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HomeMy WebLinkAbout1986-0963.Fawcett.87-10-05Between: Before: IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD For the Grievor: OLBEU (Sidney Fawcett) - and ~- The Crown in Right of Dntario (Liquor Control Board.of Ontario) D. Fraser Vice Chairman T. Trams Member A. Stapleton Member M. Zigler Counsel Koskie and Minsky Barristers & Solicitors Grievor Employer For the Employer: C.C. White Counse 1 Hicks Morley Hamilton Stewart Storie Barristers & Solicitors Hearings: June 3, July 23 and 30, 1987 2 DECISION The grievor in this case. Sidney M. Fawcett, was a Clerk 3 in Store #167 of the ~employer at Kingston, and was discharged by letter dated September 2nd. 1986 for “attempted misappropriation of L.C.B;O. funds, improper cashiering pro- cedures, and a breach of trust.” The discharge was effective September 4th, and had been preceded by an initial three-day suspension without pay com- mencing July 30th, 1986. The date of the incident on which the discharge was founded is Saturday, July 26th, 1986. The grievor claims that his discharge was without just cause and requests that he be reinstated and made whole with respect to the September 4th dis- charge together with interest for all monies lost. The grievor also initially claimed redress for the three-day suspension on the ground that together with the discharge, it comprised a double penalty for the alleged offence, but this double penalty grievance was later abandoned at the hearing Evidence was tendered at the hearing respecting the process of the investigation respecting the July 26th incident, including a w~arning to the grievor of possible disciplinary action together with a demand for a written explanation, and other internal reporting documentation. Insofar as that evi- dence related to the propriety of the suspension as part of the investigation process, we shall not refer to it further, In view of the abandonment of the claim of double penalty. The. incident on which the discharge was founded is based almost in its entirety In the evidence of one witness, Mr. Alexander White. He was a customer of the store and of the grievor, who was acting as a cashier on the - 3- day in question. Mr. White’s direct testimony is the principal evidence support- ing the allegation of improper cashiering procedures, and there is further indirect and circumstantial evidence tendered, to support the allegations in the letter of. discharge of attempted misappropriation and breach of trust. In this respect, counsel for the employer advised the board at the outset that although the evidence of misappropriation and consequent breach of trust, would be cir- cumstantial, the employer would prove misappropriation in fact as a foundation for the discharge, and not merely attempted misappropriation. also. at the outset, both counsel agreed that in addition to the standard of proof of the allegations being on the balance of probabilities, clear and con- vincing evidence of the matters alleged was required In view of the disciplinary nature of the penalty. Mr. White gave the following evidence. He came .to Kingston from Toronto on July 26th to attend a dog show at the Kingston Kennel Club, and had occa- sion to visit the .L.C.B.O. store in question between one and two p.m. On enter- ing the store with a friend, Ms. Sheryl Drain, he heard a dispute between a tel- ler and a client of the store over a matter of change, or a receipt. The client was arguing in a loud, accented voice. Mr, White then got a bottle of gin off a shelf, and entered the lineup for which the grievor was cashier. He notlced that the customer before him in the lineup purchased three bottles of wine, and some financial details of that prior transaction. He then produced his bottle of gin, which was priced at $22.90, to the grievor, and gave him 5’23 comprised of a $20 bill, a $2 bill and a $1 bill. - 4 - He saw the grievor place those bills on ~the shelf above the till, and he was given 10 cents change from the same location. The grievor then punched one button on the top row of buttons on the cash register, tore off the receipt which was produced, and put that receipt and the bottle in a bag which was handed to Mr. White. Mr. White then moved along, but waited at the end of the counter watch- ing his $23 in bills sitting on the shelf of the cash register. He did this because of the dispute about change or a receipt that he had heard on entering the store. He observed that the customer following him purchased two six- packs of Labatt’s Blue, one four-pack of cooler, and one bottle of wine. He did not see the $2’3 which he had tendered, moved from the shelf during this period. He .did not see anything irregular about the transactions prior and subsequent to his, and assumes they were done correctly. It is these observations of Mr. White, together with physical evidence from the tape of the cash register in question, that form the heart of the employer’s case. The grievor gave evidence at the hearing, but it did not include specific evidence regarding this transaction alone, as he does not remember the transac- tion. He remembers and admits to the discussion with a prior customer over the question of a receipt, and he remembers that Mr. White was a customer of his on the day in question. However, he said that he dealt with approximately one hundred c.ustomers during that stint at the cash register, and he was accor- dingly unable to remember specifics of the White transaction. - 5- The grievor stated .categorically at the hearing that he had not stolen the money fn question, nor had he attempted to do so, and that no one had accused of him of that. He said at one point in his direct testimony that if White had gone through his lineup, he would have rung .in the sale correctly, but said fur- ther that “if indeed this man went through my register, I may have used the shelf. Everyone has to. Then put money in, one or two instances later.” The receipt he had given Mr. White was properly identified and entered as an Exhibit at the hearing, and evidence was tendered, which this board accepts, that it was not a proper receipt for Mr. White’s transaction, and could have been produced by a cashier advancing the register tape by punching one button. When that receipt was produced to the grievor, he denied producing it by press- ing the advance button on the register, and would not speculate as to how such a receipt was produced. We will now turn to a consideration of events following on that incident, insofar as they bear relevance to the accusations against the grievor, and his responses. After Mr. White initially left the store, he discussed the events he had taken part in, and the receipt issued to him, with the two friends travelling with him. As a result of that conversation, he returned to the store. met ini- tially with a Ms. Dawn Bentley who was in charge of the store while the acting manager, Mr. David O’Kane, was at lunch, and then met with Mr. O’Kane on his return. Mr. O’Kane, Mr. White, and the grievor then discussed the matter - 6- together. On questioning the receipt. Mr. White was told it was not an official receipt,and then heated words were exchanged between the grievor and Mr. White. The grievor accused Mr. White of tampering with the receipt, an allega- tion which was strongly denied. In response to a query about the cashiering procedure, it is Mr. White’s evidence that Mr. Fawcett indicated that during busy periods he might let two or three transactions go through before putting money in the till. The grievor denies having made this statement at that time. After further discussions, Mr. White got the receipt initialled and left the store. He returned to his van, had a further discussion with. his travelling companions, and then returned to the store, as he felt the matter wou Id not have gone further as it stood. He obtained the names of the acting store manager (Mr. O’Kane), the store manager (Mr. Cooper), and the grievor. He was advised by Mr. O’Kane that the tape had been pulled from the grievor’s cash register to balance the cash therein against tape receipts, with the result that the grievor was only out some 35 cents. He then suggested that if the receipt he received had not been an official one, the balancing should have shown a surplus of $22.90. which was the amount of his purchase, and he then left the store. He noted that during the exchange between himself and the grievor, the grievor had been “downright rude” to him. When cross-examined on these events, he noted that “when Fawcett said, common to let some transactions go before putting money in the till, I asked O’Kane if so. He said, it is known to have happened.” Shortly thereafter on July 28th he wrote a letter to Mr. Ackroyd. Chairman of the L.C.B.O.. describing the events there as he did at the hearing, - -I- and asking a series of questions about the cashiering process. On July 30th, he wrote a letter to Mr. McLulland, Regional Director, Eastern Ontario, for the ‘. L.C.B.O.. describing his recall of the details of his transaction with the grievor, and of the transactions immediately prior and subsequent. Mr. O’Kane’s recall of the events on the 28th of July following the inci- dent was generally the same as that of Mr. White. He described bringing Mr. White and the grievor together in the store, and the discussion that ensued. When Mr. White asked about the procedure, he recalled the grievor answering that he was very busy at this time and it was not unusual to ring in a sale later. He recalled saying that the procedure followed was not normal, but noted that he had said nothing more on that. He said- that during the confrontation: the grievor was very angry at being accused, and that Mr. White’s voice was raised. The grievor then told Mr. O’Kane that he did not remember the specific transaction with Mr. White, and Mr. O’Kane suggested that the grievor’s cash be balanced, which was done with the results we have noted earlier. Then there was some discussion between the grievor and Mr. O’Kane about the customer with whom the grievor had been having a discussion, when Mr.. White came into the store. The grievor remembered the discussion, and thought he could identify the customer as one “Mike the Greek”, or a Mr. Karrellos or Kanellos, who worked at Queen’s University. The grievor proposed that the transaction with Mike the Greek might be pinned down in some detail, as a means of providing some sort of time frame for the cash register tape to help - 8- locate the general time of the White transaction. The board would note at this time that it received substantial further evidence about the ensuing attempt, which was eventually successful, to pin down the details involving Mike the Greek. However, as will be noted below, the White transaction time can be located exactly on the cash register tape on the basis of Mr. White’s evidence of the prior and following transactions, and the “Mike the Greek” transaction, if we may so refer to it, becomes irrelevant for that purpose. We would note at this time, however, that the grievor’s search and eventually successful efforts to determine the details of this transaction may be viewed as evidence of a will- ingness to procure relevant evidence. that he felt might exonerate him in view of the accusations of Mr. White. Conversely, we would note that the grievor’s efforts in this respect were clearly not those’of anyone who wished to cover up or hide any relevant facts. Mr. O’Kane’s testimony also included a clear ‘description of the proper procedure to be followed by a cashier on a sale. That ~description tallies with a similar description of the procedure given by Mr. George Sands at the hearing. At the time of the incident, Mr. Sands did the initial investigation for the L.C.B.O.. acting for the district supervisor, Mr. Garrah. Without repeating that procedure in detail, it is quite obvious that the procedure described by Mr. White as having been followed in his transaction by the grievor bears very little resemblance to the approved procedure, which results in the monies tendered being securely stowed in the till, with the correct change and a detailed receipt being issued, and an appropriate record of the transaction being made on the cash register tape. The procedure described by Mr., White .resulted in the correct change being tendered, but it failed to meet the other results -~9 - which we have listed. Finally, on this matter, we would note that there was evidence tendered which indicated the grievor had read various procedures and operating manuals which provided details of the correct ‘procedure to follow. Mr. O’Kane also gave evidence about the detailed tape, which records cash register transactions. The original detailed tape from the grievor’s cash register on the day in question was provided in evidence, and the transaction he per- sonally entered into the register, identified by an initial part of each transac- tion number showing “0032”, are shown on that tape. A substantial amount of evidence about how the cash register operates, how the detailed tape is produced, and about how vario’us transactions were identified or misidentified, was proffered to the board. However, only three transactions are materially relevant in respect of the possible disposition of the monies tendered by Mr. White, i’n relation to the time those monies were offered, and those three transactions are as follows. There is one transaction numbered 00320231, followed immediately by one numbered 00320232. The details of those transactions match exactly the details of the purchases before and after Mr. White as he observed. them, and there is no other similar transaction pattern to be found on the tape. Although some conflicts exist, primarily in timing, in Mr. White’s recall of events following the disputed transaction, we are fully satisfied that his recall of the details of the transactions immediately prior and subiequent to his, is correct. We find as a consequence that the two transactions noted above are the records of those observed by Mr. White. - lo- Mr. O’Kane then said that he and the grievor had inspected the detailed tape to try and “come up” with where Mr. White’s $22.90 had been rung’ in, as the grievor said he had done. As a result of that search, Mr. O’Kane located transaction #00320269 on the detailed tape, and identified that as the one in question. That transaction reflects the details of Mr. White’s purchase, as given at the hearing, as it shows that $23.00 was tendered for a purchase of $22.90. which was the price of Mr. White’s bottle of gin. There is no other transaction reflecting those details. That transaction is some thirty-seven transactions after the one which followed Mr. White’s purchase at the cash register. It is impossible to say how much later ,in minutes that transaction would have occurred after Mr. White went through. There was some evidence that’ transactions may last approximately a minute, but it was also clear that icashiers work at various speeds depending on the pressure of the moment. Given the evidence that the grievor was very busy over the general period in questlon, it is probable that transaction #00320269 occurred earlier than 37 minutes after the transaction following Mr. White’s,, or 36 minutes after he arrived at the cash, but the evidence does not permit us to be more specific. Finally, Mr. O’Kane noted on cross-examination that Mr. White had never said that the grievor took the money, that he never accused the grievor of taking the money, and that he had no evidence that Mr. Fawcett took the money. As we have noted above, Mr. Sands was involved in the investigation on behalf of the district supervisor, and he gave evidence of assistance to the - - ll- board about proper cashiering procedure, which we have referred to above. He also described the investigation procedure, and said that the grievor on being questioned, had first said that the money was rung in at the time, and then said that is was rung in one or two transactions later. However, the grievor also said that he did not recall the actual transaction with Mr. White. Mr. Sands also said that he had no role in deciding that the grievor should be discharged, but said that he thought it was a theft case, based on the information he had. He indicated that it was Board policy to proceed with criminal charges, if the Board thought that theft had occurred, but the Board had not ‘laid charges in this case. We would comment at this time that that evidence of Board policy, and friilure to lay charges, must have little or no weight in the determinations we are required to make. Our standards of proof require clear and convincing evidence:which are not the same as the standard of proof beyond a reasonable ddubt, required in criminal matters. Had there been charges and a conviction in this matter, that .may have had some sig- nificance in this case, but failure elsewhere to lay charges simply leaves us to apply and discharge our own and differing standard of proof.. Mr. Sands also noted that during the investigation the grievor had said that he knew he had done wrong in not following procedures, and that he expected to get his knuckles rapped. The grievor’s testimony has largely been described above as responses to various statements made .by the employer’s witnesses. In addition, he said that he had never been suspended, warned, or disciplined. However, on July 31st. he - 12- wrote a letter to an officer of the L.C.B.O., in which he admitted he had been “warned previously about cash procedure by the Manager Mr. Cooper.” At the hearing, he elaborated by saying that he had been warned verbally on ‘more than one occasion for bagging of the purchase at an early stage in the transac- tion, when the proper procedure is to bag the purchase as the last part of the transaction. In that letter, the grievor gave some details about the day in question, and then said: “I frequently when running cash place the bills tendered on the shelf to make change. I am sure the money tendered went in the cash drawer within the next transaction or two. I also realise that this is not proper procedure. We were very busy and I didn’t remember him at all as when in line ups, I tend to work very fast and not look directly at the customers. I sincerely regret the whole matter and fully’ realise that I am in very deep trouble but must admit that I am not a’good cashier, never have liked that part of the operation and do not run a cash as much as other clerks do. I have been warned previously about cash procedure by the Manager Mr. Cooper. We find that ali of the above matters provide clear and compelling direct evidence of improper cashiering procedures, and we find that that ground has not only been fully made out by the employer, but has also in substantial part been admitted by the grievor. However, the question of theft of the monies tendered by Mr. White, on which the allegations of attempted or real misappropriation and consequent breach of trust depend, must be resolved by resort to circumstantial evidence. The Rule. in Hodge’s case @J&B (1838). 168 E.R. 1136) requires us to consider - 13- whether there is an alternative rational conclusion to the one that the grievor stole the money, on the basis of that circumstantial evidence. Glven the facts of this case, the other possible conclusion is that the grievor rang the sale in some thirty-six transactions later, as evidenced by transaction #00320269 referred to earlier. The principal matters which weigh against accepting this conclusion are the delay involved, and the grievor’s somewhat erratic testimony which suggests he either rang the money In at the time, or two or three transactions later. HoGever. the grievor repeatedly and consistently said that he did not recall the actual transaction, and his explanations then have the ring of what he probably would have done, or would like to think he would have done, in terms of getting the monies promptly into the till. They cannot stand for more. Secondly, the passage of time during a very busy. period is a very subjective matter, and a delay to the probable extent described can pass very quickly under such circumstances. We find that neither the delay nor his explanations make it improbable that he in fact deposited the money in transaction #00320269. In favour of accepting this conclusion are the following matters. The grievor cooperated in the investigation (except. perhaps, for his contretemps with Mr. White). and indeed took an active part in it. in his search for Mike the Greek. He freely admitted his failings as a cashier on at least one occasion, but consistently denied any theft or attempt at theft, and in giving evidence, - 14- he was not shaken In his denials. In assessing circumstantial evidence, one must conclude that this is all unlikely behaviour for a person trying to cover up a theft. Finally, the man who conducted the initial investigation and met with the parties to the incident on the day it occurred, Mr. O’Kane, did not believe that a theft had occurred. These matters all go the credibility of the grievor’s denials, and the con- sequent acceptability of transaction #00320269 as a point at which the monies were deposited, and we come to the conclusion, in view of the above, that that is a reasonable alternative explanation for the disposition of the funds given to the.grievor by Mr. White. There is accordingly no clear and compelling evidence that he pocketed the money, or even attempted to do so. Therefore we conclude that the employer has not made out a sufficient case for real or attempted misappropriation of L.C.B.O. funds, nor breach of trust, on the basis of the circumstantial evidence in this case, and the dis- cipline imposed on the grievor must be founded on his improper cashiering pro- cedures. The evidence shows generally that the grievor failed to follow the required step-by-step procedure for the transaction with Mr. White, and that he had been made well aware of what that procedure was. More seriously, he ’ failed to issue a proper receipt, and did not place the money he received in the till until some thirty-six transactions later. - 15- In these respects, we cannot emphasize too strongly the position of trust that a cashier is in, and the potential that is created for a possible breach of trust when the carefully designed procedures are not followed. We have found neither a misappropriation. nor an attempted one .here, but if any cashier had been so inclined, the stage was well set by the kind of errors the grievor made. Such a situation is patently more serious, in our view, than the majority of dis- ciplinary infractions where~ there is perhaps some tardiness, or repeated absence, or failure to’accept appropriate supervision. It follows that in view of the potential danger of such errors as the grievor made, even a first offence that is ,formally noted must attract more serious discipline than a simple warning. Counsel have submitted a number of cases for our consideration in determining penalty. In Menzies and L.C.B.O. 126/83 (Weatherill), the grievor had been discharged for failing’to register customer purchases, accepting pay- ment for items purchased, and failing to account for amounts received. He had in fact for a number of sales left the till drawer open, and the board concluded on the evidence,that the grievor had not properly recorded a number of trans- actions and had failed to account for the proceedings. The board upheld the discharge. The case bears a number of similarities to the present one, but it is distinguished in that it involves a series of transactions, and more importantly, the conclusion that the grievor had failed to account for monies. In the case before us. we have found an alternative rational explanation, based on circum- stantial evidence, which accounts for the proceeds of a single disputed sale. That changes the character of the present case from Menzies. and leads us to believe that a lesser penalty than discharge is appropriate. - 16- Durkln and L.C.B.O. 426/81 (Barton) also involved cashiering irregularities, with the board eventually upholding a termination That case also depended on cicrumstantial evidence, but it involved a security. investigation which led the board to say ‘I... the only conclusion open on the evidence is that the $5.00 amount ended up in the Grievor’s pocket” (at p. 7). Once more, there is a con- clusion respecting misappropriation that is different and distinguishes the case from the .one before us. We have also reviewed Tsialtas and L.C.B.O. 282/79 (Eberts). Pfeffer and L.C.B.O. 148/79 (Swinton). Zauo and L.C.B.O. 169/82 (Joliffe), Brown and L.C.B.O. (191/82 (Verity), and Re Douglas and the Crown in Riaht of Ontario (Liquor Con- trol Board of Ontario). (1981) 28 L.A.C. (2d) 332 (Swinton). Those cases differ widely on the facts, but they all involve some form of cashiering irregularities. The common thread is that although some form of incompetence or failure to follow appropriate procedures has been determined, the element of dishonesty. untrustworthiness, or real or attempted misappropriation has been absent. The consequence has been that a penalty less than discharge has been determined as appropriate in the final result. The jurisprudence therefore seems to indicate that for dishonesty, untrustworthiness, or real or attempted theft, in the context of cashiering irregularities, discharge is an appropriate remedy under most circumstances. But a lesser penalty, depending on the facts, should be applied where such elements are absent. i . - 17- In view of all of these matters the board made the following unanimous award .respecting remedy, which it communicated to the parties by letter dated July 31% 1987. That award reads as follows: “Partial Final Award We view the dismissal of the grievor herein, Sydney Fawcett, as excessive under all the circumstances of this case, and substitute therefo: a penalty of two months’ suspension without compensation or other bene- fits from the date of the grievor’s termination, September 4th, 1986. The termination herein is therefore lifted and the grievor is accordingly reinstated forthwith. The employer is directed to make the grievor whole is respect of this substitution of penalty.” We now incorporate that partial final award into our award herein, and declare that should the parties be unable to agree on compensation, we retain jurisdiction to deal with problems arising out of the implementation of the award. Under all the circumstances, we do not view this as an appropriate case for awarding interest on the compensation to be paid. Dated at Ottawa this 5th day of October, 1987. &- I-- D. Fraser Vice Chairman T. Traves Member A-7 ~qc,~, /’ ,, II A/. Stapleton J Member