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HomeMy WebLinkAbout1986-1377.Irwin.88-08-15BETWEEN: IN THE MATTER OF AN ARBITRATION 'U?JDEB THE CROWN EHPLOYEES COiLECTIVB BARGAINING'ACT .BEFORE: FOR THE GRIEVOR: FOR m EMPLOYER: HEARINGS : May 21 dnd July 13, 1987 BEFORE TRE GRIEVANCE SE- BOARD OLBEU (G. Irvin) Grievor - and - THE CROliN IN RIGHT ,OF ONTARIO (Liquor Control Board of Ontario) Ekpl0yer E. Slone Vice-Chairman 8. O'Reaan' Member H. Roberts Member M. Gold Counsel Koskie and Minksy Barristers and Solicitors R. Little COUllSd Hicks, Morley, Hamilton Barristers and Solicitors' 1 .- .’ , DECISION The Grievor protests his dismissal as an Assistant Manager with the LCBO. He seeks reinstatement to his position with full remedial redress. The Grievor has'worked for the LCBO since 1974, in a number of different capacities all involving significant responsibility for monies. In September, 1986 he was promoted to the position of Assistant Manager,, and was posted _ to the store at Yonge and Sheppard in Toronto. On Saturday, October 18, 1986, the Grievor was working as a.relief cashier, among his other duties. According to the evidence he only opened up his cash register at times when the store was particularly busy,.or while one of the.two full time cashiers working'that day was on a lunch or coffee break. Consequently, there were periods during.the .'I..::' day when he.was not at his Fash register but was busy in the office performing othe-r,~~tasks. One such time period was between approximately 4:00 p.m. and 5:00 p.m. in the .afternoon. At or about 5:00 p.m., the Grievor left the office and went back to his cash register to handle a flurry of customers. According to the Grievor's evidence, he rang in about a dozen transactions. At about 5:30'p.m., the Grievor and the store manager, Mr. Mingilas. went through the a. - 2 - procedure known as "ringing off". This procedure produces a read-out from the cash register of all the transactions undertaken during the day, which number in total should equal the amount of money in the cash register after deducting the "float" which the cashier is given to start the day. After taking the reading from the register, the cash box is brought into the office where the money is counted. On October 18, 1986 the cash in the Grievor's cash box did ‘not balance with the sales recorded on the cash register tape. In fact, it was $516.40 short. Indeed, the Grievor's cash register contained barely one-half of the 'money that it ought to have. !Jhis,shortfall of $516.40 included a U.S. $20.00 bill as well as a Canadian $50.00 bill which the Grievor recalled having taken in earlier in the day. In fact, a close review of the cash register tape shows those denominations having been tendered by customers at.transactions No. 31 and 37 ~.k., respectively. Those two bills alone account for $77.40. The. balance of $439.00 missing might have been all $20.00 bills if one assumes an qffsettipg $1.00 error made somewhere along the line. This is a probable assumption because it is consistent with the proposition that at some tisne,during the day someone put his or her hand in the till and pulled out a stack of twenties, including the U.S. $20.00'bill and the $50.00 bill ~which the Grievor advised us had been stacked under the Canadian $20.00 bills. 7 3 - The Grievor's cash register tape showed a total of 56 transactions for the day. Since the $50.00 bill was tendered at transaction number 37, it is clear that the disappearance of the monies took place 'some time between the recording of transaction 37 and transaction 56. During this time, according to the evidence of the Grievor, there was the one hour period of approximately 4:00 p.m. to 5:00 p.m. when he was not on his cash but was occupied with other tasks in the office. Suspicion for the disappearance of the.monies did not immediately fall on the Grievor. The manager and the Grievor together checked and rechecked their arithmetic. They checked out other possibilities, such as the possibility that an interim deposit had been made earlier~in the day. it had 1 not. The manager was told by the Grievor and by another store employee, Mark Wooley, that at some time in the 4:00 to 5:00 p.m. time period two youths had been seen loitering around the Grievor's unattended cash register. Wooley had _. observed them for some minutes and testified that he.did not take his eyes off them for m3re than a few seconds. Nevertheless, he had reported the incident to the Grievor and suggested that the Grievor might'want to check his cash - 4 -. register. Wooley was obviously not convinced that he had seen their every movement, otherwise we do not think he would * have thought it necessary to report what he had seen to the Grievor . The Grievor had not at the time been concerned about the two youths because he had also been observing them. Howyier , when these events were related later to the manager, the suspicion of theft fell upon the two unidentified youths. Another store employee, Jessica Monk, reported that she had seen some youths of the same ethnic background as the youths reported by Wooley. She claims that she saw them also hanging arbund the Grievor's'cash. She also stated that the Grievor's cash register drawer was partly open at the time'. .. ~' Her recounting~ of events evidently strengthened the manager's suspicion about the two youths. However , ~~~~ when her evidence was put under careful scrutiny by this Board it became rather unreliable. She testified that the time of her observation was approximately 5:15 p.m. which is highly improbable. Also, her description of the two youths that she had observed was quite different from the description given by Mark r Wooley. In the result, .we cannot attach much weight to her evidence. It is probable that her observations took place after 5:30 p.m. when the Grievor had already been rung off and his cash register drawer would have been left open in accordance with the ringing off procedure. , - 5 - After having discovered the.shortfall and having exhausted innocent explanations, the manager reported the incident to the district supervisor. The matter was later reported to the police,. and on Monday or Tuesday of the next week a brief police investigation took place. Nothing apparently came of that investigation. Some weeks later a much more thorough internal investigation was conducted by k&in Balch, a trained.police ~detective who was on a temporary secondment to the LCBO with respons.ibility for security investigations. Sergeant Balch began his investigation own or about November 7, 1986, which was already some three weeks after the event. He interviewed all of the employees who had been in the store. He also examined~thoroughly the cash register tape that had recorded the day's transactions. He' examined .the cash register for evidence of tampering, and educated himself on the various ways one'could have gained entry to the cash register. He made several conclusions which he reported~to the employer, and which we are inclined to accept. He concluded that it was highly unlikely that the locked cash register could have been pick,ed or opened by any means o'ther than the punching in of a correct sequence on the .~ .. keys. He also concluded that there were no unusual or improbable transactions recorded on the tape which might have - 6 - suggested a random punching in of keys or a short sequence punched in simply in an attempt to get the cash drawer to spring open. He testified that every one of the unit prices shown on the tape corresponded to LCBO pricing. Largely as a result of Balch's investigation and . conclusions, :the employer believed that there was no plausible explanation for the shortfall other than theft by the Grievor himself. Robert MacDougall, a staff relations officer with the LCBO, testified that he advised Mr. Flett, Vice-President of the retail division of the LCBO, on the .~. '.~ appropriate~disciplinary response. He stated that he had come to the conclusion, on the balance of-probabilities, that the Grievor stole the money. On December 2, 1986, the Grievor was summarily discharged. It is common ground tha.t any allegation of. dishonesty ought not to be lightly made and must be’ established by a preponderance of evidence that is greater and stricter than in cases not involving.dishonesty. The reason is obvious; a person's career and reputation in thecommunity can be ruined. However, if an employee is actually culpable than he has only himself to blame for the damage that may be done to his career or his reputation. : /7 - The question we must~address is simply this: does the evidence justify a finding that the Grievor stole the nrmey? In arriving at our conclusion we must be careful to .apply the correct standard of proof. A number of authorities were cited to us ,,which describe the degree of proofs applicable in a case such as this. In the case of OPSEU (T. Daggit) and The Crown in Right of Ontario (Ministry of Health) 513185, Vice-Chairman Delisle writes at page 11: "In many cases however it is said that though the.matter is 'civil in its nature, if the Plaintiff's allegation is one of a crime or serious misconduct the degree of sat+ifaction is higher: some say-the trier requires 'clear and convincing proof'. Whatever the formula, hit is clear that the degree of satisfaction which a trier Will require will depend on the relative seriousness of the consequences of the allegation being found true. As noted in a frequently quoted Judgment of Lord Denning, Bater v. .Bater cl9501 2 All E.R. 458 at 459: 'the difference of.opinion which has been evoked about the standard of proof in these cases may well turn out to be more a matter of words than anything else. It is true that by our law there is a higher standard of proof in criminal casesthan in'civil cases, but this is subject to the qualification that there is no absolute standard .in either case. In criminal cases the,.charge must be proved beyond reasonable doubt, but there may be degrees of proof within that stan~dard. Many great Judges,have said that, in proportion as the crime is enormous, so ought the proof to be clear. So also in civil cases. ~'The case .. may be proved by a preponderance of probability, but there may be degrees of probability within that .standard.. The degree depends on the subject matter. A' civil -. court, when considering a charge of fraud, will naturally require a higher'degree of probability than that which it would require if considering whether negligence were established. It does not adopt so high a degree as a criminal court, even when it is considering a charge of a criminal nature, but still it does require a degree of probability which is commensurate with the occasion.' In this the consequences of finding the allegations true are heavy indeed'but we have an obligation of making the finding should we be satisfied by the evidence." The Supreme Court of Canada has stated the principle thusly in Hanes vs. Wawanesa Mutual Insurance Company,[1963] S.C.R. 154: I, . . . that when a right or'defence rests upon the suggestion that conduct is criminal or quasi-criminal the court must be satisfied~ not bnly that the circumstances are. consistent with the commission of the criminal'act but that the facts are such as to make it' reasonably probable, having due regard..to the gravity of the suggestion, that the act was in fact committed." Based upon these and other authorities“cited to us, we are mindful that the.standard to be applied is not the _ ;:. criminal standard of proof beyond a reasonable doubt. >l .- ~However, insofar as there is a sliding scale within the civil standard of proof on a balance of probabilities, this case will find itself at or near the top end of that scale. we must be satisfied by clear and convincing evidence that the allegation of theft is made out. ", The employer must meet an additional hurdle brought .:, - 9 - , about by virtue of the fact that the evidence against the Grievor is entirely circumstantial.. There was no eye witness to testify that he or she saw the Grievor take the money. The money itself was not found on the Grievor's person. For better or worse, no one proposed at the time searching the Grievor. The evidence is exclusively directed to the issue of opportunity. If we accept as a given that the rru3ney was in the cash drawer at some time during the mid-afternoon, but missing by the end of the day, then one does not have difficulty concluding that the Grievor had more than ample opportunity to take the money. What we are being asked to do is also conclude that it is~ unlikely that anyone else had the opportunity. If we so find, then the conclusion would become inescapable that the Grievor pocketed the money. The weighing of circumstantial evidence is thus largely a process.of excluding alternative possibilities. In so doing we have to take notice of what is humanly possible in the circumstances. We cannot cast an onus upon the Grievor to prove to us thatth~ere are .alternatives, although he would certainly help his own cause with every plausible alternative he proposed. Rather, the onus is still on the Employer to prove by clear and convincing evidence that there : are no such alternatives. We were referred to several cases which deal with - 10 - circumstantial evidence. In the case of Sunnybrook Hospital _ and Sunnybrook Hospital Employees Union, Local 777 (Gastis), 27th of June, 1986, an unreported award of arbitrator Michel Picher, he writes at page 17: "In the Arbitrator's view, where the evidence is principally circumstantial, it must be determined whether, in balancing the probabilities, there are other reasonable explanations equally probable or more probable than the proposition which is advanced by the party that bears the burden of proof. If there are no reasonable alternative possibilities of equal or greater probability, it may be concluded, as a.matter of evidence, that the allegation advanced is established on the balance; of probabilities." While we agree with the~statement of Mr. Picher in the above case, we would add the caveat that in a case involving .an'allegation of .dishonesty,.we must, in ~the final analysis, still be convinced by a degree of proof that meets the high standard commensurate with the gravity of the , allegation. The most often mentioned alternative explanation was that the two youths who had been observed loitering near the cash register, were responsible for the.theft of the money. '@is is but one possible explanation. It is one that we do not consider to be very probable. It is somewhat unlikely~ that two youths would,have attempted to break into the cash register in broad daylight under the scrutiny of other LCBO staff. It is also unlikely that they either knew the correct sequence of numbers to punch into the cash register, or were - 11 - fortunate enough to stumble upon the, correct sequence. There is the.possibility that the Grievor inadvertently left his cash drawer open. This possibility cannot be discounted, although the Grievor denied it. His denial is not difficult to understand, in light of the fact that the employer had advanced as an alternative ground for the dismissal an allegation of a breach of security procedures. .We can .say that we are not willing to conclude that the employer has established on a balance of probabilities that the Grievor left his cash drawer open, and so we cannot give effect to ,. this alternative ground., However, in the course of considering other possibilities.for how the money disappeared, we must accept this explanation as one that is at least possible.. Apart from the observed two youths, there remains.a possibility that someone else. during the period of 4:00 p.m. to 5:00 p.m. obtained acces~s to the cash register. That person or persons might have known how to punch in a plausible transaction, and leave no obvious calling card. That person might not have been observed. We do not point the finger at anyone, but there is always the possibility that some other LCBO employee was involved. In dealing with this matter as one of circumstantial evidence, we are entitled to consider the element of motive. . j - 12 - While it might be said that pocketing the sum of $516.40 is sufficient motive in and.of itself, the advantage of having that sum of money must be placed in some perspective. The Grievor knew that a cash shortfalls from his own cash register would be discovered immediately. He knew that it would be treated as a serious matter, and would be investigated. He may have known that under the Col1ectiv.e Agreement it was a virtual certainty that he would be held responsible for ,at least one-half the loss,.if not the entire amount. It therefore seems to us that, if the.Grievor had determined to steal from his employer, this transaction would have been particularly inept and stupid. It is simply hard.for us to believe that it would have been worth, the risk for~an employee in the Grievor's position. We'note that the Grievor had a disciplinary record involving several breaches of security which could best be termed "careless". It seems highly unlikely that he would have wanted to throw suspicion on himself, even for an alleged breach of security procedures. On the other hand, we must consider'the possibility that the Grievor was diabolically clever enough to seize"the moment and.hope to blame the two unidentified youths for the loss of the cash. Had he been so clever, he might have foreseen that the proof against him would nev.er be sufficient ~.__<,^.-- to justify dismissal. In other words, we have to consider I - 13 - the possibility that the Grievor executed a perfect crime. The Grievor himself testified, and flatly denied having taken the money. His credibility was not sufficiently shaken on cross-examination to cause us to devalue his, evidence down to nothing. In the result, considering that the Grievor's opportunity was great although not exclusive, and considering our grave doubts as to the Grievor,having undertaken this / riiky an escapade for such a relatively small amount of money, we must conclude that the employer has notmade out a sufficiently strong case of theft by the~Grievor as to permit the dismissal to stand. As an ,employee with considerable .responsibilities and 12 years standing to his credit, the Grievor is entitled to the benefit of the very significant doubt which this Board unanimously feels. It is apparent that the employer did not have this same doubt. However, we have had the opportunity to hear all the witnesses be examined ,and cross-examined, and to hear then able argument of counsel. .The employer may haves beeninfluenced in arriving at its conclusion by the disciplinary record of the Grievor to which we referred earlier. We are not so influenced. - 14 - We are certainly sympathetic to the needs of the LCBO to preserve security, in view of the large amounts of cash and valuable liquor that pass through the hands of its employees. However, no security system is perfect, and losses such as that experienced in this case may occasionally remain a mystery forever. Lest anyone w~ish to draw a conclusion to the contrary, we wish to state clearly that we do not absolve the Grievor, or pronounce him "innocent". The evidence does not justify that type of finding. The allegation of theft is s~imply "not proven?. As already mentioned, the.employer raised as an additional ground a breach of .security procedures. There was: little credible evidence to make out this alternatives ground. Had the employer been able to prove on a balance of probabilities~that the Grievor left his cash drawer open, we would likely have considered th$t a disciplinary response was called for, although we have grave doubts as to whether a dismissal could have'been'sustained. However, we cannot give any effect to this alternative ground in view of the paucity of evidence supporting it. .In the result, the grievance is allowed and the Grievor is ordered to be reinstated to his former position or ~'%" equivalent, with no loss of seniority. He is entitled to his .ost wages and benefits, if applicable,~with interest from the time that such payments would have been paid to the time of payment. If there are any additional matters which.need tu be addressed in light of our findings, the parties should endeavour to work them out between themselves, failing which this Board will remain seized of the matter and entertain further submissions. DATED at Toronto this 17th day of August; 1907. ERIC K. SLONE, Vice-Chairman H. O'REGAN, Union Member H. ROBERTS, Employer Member 1387/86, 1388186 IN THR WXl'RR OF AN ARBITRATION Under THE CRORR EKPLOTBES COLLECTIVE BARGAINING ACT Before TM? GRIEVANCE SETTLBUBNT BOARD B#!tween: OPSEU (Pi Sim & D. Bain) Crievors and The Crown in Right of Ont~ario (Ministry of Correctional Services) Employer Before: , P.M. Draper Vice-Chairman J.D. HcManus Member 1.J. Cowan Member For the Grievor: A. Ryder COUIlSel Gowling and -Henderson Barristers and Solicitors For the Employer: T. Anthony Regional Personnel Administrator Ministry of Correctional Services Hearing: February 1, 1988 ,. , DEcIsIQN In April, 1986, the Grievors, Patricia Sim and Douglas bain, filed separate grievances claiming that they had been denied shift premiums in contravention of Article 11 of the collective agreement. During the grievance process'the grievances were settled, terms of settlement were reduced to writing and signed by the Employer, the Union and the grievors, - and the grievances were withdrawn. Subsequently the parties disagreed in their understanding of the terms of settlement and the Grievors filed the grievance5 now before the board in which the claim is made.that the Employer has not complied with those terms. The grievances call for an interpretation of the terms of settlement. , ._. ~.There is a legitimate difference between the parties which they are content to have the Board resolve. Despite that willingness, the desirability of a final and binding settlement and the lack of an obvious alternative means of achieving that objective, our conclusion must be that we cannot be of service to the parties. It has long been established that the source of the Board's jurisdiction is the Crown Employee5 Collective Bargaining Act (The Act). In Baladav, 94178 it was said that our jurisdiction is conferred by what is now Section 19 (1) of the Act which empowers us to hear and determine differences between the parties concerning the interpretation, application, administration or alleged~contravention of the'collective agreement, and by what is now Section 18 (2) of the Act under which employee grievances concerning classificatibn, appraisal, discipline, dismissal or sus~eion may be referred to the Board for decision. The Board commented: “We have no other authority to intercede between the parties: we do not have any inherent jurisdiction to do justice - or what we may conceive to be justice - or to provide remedies, no matter how desperately a particular case may cry out for relief", and concluded that any decision rendered beyond the limits of the Board's legal authority would be a nullity. We find that we are without jurisdiction to act in the matter. These proceedings are accordingly terminated. Dated at. eonsecon Ontario this 15th day of August.1988. -------_----------------- P. Draper - Vice Chairman "I dissent" (Dissent attached) ---------------_---_----- J. D. McManus - Member \a --m---- ----------------- I. 3. Cowan - Wember 2 - 136?/06, 13txl06 DISSENT This case raises the question of whether the Board has any jurisdiction to interpret and enforce a settlement, entered into by the parties, which is not incorporated in en Order of the Board. I can conceive of many instances when the Board would have no such jurisdiction to vhich the Chairman apply. However, it seems to me that the question of whether the Board has jurisdiction in any particular case depends on the circumstances of the case. It is therefore useful to review briefly the circumstances giving rise to the matter before US. The original grievance dated April 30, 1986 alleged that the grievers had been ‘!denied shift premium benefit for working the time oft 0645 to 0700’as per article 11.1 of the Collective Agreement”. The grievance was’considered~by management and rejected on the basis’of management’s conclusion that the Collective Agreement had not been violated. A stage two meeting was conducted at which the matter was again considered but without resolution. However, following the stage two meettng, each grievor received ‘a letter from their superintendent proposing a settlement. In the case Of Mr. Bain, it reads: “Re : .Name - Mr. D. Bain Date of grievance - April 30, 1986 Issue -., Shift Premium” r. Without prejudice and without precedent, the parties agree to the following terms as full and final settlement of the above noted grievance. The Ministry agrees to pay seven and one half (7 l/2) hours less statutory deductions. The Union and the grievor agree to withdrew the grievance. Standing by itself, the settlement clearly does not,purport to interpret the Coil&rive Agreement. However, when the settlement is read against the grievance and the circumstances givfng.ri6e.t.o the grievance, it is clear that the settlement is a promise or a representation by management to interpret and administer article 1~1.1, in this, instance, by payment of “seven and one half (7 l/2) hours less statutory deductions”. The grievers relied on this representation, executed the settlement and withdrew the grievances. ../page 2 . : 138ll06, 1300/86 -2- In these circumstances, management is estopped from denying the grievor’s claim under article 11.1 by any interpretation or application of the agreement that is not in accord with the settlement. Following the execution of the settlement, a dispute arose as to its meaning, In other words, a dispute arose as to the scope and meaning of the representation which is now binding by way of estoppel. Management does not dispute that it is bound in this way, as 1 say the only dispute relates to the precise terms of the estoppel. In any event, and so as to resolve this dispute, a second grievance was filled out and it is this grievance that the Roard is.called upon to determine. No objection hes been taken to our Jurisdiction. In the circumstances, the position of the parties permits us to treat the second grievance as a continuation of the .first in which we are required to determine the rights of the parties under article 11.1 (as required by the first grievance) as affected by the estoppel. Accordingly, it cannot be said that the parties are being asked to perform any act outside of our jurisdiction. Rather, we are being asked to adjudicate a grievance alleging a breach of the agreement in which manage- ment is estopped from asserting an interpretation and application of the agreement which varies from the representation contained in the settlement. >, This Board and all Boards of arbitration established by statute have a duty to apply the principle of estoppel in a proper case. Canadian National Railway Co. et al V. Beatty et al 34.0.R. (2d) 385. In all situations involving the application of this principle, the Board is not, strictly speaking, interpreting or applying the Collective Agreement 8s~ written. Rather it is interpreting the rights of the parties to the agreement as they have been effected by the binding representations made by one of them. Accordingly, in the circumstances of this case, I see no reason why the Board cannot adjudicate the matter. Board member,