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HomeMy WebLinkAbout2009-2047.Moore.11-08-11 DecisionCommission de Crown Employees Grievance UqJOHPHQWGHVJULHIV Settlement Board GHVHPSOR\pVGHOD 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 7pO   Fax (416) 326-1396 7pOpF   GSB#2009-2047 UNION#2009-0376-0018 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Moore) Union - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEFORERandi H. Abramsky Vice-Chair FOR THE UNIONTim Hannigan Ryder Wright Blair & Holmes LLP Barristers and Solicitors FOR THE EMPLOYERJustin Diggle Liquor Control Board of Ontario Counsel HEARINGNovember 16 & 17, December 16, 2010, January 12, 13 & 19, May 9 & 20, June 16 & 22, July 13, 2011. - 2 - Decision [1]On August 27, 2009, the grievor, Ms. Lynda Moore, was discharged by the LCBO for intentionally allowing customers to leave the store with product that had not been paid for on four occasions. She timely grieved her dismissal and also alleged that she had been harassed and discriminated against in violation of the collective agreement and the Ontario Human Rights Code. Consequently, at issue is whether the grievor was discharged for just cause and whether she has been harassed and discriminated against in violation of the collective agreement and the Code. Facts [2]Ms. Moore was hired as a casual Customer Service Representative (CSR) in Barrie, Ontario on October 2002. She started at Store 59, worked at various other locations in Barrie, and returned to Store 59 on September 4, 2007.At the time she returned to Store 59, Ms. Annette Aloussis was the store manager. A. The Alleged Harassment [3],WVKRXOGEHQRWHGWKDWLQWKHJULHYRU¶Vparticulars concerning alleged harassment and discrimination, she raised a number of matters that had been the subject of earlier grievances and ZKLFKKDGEHHQUHVROYHGE\WKHSDUWLHV±HYHQWV allegedly occurring in 2006 and in December 2007 and January 2008. The Board, in a preliminary decision, determined that because those matters had previously been resolved they could not be relied on in this case. [4]The issues Ms. Moore experienced in 2006 led her to transfer, voluntarily, to Store 59 in September 2007. Ms. Moore testified, however, that from the start she did not have a good - 3 - relationship with Ms. Aloussis because she had D³GRDV,VD\´UDWKHUWKDQD³WHDPZRUN´ DSSURDFK6KHVWDWHGWKDWWKH\³JRWRIIRQWKHZURQJIRRWULJKWRIIWKHEDW´$IHZGD\VDIWHUVKH started, she testified that she was alone on the retail level of the store (another employee was in the basement handling licensee orGHUV ZKHQWZR³VKLIW\´FXVWRPers came in and she heard them VD\LQJ³VKH¶VDOODORQH´6KHWKHQFDOOHGWKH'LVWULFW0DQDJHU¶VVHFUHWary, Ms. Lynn Crickard, because her manager was meeting with the District Manager. She stated that she explained what was happening and requested that Ms. Crickard stay on the line while she processed the customers. When the two suspicious customers left, she thanked her and ended the call. She WHVWLILHGWKDW³WHQPLQXWHVODWHU´0V$ORXVVLVUHWXUQHGWRWKHVWRUHDQG³WRUHDVWULSRIIPH´IRU FDOOLQJWKH'LVWULFW0DQDJHU¶VRIILFH [5]Ms. Aloussis recalled the grievor telling her about the incident, but denied yelling at her DERXWLW0V'RUD5REELQVWKH8QLRQ6WHZDUGUHFDOOHGWKHJULHYRUPHQWLRQLQJLW³DORQJWLPH DJR´%XW0V&ULFNDUGWHVWLILHGthat she had no recollection of this happening and stated that it did not happen, since she was certain she would recall such an unusual call from a CSR. The District Manager, Loreen Corras, also testified that she was not aware that such a call had been made to her office. [6]The grievor also alleged that Ms. Aloussis would constantly find fault with her and FULWLFL]HKHU±KHUZRUNDV$Fting Manager, her dress, her communication with customers and co-workers. She regularly felt chastised unfairly and that it was D³ILJKWDOOWKHWLPH´DQGWKDW VKHFRQVWDQWO\KDGWR³VWDQGXSIRUP\VHOI´ [7]7KHJULHYRU¶VDOOHJDWLRQVFDQEHgrouped into several categories: - 4 - Work as Acting Manager [8]Ms. Moore testified that as the most senior casual who wanted to work extra hours she was often scheduled to work as Acting Manager on Friday nights and Sundays. She initially VWDWHGWKDW³HYHU\0RQGD\´WKHUHZRXOGEHD³WHDUGRZQ´E\0V$ORXVVLVDERXWLW2QFURVV examination, however, she acknowledged that it was QRW³HYHU\´0RQGD\WKDWVKHZDVFULWLFL]HG EXW³IUHTXHQWO\´DQGWKDWWKHUHZHUHWLPHVZKHQ Ms. Aloussis would not find anything wrong but ³VKHORRNHG´0V$ORXVVLVWHVWLILHGWKDWVKHwould routinely ask questions about the Sunday shift, as part of her job as manager. She raised concerns, from time to time, if matters were brought to her attention. She also made positive FRPPHQWV±WKDWWKHVWRUHZDVLQ³JRRGVKDSH´ or that sales were good. She did the same with anyone serving as Acting Manager. [9]Significantly, there was no corroboration from other employees, or any Assistant Manager, concerning Ms. Aloussis singling out the grievor, or treating her differently than anyone else in this manner. Harassment Regarding Dress [10]The grievor testified that Ms. Aloussis found fault with her VKRHV±OHDWKHUVNHWFKHUV± saying that they were improper athletic shoes. She also found fault with her wearing a black leather vest. The grievor acknowledged that the LCBO has a dress code policy, but insisted that her clothes were within the policy. She stated that Ms. Aloussis told her she could not wear them XQWLOVKHFRXOGFKHFNLWRXW0V$ORXVVLVWHVWLILHGWKDWVKHGLGQRW³FULWLFL]H´0V0RRUH¶VVKRHV RUYHVWEXWWKH\GLGKDYHD³GLVFXVVLRQ´DERXWwhether they complied with the dress code. The VNHWFKHUVVKHWKRXJKWZHUHDQDWKOHWLF³VNDWHU´VKRHZKLFKLVSURKLELWHGE\WKHSROLF\6KHDOVR thought the vest might not comply because it did not have an LCBO logo on it. She - 5 - consequently checked these issues out with District Manager Corras and was advised they were okay, and that was the end of it. Ms. Moore acknowledged that she continued to wear the vest and shoes. On her October 2008-09 performance DSSUDLVDOWKHJULHYRULVPDUNHG³DFFHSWDEOH´ LQWHUPVRI³DSSHDUDQFH´±PHDQLng that she fully met corporate attire and grooming standards, and always appeared neat, clean and presentable. [11]The grievor also acknowledged that she was not the only employee questioned about DWWLUHE\0V$ORXVVLV±WKDWRWKHUHPSOR\HHVZHUHTXHVWLRQHGDERXWWKHLUDWWLUH0V$ORXVVLV confirmed that she has spoken to other employees about wearing clogs, boots, dockers, and athletic shoes, as well as not wearing ties or not tucking in their shirt. [12]In terms of jeans, Ms. Moore stated that she would wear jeans, especially on weekends and on Tuesdays and Thursday when deliveries were unloaded. She testified that Ms. Aloussis did not like employees wearing jeans, and that one time, she got upset with her about it, and told her that if the problem was a lack of money, she could use her credit card, go to0DUN¶V:RUN Warehouse and buy a pair of navy work pants. Ms. Moore stated that this was said in a sarcastic, degrading manner. Ms. Aloussis flatly denied making this statement. She testified that she told employees she preferred that they not wear jeans, but realized that they were allowed to do so under the policy. Ms. Moore, on occasion, wore jeans to work, as did other employees. Scheduling Shifts [13]Ms. Moore testified that Ms. Aloussis would continually schedule her improperly, resulting in her having to work, at times, seven days a week. ItZDVWKHJULHYRU¶V understanding that scheduling for casuals was done by seniority, with the senior casual employee getting the - 6 - longest shift each day. At times, this did not ocFXU±DMXQLRUHPSOR\HHZRXOGJHWDORQJHUVKLIW or the shifts would be split into two shifts instead of one longer one. The grievor testified that she complained about the scheduling to Ms. Aloussis, who first said she would inquire about it and fix it. At times, she did but at times it continued, and Ms. Aloussis toldKHU³WKDW¶VWKHZD\LW LV´7KH\KDGDQXPEHURIFRQYHUVDWLRQVVKHVWDWed, but it happened more frequently in July and August 2008. Ms. Moore also spoke to a union steward and a District 0DQDJHU±WKRXJKQRW0V Corras - but again it was not straightened out. Her concern was that she was losing money and shifts, and that she had to work seven days a week to get sufficient hours. She did not file a JULHYDQFHRQWKLVLVVXH6KH³WUXVWHG´WKHHPSOR\HUWRORRNLQWR it. On cross-examination, the grievor acknowledged that she received the highest number of available casual hours per week. [14]Ms. Aloussis testified that it had been her understanding that the most senior casual should get the bulk of the available hours, if available, up to 40 hours per week. If a shift was available, even though it meant no days off, the senior employee was to receive it, up to a PD[LPXPRI6KHWHVWLILHGWKDW¶VKRZVKe was scheduling Ms. Moore. At one point, however, she was advised by management that her scheduling practice was incorrect. She and Acting District Manager John Creighton reviewed her scheduling practice, and he coached her RQKRZWRGRLW±WKDWWKHUHKDGWREHDGD\RIf, and the most senior employee would get the longest shift per day, up to 40 hours. The day off would come on the shortest shift in the week. Her practice changed after that, although exactly when this changed occurred is not clear in the record. Ms. Aloussis also explained that she would schedule two casual employees, one for a shift from 10:00 a.m. to 2:00 p.m. and one for 1:00 p.m. to 6:00 p.m, rather than one employee from 10:00 a.m. to 6:00 p.m. in order to have a second person cover off for the full-time HPSOR\HHV¶OXQFKEUHDNV - 7 - Performance Appraisals [15]In November 2008, covering the period October 2007 to October 2008, the grievor was given a draft of a Performance Appraisal by Ms. Aloussis to which she strongly objected. Her RYHUDOOUDWLQJZDVD³´IRU³,PSURYHPHQW5HTXLUHGDQGRU,QFRQVLVWHQW3HUIRUPDQFH´ Although she agreed with all ofWKHFDWHJRULHVUDWHGD³VROLGSHUIRUPDQFH´ LQYHQWRU\ management, merchandising, knowledge of operations and work area, retail point of sale systems and appearance), she disagreed with every raWLQJPDUNHG³LPSURYHPHQWQHHGHG´ FXVWRPHU service, social responsibility, communication/relationships, health and safety/security, cost efficiency/productivity). Ms. Moore testified that she had received seven prior Performance Appraisals, from four different managers, and aOORIWKHPZHUH³YHU\YHU\JRRG´7KHUHKDG EHHQ³RQHQHJDWLYHFRPPHQWLQVHYHQ\HDUV´ [16]Her 2006-2007 Performance Appraisal, by a different manager, however, also rated her at OHYHO³´³,PSURYHPHQWUHTXLUHGDQGRU,QFRQVLVWHQW3HUIRUPDQFH´,WQRWHGDQXPEHURI concerns that parallel some of the issues raised in her 2008 appraisal. There is certainly more than one negative comment in it, although Ms. Moore was insistent, on cross-examination, that it ZDVDERXW³RQHSUREOHP´WKDWZDV³VWUDLJKWHQHGRXW´DQGWKDWLWZDVD³YHU\JRRG´DSSUDLVDO [17]In response to the November 2008 appraisal, Ms. Moore made numerous telephone calls to Human Resources, asking about what is proper to include in a Performance Appraisal. One area of concern to her was a reference to a commeQWPDGHLQKHU - 8 - [18]No formal grievance was filed (although Ms. Moore thought one had been filed), but there was a meeting concerning the appraisal with the grievor, Union Steward Dora Robbins, Ms. Aloussis and District Manager Corras in February 2009. It was the JULHYRU¶VXQGHUVWDQGLQJ that Ms. Aloussis would rewrite the 2008 appraisal, which she did QRWGR,WZDV0V$ORXVVLV¶ DQG0V&RUUDV¶XQGHUVWDQGLQJWKDWWKHJULHYRUZRXOd be re-evaluated in six months, which is what occurred. [19]Ms. Moore also testified that Ms. Aloussis was upset about having to rewrite the appraisal. She stated that she heard Ms. Aloussis complain about it to the Assistant Manager, Susan Bellstedt, that she would rewrite the apprDLVDO³RYHUP\GHDGERG\´ Ms. Aloussis denied making this statement. Significantly, Ms. BellsWHGWZDVQRWFDOOHGWRFRUURERUDWH0V0RRUH¶V testimony on this point. [20]2Q0D\D³5HYLHZRI3UHYLRXV3$´was done, for the period October 2008 to April 2009. In this appraisal,WKHJULHYRUZDVUDWHG³´IRU³6ROLG3HUIRUPDQFH´6LJQLILFDQW improvement was noted in key areas. It was WKHJULHYRU¶VWHVWLPRQ\WKat she evidently had ³PLUDFXORXVO\LPSURYHG´6KHDOVREHOLHYHGWKDW she would now be evaluated every six months, LQVWHDGRI\HDUO\7KH(PSOR\HU¶VHYLGHQFHZDVWKat she would be reviewed annually thereafter. $15.00 Shortage [21]The LCBO has elaborate procedures for ensuring the accuracy of its cash tills. At the start of a shift, the employee is assigned to a till and does a count, which is then verified, and it is that amount that is recorded for the till. At the end of the day, the till is again counted, and verified. What the till should contain, based on the sales for the day (in terms of cash, debit, - 9 - credit, checks, etc.), is provided. If the till contains more money than the records show it should KDYHLWLVFDOOHGDQ³RYHUDJH´ If the amount is less, it isFDOOHGD³VKRUWDJH´7KH(PSOR\HU keeps daily records of all overages and shortages, which includes the till assigned to each employee. The Employer absorbs the first $5.00 of any shortage, and the remainder is split between the employee and the employer. [22]-XVWEHIRUH&DQDGD'D\WKHJULHYRU¶Vtill had a shortage of $15.00. Under the procedure outlined above, the Employer would absorb the first $5.00, and the remaining $10.00 would be split between the Employer and the grievor, with $5.00 to be deducted from her pay. A IHZGD\VODWHUWKHJULHYRU¶VWLll had an overage of $14.35. The grievor, in her examination-in- chief, testified that it was the same till, and that the overage demonstrated that the shortage a few days before had been in error. She advised Ms. Aloussis of this and wanted it all to be corrected ±WKHUHFRUGVRIWKHVKRUtage and the money owed. It was not corrected. [23]7KH(PSOR\HU¶VGRFXPHQWDU\HYLGHQFHKRZHYHUFOHDUO\VKRZVWKDW0V0RRUHGLGQRW have the same till on the two days in question. She used till 108 on June 29 and was short $15.00. She used tray 106 on June 30 and was short $11.94. Another employee used till 108 on June 30, and she was 1 cent over. The LCBO was closed on July 1 for Canada Day, and on July 2, the grievor used tray 105 and had an overage of $14.35. When asked on cross-examination if VKHPLJKWEH³PLVWDNHQ´WKDWVKHXVHGWKHVDPHWLOORQWKHWZRGD\VVKHUHVSRQGHG³QR´6KH would not agree that it was not the same till until she reviewed her own notes. No such notes were ever produced. - 10 - Security Guards [24]The LCBO contracts with a security firm to supply guards for security purposes and to minimize customer theft. Two guards work at Store 59, on a rotating basis, one in uniform and one in plain clothes. Their job is to monitor customers, not staff. [25]The uniformed guard is stationed at the front of the store, near front windows, the cash UHJLVWHUVDQGWKHPDQDJHU¶VRIILFH7KHXQiformed guard has a notebook, keeps notes and regularly checks the surveillance cameras and monLWRUVLQWKHPDQDJHU¶VRIILFH$FFRUGLQJWR Ms. Moore, at the end of June, early July 2009, LWEHFDPH³REYLRXV´WKDWRQHRIWKHJXDUGVVWRRG closer to her register whenever she was on cash. She was often assigned to Cash Register 1, ZKLFKLVWKHFORVHVWUHJLVWHUWRWKHPDQDJHU¶VRffice. She believed that the guard was monitoring her. She testified that the Assistant Manager, Susan Bellstedt, noted it, and they even did a test (switching who was on Cash 1) and that Ms. Bellstedt would speak to Ms. Aloussis about it. 7KUHHGD\VODWHUVKHZDVFDOOHGWR0V$ORXVVLV¶office and told that the issue with the security guard had been taken care of. Ms. Moore testified, however, that it continued but she did not complain again. She believed that the guard was annoyed with her because when a customer had asked him where the wine section was located, he directed him rather than refer the customer to a CSR. She told him that was not what he should be doing. She believed that he must have still been mad about it. Ms. Bellstedt was not called to testify to corroboratHWKHJULHYRU¶VWHVWLPRQ\ [26]0V$ORXVVLVWHVWLILHGWKDW0V%HOOVWHGWGLGFRPHWRKHUDERXWWKHJULHYRU¶VFRQFHUQWKDW RQHRIWKHJXDUG¶VZDVVWDQGLQJnear and watching her and that she was uncomfortable about it. Ms. Aloussis said she would address it and she did. She spoke to the guard and raised Ms. 0RRUH¶VFRQFHUQ+HGHQLHGZDWFKLQJKHUEXWVKHtold him not to stand so close to Cash 1 since - 11 - it made Ms. Moore feel uncomfortable. She then advised Ms. Moore that she had spoken with the guard and to let her know if she had any additional concerns. She testified that she never asked him to monitor Ms. Moore. There was no evidence that anyone in management asked one of the guards to monitor Ms. Moore. June 1, 2009 Counselling Meeting [27]On June 1, 2009, the grievor was called to meet with Ms. Aloussis and Ms. Corras about a complaint that had been received about the grievor from the Security guards. The meeting was held in the back corner area of the warehouse in the basement, where three chairs had been set up. Ms. Moore testified that that the letter of counsel was read to her. The letter refers to concerns raised by the securityJXDUGVUHJDUGLQJLQWHUIHUHQFHZLWKWKHLUZRUN±E\DOHUWLQJ potential shoplifters while under surveillance of cameras and security, by discussing arrests with customers, including the names of suspects and details of the arrest. The letter also explains the /&%2¶VH[SHFWDWLRQWKDW&65VQRW interfere in any manner with security operations. Ms. Moore testified that she refused to sign the counselling leWWHUEHFDXVHLWZDV³XQWUXH´6KHVWDWHGWKDWVKH had no chance to say what had occurred or to provide an explanation. [28]Ms. Moore stated that she felt bad about the accusation that she was hindering security. 6KHWHVWLILHGWKDW³RIFDWFKLQJWKLHYHV´DWWKHVWRUHZDVEHFDXVH of her efforts, and that she had even been teased by Ihor Salij, the ManaJHURI5HVRXUFH3URWHFWLRQWKDWVKHKDGD³JRRG H\H´DQG³VKRXOGEHDQLQYHVWLJDWRU´7KLVZDVGHQLed by Mr. Salij. He stated that before the investigation that led to the grieYRU¶VGLVFKDUJHKHVSRNHWRKHr one time about an alleged theft by a customer. - 12 - [29]0V0RRUHWHVWLILHGWKDWVKHIHOW³UDLOURDGHG´DQG³DPEXVKHG´E\WKHPHHWLQJLQWKH basement because she had not been given any warning about her actions, and because she believed the location was designed to intimidate her. In her view the counselling letter was GLVFLSOLQH±DQGVKHIHOWLW³ZDVQ¶WULJKW´DQGIHOW³KDUDVVHG´E\WKHPHHWLQJ±EHFDXVHWKDWLV³QRW KRZLW¶VGRQH´6KHVWDWHGWKDWPHHWLQJLQWKHEDVHPHQWZDVQRWD³QRUPDOPHHWLQJSODFH´2Q cross-examination, however, she acknowledged that³ZRUGVZHUHH[FKDQJHG´DQGWKDWVKH decided to leave the meeting, refusing to sign the counselling letter. She did not recall what was said exactly, but in her viewLWZDVQRW³DFRQYHUVDWLRQ´ [30]Ms. Aloussis testified that the warehouse area was used for meetings with employees because it was more private. The store manaJHU¶VRIILFHLQFRQWUDVWZDVDEXV\SODFHZLWK security guards and CSRs often coming in. She testified that she regularly met with employees WKHUH±IRUSHUIRUPDQFHDSSUDLVDOVDQGRWKHUPHHWLQJVEHFDXVHLWZDVPRUHSULYDWH1RHYLGHQFH ZDVLQWURGXFHGWRVXSSRUW0V0RRUH¶VYLHZWRWKHFRQWUDU\ Modified Work Plans [31]7KHJULHYRU¶VFRQWHQWLRQWKDWVKHZDVGLVFULPLnated against because of her age is based on her claim that Ms. Aloussis wanted to put her on a modified work plan, against her wishes DQGPDGH³FRQVWDQWUHTXHVWV´IRUGRFWRU¶VIRUPVWR be completed. Her age, she believed, was the ³RQO\WKLQJLWFRXOGEH´6KHZDVDERXWWHQ\HDUVROGHUWKDQDQ\RIWKHRWKHUHPSOR\HHVDQGVKH had discussed retiring and buying back pension credits with staff at the store as well as Ms. Aloussis. She provided no other examples of discrimination based on her age. - 13 - [32]On cross-examination, Ms. Moore testified that she had no need for modified duties for WKHODVWò\HDUVRIKHUHPSOR\PHQW±WKRXJKperhaps earlier she did, in 2005-2006 because of arthritis in her hand. She did not recall ever having to be put on modified duties by her doctor while at store 59. [33]The evidence shows that in late 2005 and early 2006, while she worked at another location, Ms. Moore presented health care provider reports regarding the need for temporary limitations, which resulted in a Temporary Modified Work Plan for one month, January 17, 2006 WR)HEUXDU\ - 14 - [35]2Q1RYHPEHU0V0RRUH¶VGRFWRUFRPSOHWHGD+HDOWK&DUH3URYLGHU¶V5HSRUW LQGLFDWLQJ³PRGHUDWHWRVHYHUHRVWHRDUWKULWLVERWKKDQGV´DQGUHFRPPHQGLQJ³MREURWDWLRQ DSSURSULDWHWRLQIODPHGKDQG´ [36]Approximately a week later, on November 14, 2008, Ms. Moore reported a work-related injury to her hand as she was taking off a load in the warehouse. At first, on cross-examination, she did not recall this, but she did remember after being shown the accident report, and acknowledged that she did raise a concern about her hand. Her concern, she said, was more about unloading product rather than being on cash. [37]On November 28, 2008, a Temporary Modified Work Plan was issued, with a review GDWHRIPRQWKVIRU³IUHTXHQWURWDWLRQRIMREV´,WZDVVLJQed by Ms. Moore and Ms. Aloussis on December 2, 2008. [38]On March 5, 2009, Human Resources sent an email to Ms. Aloussis, inquiring whether Ms. Moore still needed modified work duties, and if so, to³SOHDVHDVNKHUWRSURYLGHXSGDWHG PHGLFDO´1RUWK5HJLRQ+XPDQResources Manager Camille Clemons Pitcher testified that updated medicals are required by the LCBO to ensure that the modified duties reflect the HPSOR\HH¶VFXUUHQWPHGLFDOFRQGLWLRQVDVWKLQJV change both for the better and worse. She confirmed that the employer has an obligation to ensure the health and safety of its employees, and ensure that work does not aggravate the emSOR\HH¶VFRQGLWLRQRULQMXry. Restrictions are based on the medical information received and physician reports are required both to start and end a modified work plan. A three-month review was selected because a quarterly review was thought to be reasonable, and is a ³FRPPRQUHYLHZGDWH´DWWKH/&%2 - 15 - [39]Ms. Moore, however, objected to the review period, and Ms. Clemons Pitcher agreed to extend it to a six-month review. The modified work plan from December 2, 2008 was consequently extended to June 28, 2009, and the date on the document was changed by Human Resources. No new signatures were obtained as there was an agreement with Ms. Moore to extend it to June 28, 2009. On cross-examination, Ms. Moore appeared quite angry that the document had been extended without a new signature from her, even though she acknowledged that she and Ms. Clemons Pitcher ³KDGDGLVFXVVLRQDURXQGWKHQ´ [40],WZDV0V0RRUH¶VHYLGHQFHWKDWWKHHPSOoyer was asking for medical forms to be FRPSOHWHG³WZRDQGWKUHHWLPHVSHUPRQWK´DQGWKDWKHUGRFWRUZDV³YHU\DQQR\HG´6KHIHOW WKDWWKHHPSOR\HUZDVPDNLQJ³FRQVWDQWUHTXHVWV´and putting a lot of pressure on her to obtain medical documentation. Aside from three medical provider forms for the period November 6, 2008 to July 15, 2009, there is no documentary evidence to support that assertion, nor was any HYLGHQFHSUHVHQWHGIURPWKHJULHYRU¶VGRFWRU [41]On June 30, 2009, Human Resources sent an email to Ms. Aloussis asking whether she had received any medical update from Ms. Moore since her modified work plan had expired on -XQH7KHUHDIWHURQ-XO\0V0RRUH¶VGRFWRUFRPSOHted a Health Care 3URYLGHU¶V5HSRUWFRQWLQXLQJKHUUHVWriction to rotate her duties aQGDGGHG³OHIWKDQGFDVK´2Q July 21, 2009, a final Temporary Modified Work Plan was issued, with those restrictions and a review date of six months. This was signed by Ms. Moore. [42]Ms. Moore, in her testimony, was adamant that she never wanted modified work duties. It was her view that this was forced upon her. She acknowledged, however, that her doctor - 16 - placed restrictions on her work which resulted in modified work plans. Ms. Clemons Pitcher testified that Store Managers do not write modified work plans, although they have input. Modified Work Plans are strictly done by Human Resources. Assignment to Cash Register 1 [43]Ms. Moore testified that she spent the majority of her work time on cash, and the majority of her time on cash assigned to cash register 1. That register was the closest one to the store PDQDJHU¶VRIILFHZKLFKKDGDKDOI glass window in it. It was her view that she was assigned to that cash register in order for Ms. Aloussis to monitor her. She stated WKDWLW³PDGHLWFRQYHQLHQW IRUKHUWRFULWLFL]HPH´%XWRWKHUthan that, it did not matter to her. [44]Cash register 1 was also the only ergonomically designed cash register at the store and the only left-handed cash register. Ms. Aloussis testified that a number of employees, including WKHJULHYRUSUHIHUUHGLW0V0RRUHDFNQRZOHGJHGRQFURVVH[DPLQDWLRQWKDWVKH³PLJKWKDYH´ requested cash register 1 at times because it was a left-handed cash and she had a sore hand. [45]The evidence also showed that the glass window in the store manager was not made of clear glass and not easy to see out of. Ms. Aloussis testified that Ms. Moore was assigned to cash 1 because she preferred it and not to monitor her. Value-Add Mask Incident [46]The grievor alleges that in January 2009, when she was serving as acting manager, she had advised a co-worker, Linda Miller, who had wanted a mask that was part of a value-add promotion to purchase the item with the mask and then return the product, but keep the mask. - 17 - 6KHVWDWHGWKDWZKHQ0V$ORXVVLVOHDUQHGRIWKLVVKHEURXJKWKHULQWRKHURIILFHDQGVDLG³,JRW \RX,ILQDOO\JRW\RX´6KHWKHQDVNHGKHUWRexplain what happened. She did and she stated that Ms. Aloussis told her that she was in ³GHHSWURXEOH´DQGWKHQPDGHDQXPEHURISKRQH calls. In the middle of the third call, she stated that Ms. Aloussis told her to go back to work and WKDWVKH¶GVSHDNWRKHUODWHUZKLFKVKHQHYHUGLd. She believes that Ms. Aloussis learned that what she did was okay. [47]Ms. Aloussis testified that Ms. Miller came to her concerned if she had done the right thing. She stated that she then met with both Ms. Miller and Ms. Moore together to go over what had happened, and she explained that it was not the right thing to benefit from a store promotion in that manner. She denied that she said to 0V0RRUH³,JRW\RX,ILQDOO\JRW\RX´6KHGLG contact Ms. Corras who agreed that the perception of it was not appropriate. United Way Prizes [48]The grievor asserted that in April 2009 Ms. Aloussis gave out prizes for CSRs who encouraged donations to Unicef, and everyone ZDVJLYHQDSUL]HH[FHSWIRUKHU±JURFHU\ coupons, gas coupons, bottles of wine, Tim Horton cards and so forth. Prizes, she said, were given to everyone in the backroom, except her, when Ms. Aloussis said, in front of the others, ³VRUU\/\QGD±KDYHQ¶WJRWWHQ\RXUV\HW<RX¶OOJHWLWLQDIHZGD\V´6KHQHYHUGLGUHFHLYHD prize and felt singled out by this action. It was her testimony that Ms. Aloussis was very LQYROYHGLQ8QLFHI±VKHSXVKHd the cashiers regarding donations, ran a contest among the cashiers and ran a banquet for Unicef. - 18 - [49]Ms. Aloussis testified that she has had no involvement with Unicef, but did support raising funds for United Way on behalf of the LCBO. For many years she has been the United Way Campaign Representative for the northern district. In October, the cashiers were asked to prompt customers if they wanted to make a donation to United Way, and she ran a contest to encourage this. She personally purchased prizes for the top three cashiers who generated the most donations. She stated that she never gave prL]HVWRPRUHWKDQWKUHHHPSOR\HHV±VKHFRXOG not afford to do that. She never gave prizes to everyone except Ms. Moore, nor did she state that she had not yet purchased a gift for her. [50]On cross-examination, Ms. Moore acknowledged that she may have gotten mixed up between United Way and Unicef, but insisted that everyone received a prize from Ms. Aloussis, except her. There was no corroboration of this, however, from any other store employee. Dealing with a Rude Customer [51]Ms. Moore testified that in early 2009 a parWLFXODUFXVWRPHUZDVRIWHQ³UXGHDQGFUXGH´ to her and that she complained about it to Ms. Aloussis, and did not want to serve him. Ms. Aloussis, however, told her that she had to serve him anyway. [52]Ms. Aloussis confirmed that Ms. Moore did complain about this customer and did not want to serve him, as did another employee, Tony Malone. She advised both of them, when they saw him, to close their cash and walk away and let her know so she could speak to him. She could not recall if she spoke to them individually or together, but recalled telling each of them that. She stated that she inquired of Customer Service if staff could refuse to serve a customer, and was told that as the LCBO was a government organization, it could not refuse to serve - 19 - someone, but that cashiers do not have to put up with abuse. Ultimately, she talked to the customer and explained that he was speaking inappropriately to the two cashiers and to go to other cashiers when in the store. Criticisms Regarding Voids/ Court Lady [53]The grievor testified that in January and )HEUXDU\VKHEHFDPH³IUXVWUDWHG´EHFDXVH she was constantly being criticized about her mistakes. So she dHFLGHGWRZULWHLWDOOGRZQ±DOO RIKHUYRLGV±OLQHYRLGs (where a single item is voided) and purchase voids (where an entire transaction is voided), so that when her manager criticized her she would have a note about it to remind her what occurred. Purchase voids must be signed by the cashier and require a second signature from the manager or assistant manager as well as an explanation for the void. She wrote down these voids on any scrap of paper available. At one point, she stated, she had a ³ERRNIXOORIWKHP´0RVWRIWKHPKRZHYHUshe discarded as matters temporarily improved with Ms. Aloussis, but resumed when the criticisms reoccurred. [54]One of the voids listed by the grievor waVGDWHG)HEDQGUHIHUUHGWRD³FRXUW ODG\´6KHVWDWHGWKDWWKLVLQYROYHGDPXOWLSOHVFDQ±WKHFXVWRPHUSXUFKDVHGRQHERWWOHEXWWKH scanner picked it up ten times because the scaQQHUZDV³YHU\VHQVLWLYH´6KHYRLGHGRXWWKH purchase, and it was signed by Ms. Aloussis. [55]On cross-examination, the employer produced the purchase receipt from that date and the void of it. It shows no multiple scans, but a void because the customer had wanted cash back on the transaction. The grievor would not agree that this was the same transaction. - 20 - Marijuana Use [56]In November 2007, the grievor asserts that Ms. Aloussis told her that someone had reported that the grievor smoked PDULMXDQD±WKDWHPSOR\HHVKDGsmelled it, but she would not VD\ZKRKDGUHSRUWHGLW$OWKRXJKWKH8QLRQ¶VSDrticulars state that Ms. Moore responded by saying that she did smoke marijuana in her life, but not at work, she denied that at the hearing. Communication Criticisms [57]The grievor alleged that Ms. Aloussis regularly criticized her about the way she spoke to customers and that she spent too much time talking and was too friendly. Ms. Aloussis testified WKDWVKHGLGQRW³FULWLFL]H´KHUEXWKDGFRDFKLng conversations with her when matters were EURXJKWWRKHUDWWHQWLRQ±ERWKLQUHJDUGWRcustomers and co-workers. She had similar conversations with other employees and about prRGXFWLYLW\GXHWRWRRPXFK³FKLWFKDW´6KH testified that communication is a common issue since messages are not always heard the same way. %7KH*ULHYRU¶V'LVFKDUJH [58]The investigation that led WRWKHJULHYRU¶VGLVFKDUJHbegan in June 2009, when the Assistant Manager reported that she had heard that Ms. MRRUHZDV³VZHHWKHDUWLQJ´±QRW FKDUJLQJRUXQGHUFKDUJLQJSURGXFWV±IRUDFXVWRPer she had hired to do some renovations on her home. Ms. Aloussis inquired who had made this assertion, but was not provided the name and did not press the matter further. Ms. Aloussis then noted some voids which she thought were XVXDO2QHRQ-XQH - 21 - problem on that cash register or any other. The other, on June 5, 2009, involved a cash purchase of two products, another cash purchase of the same product, followed by a void of the second purchase. The void was signed only by Ms. Moore; there was no second signature and there was QRH[SODQDWLRQIRUWKHYRLG6KHIRXQGLWWREH³VWUDQJH´ [59]She passed on her concern to Ms. Corras who contacted Ihor Salij, Manager of the Resource Protection Unit of the LCBO, which investigates alleged criminal, fraudulent and conflict of interest matters. Mr. Salij then contacted Ms. Aloussis and she sent him the documents that had raised her concern. It turns out that one additional document that Ms. Aloussis apparently did not notice, or send on, was a subsequent debit transaction for the same product by the same customer. [60]Ms. Aloussis also testified that a call was made to the Point of Sales help desk concerning the air miles issue, but since she went on vacation she was not aware of any follow-up. Based on my inquiry whether there were any records concerning this issue, the Employer checked with Senior Manager, Retail Point of Sales Systems, Rad Kuzeljevic, who had no documentation from that period. He also checked with their service provider, IBM, but their records did not go back that far. Mr. Kuzeljevic was not aware of any such complaints about bypassing air miles opening the register. He testified that the LCBO processes approximately 10 million transactions a week, from 2100 cash registers. He would expect that if this kind of problem existed, it would have occurred elsewhere and he would have heard about it. [61]Based on the information provided to Mr. Salij, Resource Protection decided it warranted further investigation and decided to install covert video survHLOODQFHRIWKHJULHYRU¶VFDVK - 22 - register, which was installed late in the evening of June 18, 2009. Prior to this, however, Mr. Salij had asked Ms. Aloussis to review the storH¶VGLJLWDOYLGHRUHFRUGHUIRUWKH-XQH transaction. She did so and testified that she saw the customer purchase three products but leave the store with four. She was not asked, however, to record it.Mr. Salij personally reviewed the DVR for June 5 on the evening of June 18 and testified that he also saw four products leave the th store while only three had been paid for. The next morning, he tried to have the June 5 DVR copied, but the system had already overridden it, which is does automatically every 14 days. [62]The covert video surveillance lasted for three days. It is 5HVRXUFH3URWHFWLRQ¶VYLHZWKDW three day is a reasonable period to conduct such surveillance. The decision to have covert surveillance is made solely by Resource Protection. Neither the store manager nor the District Manager have input into that decision. During that three-day period, the Employer determined that two transactions were imprRSHU±RQHRQ-XQHZKHUHLWLVDOOHJHGWKDWWKHFXVWRPHU presented the grievor with two six packs of beer, but she only rang in one six pack, allowing the customer to leave with two six packs; and one on June 21, 2009 where it is alleged that she gave a value-add product to a customer despite the fact that the customer had not purchased the promotion product required to receive the value-add product. [63]In addition, two other incidents were relied upon by the Employer. One on June 26, 2009, when the customer presented four cans of beer and the grievor only charged for three cans; and a similar incident on July 17, 2009. - 23 - June 20, 2009 [64]Both the covert video surveillance and regular store video surveillance were presented at the hearing. The video evidence clearly demonstrates that two six packs of beer were placed by the customer on the check out line, but the grievor only charged the customer for one. She picked up the first six pack, scanned it, put it down, then picked up the second but did not scan it, and instead, placed them together. She had not put in a quantity before scanning the six pack, which is another way (other than individually scanning each item) to record multiple purchases of the same item. The value of each six pack was $8.95. The customer then paid the grievor, initially providing cash funds to pay for two si[SDFNV±LQFOXGLQJDWHQGROODUDQGILYHGROODU bill. When the customer pointed out, however, that he was paying too much, she returned the ten dollar bill to him, keeping the $5.00 bill. He then added change to cover the balance due. He left with two six packs, but had only paid for one. The grievor tried to give him his change, but he declined it and she placed the change in the charity box. [65]7KHJULHYRUWHVWLILHGWKDWVKHEHOLHYHVVKH³PDGHDKXPDQHUURU´+HUVWDQGDUGSURFHGXUH is to lift the case and scan it twice. But it was only scanned once, and she did not catch it though VKHDFNQRZOHGJHGWKDWVKH³VKRXOGKDYHSLFNHGLWXS´6KHEHOLHYHVVKHPD\KDYHEHHQ distracted since there was so much going on. NoUGLGLW³UHJLVWHU´Zith her as to why the customer was giving her extra money. She stated that she did not know the individual, though he was a regular. She had no interactions with him outside of the store. [66]The video reveals that the store was quite slow at the time of this transaction. There were no customers waiting in line, and no one at cash register 2. - 24 - June 21, 2009 [67]6XQGD\-XQHZDV)DWKHU¶V'D\DQGthe grievor was acting manager of the store. The video shows a young man trying to select items for a period of time. He had two items in his hands as the grievor came to talk to him. After she left, he continues to search around then joins the line-up to pay at cash register 3. The grievor then is seen getting a mini- bottle, the value-add item, and signalling to the young man and his girlfriend to come with her on cash register 1. She signs on to the cash register and then processes his transactions and she includes the value-add mini bottle. It is undisputed that the customer did not purchase the product in the size that the value-add item was attached (a 750 ml bottle); he purchased a smaller size of it (200 ml.). [68]7KHJULHYRUVWDWHGWKDWVKH³FOHDUO\UHPHPEHUHG´WKLVLQFLGHQWDIWHUVKHVDZYLGHRRILW She stated that a young couple came in, trying to find some rum and WHTXLODIRUWKHPDQ¶VIDWKHU He had wanted to purchase a higher grade rum but the store did not have it in a 200 ml size. She stated that he was ready to put it all back and leave when she went to the display to find him something else to purchase, but she could not find anything. So she asked him if he would buy the rum and tequila if she gave him a sample of the higher grade rum. He said yes, so she pulled the value-add item off the intended product, and processed the purchase. The approximate value of the mini-bottle is $2.95. [69]The grievor testified that she believed that she had the authority to do this as the acting manager, and felt that she had been correct to offer this customer service. She knew that June 21 was the last day of the promotion; it was a few hours from closing and by closing, all of the add- ons had to be removed and would be returned to the representative. She also considered that all - 25 - of the products purchased were from the same representative, and that the mini-bottle had a VWLFNHURQLW³QRWIRUUHVDOH´$WWKHWLPHWKHVWRUHGLGQRWVHOOPLQLERWWOHV6KHWHVWLILHGWKDW she did not know the couple. [70]Ms. Moore testified that, in the past, she had seen Ms. Aloussis offer barbecue sauce that was part of an add-on promotion to the staIIDVZHOODVSHQVDQGFKRFRODWHV±WKLQJVD representative would leave for the manager to distribute. She also had seen her take a corkscrew, which was an add-on for wine, and give it to a couple when there were no corkscrews in stock for sale. In addition, there was a time that she saw Ms. Aloussis adjust the price of a bottle of rye without a label to assist a customer. [71]Ms. Aloussis initially testified that she did not remember an incident with a value-add corkscrew, but later recalled that a customer had purchased the product with the value-add corkscrew during the promotion but at a time when the store had run out of them. He had a receipt to show that he had purchased the product and the promotion was still on, so she gave him a corkscrew. She testified that store managers, but not acting managers, have the authority to do a price adjustment if the label is poor or a product has been discontinued. She testified that neither store managers, nor acting managers, have discretion to give a customer a value-add product when the specific item it was designed to SURPRWHLVQRWSXUFKDVHG±HYHQWRSURPRWHD sale. The manufacturer or sXSSOLHUFKRRVHVWKHSURPRWLRQ±WR encourage sales of a specific item. She stated that in regard to the barbecuHVDXFHWKDWZDVWKHVXSSOLHU¶VGHFLVLRQWKDWLW FRXOGEHGLVWULEXWHGWRVWDII±QRWKHUV - 26 - [72]On June15, 2006, the grievor was given a counselling letter concerning value-add SURGXFWVDQGUHYLHZHGWKH(PSOR\HU¶VYDOXHDGd policy. The policy, dated May 3, 2004 defines D³YDOXHDGGHGSURGXFW´DVIROORZV A value-added product is a liquor or non-liquor item that has been attached to a liquor product DWWKHVXSSOLHU¶VH[SHQVHDVDQLQGXFHPHQWWR customers to purchase that product. Taking or removing any value-added product is considered theft, [except for a value-added product attached to an item purchased by an employee] which is a contravention of LCBO policy and a criminal offence. 7KHSROLF\VWDWHVLQUHOHYDQWSDUWVWDWHV³(mployees are prohibited from removing any value- added product for their personal use, except for a value-added product attached to an item that they have purchased. Employees who violate this policy may face disciplinary action, up to and LQFOXGLQJGLVPLVVDO´ [73]The counselling letter dealt with a number of issues, includLQJWKHJULHYRU¶VEHOLHIWKDWLW was acceptable, at the request of a customer, to remove a value added product from the designated brand for that promotional period and to move it to another larger format of the same brand. The letter advised that her understanding ZDV³LQFRUUHFWRQDOOFRXQWV´,WVWDWHVLQ UHOHYDQWSDUW³>(PSOR\HHV@DUHQRWWRDOORZFXstomers to move the value added promotional item to the product of their choice even if it is the same brand EXWDGLIIHUHQWYROXPHVL]H´7KH letter of counsel was signed by the grievor. June 26, 2009 [74]The video shows that four cans of beer are presented by a female customer on the counter, but the electronic journal, which records every scanned item, shows that only three cans were scanned and paid for. The grievor appears to have placed four cans of beer in a bag, although due to a time delay in the video that is not 100% clear.The grievor suggested that she - 27 - may have removed one of the cans from the counter, as she would normally do if the customer did not have enough money to pay for all of the items, but the video did not show that happened here. Consequently, I find it more likely than not that she placed four cans of beer in the bag. The value of the can of beer is $1.90. [75]Ms. Moore testified that she was not disputinJWKDW³,SRVVLEO\PDGHDPLVWDNH´6KHGLG not know the woman, or recall her as a customer. July 17, 2009 [76]The video shows that four cans of beer were presented on the counter by the male customer. Initially, the beer was rung up as a six-pack though they were individual cans, so the grievor line voided that, and entered three cans of beer instead according to the electronic journal. The customer then placed the cans into a bag he carried and left the store. [77]Ms. Moore testified that she did not know the customer personally, although he was a regular. [78]The grievor testified emSKDWLFDOO\WKDWVKHGLGQRW³NQRZLQJO\´³DOORZ´WKHVHLQGLYLGXDOV (except in the case of the value-add one) to leave the store with products for which they had not paid. If she did, it was a mistake and was not deliberate. [79]Mr. Salij testified that based on the information from the covert surveillance he GHWHUPLQHGWKDWFULPLQDODFWLYLW\±WKHIWKDGWDken place. He decided that it was theft rather than poor cashiering based on the fact that there was more than one incident and the fact that Ms. - 28 - Moore was an experienced cashier. In his opinion WKHUHZHUHWRRPDQ\³PLVWDNHV´IRULWWREHD ³PLVWDNH´%DVHGRQ/&%2SROLF\KHSUHVHQWHGWKHLQIRUPDWLRQWRWKHSROLFH7KHSROLF\VWDWHV every ³,Q case in which there is sufficient evidence to prove a violation of the Criminal Code of Canada or a Provincial statute, the Resource Protection Department will notify the police so that FULPLQDOSURVHFXWLRQFDQSURFHHG´ HPSKDVLVLQRULJLQDO +HGLGVRRQ-XO\DQG advised District Manager Corras of that either the same day or the next. [80]Mr. Salij testified that in the past the LCBO has also presented cases to the police where the retail value of the products involved was very small. He stated that it was not the amount that was important because the LCBOKDVD³]HURWROHUDQFH´DSSURDFKWRWKHIW7KHIWUHJDUGOHVV of the amount, is a serious breach of trust. [81]Mr. Salij further testified that Resource Protection does not interview an employee before turning the investigation over to the police in order not to compromise the police investigation. He stated that the practice is to go to the police first. Once they receive notice that the police investigation is complete, Resource Protection advises Human Resources and the retail group and a Notice of Intended Discipline (NOID) is issued. He stated that the Human Resources end is separate from the Resource Protection investigation end, which deals strictly with the criminal side. [82]Mr. Salij testified that he was advised by the police that they would be laying criminal charges against the grievor on July 28, 2009. Ms. Moore testified that on that date, she was arrested. She had worked late the previous day and when she arrived home there was a phone message from a constable who asked her to come to the police station the following morning. - 29 - 6KHKDG³QRLGHD´ZK\KHKDGDVNHGKHUWRDttend, but thought it had to do with something LQYROYLQJDIULHQG6KHZDV³LQVKRFN´ZKHQKHDGYLVHGKHUWKDWshe was being arrested for three counts of theft under $5,000. She was finger printed and a mug shot was taken. As a condition of her release, she was told to KDYHQRFRQWDFWZLWKWKH/&%2±not attend its stores or contact employees in Barrie, plus she was not to travel. In hindsight, she suspected that she was asked to work late by Ms. Aloussis on July 27 so that she could be arrested at the store. There is no evidence, however, that Ms. Aloussis was aware at that time that criminal charges were going to be laid against Ms. Moore. [83]The August 6, 2009 NOID, signed by District Manager Loreen Corras, sets out the four incidents of June 20, June 21, June 26 and July  - 30 - without payment, and that she could no longer trust the grievor to protect the assets and property of the LCBO. The grievor, she stated, had been given a position of trust, especially when she served as acting manager. In heUYLHZWKHJULHYRU¶VDFWLRQVZHUHintentional, as opposed to poor cashiering, because she was an experienced and knowledgeable cashier and it happened a number of times. She explained that if it had happened once, she would not have been WHUPLQDWHGVLQFH³ZHDOOPDNHPLVWDNHV´EXWWKLVZDVQRWRQHLQFLGHnt. She also considered that there had been no explanation and Ms. Moore had shown no remorse nor accepted responsibility for her conduct. [85]On August 27, 2009, the grievor was terminated. The letter of termination states, in relevant part, as follows: [W]e have based our decision in this matter on the information available to us and have concluded that you engaged in the conduct, as alleged. In determining the appropriate disciplinary response, we note that you failed to ring in products presented to you by customers on multiple occasions, and you further gave a customer a value add product that the customer was not entitled to. All this conduct resulted in the loss of product and/or funds to the LCBO.We further note that you received a letter of counsel, dated June 15, 2006, with respect to the proper processing of value-add products and, as such, were well aware of the expectations of you in this regard. In the absence of an explanation for your conduct, and having regard to the repetitive nature of your conduct over a short period of time, we have no choice but to conclude that the conduct discussed above was intentional. Your actions, as set out above, constitute a serious breach of the fundamental trust placed in you to the ongoing employment relationship in a retail setting. As such, your actions have irreparably damaged this employment relationship. Therefore, your employment is terminated effective immediately for just cause. Reasons for Decision [86]7KH8QLRQDVVHUWVWKDWWKHJULHYRU¶VGLVFKDUJHwas without just cause. It contends that WKHJULHYRU¶VWHUPLQDWLRQZDVWKHFXOPLQDWLQJUHVXOWRIKHUVWRUHPDQDJHU¶VKDUDVVPHQWDQG discrimination. I will address the alleged discrimination and harassment first. - 31 - 1.Alleged Age Discrimination > - 32 - UHFRPPHQGHGD³MREURWDWLRQDSSURSULDWHWRDQLQIODPHGKDQG´WKH(PSOR\HUZDVUHTXLUHGWR make this accommodation. It is QRWDPDWWHURIFKRLFH±IRUHLWKer the grievor or the Employer, SURYLGHGLWPD\EHGRQHZLWKRXW³XQGXHKDUGVKLS´,WLVDOHJDOREOLJDWLRQ&OHDUO\WKH/&%2¶V decision to place Ms. Moore on modified duties was WKHUHVXOWRIKHUSK\VLFLDQ¶VUHSRUWDQGQRW her age. [90] There is also no evidence that the EmplR\HU¶VUHTXHVWVIRUPHGLFDOLQIRUPDWLRQZHUH H[FHVVLYH7KH(PSOR\HU¶VLQLWLDOGHFLVLRQWR review the temporary modified work plan quarterly appears reasonable in all the circumstances, but significantly, when the grievor complained about it, the Employer agreed to change it to a six-month review. There is no HYLGHQFHWRVXSSRUWWKHJULHYRU¶VFRQWHQWLRQWKDWWKH(PSOR\HUZDV³FRQVWDQWO\´PDNLQJ demands for medical information. Nor is there any corroborative evidenFHWKDWWKHJULHYRU¶V GRFWRUZDV³DQQR\HG´E\WKHQXPEHURIUHTXHVWV [91] Consequently, the evidence does not estabOLVKWKDWWKH(PSOR\HU¶VUHTXHVWVIRUPHGLFDO information and placement of the grievor on modified duties had anything to do with her age. On the contrary, the Employer did what it was legally required to do. 2. Allegations of Harassment [92] Having carefully reviewed the evidence presented, I cannot conclude that the grievor was harassed by her store manager, Ms. Annette Aloussis. To be sure, WKH\GLGQRWVHH³H\HWRH\H´ on a variety of things and Ms. Aloussis may have been more critical of the grievor than her previous managers, but the evidence falls significantly short of establishing harassment. - 33 - [93] In Re OPSEU (Blanchette Grievance) and Ministry of Natural Resources, GSB No. 2005-0798 (Dissanayake), the Union had asserted that the grievor, a probationary employee, was terminated in bad faith. The Board found evidence WKDWWKHJULHYRU¶VVXSHUYLVRUZDVFULWLFDORI his job performance and attitude on several occasions and that the grievor did not in most cases agree with those criticisms. Nevertheless, the Board stated at par. 35 WKDWLWZRXOG³EHDQ unreasonable leap to infer bad faith from such woUNUHODWHGGLVDJUHHPHQWV«SDUWLFXODUO\LQWKH absence of any other evidence RIDQLPRVLW\RUFRQIOLFW´ [94] In my view, that is the situation here±SUHGRPLQDQWO\ZRUNUHODWHGGLVDJUHHPHQWVDQG criticisms with which the grievor did not agree. 0RVWRIWKHJULHYRU¶VDOOHJDWLRQVIDOOLQWRWKLV FDWHJRU\)RUH[DPSOHWKHJULHYRU¶VDVVHUWLRQWKat Ms. Aloussis was critical of her attire - specifically her sketchers and her vest. The evidence establishes that Ms. Aloussis questioned her shoes and the vest and asked her not to wear them while she checked out whether or not they FRPSOLHGZLWKWKH/&%2¶VGUHVVFRde policy. She did so and learned that they were acceptable and that was the end of it. This occurred relatively soon after Ms. Moore returned to store 59. It did not continue after Ms. Aloussis had an opportunity to check the two items out. In my view, this was a work-related disagreement. It is not harassment. >@,QWHUPVRIWKHJULHYRU¶VDVVHUWLRQWKDWMs. Aloussis sarcastically offered her use of her credit card if she could not afford to buy a pair of pants, I credit Ms. $ORXVVLV¶GHQLDORYHUWKH JULHYRU¶VWHVWLPRQ\WKDWVKHVDLGWKLV$OWhough Ms. Aloussis did not like employees to wear jeans, jeans were permitted and regularly worn by employees, including the grievor. I find it unlikely, in those circumstances, that Ms. AlouVVLVEHFDPHVRIUXVWUDWHGDERXW0V0RRUH¶V - 34 - wearing jeans that she would make such a comment. But even if she did say it, though it might be insensitive and inappropriate, it does not constitute harassment. [96] In Re Toronto Transit Commission and Amalgamated Transit Union (Vito Stina) unreported decision of Owen Shime, Oct. 6,  ³KDUDVVPHQW´ZDVGHILQHGDVIROORZV Harassment includes words, gestures and actions which tend to annoy, harm, abuse, torment, pester, persecute, bother and embarrass another person, as well as subjecting someone to vexatious attacks, questions, demands or other unpleasantness. A single act, which has a harmful effect, may also constitute harassment. In my view, the comment, assuming that it ZDVVDLGGRHVQRWFRQVWLWXWH³KDUDVVPHQW´ [97] Nor do the shift schedules done by Ms. Aloussis constitute harassment. The evidence establishes that Ms. Aloussis made mistakes in reJDUGWRVFKHGXOLQJ±QRWonly in regard to the grievor but other employees as well, but they were made because she did not understand how to schedule correctly. The scheduling was not done to force the grievor to work seven days a week to receive her hours though sometimes that was the result. It was done that way because Ms. Aloussis was under a mistaken understanding in regard to scheduling. Once she was properly instructed, the scheduling practice changed. In addition, some of the scheduling to which Ms. Moore objected was properly within the rights ofWKH(PSOR\HU±IRUH[DPSOHWRKDYHWZR employees work shifts instead of one employee having a long shift in order to cover off lunch time for the full-time employees. [98] The November 2008 performance appraisal is also a work-related disagreement. In that appraisal, Ms. Aloussis is quite complementary of the grievor in some areas and dissatisfied with her performance in other areas. The grievor, as she wrote in the comments section of the - 35 - DSSUDLVDO³IXOO\GLVDJUHHVZLWKWKLV3$´6KH³GLVDJUHHGZLWK 90% of the statements & 100% KRZWKLV3$ZDVILOOHGRXW´+DYLQJUHYLHZHGWKHdocument in detail, however, I cannot concur ZLWKWKHJULHYRU¶VWHVWLPRQ\WKDW³´RIWKHFRQWHQt is inappropriate to include in an appraisal. (YHQWKHRQHVSHFLILFLWHPVKHPHQWLRQHG±DUHIHrence to her past apprDLVDO±LVDSSURSULDWH JLYHQWKHPDQDJHU¶VYLHZWKDWWKHLVVXHLGHQWLILHGZDVFRQWLQXLQJ)XUWKHU0V$ORXVVLVOLVWHQHG to what the grievor had to say about the appraisal, both in written form and in the meeting with Union representation that followed, and made some changes as well as agreed to review the grievor again in six months. [99] In that regard, I prefer the evidence of Ms. Aloussis and Ms. Corras that the agreement ZDVWRUHYLHZWKHJULHYRU¶VSHUIRUPDQFHLQVL[Ponths, not rewrite the November 2008 appraisal. I note that although Union Steward Dora Robbins, who attended that meeting, was called to testify in this hearing, she was not asked about the agreement reached at that meeting. Having attended the meeting, she was in a position to FRUURERUDWHWKHJULHYRU¶VXQGHUVWDQGLQJ6KHGLG not. Further, the November 2008 appraisal was amended to state that her performance would be reviewed in six months, and the evidence shows that Ms. Aloussis prepared a new six-month evaluation, not a rewrite of the former one. Consequently, the actions undertaken by management were consistent with a six-month review, not a rewrite. [100] I have little doubt that the November 2008 performance appraisal was more critical of the JULHYRU¶VSHUIRUPDQFHWKDQVKHH[SHFWHGRUKDGexperienced in the past. But contrary to her assertion that all of her prior appraisals were excellent, the one from 2006-2007, by another manager, also noted a number of areas in need ofLPSURYHPHQWDQGUDWHGKHURYHUDOODVD³´DV well. He noted that she had difficulty and conflicWLQKHUGHDOLQJVZLWKFRZRUNHUV±DVGLG0V - 36 - $ORXVVLV+HQRWHGWKDWDWWLPHVVKHZRXOG³JHWRIIWUDFN´DQGWKDWWLPHPDQDJHPHQWVHWWLQJ priorities and productivity were areas of concern ±DVGLG0V$ORXVVLV+HDOVRKDGFRQFHUQV DERXW0V0RRUHEHLQJ³RYHUO\SURWHFWLYHRI&RPSDQ\DVVHWV´LQUHJDUGWRVKRSOLIWHUV±DVLPLODU concern to one raised by Ms. Aloussis. Therefore, although the November 2008 appraisal may have been more critical of the grievor than others had been, it raised a number of issues that had been previously identified by management. Overall it was balanced, and it was not such a radical departure from her prior appraisal as WRUDLVHTXHVWLRQVDERXW0V$ORXVVLV¶PRWLYHV >@,QUHJDUGWR0V0RRUH¶VDOOHJDWLRQWKat she heard Ms. Aloussis tell Assistant Manager Susan Bellstedt that she would rewrite Ms. MoorH¶VDSSUDLVDO³RYHUP\GHDGERG\´,ILQGWKDW, cannot credit that assertion. Ms. Bellstedt could have been called to testify about this. She was not called to testify and no explanation for the failure to call her was provided. In the absence of any corroboration, I find I cannot FUHGLWWKHJULHYRU¶VDVVHUWLRQ >@7KHJULHYRU¶VFRQFHUQVDbout the security guards is also a work-related disagreement. There is no evidence that the guards, or any specific guard, were instructed by management to monitor the grievor. Their job is to monitor customers and ensure security generally, not monitor staff. Further, when the Assistant ManaJHUUDLVHG0V0RRUH¶VFRQFHUQWKDWRQHRIWKH guards was standing close to cash register 1 and watching her and taking notes was brought to Ms. Aloussis attention, she spoke with the guard and instructed him to not stand so close to cash register 1 because it made the grievor feel uncomfortable. Thus, the evidence establishes that Ms. Aloussis sought to address the problem; there is no evidence that she caused the problem, assuming that it did, in fact, exist. In this regard, I note that the Assistant Manager who, DFFRUGLQJWRWKHJULHYRUQRWLFHGWKHJXDUG¶VEHKDYLRXUDQGHYHQDUUDQJHGDWHVWWRFKHFNLWRXW - 37 - was not called to testify to FRUURERUDWH0V0RRUH¶VWHVWLPony. Finally, although Ms. Moore testified that the problem continued, she never raised it again because she thought the guard was simply mad at her because she had chastised him for directing a customer to the wine section rather than referring the customer to a CSR. Consequently, the grievor herself did not believe that the guard was monitoring her at Ms.$ORXVVLV¶RUPDQDJHPHQW¶VGLUHFWLRQ >@7KHJULHYRU¶VFODLPWKDW0V$ORXVVLVGLGnot properly correct the situation regarding the $15.00 shortage also falls under the category of a work-related dispute.&RQWUDU\WRWKHJULHYRU¶V belief that she used the same till on the days that she was short $15.00 and over $14.35, the evidence presented at the hearing clearly establishes that she used different tills on the dates LQYROYHG7KH(PSOR\HU¶VUHFRUGVVKRZWKDWVKHGLGQRWXVHWKHVDPHWLOORQERWKGD\V±SOXV another employee used the till she had used the day following the shortage. The Employer was therefore correct when it did not refund her the money deducted for the shortage; she was not entitled to a refund. The Employer did not improperly disregard her assertLRQV±WKH\VLPSO\ were not correct. [104] The June 1, 2009 counselling meeting in the back of the warehouse is also a work-related dispute, not harassment. The evidence of Ms. Aloussis and Ms. Corras was that meetings with employees took place there because it offered UHODWLYHSULYDF\±PRUHVRWKDQWKHVWRUH PDQDJHU¶VRIILFHRUWKHOXQFKURRP*LYHQWKDWWKe work location is a retail store, areas offering some privacy are limited. There is no corroborative evidence that the meeting with Ms. Moore was the only meeting to be held there, or that it was held in that location to intimidate her. - 38 - [105] Ms. Moore clearly did not agree with the counselling letter given to her that day. She asserts that she was not given a chance to explain, but on cross-examination acknowledged that ³ZRUGVZHUHH[FKDQJHG´)XUWKHULWZDVKHUGecision to leave the meeting when she did. She left; the meeting was not ended by management. [106] It is also clear from her testimony that she misunderstood the nature of the letter. It was a counselling letter, which is non-disciplinary. ,WVHWVRXWFRQFHUQVDQGWKHHPSOR\HU¶V expectations, but its purpose is to not to punish or correct. It is to put an employee on notice of WKHHPSOR\HU¶VH[SHFWDWLRQVIRUWKHIXWXUH,QKHUYLHZLW³ZDVQ¶WULJKW´DQGVKHIHOW ³DPEXVKHG´DQG³UDLOURDGHG´EHFDXVHVKHKDGQRprior warning that there were concerns about her conduct. The counselling letter and meeting, however, were how management decided to DGYLVHKHURIWKHHPSOR\HU¶VFoncerns. Certainly, there were other ways the employer could KDYHFKRVHQWRDGYLVHKHU±VXFKDVVLPSO\PHHWLQJZLWKKHUWRGLVFXVVWKHVHPDWWHUVILUVW±EXW that does not mean that the method it chose was harassment. [107] One area that might constitute a form of harassment, if established, is the assertion that Ms. Aloussis awarded prizes to everyone but the grievor for encouraging customer donations. That kind of singling her out and, in effect, belittling her in front of her co-workers could be viewed as harassment. I conclude, however, that the evidence does not support a determination that this occurred. First, I find it implausible that Ms. Aloussis would, out of her own personal funds, provide a prize to every employee except the grievor. Second, the prizes were for a competition among the CSRs, and I find it much more reasonable that prizes would be awarded to the top one, two or three CSRs who encouragHGWKHPRVWGRQDWLRQV±UDther than everyone. 7KLUGDOWKRXJKWKLVZDVVXSSRVHGO\GRQHLQIURQWRIRWKHUHPSOR\HHV±QRRQHZDVFDOOHGWR - 39 - testify to corroboratHWKHJULHYRU¶Vrecollection. It seems reasonable that if the grievor, alone, had not been given a prize that day it would have been noticed. [108] Similarly, the grievoU¶VDVVHUWLRQWKDW0V$ORXVVLVWROGKHU³,JRW\RX,ILQDOO\JRW\RX´ could be viewed as evidence that Ms. AloussiVKDGWKHJRDORIWHUPLQDWLQJWKHJULHYRU¶V employment. Once again, however, I conclude that the evidence falls shorW,Q0V0RRUH¶V testimony, she stated that Ms. Aloussis first made this statement and then asked her to explain what happened. Frankly, that makes little sense. If Ms. Aloussis already knew what had KDSSHQHG±VXIILFLHQWWRVD\³,JRW\RX´ZK\DVk for her explanation. Then, according to the grievor, Ms. Aloussis started making phone calls and then sent her back to work. Again, if she NQHZVKHKDG³ILQDOO\JRW>WHQ@KHU´ZK\ZRXOGVKHQHHGWRFKHFNit out further. As stated in Re Faryna v. Chorney (1951), 4 W.W.R. 171 at page 174: The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of a story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. >@+HUHWKHJULHYRU¶VYHUVLRQRIZKDWRFFXUUed is not in harmony with the preponderance of the probabilities that would be reasonable in that place and in those conditions. It is significant that all that Ms. Moore did was give advice to another employee. Ms. Moore did not purchase the product with the value add mask, return the product and keep the mask. Another employee GLGWKDW6RKRZWKLVFRXOGOHDGWRD³JRW\RX,ILQDOO\JRW\RX´FRPPHQt is unclear. Giving questionable advice like this is not usually a dischargeable offense. - 40 - >@7KHJULHYRU¶VRWKHUDVVHUtions of harassment - concerning Ms. Aloussis decision that she had to serve a rude customer, her criticizing her communications with co-workers, the marijuana comment, her criticisms of her voids and her questions about the store while she was acting PDQDJHU±DOOIDOOXQGHUWKHFDWHJRry of work-related disagreements and are not harassment. As the store manager, Ms. Aloussis had a responsibility to check on operations while she was away. Asking questions and raising concerns about things that occurred is part of her job. So is ensuring proper communication between staff and ensuring proper procedures are followed. There is no evidence that Ms. Aloussis singled out the grievor in these areas in any way. In terms of having to serve a rude customer, the evidence shows that Ms. Moore was not the only employee that complained about this customer. Based on their complaints, Ms. Aloussis inquired whether CSRs had to serve such a customer to Customer Relations who advised her that the LCBO, as a government entity, had to serve all members of the public but that CSRs did not have to accept rude behaviour. Consequently, she advised both employees that they could close their cash and walk away and to let her know when the customer came into the store so she could talk to him, which she did. [111] There is no question that Ms. Moore truly believes that Ms. Aloussis was harassing her and attempting to eventually get her fired, but the evidence, for the reasons expressed above, falls short of establishing that. [112] I also cannot conclude WKDW0V$ORXVVLV¶GHFLVLRQWR contact Ms. Corras about the incidents that led to the investigation reveals an improper motive. The evidence establishes that in early June 2009, the Assistant Manager reported to Ms. Aloussis that she had heard that Ms. Moore had hired a regular customer to do renovations on her homeDQGVKHZDV³VZHHWKHDUWLQJ´ - 41 - him with products from the LCBO. In light of that claim, when Ms. Aloussis was reviewing what she thought was an unusual transaction and saw a void that did not have a second signature or an explanation, she noted it.Shortly thereafter there were a large number of voids due to the JULHYRU¶VDVVHUWLRQWKDWWKHUHJLVWHUZRXOGSUHPaturely open when she tried to bypass the airmiles SURPSW±VRPHWKLQJWKDWKDGQRWKDSSHQHGZLWKRWher cashiers. These led her to call District Manager Corras who, in turn, contacted Resource Protection. Significantly, it was Resource Protection that decided to investigate further ±QRW0V$ORXVVLVRUWKH'LVWULFW0DQDJHU [113] For all of the reasons set forth above, I cannot conclude, on the balance of probabilities that the grievor was discriminated against by the Employer on the basis of age or that she was harassed by her store manager. The facts here contrast sharply from the situation found in Toronto Transit Commission and Amalgamated Transit Union (Vito Stina), supra, where the JULHYRU¶VHYLGHQFH±ZKLFKZDVIXOO\FRUURERUDWHGE\RWKHUZLWQHVVHV±HVtablished a significant SDWWHUQRIDEXVHE\WKHJULHYRU¶VVXSHUYLVRU 3.7KH*ULHYRU¶V'LVFKDUJH [114] Ms. Moore was terminated by the Employer for intentionally engaging in conduct which resulted in the loss of product and/or funds to the LCBO. Specifically, it is alleged that on three occasions between June 20 and July 17, 2009, she intentionally failed to charge customers for the full number of products presented, and on one occasion gave a customer a value add item to which he was not entitled. Based on the video and documentary evidence provided at the hearing, I conclude that Ms. Moore failed to scan a six-pack of beer on June 20, and failed to scan a can of beer on both June 26 and July 17, 2009. The real question is whether she did so intentionally, as alleged. In terms of the value add mini-bottle, the evidence establishes that she - 42 - gave a customer a value add item on June 21 to which he was not entitled. For that incident, the real issue is whether or not she reasonably thought that she had the right to do so. [115] The case law is clear that in cases of theft, the onus is on the employer to establish, on the balance of probabilities, that the grievor engaged in the misconduct alleged. Because the DOOHJDWLRQLQWKLVFDVHLVWKHIW±DQGWKHSRWHQWLDO that such a finding has on the reputation of the JULHYRU±D³KLJKHUTXDOLW\RIHYLGHQFHLVFDOOHGIRU«´Re Great Atlantic & Pacific Co. of Canada and United Food & Commercial Workers International Union (Duhaime Grievance) [2001] O.L.A.A. No. 18 (Stephens).As set forth in Brown and Beatty, Canadian Labour ArbitrationDW - 43 - 7KHEHVWWHVWLV:KDWLVXQGHUVWRRGWREH³WKHIW´LQFRPPRQXVDJH"In my view, there can be no question that the dishonest intention or the intention to unlawfully benefit from DQRWKHU¶VSURSHUW\LVWKHFUX[RIWKHPHDQLQJDWWDFKHGWR³WKHIW´:KLFKHYHUZD\WKHWHUPLV defined, there simply cannot be a theft without a dishonest intention. When one talks of a ³WKLHI´WKHUHIRUHRQHPXVWQecessarily be talking of a dishonest person. Dishonesty is the sine qua non for the commission of a theft. Similarly in Re Bombardier Aerospace and Canadian Auto Workers, Local 112 (2004), 130 th L.A.C. (4) 116 (H.D. Brown), the grievor who suffered from a disability which led to forgetfulness took food from the cafeteria on a number of occasions without paying for it and was discharged for theft. The arbitrator determined at p. 124 that thHUHZDV³QRVXEVWDQWLYH evidence on which to find that the Grievor had formed the intention at any time to deliberately take food from the cafeteria foUKLVRZQXVHZLWKRXWSD\PHQW´Accord, Re Toronto Transit th Commission and Amalgamated Transit Union, Local 113 (Olejko) (2010), 193 L.A.C. (4) 272 (Harris), at pp. 292-293. [116] It is significant, in my view, that there is no evidence that Ms. Moore knew the customers involved in these four transactions. This fact distinguishes a number RIWKH³VZHHWKHDUWLQJ´ cases cited by the Employer. In Re Great Atlantic & Pacific Company of Canada, supra, the grievor arranged the sale of a roast to his wife below that offered to other customers. He was found to have mislabelled the price of the roast in order to gain for himself the advantage of a price not available to regular customers. In Re Agora Food Merchants, Ontario Division, supra, one cashier failed to charge products purchased by a co-worker. The same is true in Re Real Canadian Superstore and United Food & Commercial Workers, Local 401 (Lopez Grievance) [2003] A.G.A.A. No. 55 (Warren), at par. 142. There the arbitrator concluded that the grievor ³LQWHQGHGWREHQHILW>KHUFRZRUker] by failing to scan product as she moved it from the front EHOWWRWKHEDFNEHOW´In Re United Food & Commercial Workers, Local 401 and Canada - 44 - Safeway Ltd. (Ouellette Grievance) [2001] A.G.A.A. No. 14 (Hornung), the grievor was found to have repeatedly undercharged the owner of a coffee shop next door to the store. In contrast, here there was no evidence that the grievor knew any of the people involved in these transactions. Each of the transactions involved different people. None were identified as the contractor for the renovations of her house. Without some connection to the customers involved, there is no basis to conclude that she intentionally failed to scan products to benefit them. [117] In 5H%HUWR¶V5HVWDXUDQWDQG+RWHO0RWHO& Restaurant Employees Union, Local 442, supra, the grievor failed to charge a co-worker,ZKRVKH³KDUGO\NQHZ´EHFDXVHWKH\ZRUNHG together for just one day, for two coffees and a glass of soda. The arbitrator determined that WKHUHZDVQR³GLVKRQHVWLQWHQWLRQ´E\WKDWDFWLRQDQGVWDWHGWKDWWKH(PSOR\HU¶VDVVHUWLRQWKDW WKHUHZDV³LVFRPSOHWHO\LOORJLFDOLQOLJKWRIWKHIDFWWKDW0V+DVWLQJV>WKHFRZRUNHU@ZDVD stranger to the grievor and therefore she could not have any motive to do Ms. Hastings any th IDYRXU´ /$&  DWSS 7KHDUELWUDWRUUHFRJQL]HGWKDW³>L@IDVHUYHUNQRZLQJO\ provides free meals of drinks to an acquaintance that may well be theft. It may be said that the server had a dishonest intention because he or she indirectly benefits by KHUFRQGXFW´%XWWKDW was not the case there. [118] Nor was any motive for her to do so suggested by the Employer. At one point in her testimony, the grievor stated that she understood that the LCBO believed that she was ³VZHHWKHDUWLQJ´EHFDXVHVKHZDVPDGDWWKH(PSOR\Hr. That is plausible given her belief that she was being harassed by her manager, but this motive was never alleged or suggested by the LCBO. - 45 - [119] The Employer instead relied on the number of times this type of action occurred. It FRQFOXGHGWKDW0V0RRUH¶VDFWLRQV were intentional based on the number of times she failed to scan an item and the fact that she was an H[SHULHQFHG&65±LWRFFXUUHGWKUHHWLPHVLQ approximately a one-month period. As Mr. Salij FRQFOXGHG±VRPDQ\PLVWDNHVOHGWKHHPSOR\HU WRFRQFOXGHWKDWLWZDVQRWD³PLVWDNH´7KDW view has some resonance; it seems to be a reasonable conclusion. But what is not clear in the record is the basis of that conclusion. There was testimony from Ms. Aloussis thatLWZDVQRW³QRUPDO´IRUIRXUcans to leave the store when RQO\WKUHHZHUHVFDQQHG:HOO±ZKat is normal for an experienced CSR? No scanning errors in a month? One such mistake? Two? There is nothing in the record which provides an answer to that fundamental issue. [120] The record also reveals that overages and shortages are relatively common. Indeed, in KHU - 46 - creates suspicion. It does notHVWDEOLVKWKH³IDLUand reasonable conclusion that the act was FRPPLWWHG´ [122] In terms of the value add item on July 21, 2009, the issue is whether or not she gave the FXVWRPHUWKHLWHPXQGHUD³FRORXURIULJKW´WRGRVRIn Re Toronto Transit Commission and Amalgamated Transit Union, Local 113 (Olejko), supra, the Union argued that because the grievor took tokens at the direction of his supervisor, he was DFWLQJXQGHUWKH³FRORXURIULJKW´ and did not, therefore, have the requisite intent for theft. The arbitrator cited to Re Zehrs Markets and U.F.C.W. (C.B. Grievance) (2006), 85 C.L.A.S. 56 (Haefling) and Re Canadian Niagara Hotels and U.N.I.T.E. H.E.R.E. (Spasic)(2008), 93 C.L.A.S. 46 (Herman), and stated at pp. 294-295: :KDWPD\EHJOHDQHGIURPWKHFDVHODZ«LVWKDW an honestly held, subjective belief that the owner would allow a person to take something, if correct, relieves one from criminal liability for taking it, even though it was taNHQZLWKRXWWKHRZQHU¶VSHUPLVVLRQ +HDOVRGHWHUPLQHGWKDW³>H@YHn if mistaken, such an honestly heOGUHDVRQDEOHEHOLHI´JLYHVWKH HPSOR\HHD³FRORXURIULJKWWRWDNHWKHSURGXFWand negated any inference that there was an LQWHQWLRQWRFRPPLWWKHWKHIW´ [123] In this case, the grievor believed that, as acting manager, she had the right to give the value add mini-bottle to the customer for customer service reasons. The question is whether that belief was honestly held and reasonable. She had this right, she believed, because it was within the last hours of the promotion and the customer was purchasing items from the same manufacturer. She testified that the customer was going to leave without purchasing any products when she offered him the mini-bottle of the product he wanted. She had seen Ms. Aloussis give a value add corkscrew to a customer who had not purchased the required product - 47 - for the value add item. She also saw Ms. Aloussis distribute to staff value-add barbecue sauce and other items. She had also seen Ms. Aloussis adjust the price of a bottle of rye that had no label. [124] The value add policy of the Employer was knoZQWRWKHJULHYRU,WVWDWHV³(PSOR\HHV are prohibited from removing any value-added product for their personal use, except for a value- added product attached to an item that they have purchased. Employees who violate this policy may face disciplinary action, up to and including GLVPLVVDO´7KHJULHYRUKDGUHYLHZHGWKLV policy in June 2006 when she received a counselling letter about value-add items. In that letter, she was specifically advised that employees are not to allow customers to move the value added promotional item to the product of their choice even if it is the same brand but a different volume VL]H´7KHJULHYRUKRZHYHUGLGnot believe that this applied to acting managers. She thought she had some discretion as acting manager. [125] Ms. Aloussis, in her testimony, was familiar with the incidents cited by the grievor, but explained that they were not as the grievor believed. For example, the customer had a receipt for purchasing the product connected with the corkscrew value add when the store had run out of them, and it was for that reason that she gave him the corkscrew. In terms of the barbecue sauce, WKHPDQDJHUKDGUHFHLYHGWKHUHSUHVHQWDWLYH¶VSHUPLVVLRQWRRIIHULWWRVWDII [126] In my view, Ms. Moore was mistaken in her belief concerning the authority she had as DFWLQJPDQDJHU$OWKRXJKWKH/&%2¶VSROLF\±DQGFRXQVHOOLQJOHWWHU±XVHWKHWHUP ³HPSOR\HHV´WKHVDPHUHVWULFWLRQVDSSO\WRPDQDgers and acting managers (who are employees). But the evidence establishes that the grievor honestly believed, mistakenly, that she had the authority as acting manager to give the customer the value add product under the specific facts - 48 - that arose that day. This is evident from her cross-examination when she stated that she took the customers off the line they were in to go to cash register 1 with her, because a CSR could not process the value add, but she could as acting manager. As acting manager, she was responsible. In my view, this testimony does not establish that she knew what she was doing was prohibited. On the contrary, it establishes that she, mistakenly, believed that she had the authority to do so as acting manager. [127] I conclude that, as she understood things, her belief was not unreasonable. Her misunderstanding of the time Ms. Aloussis gave out the corkscrew and barbecue sauce led her to believe that she had the authority, as acting manager, to give the customer the mini-bottle. Consequently, I conclude that she acted under DPLVWDNHQ³FRORXURIULJKW´LQVRGRLQJ [128] The situation here is far different than in Toronto Transit Commission and A.T.U. (Olejko), supra at pp. 295-96, where the arbitrator deWHUPLQHGWKDWLWZDV³FRPSOHWHO\ unorthodox for the grievor and [his supervisor] to handle the tokens as theyGLG´DQG³FRPSOHWHO\ unorthodox and unreasonable for the grievor to have spent the work time he did without GRFXPHQWLQJLWDVKHZDVUHTXLUHGWRGR´+HGHWHUPLQHGWKDWWKHJULHYRUVKRXOG³KDYHNQRZQ how irregular all of these activitLHVZHUH´DQGLWZDV³XQUHDVRQDEOHto have accepted these orders DVOHJLWLPDWH´+HGHWHUPLQHGDWSWKDW³>W@he taking of the tokens was, in context, so far outside accepted practice that any honestly held, mistaken belief was unreasonable. He took the WRNHQVZLWKRXWFRORXURIULJKW´ [129] Under the facts here, and in light of the wording of the policy and her misunderstanding about what Ms. Aloussis had, on occasion done, I cannot concludeWKDWVKH³VKRXOGKDYHNQRZQ´ - 49 - that she did not have this authority. Although I do not credit all of her testimony about what occurred - specifically, the evidence does not suSSRUWWKHJULHYRU¶VDVVHUtion that the customer would have left the store unless she offered him the value add item - I do credit her testimony that she thought she had the right, as acting manager, to give him the value add mini-bottle for customer service reasons. [130] Consequently, I conclude that as the grievor was under the mistaken, but honestly held belief, that she had the authority to give the cuVWRPHUWKHYDOXHDGGLWHPLWZDVQRW³WKHIW´DQG does not justify her termination of employment. [131] In reaching my conclusions, I find that the LCBO had no obligation to interview Ms. Moore before it acted. There is no such requirement in the collective agreement. In Re Winpak Ltd. and Communications, Energy and Paperworkers Union of Canada, Local 840 (Cook th Grievance) (2010), 194 L.A.C.(4) 154 (Robinson), citing a number of earlier cases, concluded that there is no general requirement in discipline cases for an employee to be interviewed prior to the imposition of discipline. [132] In this case, the Employer issued the NOID after the grievor had been criminally charged, and as a consequence, Ms. Moore chose not to respond to the allegations either in writing or at a meeting. That was her choice, and the Employer was still free to act on the information it possessed. [133] What I do find somewhat troubling, however, is that the LCBO relied on the fact that Ms. Moore provided no explanation, demonstrated no remorse and failed to accept responsibility for - 50 - her actions in making the decision to discharge her. This strikes me as somewhat unfair given that a condition of her release from custody was that she was to have no contact with the LCBO, QRUDWWHQGDQ\RILWVIDFLOLWLHV7KHUHLVFDVHODZWKDWDQHPSOR\HHKDVQR³ULJKWWRUHPDLQVLOHQW´ and being criminally charged does not relieve an employee who is charged with a serious employment offence from providing an adequate explanation for his actions, even when advised not to by counsel.Re Toronto Transit Commission and Amalgamated Transit Union, supra at p. 299 and cases cited therein. But to me it seems unfair to use her silence against her in this manner where a condition of her release from jail was to have no contact with the LCBO. [134] The parties, at the outset of closing arguments, agreed to limit this decision to the merits, leaving the parties to address remedy, if required. Accordingly, I will leave the question of remedy to the parties and remain seized. Conclusion For all of the reasons set forth above, I conclude as follows: 1.The Union failed to establish that the grievor was discriminated against on the basis of her age in violation of the collective agreement or the Ontario Human Rights Code. 2.The Union has failed to establish that the grievor was harassed by her manager or the Employer. 3.The Employer failed to establish, on the balance of probabilities, on the basis of clear and cogent evidence that the grievor intentionally failed to scan products which resulted in the loss of product and/or funds to the LCBO. 4.I also conclude that the grievor acted under a mistaken, but reasonably held honest belief WKDWVKHKDGWKH³FRORXURIULJKW´WRJLYHWKHFXVWRPHUa value-add item on July 21, 2009. - 51 - 5.Accordingly, the Employer did not sustain its onus of establishing just cause for the termination of Ms. Moore. 6.I leave the issue of remedy to the parties, and I will remain seized. th Dated at Toronto this 11 day of August 2011. Randi H. Abramsky, Vice-Chair