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HomeMy WebLinkAbout1987-1197.Mehmeti.89-04-10EMPLOYES DE LA COURONNE DCL’ONT*RIO CQMMISSION DE T REGLEMENT DES GRIEFS IN TEK NATTEB OF AN ARBITRATION Under THE CRONN RHPLOYEES COLLECTIVE BARGAINING ACT Between: Before: APPEARING FOR TEE GRIEVOR: APPRARING FOR THE RHPLOYER: REARING: Before THE GRIEVANCE SETTLRHENT BOARD OLBEU (Errol Hehmeti) - and - Grievor The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer P.M. Draper - Vice-Chairperson i L. Robbins - Member N.P. O'Toole - Member 8. Pishbein Counsel Koskie a Minsky Barristers 8 Solicitors M. Hines Counsel Ricks, Morley, Hamilton, Stewart, Storie Barristers h Solicitors September 9, 1987 June 29, 1988 January 16, 1989 February 10; 1989 ,: . 3 -2- 0 DECISION The Grievor, Errol Nehmeti, grieves that he has been dismissed without just cause. The Employer replies that the Grievor was dismissed for having stolen amounts of money, the property of the Employer. At the time of his dismissal on Friday, May 15, 1987, the Grievor was twenty-four years old, was a part-time employee at Store #362 on Albion Road in Etobicoke and had approximately one year of service. Immediately prior to his employment with the L.C.B.O. he was a co-operator with his brother of a vending machine rental company. Following graduation from high school .he spent two and one-half years studying for a degree in business at Concordia University. He is single and lives with his parents. Ted Saliba is the manager of Store #362. He testified c that about a week before Ray 15, 1987, he met with the store employees and told them that he suspected that someone was “playing games” with money or goods in the store and warned that action would be taken if it did not stop. His suspicions settled on the Grievor because as a cashier he had an abnormal number of cash shortages and overages. An overage results when cash is not rung in and so is not on the register tape. On Nay 15th he decided to watch the Grievor at work and to have Tom Hunt, one of the two assistant managers, watch as well. He assigned the 2 -3- Grievor to cash register #3 because it is the one that can best be seen from his office. The transaction process is that the cashier first rings in the price of the goods being purchased. He then rings in the amount tendered by the customer, the cash drawer opens and a receipt “pops up” from a slot in the top of the register. The customer’s money is placed in the drawer and his change, if any, is taken from it and given to him along with the receipt. On four separate occasions he saw a customer hand money to the Grievor and noted that no receipt popped up from- the register. He briefly lost sight of the money behind the register and then saw the Grievor put it in one of his pockets. .He told an L.C.B.O. auditor, Creitghton French, who happened to be in the store, what he had seen. He then called his supervisor and it was arranged that an L.C.B.O. security officer, Ken Wilkins, would, contact the Metropolitan Toronto Police. Two police officers arrived at the store at about 4:30 p.m. and questioned the Grievor in his office. At the end of questioning the Grievor asked him if he would “lose my job over this” to which he replied that that was not up to him but to the L.C.B.O. He went to cash register #3 and discovered a piece of cardboard and three “void explanation slips” on which appeared handwritten figures that he recognised as corresponding to the prices of various goods sold at the store. To him the implication of the figures is that they could have been used to keep track of amounts of cash not rung in, which could then be removed and the cash in the register and the register tape would balance when the cashier rang off to make a deposit. He mentioned the four items to one of the police officers, who took 6 - 4 - possession of them. He never told any employee not to associate with the Grievor or how much money he thought the Grievor had stolen. The t’otal amount of the deposits from cash register #3 on Nay 15th was $51~560.75. Three deposits were made by the Grievor and a fourth was made by himself after the Grievor was removed from the register. Tom Hunt is one of two assistant managers at Store #362, a bargaining unit position. He testified that, as instructed, he was watching the Grievor at work on cash register #3 on May 15, 1987. On one occasion he saw a customer approach the register and place his purchase and money on the counter. The Grievor left the money on the counter and made a motion as if ringing in the sale but he did not hear the sound that is made when a receipt is , printed and pops up. The Grievor gave the customer his change from the cash drawer which meant that it was open although there was no sound of it opening. The customer was not given a receipt. When the customer had gone the Grievor took the money he had left on the counter and put it into his right hand pants.; pocket. John Rotondo is a Constable.with the Metropolitan Toronto Police Force. He testified that on May 15, 1987, he was informed by Ken Wilkins of alleged theft at the L.C.B.O. store on Albion Road. Accompanied by Mr. Wilkins and a fellow officer, Constable William Catalono, he went to the store where he spoke with Mr. Saliba and Mr. French. The Grievor was brought to the office and after the officers identified themselves Constable Catalan0 told i ,,: :: - 5 - him that they were investigating theft from a cash register and described the nature of the information upon which they were acting. The Grievor stated that he knew nothing of any theft and denied taking money from his cash register and pocketing it. The Grievor was placed under arrest and his rights were read to him. He was searched and found to be carrying $333.48. He said he had been paid the day before and produced a receipt for his pay cheque which was for $170.33. The Grievor was taken to the police a station about 5:30 p.m. and questioned further there. He admitted writing on the items found in the vicinity of cash register #3 but said the figures were to enable him to keep track of money owing to him from the cash in the register. The Grievor asked him to recommend a lawyer which he said he could not do but did give him a directory of lawyers. He did not tell the Grievor that he would spend the long weekend in .+il (it was the Victoria Day weekend) or that his car would be impounded if he did not confess. The Grievor made a statement in which he admitted to theft from the L.C.B.O. He made it voluntarily, wrote it out in longhand and signed it. The statement reads: May 15, 1987 To Whom it may Concern: On May 15, 1987 I was arrested for theft under $200.00 from the liquor control board of Ontario. From the date of approximatly February 15, 1987 to May 15, 1987 on 5 seperate occasions while on cashier duty, I neglected to ring in a purchase The accumulated amount for these seperate incidints totaled $120.00. I willfully admit my guilt and also to whom it may concern, I am 2 - 6 - l sincerely ashamed and disgusted in my actions. Sincerely “Errol Mehmeti” The Grievor was held at the police station until approximately 7:45 p.m. when he was released on his own recognizance. Constable William Catalan0 testified that he accompanied Constable Rotondo to the Albion Road L.C.B.O. store on Hay 15, 1987 and took part in the questioning of the Grievor. The Grievor denied all the allegations made against him. He was charged with theft under $l,OOO.OO,arrested and read his rights which he said he understood. He did not ask to see a lawyer. He was taken to the police station, cautioned, read his rights and again questioned. He was told that he could consult the duty counsel on call but declined. There was no mention of the Grievor being j:ailed for the weekend. He was told that his car would be released when he was released. He was given the choice of having a statement taken down or writing it himself. He decided to write it and was left alone while he did so. Margo Stevenson, a part-time L.CcB.0. employee, was assigned to cash register #l on Ray 15, 1987. It is to the left of, and one removed from, cash register #3 where the Grievor was working. Cash register #2 was not in use. She testified that she was observing the Grievor closely because - 7 - he and everyone else was under suspicion of theft. She could see him clearly if she turned to her right. When she was serving a customer she would be facing straight ahead to the register or left to the counter and so would not have seen all of the Grievor’s transactions. She did not see him take any money from his register or from the counter and put it in his pocket. She saw the Grievor being taken to the office and there were loud voices but she could only hear “mumbles”. 0 After the police had taken the Grievor away Mr. Saliba told her that “that S.O.B. has stolen $2,000.00 today alone” and that he did not want her to see or talk to him again. She. has spoken to the Grievor about the case “a few dozen timesI* since his dismissal. He did not mention any rough treatment by the police except to say that he was spoken to in a threatening -manner and in an accusing tone, which she took to mean in “typical interrogation style”. He said that he signed a confession because he was “in a muddle” and “not thinking straight”. He has also told her that when questioned at the store he was not “granted his rights”; that he was told he would be hurt if ke’:did not confess; and that at the police station he was forced to sign a confession. The Grievor testified that on May 15,‘1987, his shift began at 9:30 a.m. but he was not working on cash register #3 until 11:50 a.m. He estimates that from then until he was taken to the office he was “on cash” for about two hours in total. He thought he had made only one deposit of cash - 8 - l during the day but now admits that he made three. He denies having put any money in his pockets as described by Mr. Saliba and Mr:Hunt. He questions whether they could have seen what they say they did from where they claim they were watching. The handwriting on the four items found at cash register #3 is not his. He does not believe that the work schedule and attendance register put in evidence correctly represent the hours store employees worked on May 15th and e prefers his own memory in that regard. In the office Constable Rotondo told him they knew he had taken money and would put handcuffs on him and drag him through the mall if he did not tell them where it was. He replied that he did not know what they were talking about. Later, because he was worried about his parents’ health and to avoid confiscation , of his car, he admitted to theft of $120.00. The amount was taken from the money he had in his pockets and the rest ($213.48) was returned to him. He was not charged or placed under arrest until he was at the police station. The Record of Arrest filed in evidence which states that he was arrested for theft at 4~45 p.m. is a fabrication. He was not read his rights or asked if he wanted to consult a lawyer. When he did ask later if he could try to reach a lawyer he was told that the lines were all busy. He was asked to write out a statement and did so but Constable Rotondo tore it up because it was too general. The second one he wrote is not true. The dates, occasions and figure mentioned in it “just came to mind”. He wrote it because he did not want to spend the long weekend in jail. He “probably” did not make any objection to his treatment by the police at either the store or the police station. The ‘criminal charge of theft was not prosecuted. In late May or early June of 1987 a relative of the Grievor took a series of photographs of the interior of Store #362. T~hey are intended to show the difficulty of seeing a cashier at register #3 from the areas from which Mr. Saliba and Mr. Hunt watched the Grievor. In our opinion they are of minimal evidential value and do not serve to put in doubt the eyewitness accounts of the Grievor’s actions on the date in question. After questioning the Grievor in the manager’s office the police officers searched his car which was in the parking lot behind the store. It is contended for the Grievor that the search was improperly conducted. It led to the laying of a second charge against the Grievor, which explains the references in the evidence to the possibility of the car being impounded. The charge is unrelated to the subject matter of these proceedings and we make no further reference to it. We accept that the proper burden of proof in the case is proof on the balance of probabilities. We also accept that, because of the gravity of the,allegation made against the Grievor, in weighing the evidence offered to support - 10 - l proof of the allegation on the balance of probabilities we must be satisfied of its cogency. The parties have presented evidence that is in conflict on virtually every material point. The case thus comes down to the issue of credibility. There is no evidence before us upon which findings of misrepresentation by Mr. Saliba or Mr. Hunt, or of falsification of employment records, or of fabrication of incriminating material (all of which improprieties are either alleged or implied in the Grievor’s testimony) could reasonably be made. We are satisfied that the actions of the Grievor on May 15, 1987, were as described by the eyewitnesses. As for the Grievor’s written statement to the police, we find that it constitutes a truthful confession that the Grievor engaged in the acts of theft described. we cannot credit that he would confess to an offence he had not committed simply to escape an uncomfortable situation. These being civil proceedings, the Employer is not obliged to show that the confession was made voluntarily although if it were not, the question of the weight to be given to it would arise. In any event, the Grievor had reasons for confessing which he obviously thought were good and sufficient and we are not persuaded that he was coerced into confessing. 4, - -, E - 11 - In the result, we find on the balance of probabilities and taking into account the gravity of the offence that the Grievor has committed theft of the property of the Employer. This is not an appropriate case for mitigation of the penalty of dismissal. ~~~ Grievor has constantly and categorically denied his culpability with the exception, of course, of his confession which he now repudiates. See McWilliams, 660/87, in which the Board declined to mitigate the penalty of dismissal where theft was found to have been committed and the grievor denied his fault at the hearing. The dismissal of the Grievor is upheld and the grievance is dismissed. DATED at Consecon, Ontario this 10th day of April , 1969. - Vice-Chairperson L. Rodbins - He~tiher / pfl 3 ,/ i ‘T$& ,_ ~$f.P.‘~*Toole - member