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HomeMy WebLinkAbout1981-0426.Durkin.82-03-08 DecisionONTARIO CROWN EMPLOYEES GRIEVANCE II SETTLEMENT BOARD 180 DUNDAS STREET WEST, TORONTO, ONTARIO. M5G 1Z8 -SUITE 2100 TELEPHONE , .416/598- 0688 426/81 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OLBEU (J. Durkin) Grievor -And - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer Before: For the Grievor: For the Employer: Hearing: P. G. Barton Vice Chairman S. Dunkley Member B. Lanigan Member A. Milliken Heisey, Counsel Blake, Cassels & Graydon J. Baker, Counsel Hicks, Morley, Hamilton, Stewart & Stone February 5, 1982 2 ONO AWARD The Grievor was dismissed from his employment with the Liquor Control Board, of Ontario as a result of an incident which occurred in Store 203, Burlington on June 16, 1981. On July 22, 1981 he filed a grievance (Exhibit 1) in which he grieved that he had been dismissed by the Liquor Control Board without just and sufficient cause. To a large extent the parties were in agreement as to the facts of the incident and assisted the Board considerably by filing a summary of agreed facts. The summary indicates that on that day five investigators from INTERTEC went through the Grievor's cash line consecutively. The first three investigators made purchases and received receipts. The fourth investigator made a purchase for $5.00 and gave the Grievor a marked $5.00 bill. He pretended to be in a hurry, bagged the bottle himself and left. The fifth investigator went through the register and received a regular receipt. The fourth and fifth investigators watched the Grievor put the $5.00 bill in the till without ringing it in. They then observed two regular trans- actions at the till conducted by the Grievor, whereupon they left. About one hour later they returned to the store, identified themselves to the manager who then cashed the Grievor out. This means that the Grievor rang up his cash register for a total, took the register ta=e and the cash box to the manager's office where the manager checked the amount of money in the till against the register tape. The two balanced. The marked $5.00 bill was not in the till. The Grievor agreed to be searched and the bill was not found on his person. He had two $5.00 bills and two $2.00 bills on his person, however. 3 Certain additional facts concerning the incident were introduced at the hearing. In total the Grievor operated the cash register for one hour and forty minutes. The store was a bit busier than usual that day. The Grievor was not allowed to count the money in his till himself in the manager's office but watched it being done at a distance from which he was not able to verify the accuracy of the count. When told that his register had balanced he said, "Of course it balanced". He faintly remembered the two investigators as having been through his line earlier but did not remember their transactions in particular. His work area around the cash register was searched by one of the investigators and the marked bill did not reappear. By way of personal facts, the Grievor is 63 years old, married and has three children who do not live at home. Following employment in the City of Sudbury he went to Burlington and was involved in a painting and decorating business as an employer of up to ten employees for about 12 years. He joined the LCB0 part time in 1978 and full time in 1979. Between 1979 and the date of his dismissal he worked in three different stores in the Burlington area. There is only one formal notice of discipline on his record and that is a matter of April 27, 1981 involving a failure to notify when he did not come in for work on a particular day. The grievor's probationary service report seems to be favourable and recommends permanent status. An appraisal of February 1980 indicates: "Mr. Durkin takes a keen interest in all phases of store operation. He has been trained to a degree in office procedure, and will be further trained as his turn comes about. He has done cashiering, ledger postings, etc., and warehouse, .bins, etc. He will receive further training in ordering in the near future. I feel with further training in most phases his quality of work will improve.0 The rating guide of this conduct indicates that he is operating at an average or above average level and no ratings are below average. This report was prepared by his Manager R. G. May. His supervisor signed it, "I concur, with reservations". This concurrence was put on the form after the Grievor signed it and he did not see it. The most recent appraisal on June 29, 1981 indicates that during that previous period his work was satisfactory. There are only two choices,satisfactory or unsatisfactory on the form. The form is rather vague about his conduct because of the fact that he had only joined the store about a month before the ratings were done. It appears that the Grievor worked about four days a week away from cash and spent an average of one day a week at cash registers. The letter of termination dated July 5, 1981 indicates: that: "As a result of this coupled with your record and other circumstances which have become known to management, your services are terminated effective July 14, 1981." "This" refers to the incident of June 16, 1981. The "other circumstances" are the fact that the manager hadpparently counselled the Grievor with respect to irregular behaviour on cash. There was no, formal note in the record concerning this nor was the manager called as a witness and we are unable to say just what sort of irregular behaviour was referred to. 5 As might be expected the question here is as much a factual as a legal one. The question is whether or not dishonesty amounting to actual theft was proven or whether or not the situation as proved is simply one of "cash irregularities". The burden of proof to be applied in matters of this kind seems to depend in part on whether or not the allegation is one of dishonesty or something less. With respect to the question of whether or not the Grievor stole $5.00, we feel that the burden of proof is that set out in other cases from this Board including Penner 307/80, Bernardi 102/79, and in particular Douglas 28 LAC (2d) 332 (Swinton 1981). Concerning cases of this kind she said as follows: "What we have here is a charge of trustworthiness in handling cash. That term can have several meanings, with various implications for the arbitral process in terms of what must be proven to show blameworthy conduct, the standard of proof, and the proper disciplinary action. In trying to assess what is meant by 'untrustworthiness' we must look at the conduct giving rise to the charge. In some circumstances, a person on cash maybe said to be untrustworthy because he or she is careless or incompetent in handling cash and, therefore, unsuited to cashier's duties. An allegation of untrustworthiness in such circumstances might then be subject to a civil standard of proof, for there is no allegation of dis- honesty nor possible slur on the employee's reputation. In other circumstances of untrustworthiness may well mean something quite different and potentially much more derogatory. It may mean that an employee is knowingly failing to follow cash register procedures. In such circumstances it honestly may or may not be in doubt. In such cases though, the allegation of untrustworthiness carries implications of theft or dishonesty, and consequently, the standard of proof should be higher than the civil standard. The employer must show by clear and convincing evidence that the employee has knowingly broken the rules and so harmed the employer's interests. It should be noted, however, that in such cases where there has been deliberate misconduct and therefore untrustworthiness, the conduct may or may not justify discharge. Where there has been breach of rules without proof of actual dishonesty (i.e., theft) the employee may be subject to discipline but not necessarily discharge. The penalty will no doubt vary, with the importance of the rule, the number of violations and the employee's record." In applying the standard of clear and convincing evidence to the question of whether or not this employee stole $5.00 the following factors are relevant. In the first place the marked $5.00 bill did not appear. It may well have been given out as change. In the second place there is no particular reason for the Grievor not to ring up the sale unless he was either planning to steal the money or was in a hurry. Although the investigator himself acted as if he was in a hurry and in fact bagged his own bottle we have no evidence as to whether or not there were a number of customers waiting behind him. Certainly there would be one other customer coming through shortly thereafter, i.e., the fifth investigator. In the third place the Grievor did have two $5.00 bills on his person when he agreed to be searched. In the fourth place shortages do regularly occur in the cash and the employer has a system of dealing with this in which, after the first $2.00, the employee and the employer split the difference that is missing. This indicates that mistakes with respect to ringing Up and giving of change do occur although we have no indication or evidence as to the extent to which they occur. It might be pointed out that a $5.00 mistake with respect to the giving of change which conincided with the missing $5.00 would be a bit of coincidence. 7 What is involved is a situation in which only circum- ;tantial evidence of actual theft exists. Applying the test of Hodge (1838), 16'8 E.R. 1136, is.there any rational conclusion based on evidence, other than that the missing $5.00 ended up in the pocket of the Grievor? The two other possible conclusions are that: 1.A $5,00 mistake was made in change. 2.The manager miscounted the money in the till. As far as the first is concerned, for it to have occurred in the short time after the investigators left the store and before they returned would indeed be a coincidence. It is just too much of a coincidence for us to say that it occurred. As far as a miscount of money in the till is concerned ve do not know whether or not the manager knew when he counted, how much was involved. If he did not, for him to pick the precise amount would be extraordinary. We think it more likely that he knew the amount. We have no evidence upon which to believe or disbelieve the suggestion that the count was properly made. The Grievor watched it from a distance and did not ask for a re-count. In the absence of any evidence that the manager was "out to get" the Grievor we must assume that the count was accurate. Thus the only conclusion open on the evidence is that the $5.00 amount ended up in the Greivor's pocket. The marked bill would have been on top of the fives in the cash drawer and would have been the first to be given out as change. Accordingly, we have no alternative but to find that the Grievor took the money. The only facts which mitigate the situation are the age of the Grievor and consequent certainty that he will have difficulty finding other employment. Unlike Penner 307/80, there is no suggestion here that the Grievor may not have been totally in control of his actions at the time of the incident. We do not think that the mitigating factors are sufficiently compelling for us to interfere in the decision made. Thus the' grievance is dismissed. DATED at London, Ontario this 8th day of March, 1982. P. G. Barton Vice Chairman B. Lanigan Member