HomeMy WebLinkAbout1981-0426.Durkin.82-03-08IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEi%NT BOARD
Between:
Before :
OLBEU (J. Durkin) Griever
- And -
The Crown in Right of Ontario
(Liquor Control Board of
Ontario) Employer
P. G. Barton Vice Chairman
S. Dunkley Member
8. Lanigan Member
For the Grievor: A. Milliken~ Heisey, Counsel
Blake, Cassels & Grayzon
For the Employer: J. Baker, Counsel
Iiicks, Morley, Hamilton, Stewart & Storie
Hearing: February 5, 1982
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AWARD
The Grievor was dismissed from his emgloypent wit:? the
Liquor Control Board of Ontario as a result of an incident x:lic:?
occurred in Store 203, Burlington on Zune 16, 1991. 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 3oard considerably
by filing a summary of agreed facts. The summary indicates that on
that day five investigators from INTERTEC went through the Griever'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 Griever 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 .$5.80 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. Th~is means that the
Grievor rang up his cash register for a total, took the register tace
and the cash box to the manager's office where thecmanager 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 Griever
agreed to be searched and the bill was not found on his person. :-:e
had two $5.00 bills and two $2.~00 bills on his person, however.
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Certain additional facts concerning the incident ;lere
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 none:'
in his till himself in the manager's office but watched it being
done at a distance from which he wasp not able to verify the accurac:r
of the count. When told that his register had balanced he said,
"Of course it balanced". He faintly remembered the two investigators
asp 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 husiness as an employer of up to ten employees
for about 12 years. He joined the LCBO part time in 1978 and full : .,
time in 1979. Between 1979 and the date of his dismissal he worked
I
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 yrievor's probationary service
&ort seems to be favourable and recommends permanent status. :c
appraisal of February 1980 indicated:
" IYr . 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. FTe has to2.e
cashiering, ledger postings, etc., an< wareblouse,
bins, etc. He will receive further training in
ordering in the near future. I feel with r'urther
training in most phases his quality of work will
improve.lt
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 wasp prepared by his Pfanaqer R. G. Nay. Xis 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 ratinqs were
done.
It appears that the Grievor wtiirked about four days a ireek
away from cash and;spent an average of one day a week atcash
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 had apparently counselled the Grievor with
respect to irregular behaviour on cash. There was no formal note
in the record concerning this nor was the manager cat:led as a witness
and we are unable to say just what sort of irregular behaviour was
referred to.
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As might be expected the question here is as much a
factual as a legal one. The question is whether or not Siskor.est:f
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 ?art
on whether or not the allegation is one of dishonesty or something
less. With respect to the guestion of whether or not the Griever
stole ~$5.00, we feel that the burden of proof is t'hat set out in
other cases from this Board including Penner 307/80, Bernarii 102/79,
and in particular Douglas 28 LX (26) 332 (Swinton 1991). Conceriinq
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
untrustworthv because he or she is careless or
incompetent:,& 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 emplovee'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.'.o.f proof should be higher than the civil
standard. The employer must show by clear anl,convincinq
evidence that the employee has knowingly broken the rules;
and so harmed the employer's interests. It should Se ncted,
however, that in such cases where there has been deliberate
misconduct and therefor'e untrustworthiness, the conduct
may or may not justify discharge. Where there h.as been
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breach of rules without proof of actual dishonest-1
(i.e.; theft.) the employee may be subject to Cisc;-?'~e -5 -_.._
but not necessarily discharge. The genalpy will RO
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 tc.t:le
question of whether or not this employee stole $5.00 the fol1owir.g
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
$5.0.0 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 spiit the difference that is
mi~ssing. This indicates that mistakes with respect to ringing'up
Andy giving of change do occur although we have no,in.dication or
evidence as to the extent to which they occur. It might be pointed
out that~aS5.00 mistake writhe respect to the giving of &an&which
conincided with the missing $5.00 would be a bit of coincidence.
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'What is involved is a situation in which only circzm-
stantial 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 $540 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 tom say that it occurred.
As far as a miscount of money in the till is concerned
we do not know whether ore 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 evide~nce upon which to believe or
;:. disbelieve the suggestion that the count was properly made. The
Grievor watched it from a distance and did n~ot 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.
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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
S. Dunkley 4ember
B. Laniqan Member