I have concluded that you stole $2,000.00 from the Saturday, August 4, 2007 bank deposit and as such your employment is terminated immediately for just cause. In the alternative, I have considered the above and the Minutes of Settlement that you signed in March 2005 and your employment is terminated for just cause in breach of paragraph 5 of the minutes. [35]At the time of his discharge, the grievor had worked for the LCBO for 32 years, ever since he was 18 years old. He had, however, been discharged twice before. The record is devoid of information about the basis of those prior actions and his reinstatement, except for the Last Chance Agreement. 12 [36]After the August 2007 incident, a number of procedures changed at the Campbellford store.All deposits are double checked before going to the bank. All staff have signed SO-0309-03. Every deposit indicates by whom it is compiled, checked, and deposited. The bank has also made changes. They no longer just stamp the deposit and let the LCBO leave. The person making the deposit must wait until the value of the deposit is confirmed and it is posted. Further, each LCBO cashiers? deposit is handled separately and comes in sealed bags. Analysis [37]The Employer has alleged that the grievor stole $2000.00 from the August 4, 2007 bank deposit. Because of the nature of that allegation, the Employer must prove ?that it is more probable than not, on the basis of clear and convincing proof, that the grievor did what [he] was alleged to have done, and stole the money here at issue.? Ontario (Attorney th General) and OPSEU (Khan) (1989), 18 L.A.C. (4) 260 (Swan), at par. 34. The evidentiary standard is the ?balance of probabilities? and the proof must be clear and convincing, commensurate with the serious nature of the allegations.Ontario Liquor Boards Employees? Union (DiPronio) and LCBO (2005), GSB No. 2004-2746 (Devins, Vice Chair); Dominion Colour Corp. and Teamsters, Chemical, Energy and Allied th Workers, Local 1880 (1996), 54 L.A.C. (4) 386 (Marcotte); Steel Co. of Canada and th U.S.W.A., Local 1005 (1991), 21 L.A.C. (4) 242 (Rayner); Boeing Canada Technology Ltd. and National Automobile, Aerospace, Transportation and General Workers Union of th Canada, Local 2169 (2005), 145 L.A.C. (4) 225 (Hamilton); McMaster University and th Service Employees? International Union, Local 532 (Sullivan) (2000), 86 L.A.C. (4) 129 (Surdykowski); Indusmin Ltd. and United Cement, Lime and Gypsum Workers nd International Union, Local 488 (Clute) (1978), 20 L.A.C. (2) 87 (M. Picher). 13 [38]The evidence in this case is circumstantial. The grievor was never ?caught? with the money. No one saw him pocket the money, or hide it. The money has never been found or recovered. It?s simply gone. [39]When dealing with circumstantial evidence, arbitrators have adopted a two-part test: 1. Does the circumstantial evidence point to the charged employee as having committed the offence or misconduct? 2. Does the circumstantial evidence exclude any other employee from having committed the offence or misconduct? th Re New Dominion Stores and R.W.D.S.U., Local 414 (1992) 28 L.A.C. (4) 53, at p. 62 (Grant), quoted in Dominion Colour Corp. and Teamsters, Chemical, Energy and Allied th Worker, Local 1880 (1996), 54 L.A.C. (4) 386 (Marcotte), at par. 126. Arbitrator Marcotte continued at par. 127: [A]rbitrators are of the view that, in weighing circumstantial evidence, such evidence must be clear and cogent or convincing of the probability that the grievor did commit the offence, and, against that same evidentiary test, that it is not as probable that someone other than the grievor committed the offence. ? Or, as phrased by the arbitrator in Boeing Canada Technology Ltd. and National Automobile, Aerospace, Transportation and General Workers Union of Canada, Local th 2169(2005), 145 L.A.C. (4) 225 (Hamilton), at par. 137: ?The Company must establish that its conclusion was the most reasonable and plausible explanation and that there are no other explanations equally probable.? [40]In this case, the evidence is clear and convincing of the probability that the grievor commited the offence alleged. It is not nearly as probable that someone other than the grievor did so. [41]It is undisputed that $2,000.00 went missing from the August 4, 2007 cash deposit. It was the grievor who prepared the deposit slip for that day. He was seen counting the 14 money by Ms. Rowe, and he acknowledges that he counted it and made out the deposit. He counted, he testified, 206 $20?s ? four bundles of 50 $20.00 bills, plus six extra. He wrote on the deposit, however, that there were 106 $20?s. The total he ascribed to that, however, was $4120, which amount matched the store?s consolidation report, as it must. The difference is exactly what went missing. [42]Mr. Vesterfelt did not have the deposit verified. He did not have it double counted, even though there were two other employees available to do so. Instead, he placed the deposit ? all wrapped up and ready to go to the bank ? in the safe ?to be counted before taking it to the bank.? The grievor?s explanation for this ? that it was not going to the bank that day so it was ?not at the top of his hit list of things to do? is weak. It was a relatively large deposit ? almost $7,000.00 ? from a holiday weekend. Even if it was not always the practice to have deposits double checked, which the evidence from the audit bears out, he testified that deposits were checked when the amount was large and there was someone handy to do it. This deposit would fall into that category. The fact that he could have had it double counted and did not is suspicious. As the shift leader that day, it was the grievor?s responsibility to have had the deposit verified. [43]What is even more troubling is the fact that the grievor put the money in the safe to be counted before it went to the bank yet said nothing to Ms. Hunter on Tuesday morning. His explanation that it was after a long weekend and deposits were not on his mind is not credible. His ?long weekend? consisted of one day ? the holiday Monday, and he was working on the Sunday deposit when Ms. Hunter arrived and double counted it with him. It is hard to believe, in those circumstances, that the Saturday deposit was a distant, vague memory which escaped his mind. His failure to say anything to Ms. Hunter that the Saturday deposit had not been double counted is suspicious. 15 [44]The grievor?s reluctance to take the deposits to the bank on Tuesday, as he usually did, compounds the matter. By itself, his reluctance to present three deposits after a holiday weekend is not that surprising. Ms. Hunter did not think it was suspicious at the time, and readily agreed to take the deposit in herself. But his reluctance takes on a more ominous tone when what took place is considered ? his mistake on the deposit slip, his failure to verify the count, and his failure to mention that to Ms. Hunter. [45]I also find that the grievor?s testimony that he did not know how the bank handled deposits not to be credible. His statement to Mr. Loukas indicates that he knew that each denomination was counted by the counting machine to determine the accuracy of the count, but not the value, indicates that he knew how the bank worked. He had also regularly handled deposits for years. It is not plausible that he had no knowledge of how the bank handled deposits. [46]The grievor also had the opportunity to take the money. Ms. Rowe left early on Sunday at 3:00 p.m., one hour before the store closed. The other employee, Cathy Blay, did not have access to the safe. As the shift leader, the grievor would have been the one to lock up the store on Sunday. The store was closed on Monday, and the grievor was the first to arrive on Tuesday, before Ms. Hunter. [47]Thus, there is a lot of evidence which points to the grievor as the individual who took the missing $2000.00. He is the only person with a reasonable opportunity to have taken it. He, alone, counted the money and wrote up the erroneous deposit and bundled it together. He did not have it verified. He did not ensure that it was checked on Tuesday, and he did not take it to the bank, as he usually did. [48]The only other potential persons of suspicion would be Ms. Hunter, Ms. Rowe and Ms. Drennan, the bank teller. I find it possible, but not plausible, that Ms. Hunter lost the two 16 bundles of $20?s enroute to the bank, as suggested by the Union. For Ms. Hunter to lose two significant bundles of money ? in the exact amount that the grievor erred on the deposit slip ? is not plausible, particularly when there is no evidence that she had ever lost money enroute to the bank before. [49]Nor do I conclude that it is at all probable that Ms. Hunter stole the money. There is no evidence that Ms. Hunter was aware of the discrepancy between the deposit slip and the actual number of $20?s until she spoke to Ms. Drennen after she returned from the bank. She ?did nothing with the deposit? while at the store with the grievor. She just took it and went to the bank. There was no evidence from the grievor that he told her the content of the deposit slip, or discussed that deposit in any way, other than who would take it to the bank. Consequently, it is highly improbable that Ms. Hunter learned about the grievor?s error when she presented the deposit and, on the spur of the moment, decided to pocket the money.The evidence is that she was not aware of it until she returned from the bank. Further, Ms. Hunter, like the grievor, is a very long service employee (31 years) with a lot to lose if she were caught stealing money from the LCBO. She candidly acknowledged her mistakes. There is no evidence that she was anything but a conscientious employee, albeit somewhat lax on enforcement of the double counting policy. [50]In regard to Ms. Rowe, while it is true that she had access to the safe on Sunday, there is no evidence that she was aware of the grievor?s mistake on the deposit slip and thereafter sought to capitalize on his mistake. She had no role in preparing Saturday?s deposit, and there is no evidence that she had any knowledge of its content. She left the store early on Sunday and did not return to work until Wednesday. 17 [51]Likewise, there is no credible evidence that Ms. Drennan took the money. She has worked for the bank for over ten years, and has other positions of responsibility with the Canadian armed forces at Trenton. Previously, she worked for the Canadian Embassy in Cuba. Both positions require a ?top-level? security clearance. She followed bank procedures in regard to the deposits. She used a money counting machine to count the deposit, which showed 106 $20?s, which matched the number placed by the grievor on the deposit slip. It was only when she went to post the deposit, after Ms. Hunter had left, that she discovered that it did not balance. She then found the grievor?s mathematical error on the deposit slip, and immediately called the LCBO. She searched her area, tray and safe for any extra bundles of cash, but found none. At the end of the day, she and her supervisor counted all of the cash in the branch, but found no extra $2000.00, or any amount. I find it highly improbable that Ms. Drennan took the missing $2000.00. It is far more likely that the deposit contained only 106 $20?s, as the machine counted, and that the money went missing before it was taken to the bank. [52]The Union also suggested that the employee who replaced Ms. Drennan on her breaks and lunch may have found and stolen the money. Ms. Drennan had already done her initial search prior to her break. That assertion is not plausible. [53]Consequently, considering the evidence in its totality, I conclude that the Employer has established, by clear and convincing evidence, that it is more probable than not that the grievor stole the money from the cash deposit of August 4, 2007. He is the only person who had a reasonable opportunity to take the money. As the Employer argued, there were too many ?coincidences? concerning the grievor?s actions in relation to the August th 4 deposit to ignore. When all of the evidence is considered, there is more than mere suspicion here. There is clear and convincing evidence that it is more probable than not 18 that the grievor took the $2000.00.There is very little probability of the offence having been committed by someone other than the grievor. [54]The Union argues that it would be absurd to think that the grievor would jeopardize his career in this manner. He had just a short time to go before the Last Chance Agreement would expire. There had been no problems with this work since his return, and he was hoping to apply for a management position. It asserts that the grievor would not have put his future and family at risk. [55]In response the Employer cites to Ontario Liquor Control Board of Ontario and Ontario Liquor Boards Employees? Union (Di Pronio),supra. In that case, a long service employee who had been previously discharged for honesty-related misconduct and was reinstated on a last chance agreement was alleged to have stolen $20.00. The Union argued that ?one must ask why a 50 year old employee, on a last chance agreement, would risk his career for a mere $20.00.? (Decision, p. 11). The grievor had testified that he was hopeful that he would soon be able to re-apply for a management position, and was hoping to impress management with his work and diligence. Based on the evidence presented, including an eye-witness who saw him pocket the money, the Vice Chair concluded that there was clear and compelling evidence to find that the grievor stole LCBO funds. She stated at p. 17: 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. The same is true here. [56]The Union argues that the LCBO failed to establish proper accounting processes and that the store was so rife with problems, there is no way to know where the money actually 19 went. It submits that the grievor, as the individual who had engaged in misconduct in the past, was the natural one to accuse. [57]There is no doubt that the procedures at the Campbellford store were somewhat lax in terms of double- counting and security of funds. Both the store and the bank have instituted new procedures to protect against this type of action. The relaxed atmosphere created the situation that enabled the grievor?s conduct, but the grievor was not singled out because of his past conduct. He was singled out because of his actions (and failure to th act) in relation to the August 4 deposit. [58]Accordingly, for all of the above reasons, I conclude that the Employer had just cause to discharge Mr. Vesterfelt and the grievance must be dismissed. [59]In the alternative, if I am wrong on the issue of the theft, I conclude that Mr. Vesterfelt violated paragraph 5 of Last Chance Agreement. That paragraph reads: The Union and the Grievor agree that should the Grievor receive any letters of discipline or letters of suspension for improper cashiering procedures or related incidents for a three (3) year period following his reinstatement, his employment will be terminated immediately for cause. th [60]The grievor?s actions in relation to the August 4 deposit involved misconduct concerning a ?related incident?. The evidence established that the requirement to double count deposits was not always enforced, as demonstrated by the audit. But the grievor clearly understood that the deposit had to be verified before it went to the bank. He placed the deposit in the safe ?so it could be counted before it went to the bank.? He knew it had to be counted again. He knew it had not been. Yet he failed to take any action to ensure that it was verified. His contention that it was the manager?s responsibility on Tuesday ? as manager and the person who took the deposit to the bank ? 20 to ensure that the deposit was recounted is true. But that does not eliminate the grievor?s responsibility. As the person who wrote up the deposit, and who had sole knowledge that it had not been double counted, he had an independent responsibility to ensure that the money is the deposit was verified before it went to bank.He failed to fulfill that responsibility. That is a ?related offence? within the meaning of paragraph 5 of the Last Chance Agreement. Paragraph 12 limits my jurisdiction to whether the grievor ?has breached any of the terms and conditions of this Agreement.? I so find, and therefore, must dismiss the grievance. [61]In so ruling, I do not accept the Union?s argument that the grievor?s sole mistake was that he placed his initial?s in the ?depositor? box on the deposit slip, as set out in the auditor?s report. As Mr. Loukas testified, that was not all of it. The biggest part was the grievor?s failure to have the deposit double checked. [62]Accordingly, on this alternative basis as well, the grievance is dismissed. th Issued this 8 day of October, 2008. Randi H. Abramsky, Vice-Chair