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Home My WebLink About1997-0406.Smith.98-01-03ONTARK) EMPLOYE% DE LA COURONNE CROWN EMPLOYEES DE L’ONJARIO GRIEVANCE COMMISSION DE SETTLEMENT RliGLEMENT BOARD DES GRIEFS 180 DUNDAS SJREI7 WES7; SlJKE 600, TORONTO ON M5G lZ8 180, RUE DUNDAS OUESr; BUREAU 600, TORONTO (ON) h45G IZB TELfPHONE/7iLiPHONE : (416) 326-1388 FACSIMILEl7iL~COPIE : (416)326-1396 GSB # 0406197 OLB # 088/97 IN THE MATTER OF AN ARBTTRATTON Under THE CROWN EMPLOYEES COLLECTTVE BARGATNTNG ACT Before THE GRTEVANCE SETTLEMENT BOARD BETWEEN OLBEU (Smith) Grievor - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEFORE S. Kaufman FOR THE UNION M. McFadden Counsel Koskie Minsky FOR THE EMPLOYER M. Smyth Counsel Genest Murray DesBrisay Lamek HEARTNG August 12, 1997 November 26, 27, 1997 December 3, 1997 Vice-Chair DECISION The grievor was discharged from his employment as a full-time Customer Service Representative (CSR) and occasion- al Acting Manager/Night Manager at Store 362 on April 4, 1997 for theft of rolls of coin from the store safe. The letter of termination (Ex. 3) states that he was "responsible for -the theft of LCBO funds". These allegations arise from dis- coveries which occurred between March 1 to 5, 1997 that rolls of coin were missing from the store safe, and from subsequent events. Evidence was given by Store 362 Manager Sharon Cra- ven, District 12 Manager Gerry Beuk, CSRs Susie Kosic, Nadine Buda and Lee Thompson, and the grievor. As the sufficiency of the evidence as well as the onus to be met were strongly disputed,- the evidence is set out in some detail. The Evidence: Sharon Craven has been Manager of Store 362 for approxi- mately three years. Her usual shift, she said, is "basical- ly " from 8 a.m. to 5 p.m. and she usually arrived at work "around 7:30 a.m.". She manages the store during the day- shift, and an Assistant Manager, usually the most senior CSR on the shift, runs it in her absence. She advised that the grievor worked a dayshift from 9 a.m. to 6 p.m., and the afternoon shift from 1 p.m. to 9:30 p.m. He also was Acting Manager during the latter half of some of the afternoon shifts, about 4:30 to 9:30 p.m., for which he was paid the rate for Acting Manager, and during which time he was fully responsible for the store. Ms. Craven advised that the store is located in a mall, that the store closes its doors at 9 p.m., and the mall doors are locked between 9:30 and 9:45 p.m. She advised that staff do not have a key to the mall doors and "it's a very bad neighbourhood". She can enter the store outside mall hours only by calling security to open the mall doors, which then 1 t then are locked behind her. She advised that "they open all the doors" to the mall at 7:30 a.m. She advised that she and her Assistant Manager Mr. Laszczuk, and Mr. Emmerson and Mr. Chini have a set of keys for the store, and that "the person running the night shift also has the keys". She advised that the key is required to open the store doors and that the person opening the store is expected to lock the door once they are in and key in a code to disarm the alarm system. Ms. Craven said in chief that the safe is located in the manager's office, a small room adjacent to the front end of the store, separated from the store by a door with a window and that cashiers can see into the manager's office from their registers, through the window in the door. The door can be locked. The safe is about five feet high, and has two compartments. Seven cash register drawers are kept in the top part of the safe. She advised that "at the bottom of the safe" she keeps a second safe, on the left side, "with its own combination". The second safe is "about one quarter of the size of the larger safe", and is "not removable". In cross-examination Ms. Craven agreed that both the main door to the safe and the interior safe have different combinations, which are changed from time to time. She agreed that all full-time employees have the combinations, and added "those that run shifts". In re-examination she said that Ms. Bryant was the only full-time employee who does not run shifts and does not have the combinations. She agreed that when the combinations are changed, someone from the LCBO delivers envelopes with the new combinations on slips of paper, and that she "gives it to them". When it was suggested to her that she gives the slips of paper to the employees who need them and some employees memorize them and some do not, she replied "normally they keep them in their wallets". She agreed that she does not require the return of the papers, and has no system to control the papers once they are given out. 2 MS. Craven advised that one- and two-dollar coins are kept in bundles of ten rolls at the back of the safe. The bundles are stacked vertically. Bundles of less than ten rolls of coins are kept in bundles "in front of fl the bundles of ten rolls. Bundles of less than ten rolls of coins "will sit at the bottom right", she said. Ms. Craven advised she "can get four high and four deep" in the small safe. She agreed that quarters, dimes and nickels are kept to the right "in bundles of ten" rolls. Five bundles of quarters could be stacked on top of the other--"five high", she advised. A petty cash box is also kept in the safe. She later said that the "twonies" and "loonies" are kept in "the little safe", and that quarters, dimes and "loose loonies and twonies" are kept outside "the little safe". Ms. Craven advised that "in the morning" she checks her E-mail and "pulls off a safe count". "While the computer shuts down" she does a count of the safe and ensures that she has a balance of what the computer indicates she is supposed to have. She said that before March 1, 1997, she "did a visual" count of the cash in the safe e.g. if she saw three bundles of "twonies" she automatically counted them as $500.00 per bundle and decided she had $1500.00 in "twonies". She said that she did not "check each one". She agreed that that was her practice with "all the coins". She agreed that that was the practice of "other people". In cross-examina- tion she agreed that it was a common part of store culture to do a visual count, that missing rolls are not noticeable when the bundles are viewed from the side, and the person doing the count assumes all rolls are present in the bundle. She said that she did not pull out the bundles and ensure that they each contained ten rolls because "it never occurred to [her] that money would be missing from the middle". She said that she had only seen bundles pulled out when the auditors came in, "The auditors do it that way" she advised. 3 h Ms. Craven advised that when the store needs more coins, she or her assistant, and, on occasion, clerks, order them by filling out an IVR Coin Order Form (Ex. 4). Loomis delivers the coin to the store. She said "we count it and then sign". She advised that she calls in a cashier and asks her to do a cash receipt indicating they are accepting an amount of coin. The cashier specifies this amount on a blank IVR Coin Order Form, which, Ms. Craven advised, is also used as a cash re- ceipt indicating the amount received from Loomis. She "sells the money back to the safe". The coins "usually" arrive in a box, which is sealed. She advised that when the ordered coin arrives, "we'll usually put the boxes in the safe". If she has time, she said, she "will break them down into bundles of 10 rolls, and stack them in the safe" and said that any of her staff may break them down, if she is not around. Ms. Craven was not working in Store 362 during the last week of February, 1997; she was conducting interviews at the Weston Road and 401 Store. Ms. Craven gave evidence as to statements made to her by Assistant Manager Wally Laszczuk (and others). Mr. McFadden indicated that he maintained a standing objection to the ad- mission of such statements as hearsay. In administrative proceedings the rules of evidence are somewhat relaxed, and hearsay statements may be permitted to be made in the course of oral evidence, subject to two important qualifications: 1. They should be confined solely to collateral matters, and caution should be taken as to the weight given to such statements. 2. In the absence of agreement of the parties as to the truth of such statements, they cannot be used as proof of the truth of the very issue(s) in dispute. I ruled that I would admit business documents created by Mr. ‘.- ; Laszczuk into evidence, and mark them as exhibits, as proof of the fact that they were made, but not of their accuracy, 4 in the absence of direct evidence given by him. I ruled that Ms. Craven could give evidence as to what she understood from Mr. Laszczuk as to what occurred in the store during her ab- sence, but that in the absence of direct evidence given by him, the accuracy of her understanding, based on his state- ments to her, would not be established. A Coin Order Form (Ex. 6) appears to have been created on February 28, 1997 by Mr. Laszczuk and was introduced by Ms. Craven into evidence. It indicates that $5,350.00 in coin was ordered on February 28, 1997, and a delivery date of March 3, 1997 was entered. A computer "cash receipt" dated March 1, 1997 indicates a cash tender of $5,350.00 at 13:ll. Ms . Craven agreed that the Coin Order Form was prepared by Mr. Laszczuk, that the coin was delivered on March 3, 1997 and that she was in the office on that day. She then advised that the coin did not come in on March 3, 1997, that the "ca- shier's print-out" indicated it came in on March 1, 1997. The grievor advised that his understanding of store practice was that it was appropriate to put rolls of coin into bundles of ten rolls ("bundle coin") immediately after it had been received from Loomis. He said that once the per- son receiving the boxed coin has signed for it, s/he must ensure that s/he "has everything" and that initially this is done visually. The Loomis guards do not remain while he opens the box to confirm its content. He said that the guards are "there" for "15 minutes, 20 minutes tops" and it was not his experience that the Loomis guards remain while coins are counted and placed in bundles. In cross-examination, he agreed that while the Loomis guards are there, he visually checks to see that the boxes Loomis indicates have been delivered are in fact there, and counts the contents later. He agreed that if the store is busy, there is nothing unusual about putting the boxes into the safe and counting their contents later. He said that he worked from 9 a.m. to 6 p.m. I hd 5 on Wednesday, February 26, 1997 had not "taken in" the coin order on that day. Ms. Craven advised that attendance of staff is recorded on sign-in sheets which are kept "by the large safe, not the Loomis safe, by the wall". Staff is "supposed to sign out when they leave". She said "it proves they were at the store". She agreed that each employee is expected to sign the sheet when they come in, and said that the sheets show the time the employee arrives and goes for lunch. She ad- vised that the employees' names appear on the sign-in sheets in order of their seniority in full-time and casual class. Ms. Craven agreed that on Monday, March 3, 1997 she worked at Store 362, that the grievor worked 9 a.m. to 6 p.m. that day, and that Mr. Loschiavo was Night Manager that day. The sign-in sheet for Monday, March 3, 1997 (Ex. 7) indicates that Mr. Loschiavo arrived at 1 p.m. and left at either 9 or 9:30 p.m. that evening. Ms. Craven said that she did not remember the time she arrived at the store on Monday, March 3, 1997. At the suggestion of her counsel, she looked at the sign-in sheet for that date in Ex. 7 and advised that she came in at 7:lO a.m. She advised that when she arrived she "locked the doors again", shut off the alarm and turned on the computer. She said that on Monday March 3, 1997 she "probably would have" checked the E-mail and then pulled up a "Safe Inquiry Report" (SIR) from the computer. She advised that the SIR indicates to her the amount of money that should be in the safe and that the report is prepared by the person-in-charge of the previous shift. She advised that "another full-timer may do it for the person-in-charge" and that "on Saturday it was probably Mr. Laszczuk", who, she said, would have been ring- ing off the cashiers and selling back the cash which would become part of the office safe. She agreed that when Mr. Laszczuk rings off the cashiers and sells it back to the 6 safe, he enters it into the computer, and added "at any given time". She agreed that "at any given time" she could come and make a Safe Inquiry Report, which should tell her accu- rately the amount in the safe at that time. She advised that one SIR is done "first thing in the morning". She then said that she opens up "all three safes, the Loomis, the petty cash, and the small safe within" and said "all the safes have combinations". She said that she opens the Loomis safe "up to the slot so they can make their deposits--not the whole safe". She then advised that the SIR is "a blank sheet" which "says 'Safe' at the top and says how much is in it". She said that the computer generates the SIR and that she "only makes entries in it after I do a balance in the safe". She then agreed that she prints the SIR and it gives her a number, and that she then opens the safes. She said that she then takes "a visual count of what's in the safe", writes down "the totals of each denomination", goes to a caculator, adds it up, and "if it balances", removes the calculator tape and staples it to the SIR and hangs the SIR and the tape on the inside of the petty cash safe, which is also referred to as the "store safe". Later in chief Ms. Craven agreed that she came in at 7:30 or 7:15 a.m. on Monday, March 3, 1997, punched in her code and disarmed the store security, visually checked the SIR balance against the contents of the safe, and determined that they balanced, and stuck the SIR and calculator tape inside the safe door. She advised that her first SIR of the day would remain inside the safe door until "the night crew comes in at 1 p.m.-- then they do their own". She said that she throws the previous SIR away and agreed that the most recent SIR is kept inside the safe door. Ms. Craven advised that thereafter, she "sets up" the cashiers' trays, and then takes "another count of what's in the safe". She advised that she subtotals the amount in the safe and adds the amounts in the cashiers' trays that she has 7 made up for the day, and that the total should be equal to the figure in the SIR. She then said that as long as every- thing balances she "would go to the computer and advance each the amount of money for which they will be responsible". Thereafter she said that once she has made up the cashiers' boxes,. she "counts what is in the safe" and subtotals the contents of the store safe and the contents of the cashiers' trays. She said that the figure she would arrive at would not be the same as the amount in the first Safe Inquiry Report taken in the morning. She said that she was "going to sell the money to the cashier, and the store safe will be less those amounts". When asked if Acting Managers perform the same duties regarding the safe, she replied "I would hope so. I think so. They have to balance with the Safe Inquiry Report." In re-examination, Ms. Craven advised that in order for cashiers to obtain coin, they come to her and indicate the denomination of coin they need. She denied that cashiers can go to the safe and get the coin themselves. Ms. Craven advised that on Saturday, after the cashiers llcome to Wally" (Mr. Laszczuk) with their trays, he prepares the deposits, "which would be bills down to twenties and any odd coin out of the tray while the cashier is counting the tray". She continued "Then they do a sell-back to the safe of what is left in the tray. That becomes part of the office safe." She agreed that "Wally enters that in the computer". She advised "he doesn't count it". When asked whether Wally counts what is in the cashiers' trays, she advised that she did not know. Ms. Craven said "it would have been 8 a.m. when" Mr. Laszczuk and Mr. Emmerson came into the office on Monday, March 3, 1997 and that they. asked her "did you balance?" to which she replied "yes". She advised that Wally said "we've got a really big problem, we're short $100.00". She then said "it would have been shortly after 8 a.m. that they came to me, together". She said "They pulled the $2.00 coin 8 bundles out of the small safe" and that the last bundle, which was at the bottom, at the back, was composed of eight rolls of coins, and that two rolls were missing from the middle of the bundle. She said "he said if he'd had $100.00, he would have replaced it, and that he didn't know when this happened". Ms. Craven said that there were boxes of coin in the safe, and that "they" hadn't "broken down" the coin order which had arrived on Saturday, March 1, 1997 into bundles. She understood that the delivery had occurred at about 1 p.m. and that the store had been busy at the time. She understood that "he" had put the boxes of coin into the safe and placed the already bundled rolls of coins "in front of it". She un- derstood that when "he" was reaching in to pull the bundles out, he found the two rolls of $2.00 coins, worth $100.00, were missing. She said "I proceeded to pull the whole safe apart and have a good look at everything to see that we hadn't missed anything else, and at the end agreed we were $100.00 short." She locked the safe and told Mr. Laszczuk and Mr. Emmerson to leave it with her "for now". She went to the office "behind my main office" and phoned Gerry Beuk, her District Manager. She said that she advised him of her conversation with Mr. Laszczuk and Mr. Emmerson and asked for direction. On his instruction, she said, she "left everything the way it was" and "monitored the safe" over the next 24 hours "to see what happened". District 12 Manager Gerry Beuk has been a District Mana- ger for 12 years. He advised in chief that Ms. Craven in- formed him on Monday, March 3, 1997 that a $100.00 coin shor- tage had been discovered at Store 362 and that he believed it had occurred on either Saturday or Monday morning. He under- stood that the store safe was missing rolls of coin from the middle of the bundles of ten rolls. He said that he told her to ensure, with her Assistant Manager, that they balanced the safe, and to do frequent counts throughout the next few days 9 for "any unusual ongoings with the safe". In cross-examina- tion, he said that he could not recall Ms. Craven having men- tioned any names of employees who she suspected when he spoke with her on March 3. In cross-examination, when asked whether she assumed that the money she learned was missing on March 3, 1997 was a recent occurence, Ms. Craven said "I honestly didn't know when it happened". Ms. Craven advised that Mr. Loschiavo was running the night shift on Monday, March 3, 1997 and was aware of the missing rolls of coin, and said that Mr. Laszczuk had asked him about them. In cross-examination, in reference to her statement that Mr. Loschiavo "knew the shortage was there..." in her report (Ex. 13, page 1, para. 6), she said that she was told that Mr. Loschiavo was questioned on Saturday. She said that Mr. Loschiavo had broken down the coins when they came in on Wednesday (presumably February 26, 1997) and he was asked whether he knew there was a shortage, so, she concluded, he knew about it before she did. She said that she gave Mr. Loschiavo a "quick-cheque" for $100.00 and told him that after everyone on dayshift had left, he was to cash the cheque and put the money in the store safe, in the petty cash box with the gift certificates and bundles of $5.00 bills. She said that she did not replace the two missing rolls of coins, just told Mr. Loschiavo to put the cash in the safe. She said that she did so because he is her "most junior employee" and she "did not want him to be nervous dur- ing the night shift". She said that she did so "to put him at ease more than anything". In cross-examination, when asked whether she put Mr. Loschiavo at ease that he was not a suspect, she replied llwe all were". She denied having ad- vised him he was not a suspect or anything similar. She de- nied suspecting anyone at that time. When asked whether she suspected everyone, she replied "I didn't know who had done it". When asked why she told Mr. Loschiavo to wait until the 10 grievor had left before putting the $100.00 in the safe, she replied that the grievor was to leave at 6 p.m., that she wanted to leave the safe balanced, that Mr. Loschiavo was "junior". When asked whether she told him to hide the $100.00 in the safe, she replied "The $100.00 belonged to me". She denied having given Mr. Loschiavo a strong message that the grievor was suspect, and said that Mr. Loschiavo was to put the $100.00 in the safe. She agreed that Keith Ben- nett had worked in the store until 5 p.m. that day and that the grievor had remained at the store after Mr. Bennett had left. She indicated that she did not think that telling Mr. Loschiavo to wait until after 6 p.m. gave him the message that the grievor was the suspect. She then said that she gave Mr. Loschiavo the money, that she felt he would feel better if the safe was "back up to a balance" while he was in charge, and that that was why she did it. In re-examination she agreed that she had written in her report (Ex. 13) that she had instructed Mr. Loschiavo not to cash the cheque until after the grievor had left, and had said that she wanted the last dayshift person to have left before he cashed it. She agreed that she would have wanted Mr. Loschiavo to defer cashing the cheque if another person had been the last person on dayshift to leave. With respect to wanting Mr. Loschiavo to have a balance when she left, she said that Mr. Loschiavo was the most junior employee, and that he was nervous about running shifts, but that it was good experience for him. If he had been a more senior employee, she said, she would not have been so concerned. She said that sometimes auditors come in and it would not have balanced. Ms. Craven agreed that after discovering the $100.00 missing on Monday, March 3, 1997, the bundles of coins were put back into the safe, and added, "as the safe looked on Saturday". She said "we didn't touch the boxed coins which came in on Saturday. I think there was an earlier box of quarters." She agreed that the bundle of eight rolls of 11 $2.00 coins was returned to the safe and said "we put it at back, under a bundle of ten rolls of $2.00 coins." She advised that there were bundles of ten rolls of coin on top of the bundle of eight rolls, and that the bundle that was short two rolls was not noticeable. Ms. Craven advised that on Monday, March 3, 1997 casuals Lee Thompson, Susie Kosic and J. Mammoliti worked "the even- ing shift" until 9 p.m. with Mr. Loschiavo, that the grievor worked from 9 a.m. to 6 p.m., and that she did not tell "any other store staff" that coins were missing from the safe. Lee Thompson has been a casual CSR for approximately 5 years. He recalled working at Store 362 on Monday, March 3, 1997. He agreed that he came in at 5 p.m. and said that he left at 9:05 p.m. He agreed that he saw the grievor "work- ing". When asked what the grievor was doing, he replied "his normal job of counting, breaking down of coins". He said that he observed the grievor doing this "at one of the desks facing the entrance to the store". He agreed that he was referring to a desk in the office. In cross-examination he agreed that by his statements in chief he meant that he ob- served the grievor taking coins out of boxes and putting them into bundles at a desk in the office. He agreed that he "went in and observed him" and that the "office door wasn't locked". When asked whether it appeared that Mr. Smith was making any attempt to conceal what he was doing, he replied IIno, absolutely not". He agreed that Mr. Loschiavo was Night Manager on that day. He said that Mr. Loschiavo "most like- ly" rang him in on Monday and agreed that Mr. Loschiavo "would have" rung him off as well. Mr. Thompson said that he could not recall where Mr. Loschiavo was while the grievor was breaking down the coins. When asked whether he had ever told Ms. Craven that he had seen the grievor breaking down coins, he replied "she didn't ask." When asked whether he had ever told Mr. Lasczcuk that he had seen the grievor breaking down coins he replied "he didn't ask". He said he 12 had not told anyone, and that no one had ever asked. He said "it's not an unusual occurrence". He said that the first time he had been asked was when LCBO counsel asked him at this hearing. Mr. Thompson agreed that Mr. Loschiavo was the only full-time CSR who was working after 6 p.m. on Monday, March 3, 1997 according to Ex. 7. He agreed that the full-time CSR rings off the casuals. He said that he had seen balancing off done at night. He said "it's possible" that he, Mr. Thompson, was involved in assisting in balancing on Monday night, and agreed that he did not recallwhether he had done so that evening. The grievor agreed that the sign-in sheet for March 3, 1997 indicating that he arrived at 8:50 a.m. and left at 6:00 p.m. on that day was accurate. He said that he did not re- trieve his tray from the safe when he came in to work and said that the trays had been prepared and calculated and left sitting on a desk with a name on each of them. He said that Mr. Loschiavo was in charge after he, the grievor, left and that he, the grievor, was not in charge of or responsible for the safe on March 3, 1997. He said that he did not recall balancing the safe that day. He acknowledged that he could not specifically recall what he did before he left that day. When asked what he "likely" did, he replied that he remained on the floor, assisting customers, "facing up" the shelves. He agreed he would have been rung on and rung off cash that day. He said that he did not have a specific recall of who rang him off; he said that it likely would have been Mr. Loschiavo. In cross-examination he said that at 5:30 p.m., when he was rung off, Mr. Loschiavo was the only one in the store with the authority to ring him off. The grievor said that he did not recall anything unusual -. that day, either while ringing in or ringing off. When asked whether he recalled Mr. Thompson seeing him breaking coin 13 down into bundles, and whether he had any specific recall of doing that, he replied "not specifically". He denied having taken any money from the safe. He denied having gone into the safe. In cross-examination, he agreed that he had heard Mr. Thompson testify that he saw him breaking down coin on Monday, March 3, 1997 and that he, the grievor, had no recall as to having done so on that date. He agreed that it was possible that he broke down coin on Monday, March 3, 1997. He said that he could not recall when he last took a coin delivery from Loomis, but that it had been within the 2 weeks previous to his suspension. He said that he had handled coin deliveries "with a certain amount of regularity, with who- ever's there". In cross-examination he confirmed that he would not have returned the cash tray to the safe himself on Monday, March 3, 1997, because he was not "in charge" and there would have been no reason for him to go into the safe. He agreed that it would be unusual for him to go into the safe when he had not been in charge, and that others would have found it unusual as well. Ms. Craven advised in chief that on Tuesday, March 4, 1997 her shift was from 8 a.m. to 5 p.m., and that she was at the store at 7:15 a.m. She agreed that she left at 4:25 p.m. that day. She advised that the grievor worked the evening shift as Night Manager, with casuals Lee Thompson and Nadine Buda from 4:30 p.m., and Susie Kosic from 5 p.m. Ms. Craven later said that when she came in on Tuesday, March 4, 1997, the computer was already up and ready "be- causell Jerome Emmerson and Wally Laszczuk "were unloading trucks". The computer was on, she explained, because "they have to load a scanner gun" and "scan what is coming in" from the warehouse into the computer. She agreed that Mr. Lasz- czuk had turned on the computer. She said that she worked on the computer and said "I shouldn't have maybe". She agreed that she took a SIR. She identified a SIR dated 04 Mar 97 timed at 07:55 with Operator No. 00000202 as the one she took 14 I . n d :0 ‘Y that morning (Ex. 9). She said that the figure $13,965.00 which appears on the SIR taken at 07:55 on 04 Mar 97 and on the calculator tape which accompanies the report (Ex. 9) represented the amount that "should be" in the store safe. She said that she opened the safe and "noted immediately that boxed coin had been broken into bundles of ten and placed in the safe". She called Mr. Emmerson and Mr. Laszczuk into the office and proceeded to pull out all the bundles of coin to see what happened, too see whether everything was intact or not. She said that she discovered "we were short two more rolls of $2.00 coins, $200.00 was now missing, we were now four rolls short". She said that the bundles with rolls of coin missing "were placed at the back" and that on top of the bundle of eight rolls of coin was a second bundle of eight rolls of coin. The $1.00 coins were intact. She said, of the quarters, that six rolls were missing, a total of $60.00, and that three bundles of eight, rather than ten, rolls of quarters were at the back of the safe. No other coin was missing, she advised. In cross-examination, she advised that no record or log was kept noting each time someone entered the safe. She ac- knowledged that she was unable to know if the safe had been opened before she arrived on the morning of Tuesday, March 4, 1997. She did not clearly indicate whether she had asked Mr. Emmerson or Mr. Laszczuk whether either of them had opened the safe before-she came in. She stated "that's not normal procedure". She agreed with the suggestion that Mr. Emmerson and Mr. Laszczuk were not likely to have opened the safe, and added "They're in for 7 a.m. loads". Ms. Craven said that Mr. Loschiavo had switched shifts with the grievor for Tuesday, March 4, 1997, and was going to be working on a warehouse load that morning. She said that she had told Mr. Loschiavo not to break down the coin the day before, that she wanted to know why coin had been broken down, and that Mr. Loschiavo was running the shift and was 15 responsible for that. She said that when she asked Mr. Lo- schiavo why the coin had been broken down, he asked her why she was asking, and that at that point she told him that a further $160.00 was missing. She said that Mr. Loschiavo told her that he had rung the grievor off cash at 5:30 p.m., that when he was finished doing so he went to the washroom, and that when he returned, the grievor was unboxing the coin and bundling it, "so he didn't say anything". When asked in chief whether Mr. Loschiavo was responsible for the missing money, she replied "no", and then said that the Acting Mana- ger is "responsible for the safe". When asked whether Mr. Loschiavo offered an explanation, she said that he had said that the grievor had broken the coin down when he went to the washroom. Ms. Craven agreed in cross-examination that she was aware "at the time" that Mr. Loschiavo was engaged to be mar- ried and taking instructions through his church in prepara- tion for his marriage. She agreed that she had obtained the information in her report (Ex. 13, dated March 7, 1997) as to Mr. Loschiavo having rung the grievor off at 5:30 p.m. on March 3, 1997 and having left the office to use the washroom, and having returned and found the grievor breaking down boxes of coin, and that Mr. Loschiavo "did not disturb the coin", but "left it as it was," from Mr. Loschiavo. She agreed that Mr. Loschiavo was in charge of the safe from 6 to 9 p.m., and added "he basically takes over when I leave“. Ex. 7, for March 3, 1997, indicates her time of departure that day was 4:50 p.m. She said that when she returned the next morning and looked in the safe, not all the coins had been bundled, and "I think there was still some left in boxes". She agreed that it was immediately obvious to her that morning that the coin configuration had been changed from the way she had left it with Mr. Loschiavo. She agreed, with reference to the March 4, 1997 sign-out sheet, that Mr. Loschiavo arrived at 8 a.m. and that she sought him out and asked him why coin had 16 been removed from the boxes and bundled and that Mr. Loschi- avo told her that he had gone to the washroom and the grievor had bundled the coin. She said that she had asked him about the boxed coin "as soon as he walked in", “as soon as I knew he was.in". When asked to recall what Mr. Loschiavo said about the coin having been broken down into bundles, she said that Mr. Loschiavo said that the grievor was breaking down the coins when he came back from the washroom. Ms. Craven agreed in cross-examination that the boxed coin should be bundled immediately after Loomis delivers it, and added "if we have time, it depends on what is going on". When it was suggested to her that Loomis guards do not usual- ly wait for a count of the delivered coin and that the store has 24 hours to raise an issue as to the amount received, she replied that she counts the coin "then and there when I sign for it". She then agreed "we rely on the label on the box". She agreed with the suggestion that the store has 24 hours to raise the issue if the coin received in boxes is not the same as the amount marked on them. She advised that if the boxes do not contain the amount of coin marked on them, she does not call the bank. She advises head office that there was a shortage of coin, and sends the boxes back at the next pick- up with a note in it, and takes steps to ensure that the safe balances. She said that staff can bundle coins when she is not present, but this duty is restricted to full-time perma- nent employees rather than part-time employees. No record is kept of who has or has not done the bundling. In chief, Ms. Craven said that on Tuesday morning, March 4, 1997, she called her District Manager and "told him what I had discovered", and asked for further direction again. In cross-examination she said that she had asked Mr. Loschiavo why the coin had been broken down, that Mr. Loschiavo told her the grievor had done it, and that she went to her office and told Mr. Beuk what Mr. Loschiavo had told her, and that Mr. Loschiavo and the grievor had switched shifts. She said 17 - that she was asked (by the District Manager) if she could "isolate the safe" when it was handed over to the grievor at 1 p.m. that day, and that she told him that she could. She later advised that she understood "isolate the safe" to the grievor meant that "only the grievor would be responsible for the safe, from when he walked in for the day and night shift". She said that she was instructed to get Mr. Lasz- czuk, her Assistant Manager, to verify the proper count. As Mr. Emmerson was to be in on Tuesday, March 3 and Wednesday, March 4, and Mr. Laszczuk would not be in on Wednesday, they decided to get Mr. Emmerson "to confirm the next day's count". They discussed Mr. Enunerson and her coming in early to do the count the next day. In cross-examination, Ms. Craven agreed that when she spoke with Mr. Beuk, the grievor was her main suspect "at that point". She then said "I was reporting what Wally reported to me". She denied having mentioned the grievor as a suspect earlier. i., 4. Mr. Beuk advised that on Tuesday, March 4, 1997 Ms. Cra- ven phoned him and informed him that another $160.00 in coin had gone missing from the safe. He agreed that the manner in which they had gone missing was the same. He advised that she indicated that she had done frequent counts and was sure the coin was there when she left at 5 p.m. but was informed that the grievor was "seen breaking coin down from bundles." He said that told her to make sure that the count was accu- rate and to "isolate the safe" to ensure that only the grie- vor had access to it after he came on duty. He said that at that point, they really didn't know who the suspect was, and were trying "to isolate it down and weed out suspects". He advised that Ms. Craven told him she and her Assistant would count the safe and no one would have access to the safe dur- ing the time that the grievor was on duty. He agreed that casuals are not given the combination. In cross-examination he said that during his conversation with Ms. Craven that day he understood that her Assistant Manager (Mr. Laszczuk) and 18 Jerome Emmmerson, a CSR, were aware that rolls of coin had gone missing. He acknowledged that it was possible that she had advised him that Mr. Loschiavo was aware of the missing rolls, and said that he had no recollection of whether she had so advised him. Ms. Craven said that at 11:30 a.m. on March 4, 1997 she called Mr. Laszczuk and Mr. Emmerson in to the office and did a visual count to establish what appeared to be in the safe, "as well as what actually was there". In cross-examination she said that she, Mr. Laszczuk and Mr. Emmerson had done the count of the safe at 11:35 a.m., and that a SIR "would have been done at the time of the count". She identified a SIR dated 04 Mar 97 timed at 12:18 bearing Operator No. 00000621 as the one she did at that time (Ex. 10). She identified herself as the operator. She later said that she took another SIR at around noon and that her. computer is "out 15 to 18 minutes“. In cross-examination, she said that she is OP. 00000621, indicated in Ex. 10. She then said "Each of us did the count. There was a lot of coin broken down in that safe". She said that she was unable to remember whether the computer was ahead of or behind the correct time. She said that the 07:55 SIR (Ex. 9) "would have been done around 7:15 when I arrived because that's what I do". She then said "some time after I arrived, 7:15 to 7:30, I pulled it off" the com- puter. Ms. Craven said that the figure $10,920.00 which appears on one of the two cash register tapes with the 12:18 SIR (Ex. 10) was the amount which "appears to be there" on a visual account. She said that $10,660.00 on the other tape was the amount "actually there". She advised that the 12:18 04 Mar 1997 SIR (Ex. 10) was not amended to reflect the amount actu- ally in the safe. She said that the safe was "restored" to "the way it had been when we came in in the a.m." and that on observation, she could not discern that coin was missing. 19 : w Ms. Craven advised in chief that the grievor came in to the store at 1 p.m. on Tuesday, March 4, 1997, and that no one went into the safe between "the time of the count" and 1 p-m-, and that that was not unusual because she sets up the night cashiers' trays in the morning, and the cashiers have enough coin for the day. She said that she knew that no one went in to the safe during that period because she told Mr. Emmerson and Mr. Laszczuk to babysit the floor, and if the cashiers needed anything, Mr. Emmerson and Mr. Laszczuk "would be there to take care of them". She said that Mr. Em- merson and Mr. Laszczuk "would be near the front that after- noon" and that they both understood how important it was that she not leave the office. She agreed that she was speaking of the office with the safe in it. She said that no one could have gone in to the safe without her having seen it. She then said "Except for Sam. He was the only one that used it that afternoon." In cross-examination, she agreed that the sign-in sheet for Tuesday, March 4, 1997 indicates that the grievor arrived at 12:55 p.m. She said that she was in the office from noon to 12:55 p.m. She recalled that she had not eaten lunch that dayI "because it was important that the money was secure". She said that no one went into the safe between the time the last count had been done and the grievor's arrival. She later said that she did not go to the washroom between 11:35 a.m. and 1 p.m. that day. She said "I knew that morning what was going to happen so I had nothing to eat or drink". She agreed that it was necessary to go into the safe 3 or 4 times a day, initially to set up, again about midday and possibly one other time for cash, and "maybe to do a coin list". She did not agree that it was not unusual for a cashier to need cash, and said "It's not that busy until Friday. I give them enough". She later said that no one came into the office to use the safe that afternoon, with the exception of the grie- vor who came in at 1 p.m. and "balanced the safe". She said 20 that the grievor "may have come in to check stock on the com- puter" but no one "went near the safe". In cross-examination Ms. Craven said that from 1 p.m. until the time she left on Tuesday, March 4, 1997 she did not go to the washroom. She agreed that she left at 4:25 p.m. She said that she signed out when the grievor returned to the office from his dinner break, and that she went to the wash- room and then left. She later agreed that she left the store around 4:30 to 4:35 p.m. She said that at 4:25 p.m. the grievor "had taken over" and he had two cashiers and had to get them their coin trays and had to ring off the dayshift cashiers. When asked whether, when nightshift staff are replacing day-shift staff, each dayshift cashier is rung off one at a time, and then his or her replacement is rung in, she replied "it depends --you can only ring one cashier off at a time". She agreed dayshift cashiers would have been rung off some time after 4:30 and that Mr. Chini and Mr. Bennett worked from 8 a.m. to 5 p.m. (Neither Mr. Chini, Mr. Bennett nor Mr. Loschiavo entered his "depart" time on the March 4, 1997 sign-in sheet [Ex. 71). She agreed that it should be assumed from the sign-in sheet that Mr. Loschiavo was there until 5 p.m. The sentence on page 2 of her report "Sam was in complete control of Safe until he left at 9:30 p.m." was drawn to her attention. In re-examination she stated that she had written that sentence to express that the grievor was in charge of the shift and the safe and all LCBO assets, all the employees were part-time casuals and do not have the combination to the safe. It would be highly unusual, she advised, for her "clerks" to give out the combination, as they are responsible for all assets, and they would not give it out to other people. Ms. Craven advised that on Tuesday, March 4, 1997, the grievor, Ettore Chini, Keith Bennett and Saverio Loschiavo continued to work at the store after she left. They were the full-time people, who, she advised, 'would have had the safe 21 combination". She said that Mr. Chini, Mr. Bennett and Mr. Loschiavo finished at 5 p.m.and that Micheal Calder, a casu- al, was in the store till 5 p.m. She said that Mr. Thompson and Nadine Buda, casuals, "would have arrived" at 4:30 and Susie Kosic "would have arrived" at 5 p.m.. She said that Mr. Smith "came back at 4:25" p.m. and "would have started to ring off" Mr. Loschiavo, Mr. Bennett and Mr. Calder, who had been cashiers. She said that Mr. Chini "would have been on the floor helping customers" and "would not have been on cash". She said that Mr. Smith "would have started giving out cash trays" to the night people. Ms. Craven agreed that the grievor "would have rung off" Mr. Loschiavo, Mr. Bennett and Mr. Calder one at a time, and said that this "would have taken place" at the computer in the office in which the safe is located. She said that the night cashiers would be expected to count off their trays in the little office behind hers, and then go out to the custo- mer area and set up their cash register. She said that she could not see how Mr. Smith could get out of the office the entire time during which the dayshift is being rung off and the night cashiers are being given their trays, as "there's too much going on". When asked whether the grievor had to make computer entries when ringing the cashiers off, she replied "it is only done in the office for security reasons" and said that there is a screen "at customer service". In cross-examination, she agreed that when she is "ringing off" a cashier, the cashier will count the money which goes into the Loomis night deposit, and she, the Manager will count the float, and vice versa, and she, the Manager, will put the float in the safe. When asked whether any of the casuals working the night shift with Mr. Smith on Tuesday, March 4, 1997 had the combination to the store safe, Ms. Craven said "definitely not". 2 Susie Xosic, a part-time casual CSR, said that she worked the night shift on Tuesday, March 4, 1997. She said 22 that her "usual procedure" on entering the store is to walk in through the front end of the store, the entrance for the customers, walk to the back, put away her coat, walk to the office and wait for her tray from the full-time employee who is the Night Manager, start counting her money in the office with the safe in it, make sure she has the exact amount, and go out and choose a cash register. She said "some other casuals and that's about it" might be in the office at that time. When advised that evidence had indicated that dayshift staff were being rung off and nightshift staff being rung in at the same time she agreed, and said "they would be there". She said "maybe if the office was full I'd count my money in the smaller office". In cross-examination she acknowledged that she had no specific memory of who was with her when she was rung in that evening. She later stated that that evening she put her coat in "a back area" and agreed that she got to the back area through the office. She agreed that the stor- age area could be accessed through a back door in the office and that the storage room runs parallel to the office. She said that the staff signs in "when we go through the office". She agreed that she could also access the storage area through double doors in the retail area of the store. She described "her usual duties", once she put her tray in the cash register, as working on the register and, if the store is not busy, putting away stock, facing up bottles, and answering customers' questions. ,\ .’ i Ms. Kosic said that on Tuesday, March 4, 1997 she worked the night shift with Nadine (Buda) and Lee Thompson and that she received her tray from the grievor. She said that that evening the casuals did not have the keys to get into the cash registers. She said that the grievor left to get the keys, and that she was not certain of the time he left for them. She recalled that he left "a little after I got there" and before her break started and said that her break was usu- ally between 6:45 and 7 p.m. 23 Ms. Kosic had little recall of the length of the grie- vor's absence from the store. She said that she didn't think it was "too long, it might have been an hour". When asked what she was doing she replied that she was either on the register or on the floor, helping the customers. She said that she did not see any full-time permanent employees come on to the floor while the grievor was not in the store and during her entire shift. She agreed in cross-examination that she did not have a specific memory of what she did while Mr. Smith was out of the store and said that she did not remember whether it was busy during his absence. She later said that she had no specific recall of having started working on cash that evening. She said that that was her "assumption" and added "This is what I do". She agreed that some nights are busier than others, and that Fridays are busier that Tuesdays. She agreed that Tuesday would have been one of the less busy nights. In cross-examination Ms. Kosic agreed that she is in the office at the start and the end of her shift, and added that she is also in the office to do a deposit during the shift. She agreed that when she reaches a monetary threshold she puts it in the Loomis drop. She agreed that she reaches the monetary threshold on Friday evenings, and added "more quick- ly". She acknowledged that she had no specific memory having made a deposit that night, but said "I know I would have". She said that she specifically recalled that she was not in the office making a deposit while the grievor was away. She advised that the "full-time person must be present when we count, and to sign the envelope into which the money is placed". She advised that sometimes they "go in there, count our money, and then call them to make the drop". She then agreed that she was only in the office at the beginning and the end of the shift. Ms. Kosic denied that she had the combination to the store safe. When asked why she did not have it she replied 24 "casuals aren't given the combination". She denied that any other casuals she was working with had the combination. She said that "probably" the full-time employees in charge of running the shifts have the combination. She denied that the full-time employees "write it down anywhere". She said that she obtains change during her shift from other cashiers and exchanges other denominations for the change, or alternative- lYI requests change from the full-time CSR, who obtains it for her. She denied ever having gone into the safe herself or having seen a casual at the safe by him or herself. She said that she did not see any casuals open the safe or go in- to it while Mr. Smith was away from the store, and did not see any casuals open the safe at any point that evening. She denied having gone into the safe that evening. In cross-exa- mination she agreed that she does not look at the office when working at the cash. She said that she did not recall being the only casual on cash after the full-time staff had left. She said that Nadine (Buda) was on the floor and that it "would have been Nadine" (on cash) between 5 and 7 p.m. She agreed that that would have been the case if Lee had not been on cash, in which case Lee would have been out working on the floor. She agreed that if there had been a lull in business, one or both would have been "on the floor". She said that she could not recall whether it had been busy when she enter- ed the store that evening. She agreed that if she is stan- ding at the cash, and two casuals are working at the other end of the store, it is not always possible to see them. She agreed that if she is not looking for them, often she is not aware of where they are in the store. She agreed that it is not improper for a casual to merely enter the office, and that that would not cause alarm. She agreed that if it had occurred, she might not have noticed it, and that it did not stick out in her mind as having occurred that evening. Nadine Buda has been a casual CSR since November of 1996. She confirmed that she signed in to work at 4:30 p.m. 25 on Tuesday, March 4, 1997. She advised that she "usually" goes "to the back", takes off her coat, puts her purse in her locker, comes "back", gets her tray from the full-time person there, "Saverio or Sam", and goes "to the next room to add up and see, if it's correct because the first office is usually crowded with the day people coming off" who are adding up their money, debit and credit slips and putting "it" in an envelope for deposit and giving it to the person in charge who puts it in the computer and that way sees if they are short or over. Ms. Buda said that the grievor was "in charge" on Tues- day, March 4, 1997 and "I think Saverio was leaving at that time". She said that the dayshift staff could have rung off with either Saverio or the grievor,, that she could not re- call. She said that dayshift Manager usually rings off the dayshift staff, but that sometimes the Night Manager will take over. She estimated that it takes 10 to 15 minutes to ring off a cashier, and that ringing off "takes place one cashier at a time". She said that sometimes there are two people in the office ringing off. When asked when she was at the cash on March 4, 1997 Ms. Buda replied that it took her 5 minutes to count, that she was "on at twenty to five" and "then they'd call someone in from cash". When asked where the grievor was, she replied "I think he was in the office". She agreed that he might have been ringing off the cashiers, and said ,,I really can't remember". Ms. Buda said that on March 4, 1997 she was "on cash" first, and Mr. Thomspon was "on the floor", and Ms. Xosic did not arrive until 5 p.m. She recalled that the grievor left the store during the shift, and said that while she was in the office she heard him say to Mr. Chini that Saverio hadn't left him the keys, that he told "us we could not do returns". She did not recall how long he was absent from the store. 26 She was not sure how far Mr. Chini lived from the store. She said that while the grievor was out of the store, she was on cash and bottled up the small bottles at the cash. Ms. Buda advised that if she needed change, she would tell the grievor the denomination of coins she needed, and the grievor gets it for her. She said that she did not see either Mr. Thompson or Ms. Kosic go into the safe while Mr. Smith was away or at any time during the shift. She agreed that it would be unusual for them to have gone into the safe and said that none of them had the combination. Ms. Buda denied having gone into the safe during the Tuesday, March 4, 1997 night shift. She said that she did not see any other full-time CSRs in the store during Mr. Smith's absence or during the shift. She estimated that "the last full-time CSR" left the store at about 5 p.m. In cross-examination she acknowledged that she did not have a strong and specific memory of the particular night of March 4, 1997. Ms. Buda said that she could see the office from the cash register where she was working. In cross-examination, she acknowledged that if she was working on cash, her main view was not of the office. She did not recall the store being busy on March 4, 1997. When asked whether she recalled seeing Mr. Smith go into the safe, she replied that he pro- bably went into it to get change for somebody or other. She agreed that it would not be unusual for him to go into the safe. She said "they get the boxes ready for the next day". She said that the grievor would close the door to the office if he was going into the safe. When asked whether she thought anyone could go into the safe unnoticed while she was working, she replied "not really. The light is on in the office. I've seen Wally. The door is shut." When asked "can you see then, even with the door shut?" she replied "Yes. There's a big window. The door bangs. A lot of the 27 times the door is locked, so then we know they're in the safe." In cross-examination she agreed that it was likely that the grievor would close the door if he was in the safe, and that that was the practise of all full-time CSRs. She said that that was "because otherwise a customer could walk in". She acknowledged that she would not have noticed whe- ther someone had gone into the office if she had been in the washroom, and that someone else might have been on cash at the time. When asked whether it was possible that she might not have noticed whether someone had gone into the office if she had been on the floor, she said that it was unlikely that she might have been on the floor, and that customers have complained when there is no one on cash, so she stays "there" and tidies up. When asked "what happens at the end of your shift", Ms. Buda said "He pulled me first so he would then make sure the door was locked. One of the cashiers would be next. We pre- pare for deposit. Then we count out debit and credit slips and see if we balance." When asked "are you in the office alone" she replied that she was not alone, "Sam is with you at the time. He's on the computer. He's putting all the information in". When asked whether she "worked very often with" the grievor, Ms. Buda replied that she did. When asked whether she knew whether the grievor "gambled" she replied "He and Joe used to do the Proline once in a while". When asked "anything else?" she replied "the bunch of us went in on one 649 when it hit $10 million". In cross-examination she acknowledged that the purchase of the 649 ticket was a "one- time" occurrence in which she and four or five other staff participated. When asked in cross-examination whether she was assuming that other casuals do not have the safe combination, she replied "we've talked about it, all of us". She said that 28 - she and the other casual staff talked about not having the combination and agreed that their discussion occurred after March 4, 1997 when Ms. Craven asked them about it, and said that they talked of it among themselves. She said that she had in fact spoken to each casual "about the combination". She agreed that by the time Ms. Craven asked her about the combination, she knew that the grievor had been suspended. She said she did not know why he had been suspended and that she "was told nothing". She said that Ms. Craven "asked if we went into her safe" and said that she concluded someone might have taken some money. She then agreed that she had concluded that the grievor had taken some money. Ms. Buda acknowledged that she had prepared a handwrit- ten note with a date on it of March 4, 1997 (Ex. 16). She agreed that March 4, 1997 was not the date she had written it. She said "but that's what I was told to put on". She agreed that she had been so directed by Mr. Laszczuk and said that Mr. Laszczuk had asked her to write the note. She said that she could not remember when she wrote it. She said that "3 or 4 days later, before I wrote this note", Ms. Craven had asked her about the combination to the safe and whether she had gone into it. Mr. Thompson agreed that he had worked at Store 362 from 4:30 to 9:25 p.m. on March 4, 1997. He said that he recalled that the grievor "needed to retrieve some keys to close up the store at that time". He said that he could not specifi- cally recall the length of time the grievor was out of the store, or when he left, and estimated that 30 to 40 minutes passed before he "saw him again". i Mr. Thompson denied having the combination to the safe. When asked whether he went into the safe at any time that night, he said he "might have gone in to get his box. That's the usual occurrence". He agreed that "this would have occurred" at the start of his shift. He said he did not see 29 any full-time CSRs at the start of his shift. He said he did not see Nadine or Susie go into the safe on his shift, and said that he was "working at the back, so if they did...". When asked if he was at the back for the entire shift, he replied "pretty well". He said that two people "are on cash" and that he "was pretty well back there most of the time". In cross-examination he said that when he ,rang in, he immedi- ately took a cash tray. He agreed that he had said that on Tuesday he worked mostly at the back. In cross-examination, Mr. Thompson acknowledged that it was "possible" that he had assisted the grievor in balancing. When asked whether he did not recall having assisted him, he replied "usually if I stay that late I'm assisting. If some- one doesn't balance, I'll count their float, or stick around if asked". When asked whether he recalled whether the grie- vor asked him to stick around, balance and close up on March 4, 1997, he replied that that was "possible". He said he could not recall whether he had ever done so with the grie- vor. He asked what Mr. McFadden meant by "balance". He then agreed he had been in attendance on an occasion when the grievor had balanced the safe, and said that he could not recall a specific date. He agreed that the store practice is that two people "stick around, balance and close up". He agreed that the partnering of a CSR and a casual occurs because there is only one full-time CSR working evenings, and the rest of the staff are casuals. The grievor agreed that the entries on the sign-in sheet for Tuesday, March 4, 1997, indicating that he arrived at 12:55 p.m. and left at 9:25 p.m. were accurate. He said that he was originally scheduled to work 9 a.m. to 6 p.m. on Tues- day l and that he believed that Mr. Loschiavo asked him on Monday afternoon to switch shifts with him the next day. In cross-examination he agreed that he understood that Mr. Los- chiavo wanted to switch shifts because he was taking marriage preparation classes. He said that a shift switch was not unusual and that he does not always seek the Store Manager's approval to switch a shift. He said that he was in charge during the night shift. He recalled that when he arrived, he signed in, put his coat in a locker, put on his name tag, re- turned to the office, did a SIR and opened the safe. He said that the latter two functions were "procedural for those in charge". The grievor said that he did not recall anything unusu- al, that "it was all accounted for" when he checked the safe, and that he did a visual count of what was in the safe. He did not pull the bundles out to look at them. He said it was not his practise to do so. He said he had done SIRS and safe balances at the store previously, when he had been in charge, which was, he said, a "reasonably common" occurrence. In cross-examination, he agreed that he counted the safe when he arrived to confirm the amount Ms. Craven told him he was being given. The grievor said that he recalled Ms. Craven leaving the store on March 4, 1997 shortly after his lunch break. He agreed that she left about 4:25 p.m., adding that that "sounds about right". He agreed that Mr. Loschiavo, Mr. Chini and Mr. Bennett were still in the store when Ms. Craven left. In cross-examination, he said that he came back from lunch at 4:30 p.m. The grievor said that after 5 p.m. three casuals, Mr. Thompson, Ms. Kosic and Ms. Buda staffed the store with him. He later agreed that he "would have been involved in ringing cashiers on and off between 4:30 and 5 p.m." in the office. He said that he could not recall whether he had not been in the office at some point between 4:30 and 5 p.m. He said that that was possible, as employees would come to him regarding anything which occurred in the store. He gave the examples of a customer who was impaired, a cashier who had a problem, someone with a liquor permit who needed attention and said that things of that nature were his responsibility and could take him out of the office. In cross-examination 31 he agreed that he did not recall whether he had left the office between 4:30 and 5 p.m. or that any of the examples he gave had occurred that day, and that he did not tell anyone on April 2, 1997 that such had occurred on March 4, 1997. He agreed that his shift on Tuesday, March 4, 1997 had not been very busy. In cross-examination the grievor agreed, observing the sign-in sheet for March 4, 1997 (Ex. 7), that there were three dayshift cashiers to ring off at 4:30 p.m. He said that he "believed" he started to ring them off at 4:30 p.m. He agreed that when he is ringing someone off they bring their tray to the office, sort the credit card slips by type and count them and the cash, the gift certificates, cheques and returns. He agreed that they are all counted in the office, and compared to the tape, and should balance. When asked what the cashier does, he replied that the cash for the night deposit is put in an envelope, the cashier's total and his are confirmed, he counts the cashier's cash and puts it in the night safe, and then "we confirm the cash tray". He confirmed that he makes an entry in the computer for each cashier, one at a time. He advised that it would take an average of 10 minutes to ring off each cashier, and that ringing off is done in the office where the safe is located. He did not agree that no one would be able to go into the safe without him seeing them. He said that when he is facing the computer, he is unable to see the safe, and that he must turn around to see the safe. He said that the office itself is locked, but the safe may not be locked while he is ringing cashiers off. He later agreed that he would have finished ringing off the first cashier by twenty minutes to 5. He said that sometimes cashiers leave the store immediately after being "rung off", but not always. In re-examination, he referred to the sign-in sheet and said that he "rang off" casual Mike Calder, and two of either Mr. Loschiavo, Mr. Bennett, or Mr. Chini. 32 The grievor agreed in cross- examination that his other responsibility at 4:30 p.m. was to "set up" the three night cashiers. He agreed that he takes their trays, which are sometimes "done by morning staff," from the safe and counts them to confirm that they are accurate and "it balances". He agreed that Ms. Kosic would have been "on the floor about 10 past 5". He agreed that the three casuals would have all been "set up" by 5:lO p.m. and that the dayshift would have been "finished" by 5 p.m. The grievor agreed that he left the store during his shift and said that that had occurred because he did not "have the keys like I would have if I'd been in charge for a week. Saverio forgot to leave me them. So I contacted Ett Chini..." who lives closest to the store. He said "it would have been" between 5:30 and 5:45 p.m. when he left. He said he was gone approximately 30 to 40 minutes. He said that he could not recall anything unusual happening that evening except for the keys. In cross-examination he agreed that it was not normal for him to have left the store for the keys. He said that he checked and the safe was locked before he left and when he returned. He said that he did not count the safe when he returned. He said that he had been concerned about leaving the casuals in the store alone with the safe, but said that he hadn't much choice. He denied having been specifically concerned about one of the casuals going into the safe and said that to the best of his knowledge, none of them had the combination. He said that he didn't "specifi- cally" see any full-time CSRs in the store after 5 p.m. In re-examination he said that by "specifically", he meant he was not watching for it. He said that someone "must have been" in the safe before him. He agreed that he had been in the store except for the period of time he left to obtain the keys. In cross-examination he said that he did not recall Mr. Loschiavo having been in a rush when he left without leaving him the keys, but that he knew Mr. Loschiavo had 33 somewhere to be. He agreed that Mr. Loschiavo would probably not "stick around" the store, and that it was possible that he left before 5 p.m. The grievor agreed that when he is "in charge" on a night shift, he does not have a cash set up. He did not agree that he "wanders through the store". He agreed that he has more responsibility when he is "in charge". He did not agree that it would be unusual to be in the office during such a shift, and agreed that there were times he needed to be in the office, such as when a cashier needs to make a deposit. He agreed "absolutely" that he would do that with the office door closed. The grievor said that the last cashier left about 9:lO p.m. The sign-in sheet (Ex. 7) indicates that Ms. Buda signed out at 9:00, and Ms. Kosic at 9:15 p.m. He said that Ms. Buda signed out first, and that Ms. Kosic and Mr. Thomp- son were in the store "while I courrted off her money". He said that he rang out Ms. Kosic next, that Mr. Thompson re- mained in the store to let out the last customer and that he then "would have gone on" to Mr. Thompson. He said that Ms. Buda and Ms. Kosic left after he cashed them out and that Mr. Thompson stayed with him after he cashed him out, for "secu- rity reasons and a witness". He said that Mr. Thompson was present when he did the SIR and balanced the safe. The grie- vor was shown a copy of a SIR for 04 Mar 97 at 21:42 with Operator No. 00000204 and a calculator tape with handwriting beside it (Ex. 11). He said that 00000204 was his Operator number and identified his handwriting on the copy and said that he had prepared that calculator tape the evening of Tuesday, March 4, 1997. He said that he had counted the coins in the safe visually, as he had done earlier. The grievor said that he had experienced one or two occasions previously when the safe did not balance on clos- ing, one of which had occurred at Store 362, in January, 34 1997. He said that American money had not been handled properly when tendered at the register and it didn't balance and a note was left regarding the shortage. He explained that he "would have" left a note on the cashier's tray that she had not entered U.S. currency as U.S. currency and "would have" entered that oversight on the Safe Inquiry Report which hangs on the inside of the safe. Ms. Craven agreed that on Wednesday, March 5, 1997 she arrived at the store at 7:30 a.m., and that that was the day the grievor was suspended. She said that she had arranged beforehand to meet Mr. Emmerson outside the store at 7:30 a.m. on Wednesday March 5, 1997, that they met and entered the store together, disarmed the alarm, turned on the compu- ter, called up the SIR, unlocked the safes and proceeded to pull out all the coins. She said that she "thought" that they did a visual count first of what appeared to be in the safe, and that that balanced to the SIR. Then they pulled out all the coins. She said that two bundles of eight rolls of $2.00 coins were still at the back of the safe and that one bundle of $1.00 coins was composed of 8 rolls, and that therefore $50.00 was missing. The three bundles of quarters containing 8 rolls per bundle were in the same condition at the back of the safe. At the bottom of the safe, a bundle of dimes which should have had ten rolls contained only eight rolls. Thus, she concluded, a further $10.00 was missing. No rolls of nickels were missing. A total of $60.00 dollars was missing, which had not been visible by a visual account. Ms. Craven advised that a SIR had been done before the grievor left the previous evening. She identified a Safe Inquiry Report dated 4 Mar 97 at 21:42 (Ex. 11) as the one that she took from the computer the morning of Wednesday March 5, 1997 and advised that $13,299.00 was entered in the computer as the Safe Total on it. She said that the calcula- tor tape which totals $13,299.00 as well, (reproduced with the 21:42 4 Mar 97 SIR [Ex. 111) represented her visual count 35 of the contents of the safe. She identified two photocopied pages, on the first of which appear some handwritten numbers and a calculator tape, as "the manual count" (Ex. 12). She advised that the handwritten numbers were Mr.' Emmerson's. Ms. Craven advised in chief that she and Mr. Emmerson recorded the coin that they pulled out on Wednesday, March 5, 1997. She advised that they went into the small safe, and "did the bundles first, then the small stuff. She agreed that they were both counting together and said that Mr. Em- merson was "on the floor with a piece of paper". She said that "probably" Mr. Emmerson worked the adding machine, and that she did not recall. She initially advised that the num- bers in the middle column on page 1 of Ex. 12 represented what "should have been" in the bundles. She then agreed that the middle numbers represented the amounts "actually" in the safe on that occasion. She agreed that rolls were missing from the bundles of $1.00 and $2.00 coins, and of quarters and dimes. In cross-examination the suggestion was put to Ms. Cra- ven, on the basis of the appearance of Mr. Ennnerson's time of arrival on the sign-in sheet (Ex. 7, p. 9) that Mr. Emmerson arrived at 7:45 and that someone wrote 7:30 over 7:45, that the original entry appeared to have been changed, she replied ,,I can't say" and added "He might have written in the wrong time. It was changed by him. We came in at the same time. I can't honestly say." When asked whether the initially entered time of arrival after Mr. Emmerson's name had been something other than 7:30, she replied "he was with me when I came in". Ms. Craven said that she called the District Manager to tell him that they were at that point short two rolls of $1.00 coins, four rolls of $2.00 coins, six rolls of quarters and two rolls of dimes, and that "$60.00 had gone missing the night before at some point" and asked for directions. In 36 response to instructions she received, she said she prepared a Notice of Intended Discipline (Ex. 2) and handed it to the grievor and asked him to take it outside the store and read it out there. Mr. Beuk advised that after his telephone call from Ms. Craven on March 4, 1997, he next heard from her on Wednesday, March 5, 1997, at which time she advised him that the safe was short a further $60.00 in coin, and that again the mis- sing coin was in the form of rolls missing from the middle of bundles. He said that he asked her if she was certain of the shortage and that she told him she and her Assistant had counted it. He said that he told her to issue a Notice of Intended Discipline to the grievor pending the outcome of an investigation. He advised that his next involvement occurred in April, 1997. Ms. Craven said that the grievor returned to the store a couple of minutes after receiving the Notice of Intended Discipline and said that he said that he did not know what she was talking about. She said that she asked him to leave the store again, possibly twice, and that he left. In her report (Ex. 13) Ms. Craven wrote that the grievor returned to the store and "asked if he could discuss the letter because he does not know what I was referring to in the letter". In cross-examination she agreed that it is important to include everything relevant when she makes such a report, as it is the foundation of senior management's investigation. She agreed that her report would likely be ,a more accurate re- flection of what she knew then, than what she recalled at the date of the hearing. She agreed that she had written that on Monday, March 3, 1997 she "had a balance" in the safe (with the safe inquiry report) and that in writing those words, she meant that she had a balance based on a visual count. The Notice of Intended Discipline, dated March 5, 1997 states: 37 This letter is to advise you that effective immediately you are hereby relieved of duty with pay pending an investigation into the alleged theft of LCBO assets. Within three (3) calendar days from receipt of this letter, you are asked to submit a written statement to my attention, Sharon L. Craven Manager, Store #362, explaining the matter mentioned above, which has prompted this letter. Should a meeting be scheduled following the receipt of your written statement, please be advised that you are entitled to Union representation, as discipline may result from this meeting. Should you choose not to respond as requested, you should understand that Management will act on currently available information. The LCBO's decision concerning this matter will be made known to you in due course. Sharon L. Craven Manager, Store #362 The grievor said that he was "very surprised" to receive the above Notice. The grievor said that at about 5:30 ,p.m. he prepared a letter dated March 5, 1997 (Ex. 19) with the intention of sending it by Registered Mail. However, he learned that it would possibly arrive past the 3 calendar days within which he was requested to "submit a written statement." Consequently, he said, he wrote a second letter dated March 6, 1997, and sent it by courier (Ex. 20). He said he was unable to simply send a copy of Ex. 19 because he had been unable to find it. His first letter states: I am responding as instructed within 3 days, but I am unaware of what I am responding to, since you refused to tell me. I have however not taken any LCBO assets, as your letter claims. I would appreciate further communication from you in regards to what the alleged charges are. Please find enclosed the store keys which you neglected to ask me for when I was asked to leave the store. i Yours truly S. smith His second letter states: 38 In response to your letter, I am unaware of what I am responding to. You refused to discuss it with me. I have not taken any LCBO assets, as your letter claims. Further communication regarding these allegations would be appreciated. The store keys you didn't ask for are being sent to you by registered mail. Yours truly Sam Smith Ms. Craven said that on Wednesday, March 5, 1997 she "stayed late" and the District Manager came in. She said that he wanted to do a safe count. She advised that she and her District Manager did the necessary paperwork to adjust the records for the missing $320.00 and to balance the safe. Mr. Beuk confirmed that he went to Store 362 in the afternoon of Wednesday, March 5, 1997. He said that in Ms. Craven's presence he counted the store safe to verify that the missing funds were indeed missing. He said that there was no sign of a break-in. Ms. Craven said that she was present at the pre-discip- linary meeting "if they needed to ask a question". She ad- vised that Milly Briffa, John Harris, Jerry Beacom and the grievor attended it. She said that she recalled that the grievor was asked if he was aware of money missing. She said that "they" talked about the first amount of money missing, $100.00, and was the grievor aware of it, then about the $160.00 that went missing, then the final $60.00, was he aware of that. She said that the grievor replied that he wasn't aware of any of the missing money. She said that the grievor was not accused of stealing $320.00, and that he was not accused of stealing anything. When asked whether the grievor provided an explanation for the missing $60.00, she replied that he had not, that he wasn't aware of it. When asked whether the grievor offered any possibilities, she said that he told them he was covering the evening shift for Mr. Loschiavo, that Mr. Loschiavo had taken the store keys home 39 instead of giving them to him when he left, and that when he discovered this, he decided to call Ettore Chini, who lives 5 minutes away from the store, that he left the store, picked up the key and returned to the store. While he was away, Mr. Thompson, Ms. Kosic and Ms. Buda remained in the store. She understood that the grievor was away from the store no longer than half an hour. Ms. Craven said that as a result of lear- ning this from the grievor at the pre-disciplinary meeting, she asked each of the casual employees for a letter advising whether any full-time employees had come into the store in his absence. She said that the casuals all wrote letters saying only the three of them had been in the store during the grievor's absence. She said that Mr. Loschiavo was get- ting married shortly and that the grievor took his night shift. She said "I guess Saverio's head was in the clouds and he just forgot to give him the keys". She agreed that she had written a report dated March 7, 1997 (Ex. 13) and that she prepared it on Friday. She said that she had been keeping notes all along of what was occurring. She said that she did not make the decision to terminate the grievor's employment, but that she supported the decision "because by isolating the money, we did prove [the grievor] was respon- sible for the theft of $60.00." Mr. Beuk advised "Some time in April we held a meeting with Mr. Smith to ascertain whether he had a knowledge of the missing funds, so we could make a determination in this mat- ter." He said that the grievor, Union Representative Mildred Briffa, Human Resources Advisor John Harris, and Ms. Craven were present at a meeting on April 2, 1997. He said that the purpose of the meeting was to ascertain if Mr. Smith had any knowledge of the missing funds and to assist us with the out- come of the Notice. He said that the grievor had been sus- pended with pay. He advised "we asked him a series of ques- tions regarding the incidents at the store during that time". He said "we asked him about the $60.00 missing" and that he 40 said he had no knowledge of the missing funds. When asked whether the grievor offered any explanation, he advised that the grievor had no idea of the missing funds, that when he balanced the safe, it balanced. He said that the grievor in- dicated he left the store for half an hour in the early eve- ning as he was left to run the store without a set of store keys. He advised that he made notes during the meeting and identified 2 pages of hand-written or -printed notes. He identified the first page (Ex. 15a) as "my pre-meeting notes" and the second page (Ex. 15b) as the grievor's "responses to our questions". When asked what he asked the grievor about the three items at the top of Ex. 15a, i.e. $100.00 missing from safe on Sat. March l/97 in $2.00 coin 2 rolls $160.00 missing from safe on Tues. March 4 a.m. $60.00 missing from safe on Wed. March 5 he replied that he asked the grievor whether he was aware of funds missing from the safe. He said that the grievor replied that he had no knowledge. When asked what he asked the grievor regarding the note On Monday March 3 Sam was breaking down full boxes of coin from coin order at 5:30 p.m. worked 9 to 6 in Ex. 15a, Mr. Beuk said that he asked him if he had gone to the safe to break down whole boxes of coins into bundles and that the grievor replied that the only time he breaks down coin is when he is the only one there who receives the coin. (This response appears as the third item in the 15b notes). When asked whether can't recall breakdown of coin at 5:30 p.m. on Monday March 3/97 which appears as the first line on Ex. 15b was the grievor's response, he replied "yes". When it was suggested to him that the grievor then went on to the third statement written on Ex. 15b only time he breaks down coin is when he is only one there to receive coin order he replied "yes, that's correct". When asked what he asked the grievor regarding 41 on Tues. a.m. short 2 rolls $2.00 - 6 rolls - .25c = $160.00 March 4th in Ex. 15a, he replied that he asked him if he was aware the store safe was short, that he was Acting Manager Monday. He advised that the grievor's answer was that he balanced the safe. When asked whether this reply was with respect to Tuesday morning, Mr. Beuk replied that the grievor said that on Tuesday, March 4 he balanced his safe at the beginning and the end of his shift. He said that he recalled that the grievor was running the shift on both Monday and Tuesday, March 3 and 4. When asked what he asked the grievor regard- ing how do you explain the fact that you were responsible for safe after 1 p.m. on March 4 & next day safe short on Wed a.m. short 2 rolls of $1.00 coin 2 rolls of . 10~ coin = $60.00 March 5 which appears as the fourth item in Ex. 15a, he said that he asked the grievor if he had an explanation for the safe being short $60.00 when he was responsible on Tuesday, March 4, and said "We isolated the safe after 1 p.m. Tuesday, March 4. No one had access to the safe except him". He then said that the question was that no one had access to the safe, could he explain why it was short $60.00. He said that the grievor said that he had no knowledge and he had balanced the safe and it balanced to the best of his knowledge. When asked whether the grievor provided him any information regarding the safe, Mr. Beuk said that the grievor told him that the safe was locked at all times, and that he indicated that casuals do not have the combination and he was the only one on duty that had it, because he was running the night shift. Mr. Beuk said "In view of the fact that the grievor ob- viously had been in charge and had complete control of the safe on Monday, March 4, 1997 and $60.00 was missing, I re- commended termination for theft," and that he did not consi- der whether someone else had been responsible, that it was obvious to him that the grievor was responsible, that he was the only one with access to the safe on the evening the money 42 went missing and he said the safe was locked at all times, that he was the only one with the combination, that he was accountable and responsible for the missing funds. He said that the LCBO's response to theft is termination, in all cases and that the LCBO considers this to be a severe breach of trust. He agreed that that was the LCBO's view, regard- less of the amount. He added that whether stock or assets were missing, such were considered a severe breach of trust resulting in termination. He advised that the matter was reported to the police by Ms. Craven. He advised that he understood that no criminal charges had been laid and that he guessed that that was due to their work load and the matter not being very important to them. In cross-examination, Mr. Beuk agreed that at the April 2, 1997 meeting, the grievor did not accuse anyone in parti- cular. When asked if the grievor had been adamant that he had had nothing to do with the missing money, he replied that the grievor claimed that he had no knowledge of it. He was unable to recall whether, at the start of the meeting, he had told the grievor that he had been seen breaking down coin on Saturday, March 1, 1997. When it was suggested that the grievor had replied that he was not there on Saturday, and that he, Mr. Beuk, had checked with Ms. Craven and confirmed that he was not there on Saturday, he stated that it was pos- sible that this had occurred at the meeting. He added "but on a review of my notes, it was obvious that it was the Mon- day I not the Saturday". He said that Ms. Craven had told him that Mr. Loschiavo had observed him doing so. When asked in cross-examination whether, in relation to no comment on two other people saw him break down coin which appears in Ex. 15b, he had told the grievor that two people saw him break down coin, Mr. Beuk replied "I don't recall. That's his response." He then said "I believe the question was other employees saw him breaking down coin." He said that he did not recall whether he said "other employee" 43 or other Ilemployeesn, and that he did not recall the phrase he used. With respect to on March 4 statement from 2 other employees that safe was isolated exclusively to you how do you explain $60.00 shortage then. in Ex. 15a, his pre-meeting notes, Mr. Beuk advised that the statement "would have been" that of Mr. Laszczuk and Ms. Cra- ven. He agreed that he "had the impression" that Mr. Lasz- czuk and Ms. Craven had "isolated the safe". When asked how he had acquired that impression, he replied "they counted the money". When asked how he formed the conclusion that they had isolated the safe, he replied "they informed me no other employee was to enter the safe during this time period". The grievor said that he recalled the April 2, 1997 meeting. He said that Mr. Beuk did notlimit his inquiry to the $60.00 that was at issue on Tuesday, March 4, 1997 and that Mr. Beuk asked him about 3 specific dates and 3 specific amounts. He agreed that Mr. Beuk raised an issue with him about breaking down coin on Monday March 3, 1997. He said that initially Mr. Beuk said that he, the grievor, had been seen breaking down coin on Saturday, March 1, 1997. He said that when he, the grievor, said that he had not been in the store on March 1, 1997, Mr. Beuk "referred to" Monday, March 3, 1997. He said that he was given no names. The grievor agreed in cross-examination that at the Ap- ril 2 meeting, Mr. Beuk asked him if he had any knowledge of coin which had gone missing on Saturday, March 1, Tuesday, March 4 and Wednesday, March 5 and that Mr. Beuk asked him about the shift for which he had been responsible. He agreed that Mr. Beuk asked him how, if the cash balanced on Tuesday night, it did not balance on Wednesday, March 5, 1997. He agreed that Mr. Beuk had asked him how $60.00 could be missing, if the safe was isolated to him. Mr. Beuk agreed in cross-examination that he knew Mr. Smith had not been at work on February 28 and March 2, and 44 that the first thefts occurred on March 1, 1997, and that he learned of this on March 3, 1997. When asked whether he thought the grievor had something to do with the first thefts that were discovered, he replied "I have no idea". When asked whether he was investigating or had investigated the other $260.00 of the total $320.00 that went missing, he rep- lied "we could not substantiate whether any other employees were involved". When asked "other than who?" he replied "those who had access to the safe". He said that they had no idea when those funds went missing. In cross-examination, Ms. Craven acknowledged that on February 27, 1997, neither Mr. Chini, Mr. Bennett, Mr. Bry- ant, Mr. Loschiavo nor the grievor indicated their "depart" time on the sign-out sheet. She agreed, with reference to the Friday, February 28, 1997 sign-out sheet (Ex. 7, p. S), that Mr. Smith was not at work that day. She agreed, with reference to the Saturday, March 1, 1997 sign-out sheet (Ex. 7, p. 6) that the grievor was not at work that day, and that Mr. Loschiavo had been at work that day. The grievor advised that he was initially hired by the LCBO in 1983 as a part-time temporary employee. He worked at the Durham warehouse from June of 1986. He worked as a Clerk 3 at the Jane-Finch Store from the fall of 1989 for a little less than 5 years. Because he was finding the commute from his residence in Etobicoke to his workplace in Whitby diffi- cult, in 1989 he requested a transfer from warehouse to the retail division. In 1994 he transferred to the Queensway- Islington store and worked there until June of 1996 when he transferred to the Albion Mall Store (362). He produced a letter dated October 1, 1994 (Ex. 17) which accompanied his receipt of "an LCBO Service Pin in recognition of [his] con- tribution, dedication and loyalty to" the LCBO as well as a similar letter dated October 1, 1996 (Ex. 18). He said that he received Ex. 17 when he was working at the Queensway Store, and Ex. 18 while he was working at Store 362. 45 In cross-examination he advised that he had been working in retail for the LCBO since 1989. He agreed that he was aware of the importance of protecting LCBO assets and of counting and receiving money. He agreed that he was aware that the safe was to be locked at all times, and that casuals were not to be given the combination, and that to the best of his knowledge they were not given it. He later denied having given any casuals the combination to the safe when he was in charge of it. He agreed that he was aware that the LCBO takes theft very seriously. He agreed that when he is in charge of a shift he counts the funds in the safe at the start of the shift to ensure that he is actually receiving the funds he is expected to have, as if funds go missing during a shift, he is responsible. He agreed that that is a heavy responsibility, not to be taken lightly. He said that he does not take any of his responsibilities lightly. He agreed that he would not let anyone go into the safe unless he knew why they were going in to it. He agreed he did a visual count and that "others" did it the same way. He did not agree that a visual count was done to save time. He advised that that was the only way he had ever seen a count done, and that when he came into retail that was the method which he was shown to do a count. He agreed that it "defi- nitely" would be a worthwhile practice to count each indivi- dual roll. He said that there was normally not enough coin in the safe to necessitate the removal of the bundles onto the floor in order to see them all. The grievor said that he was home with his family on Friday, February 28, and Saturday, March 1, 1997 and that he did not go into the store on either of those days. He agreed that he worked the 9 a.m. to 6 p.m. shift on Monday, March 3, 1997. He said that he had been married for seven years, and has two sons, age 5 and 3. He has owned his own home for 46. ‘. about 6 years, and has a mortgage. Prior to March, 1997, he had no difficulty meeting the mortgage payments. The grievor said that he occasionally plays the 649 lottery, and that he plays the store football pool and Proline weekly. He said that he spends $5.00 per week on the football pool, and at most $20.00 per week on Proline. He said that he is a social drinker, and does not drink very often. He does not consume narcotics. He denied taking any of the money missing from the store. Arqument for the Emplover: The employer accepts that the evidence has to be clear and cogent. However, that does not change the standard of proof. The standard of proof is not the criminal standard, but rather, the civil standard, on balance of probabilities. This means the board cannot act on fragile and tenuous evidence. The issue in this case is whether the employer has discharged its onus. Where the employer relies on circumstantial evidence, the board must determine whether there are other explanations which are equally or more probable than the one advanced. If there are no such reasonable alternatives, the allegation, supported by circumstantial evidence, is proven. In this case there are no such reasonable alternatives equally or more probable than the allegation that the grievor took the $60.00 in coin. The evidence established that $60.00 went missing some time after 4:30 p.m. on Tuesday, March 4, 1997 and was found missing on Wednesday, March 5, 1997 at 7:30 a.m.. Ms. Craven testified she went to the store before it opened, pulled bun- dles of coin from the safe, and found some rolls missing from the centre of some bundles. This shows a deliberate removal. Whoever took the missing rolls knew the bundles were counted 47 visually and was relying on them not to be pulled out and counted roll by roll. Ms. Craven was adamant, and unshaken on cross-examination, that no one other than Mr. Smith went into the safe between 1 and 4:30 p.m. on Tuesday, March 4, 1997. She counted the safe early in the afternoon, balanced it, turned it over to Mr. Smith when he arrived at 1 p.m. Mr. Smith counted it visually and confirmed the amount. Ms. Craven sat in the office until 4:30p.m. No one else went into the safe. After 5 p.m. on Tuesday, only Mr. Smith and the casuals were in the store. The evidence was clear and consistent that casuals are not given the combination. Mr. Thompson, Ms. Buda and Ms. Kosic all testified that they did not have the combination. Ms. Buda and Ms. Kosic testified that they didn't see any other casual going into the safe. All three casuals and Mr. Smith testified that they did not see any other full-time CSR in the store after 5 p.m. After 5 p.m. Mr. Smith was the on- ly person in the store with the combination to the safe. He could go into the office and into the safe without causing any of the casuals to find it unusual. Ms. Buda testified that she would find it highly unusual to see a casual going into the safe. No one, however, would question Mr. Smith doing so. No one other than Mr. Smith had the opportunity and ability to go into the safe. Between 4:30 and 5 p.m. Mr. Smith was ringing off three cashiers in the office where the safe is located. Between 4:30 and 5 p.m., three casuals picked up their trays and were either in the office with the safe or in the back office. To get to the registers from the back office, they must pass through the office with the safe. Ms. Buda's evidence was that it took 10 to 15 minutes to ring off a cashier. Mr. Smith confirmed that it took 10 minutes on average and that it was done one at a time. A lot of activity took place in the office with the safe at this time. Mr. Smith testified to the responsibility he has when he is in charge. It is 48 neither probable nor plausible that someone else would go into the safe between 4:30 and 5 p.m. with Mr. Smith sitting in the office. Although Mr. Smith testified that it was possible that he was not in the office the entire period between 4:30 and 5 p.m., he does not remember something having happened to take him out of the office, and on April 2,.1997, did not tell anyone something took him out of the office. The proper conclusion is that such an occurrence is not plausible. Further, if Mr. Smith had left the office, it is not plausible that someone else would go to the safe, open it, pull out bundles of coin and remove 2 rolls from the middle of some bundles. Six rolls of quarters were removed from the middle of three bundles. In the time that Mr. Smith was in the store, the bundles would have to have been returned to the safe so that it appeared they had not been touched, while other CSRs were in the store and other casuals were in the office. This is not a reasonable alternative explanation. In our view, there was no opportunity for anyone else to have done it between 4:30 and 5 p.m. Mr. Smith did not remember whether Mr. Loschiavo was on cash that evening. He remembered that Mr. Loschiavo had to get somewhere and left the store hastily, possibly before 5 p.m. The evidence indicated that after 5 p.m. Mr. Smith left the store to pick up the keys. When questioned about April 2 about how the $60.00 went missing, the only thing he said was "maybe when I left the store...". However, his evidence was that when he left the store the safe was locked, and he'd checked it before he'd left, the casuals testified they did not have the combination, there was no evidence which contra- dicted them. The casuals also testified that they did not 1 L see anyone go into the safe while Mr. Smith was away. There is no evidence that any of the casuals knew that the count 49 would be done visually at the end of the shift. They would have to be relying on that if they did take the money. They know Mr. Smith balances at the end of the night. They would not have taken it. They knew they were the only people in the store. No explanation equally or more probable than the em- ployer's exists. Discharge is the appropriate penalty. The onus has been discharged with clear and cogent evidence. There is no other explanation equally probable or more probable than that the grievor was responsible for the funds. The grievance should be dismissed. The employer submitted the following cases in support of its position: Zellers Inc. and U.F.C.W., Lot 175 (1996) 54 L.A.C. (4th) 176 (R.L. Levinson); Steel Co. of Canada and U.S.W.A., Lot. 1005 (1991) 21 L.A.C. (4th) 242 (Rayner); Loblaws Supermarkets Ltd. and U.F.C.W. Lot. 1OOOA (1990) 10 L.A.C. (4th) 425 (Thorne); Molson Breweries (Toronto) and Canadian Union of Brewery and General Workers, Component 325 (Fillmore) (1994) 44 L.A.C. (4th) 398 (Mitchnick); Honey Bee Sanitation Inc. and U.S.W.A (1991) 20 L.A.C. (4th) 103) (H.D. Brown); Durkin 426/81; Menzies 102 & 126/83; McWilliams 860/87. Araument for the Union: This case is based entirely on circumstantial evidence. No one saw the grievor take any money. No money was found in his possession. There has been no admission that he took any money. The employer says the civil burden must be met on clear and convincing evidence. However, the graver the offence, the clearer the evidence must be. This case is about opportunities and probabilities. The employer says it only has to show no equal opportunity or 50 . probability exists. The union relies upon "the additional hurdle" in such a case, found at pp. 8 - 9 in Irwin, 1377/86 The employer must meet an additional hurdle brought about by virtue of the fact that the evidence against the Grievor is entirely circumstantial. There was no eye wit- ness 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 direc- ted to the issue of opportunity. If we accept as a given that the money 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 pos- sible in the circumstances. We cannot cast an onus upon the Grievor to prove to us that there 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. When reviewing the evidence the board should not look for whether an equal explanation or a better or more compel- ling alternative exists. Rather, it should look for whether there is an alternative explanation. In this case, other people had opportunity to take the money. We know that $100.00 was discovered missing on Satur- day I March 1, 1997, that $160.00 more was missing on Tuesday a.m., March 4, 1997 and $60.00 more was missing on Wednesday, March 5, 1997. Although the employer says it is relying only on the $60.00 missing on Wednesday, March 5, 1997, the board cannot ignore the other missing money. These facts mean that it is extremely unlikely that Mr. Smith took the money that was found missing on Saturday, March 1 and Tuesday, March 4, 1997. 51 The grievor is the least likely suspect regarding the first two thefts. He was not at work February 28 or March 1, 1997. We accept that it is possible that the money found missing on March 1, 1997 may have gone missing before that date, but the board does not have to conclude that. The grievor's evidence that he did not do the coin intake on Feb- ruary 26, 1997 was not challenged. Coin went missing before Monday, March 3, 1997 and was discovered missing while the grievor was not at work. We know that Mr. Loschiavo was at work on Monday, March 1, 1997, as were Mr. Bennett, Mr. Lasz- czuk and Mr. Emmerson, and Ms. Craven said they had the com- bination. Mr. Smith left at 6 p.m. on Monday, March 3, 1997. After he left, Mr. Loschiavo was responsible for the safe that night. Mr. Loschiavo was the last person in the chain of control before Tuesday, March 4, 1997. Ms. Craven's evidence was that she gave Mr. Loschiavo a cheque, told him to cash it, and not to tell the grievor. It would have been easy for Mr. Loschiavo to conclude that someone other than he was the prime suspect. The grievor was seen bundling coin on Monday afternoon. It is important to bear in mind that Mr. Thompson agreed that the grievor was bundling coin openly, with the door unlocked, and not in a surreptitious manner. Ms. Craven testified that Mr. Loschiavo knew he had been bundling coin. That's awfully convenient. Ms. Craven's discussions of her conversations with Mr. Loschiavo are surprising. The evidence did not establish that he came to her and told he was $160.00 short. Instead, Ms. Craven said that on Monday, March 3, 1997 she told Mr. Loschiavo not to change the coin and the following morning asked him why coin in the safe was different from the manner in which she'd left it. 52 The grievor was the Night Manager on Tuesday, March 4, 1997. Ms. Craven said she isolated the safe to the grievor for the whole day. That is not an accurate statement. Ms. Craven was stretching her 4:30 p.m. departure, and may have left earlier. At 4:3O pm., Mr. Loschiavo, Mr. Bennett and Mr. Chini were there, and they had the combination.to the safe. As well, the grievor was absent from the store for 30 minutes to an hour. The casuals are clearly not vouching for one another. None know if the others do or don't know the combination. That none of them know it is an assumption. The casuals do not know who was in the office at all times. Ms. Kosic said that the office can be accessed through the back. Ms. Craven has no control over the combination which is issued on slips of paper. Although all the casuals who worked that night said that they did not know the combina- tion, Ms. Buda said that they talked about it immediately thereafter and knew someone was suspected. It would be sur- prising for any of them to admit that they knew the combina- tion, as it would cast suspicion on them. Thus, they would have a motive to lie and are not innocent witnesses. They all started to talk about it once the grievor was suspended. As a result, it cannot be said that only the grievor had the exclusive opportunity to take the coin rolls. It cannot be said that he had the best opportunity to take the money that went missing on Saturday and probably Monday night. The grievor had no better opportunity that Mr. Loschiavo, Mr. Chini or Mr. Bennett, and the casuals had a better opportuni- ty than he did that night. The evidence was that ringing off of cashiers could take 10 minutes. The grievor's lack of recall is consistent with his innocence. As an innocent person, he had no reason to be concentrating on what he was doing every single moment, and he could have left the office. There were three cashiers to ring off and three cashiers to ring on. Ms. Kosic was to be rung on after her arrival at 5 p.m. It is clearly possible 53 that the grievor left the office during that time. At least three people in the store after 4:30 p.m. had the combina- tion. Someone could have slipped the coins out, knowing that it wouldn't be noticed, and knowing that the grievor was the suspect and was being watched. The evidence of Mr. Loschiavo, Mr. Bennett or Mr. Chini was not before this board, which should have had the opportu- nity to hear it. In Canada Post Corp. and C.U.P.W. (Seymour) (1992) 25 L.A.C. (4th) 137 (Shime) it was held that an ad- verse inference was to be drawn from the failure to call a certain witness. In that case identification was the issue. The case dealt with the common law on the subject, at pp. 141 and 142: One of the leading cases on the failure to call a witness is the decision of the Saskatchewan Court of Appeal in Murray v. Saskatoon, [1952] 2 D.L.R. 499, 4 W.W.R. (N.S.) 234, where Martin C.J.S. stated as follows at pp. 505-6: During the course of the argument considerable attention was devoted to the question of the effect which should be given to the action of a party in not calling a witness who could give evidence which it was in his power to give and by which the facts might be elucidated. Reference was made to the remarks of Lord Mansfield in Blatch v. Archer (1774), 1 Cowp. 63 at P. 65, 98 E.R. 969 where he is reported as follows: "It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted." The subject is dealt with at length by the learned author in Wigmore on Evidence, 3rd ed., vol. II, pp. 162 et seq. On p. 162 it is stated in part:-- "The failure to bring before the tribunal some circum- stance, document, or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have ex- posed facts unfavourable to the party. These infer- ences, to be sure, cannot fairly be made except upon certain conditions, and they are also open always to explanation by circumstances which make some other hypothesis a more natural one than the party's fear of exposure. But the propriety of such an inference in general is not doubted. 54 The party affected by the inference may, of course, explain it away by showing circumstances which pre- vent the production of the witness; but where the failure to produce the witness is not explained, the inference may be drawn that the unproduced evidence would be contrary to the party's case or at least would not support it. Mr. Shime's logic, at p. 142, should be considered: Applying those principles to the instant case, where there is a very difficult issue of identity, it is my view that the failure to elucidate the facts which was within the corporation's power is not without significance and, accor- dingly, I am prepared to draw the inference that the calling of Mr. Scarselletta would have exposed facts which were un- favourable to the corporation. Even if one were to examine the facts of the incident as related by the corporation's witnesses, there are serious problems of identity which might be assisted or elucidated by another person who wit- nessed the events. The identity issue is critical and the facts relied on by the corporation are difficult and include the lack of recognition of the assailant by those who wit- nessed the incident, the difficulty of making an identifica- tion in the melee and the subsequent manner in which the grievor was identified. It is not for the board to draw a hypothesis that failure to call Mr. Scarselletta would not have advanced the corporation's case, as the corporation has suggested-- the board should not be placed in the position of speculating where the witness was readily available. In this case, given that identity is critical and difficult, the failure to call a witness who might assist with that issue leads to the clear inference that the witness would not have supported the corporation's case. . . . Given that the issue of identity was critical and given the suggestion in the affidavit that there might be some difference among supervisors in describing the assail- ant, it is my view that the failure to call Mr. Scarselletta not only entitles me to draw an adverse inference, but al- most compels me to draw the inference that the evidence if called would not only not support the corporation's case, but would be contrary to it. The Canada Post case is much like ours. Three people who are believed by the employer to have known the combina- tion were present after 4:30 p.m. on Monday, March 3, 1997. The board should infer from their absence that they will not say that they were only in the office with the safe when Mr. Smith was present. The union does not accuse any one of the CSRs of having stolen the money. Rather, the union takes the position that the employer has the burden of disproving alternative possi- bilities. By not calling one or the other of those three CSRs, it has not met the burden. The evidence suggests that the employer "tipped off" Mr. Loschiavo as to the identity of the prime suspect. It also suggests that from the questions they were asked, other employees quickly knew that there was a connection between knowing the combination and the theft. According to Ms. Buda, Mr. Laszczuk told her to write a date on her document which was not the day upon which she wrote it. The sign-in sheet for March 5, 1997 indicates that Mr. Emmerson's time of arrival was changed from the initial entry. Mr. Emmerson was not called to testify. Ms. Craven's evidence was that she did not know about the change. The sign-in sheet shows that she arrived at 7:30 a.m., but it appears that Mr. Emmerson may have initially entered 7:45 a.m. and someone changed it to 7:30 a.m. When Ms. Craven spoke to Mr. Beuk on Monday morning, March 3, 1997, she did not tell Mr. Beuk that she had "tipped off" Mr. Loschiavo. Her report (Ex. 13 says that Mr. Loschi- avo saw the grievor breaking down coin. However, Mr. Thom- pson testified to having seen the grievor breaking down coin, and Mr. Loschiavo was not called. In Irwin, supra, the board rejected an alternative ex- planation for a theft as "unlikely". At p. 11, it stated that where the evidence is circumstantial, the board is en- titled to consider motive. The grievor has received two commendations. The board should consider whether a married family man would risk his job for some rolls of coins. In Irwin, supra, the board considered that the grievor was "en- 56 titled to the benefit of the very significant doubt" that it felt. This case is about opportunity. The employer must prove exclusive opportunity, on clear and cogent evidence. It is impossible for the employer to do so, where the board does not hear from three people who had the combination and were present in the store at a relevant period of time. The board would be able to make findings of credibility if those people had been called. The employer's evidence has not excluded other possibilities. Its evidence is not sufficient, especi- ally where the results for the grievor are so grave. This board's jurisprudence should be followed. The appropriate remedy is reinstatement and compensation with full retroac- tive pay and interest. Reply Argument for the Emplover: If those three CSRs had testified, -the union would tell you not to give weight to their evidence, they have reason to lie. They were not called because the evidence of the wit- nesses was that it was highly unlikely that anyone could go into the safe without anyone else noticing. The grievor him- self testified he would not let anyone go into the safe. The employer has stated the law correctly. Zellers, at P* 188 - 89 says that Hodge's Case is no longer good law in Canada even its original Criminal law context. . . . . ..That is not the proper burden of proof. The company has the onus to establish its case by clear and convincing evi- dence on the balance of probabilities and not the criminal burden of proof, namely, beyond a reasonable doubt. It also, at 189, states the law (as set out by Arbitrator Swan in Re Canada Packers Inc. and U.F.C.W., Lot. 114P (1989), 6 L.A.C. (4th) 25): 57 . . . there is a general consensus among arbitrators that, where criminal conduct is alleged, the onus of proof is only met if the proof is "clear and convincing". This does not connote a change in the standard of proof from the civil standard of a preponderance of evidence to the criminal standard of proof beyond a reasonable doubt, but rather relies upon the generally accepted view that, the more serious the conduct which is alleged, the more important it is that the conduct be demonstrated by "proof commensurate with the gravity of the allegation", to use the language of the Supreme Court of Canada in Continental Ins. Co. v. Dalton Cartage Co. Ltd. (1982), 131 D.L.R. (3d) 559 at p. 563, [1982] 1 S.C.R. 164, [1982] I.L.R. 1-1487 (S.C.C.). Durkin, supra, States at p. 7 that the board must ask whether there is any rational conclusion based on evidence, other than that the grievor committed the theft. Reasons: Theft in the workplace is a serious problem and a seri- ous offence. It undermines the trust relationship between employers and their employees so fundamentally, that when an employee has been found clearly to have stolen, it is rare that termination of that relationship is not justified. Where, as in this case, the thief has not been identified by an eye-witness, an atmosphere of suspicion arises in the workplace as management attempts to sort out the logical possibilities and attempts to determine the identity of the culprit or culprits. If the employer's conclusion as to the identity of the thief is correct, justice may prevail. How- ever, in relying on circumstance and motive and in drawing inferences from it, the risk is always present that errors and oversights can result, which may result in injustice. In order to determine if the employer's conclusion as to the grievor having committed the theft on March 4, 1997 is sufficiently supported by the evidence, the first matter which must be determined is the onus which an employer bears in a case of alleged theft in which the evidence is entirely circumstantial. \ -. 58 Durkin, supra, states, at p. 7, that in posing the test as "the board must ask whether there is any rational conclu- sion based on evidence, other than" that the grievor commit- ted the theft, it was "applying the test of Hodge (1838), 168 E.R. 1136". As, according to Zellers, supra, Hodge is "no longer good law in Canada", it follows that the test in Durkin should not be applied. In Zellers, the onus was stated as The company has the onus to establish its case by clear and convincing evidence on the balance of probabilities and not the criminal burden of proof, namely, beyond a reasonable doubt. and . . . there is a general consensus among arbitrators that, where criminal conduct is alleged, the onus of proof is only met if the proof is "clear and convincing". This does not connote a change in the standard of proof from the civil standard of a preponderance of evidence to the criminal standard of proof beyond a reasonable doubt, but rather relies upon the generally accepted view that, the more serious the conduct which is alleged, the more important it is that the conduct be demonstrated by "proof commensurate with the gravity of the allegation", to use the language of the Supreme Court of Canada in Continental Ins. Co. v. Dalton Cartage Co. Ltd. (1982), 131 D.L.R. (3d) 559 at p. 563, [1982] 1 S.C.R. 164, [1982] I.L.R. 1-1487 (S.C.C.). Zellers also indicates that the board may consider other ex- planations for an alleged theft, and reject them if it deter- mines them to be "implausible". However, Zellers is distin- guishable from this case, as in that case there was a direct witness to the alleged theft, and the arbitrator specifically stated, at p. 189 the evidence here is not entirely circumstantial. I conclude that the reasoning in Zellers provides a general statement of the onus of proof which must be met in theft cases. However, the manner in which a board should determine whether the onus has been met in a case resting entirely on circumstantial evidence and opportunity must be derived from a careful consideration of the cases provided. 59 Stelco, supra, indicates that "clear and cogent" evi- dence will discharge the burden of proof on the employer, but that that standard requires the board "not to act solely on fragile and tenuous evidence". Where sufficient evidence was lead to establish that the grievor had knowledge of the presence of stolen property on his father's farm, from the volume of the stolen property, from outside identification marks which,had been ground off of an appliance in the kitchen, from a 4-foot high bottle of propane marked with the employer's name attached to a barbeque on the back patio, and from the grievor's own statements of ownership of certain of the stolen property, the board was of the view that the onus shifted to the grievor for a more credible explanation than a bare denial. The grievor in this case was not found in possession of rolls of coin; consequently the facts in this case do not support the approach in Stelco. In Loblaws, supra, another theft case, the board was of the view that "the standard of proof required is the civil standard of the balance of probabilities" and . ..a slight preponderance of evidence in favour of the employer's case will not suffice. The requirement has been variously stated as being for clear and cogent evidence, for a stringent standard of proof, and for a standard estab- lished in relation to the seriousness of the consequences which might flow from the findings of fact. The reasoning in Molson and Honey Bee, supra, primarily deals with the failure of the grievor to admit a theft found on the evidence, and its effect on mitigation of penalty, and does not assist in determining whether sufficient circumstan- tial evidence has been presented to discharge the burden of proof on the employer. McWilliams, supra, at p. 15, states that it was decided "especially based on a close examination of the credibility of the grievor" and on extensive evidence from a major wit- ness, whose evidence was accepted, who saw some of the alle- gedly stolen product in a car belonging to a friend of the 60 F grievor, shortly after the grievor had approached the car and had resisted the witness' questioning. The board stated that it found the evidence "clear and convincing". In Durkin, supra, at p. 5, Arbitrator Barton cited Arbitrator Swinton in Douglas 28 LX (2d) 332 (Swinton 1981) as stating the applicable burden of proof: . ..the allegation of untrustworthiness carries implications of theft or dishonesty, and consequently, the standard of proof should be higher than the civil standard. The employer must show by clear and convincing evidence that the employee has knowingly broken the rules and so harmed the employer's interests. It should be noted, however, that in such cases where there has been deliberate misconduct and therefore untrustworthiness, the conduct may or may not justify discharge. Where there has been breach of rules without proof of actual dishonestly (i.e. theft) the employee may be subject to discipline but not necessarily discharge. The penalty will no doubt vary with the importance of the rule, the number of violations and the employee's record. The board in Irwin, supra, at p. 8, stated that the standard of proof required was the civil standard and the . ..there is a sliding scale within the civil standard of proof on a balance of probabilities and stated the test as follows: 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 pos- sible in the circumstances. We cannot cast an onus upon the Grievor to prove to us that there 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. (emphasis added) The board in Irwin also indicated that it was "entitled to consider the element of motive" in "dealing with this matter as one of circumstantial evidence". The evidence in Irwin, as in this case, was entirely circumstantial. The test expressed in Irwin addresses the difficulty in cases where there is no direct witness to the alleged theft, i.e. the alleged wrongdoing is so serious and so fundamentally undermines the trust relationship between 61 employer and employee, and the consequences to the grievor of discharge from employment are so serious, that great care must be taken in assessing the evidence to ensure that the findings of fact and the conclusions based on those findings do not result in a person who is innocent being discharged from his employment, or in an employer being required to retain in its employ a person who is probably untrustworthy. To avoid either of these unwanted possibilities, the board in Irwin stated that the onus remains with the employer, rather than the grievor, to prove that there are no alternative possibilities to its allegation that the grievor stole the money. The requirement in Irwin that the employer prove that there are no alternative possibilities is a "supplementary rule", "refinement" or "corollary" of the general statement of the standard in proof in the other cases provided by the parties. Irwin indicates that in weighing the circumstantial evidence and "excluding alternative possibilities" the board may consider "what is humanly possible in the circumstances". In Blake, 1276/87 etc., Mr. Shime stated . ..each decision by a panel becomes a decision of the Board and in our opinion the standard of manifest error which is appropriate for the private sector is not appropriate for the Grievance Settlement Board. The Act does not give one panel the right to overrule another panel or to sit on appeal on the decisions of an earlier panel. . . . While it is our view that the "manifest error" theory is too lax a stan- dard, we recognize that there may be exceptional circumstan- ces where an earlier decision of this board might be review- ed. At this point we are not prepared to delineate what constitutes exceptional circumstances and the fleshing out of that standard will be determined on a case by case basis. The onus will be on the party seeking review to establish exceptional circumstances. The employer did not suggest that either "exceptional circum- stances" or "manifest error" existed, such that the test sta- ted in Irwin, supra, warranted review. Consequently this board is obliged to apply the test in Irwin to the facts of 62 this case in determining whether the employer has met the onus of proof. It may be helpful at this point to consider the defini- tions of some of the terms used in the cases considered above to describe the nature of the evidence that must be provided, and the nature of evidence that is not sufficient. The Ox- ford Encyclopedic English Dictionary defines "clear" as follows: -free from dirt or contamination. -transparent. -lustrous, shining: free from obscurity. -distinct, easily perceived by the senses. -unambiguous, easily understood. -manifest; not confused or doubtful. It defines "convincing" as -able to or such as to convince -leaving no margin of doubt, substantial and "convince" as -persuade (a person) to believe or realise. It defines "cogent" as -convincing, compelling and "compelling" as -rousing strong interest, attention, conviction, or admiration. It defines "stringent" as -strict, precise; requiring exact performance: leaving no loophole or discretion. It defines "fragile" as - easily broken; weak. - of delicate constitution; not strong. and "tenuous" as - slight, of little substance. - (of a distinction etc.) oversubtle Those definitions and the Irwin test will be kept in mind in examining the evidence. The union did not strongly dispute that $100.00 in rolls of coin was discovered missing from the store safe on Satur- 63 dayI March 1, 1997, that a further $160.00 in rolls of coin was discovered missing from the store safe on the morning of Tuesday, March 4, 1997, and that a further $60.00 was dis- covered missing from the store safe on Wednesday, March 5, 1997. ,Consequently, minor discrepancies and areas of un- clearness as to how the coin was determined to be missing will not be examined. The employer attributes the disappearance of $60.00 in rolls of coin discovered missing, on the evidence, on the morning of Wednesday, March 5, 1997, directly to the grievor. It does not attribute the disappearance of the rolls of coin discovered missing on March 1 and 4, 1997 to him. It states that it has come to no conclusion as to who was responsible for those rolls of coin discovered to be missing on those dates. At this point, those disappearances remain a mystery. The evidence which points to the grievor is indeed based upon opportunity and motive. It is also based upon some underlying assumptions which support the theory of the employer: 1. that the grievor was present in the office and watching the safe at all times, from the time of Ms. Craven's departure from the store from about 4:25 p.m March 4, 1997 until all the full -time CSRs were rung off and all the nightshift casuals were rung on, a period of approximately 40 - 45 minutes, such that if any of the casual or full-time employees had been at the safe and removing rolls of coin, he or one of the other employees would have seen them do so; 2. that the office was too busy at all times between 4:25 p.m and about 5 or 5:lO p.m. for any other employee to have entered the safe and taken the rolls of coin without having been observed by the grievor or another employee; 64 3. that the grievor was correct and/or truthful when he said that the safe was locked when he left for the keys; 4. that none of the casual employees had the combinations to the safes. The evidence established that on balance of probabili- ty, between 1 p.m. and 4:25 p.m., Ms. Craven took no lunch or washroom break and remained in the office with the safe and no other CSR, including the grievor, in her words, "went near the safe" in that period. I am satisfied that between 1 and 4:25 p.m., the grievor was the only person besides Ms. Craven who accessed the safe. The evidence established that Mr. Bennett, Mr. Chini, and Mr. Loschiavo, who each had the combination to the safe, remained in the store after 4:25 p.m. and that they and Mr. Calder were "rung off" some time between 4:25 and 5 p.m., and Mr. Thompson and Ms. Buda were "rung onll some time between 4:30 and 5 p.m., at which time (approximately) Ms. Kosic arrived and was unable to access her cash register and the grievor had to locate and obtain a set of keys. This suggests that Mr. Thompson and Ms. Buda accessed their cash registers with the keys of another CSR, not the grievor, or did not require keys to access registers. Neither the casuals nor the grievor was able to recall with any specificity who was where and when in relation to the safe from about 4:25 to about 5 p.m. on March 4, 1997. Their evidence was based largely on supposition. Neither the grievor nor any of the casuals indicated that they had a clear recall of where they were and what they in fact obser- ved during this period. There is the evidence of Ms. Kosic, who came in at 5 p.m., that there were no keys to permit her to put her tray into a cash register, which strongly suggests and I conclude that all the full-time CSRs except the grievor had left by 5 p.m. The evidence of the casual employees was 65 not clear as to which full-time CSR rang which full-time CSR off and which full-time CSR(s) rang which casual off that afternoon, and whether the grievor was in the office with the safe at all times or out of the office for any period of time between 4:25 to 5 or 5:lO p.m. The evidence did not estab- lish that the casuals were aware at all times of what was oc- curing in the office with the safe during that period. As neither Mr. Chini, Mr. Bennett nor Mr. Loschiavo testified, and neither entered their time of departure on the March 4, 1997 sign-in sheet (Ex. 7), there is no clear evidence as to how long each remained in the store, what they were doing, whether and when they were each in the office, and in whose company and in whose view, and no written record of when each of them left. Ms. Kosic said that she uses the side office to count her tray, and there is no suggestion that anyone in the side office could see what was going on in the office with the safe. However, the evidence did not establish whether in fact any of the casuals or the CSRs were in the side office. Ms. Buda said that she received her cashier's tray from the full-time person. Ms. Kosic said that ~she waited for her tray from the full-time person. In contrast, the evidence of Mr. Thompson, when asked whether he went into the safe at any time that night was that he "might have gone in to get his box". His answer suggests the possibility that at least one casual employee, if not others, goes into the safe to obtain his/her tray at the start of the evening shift. The circum- stances under which he and other casuals may have "gone in" to the safe were not examined. There was no evidence establishing that the safe was locked at all times between 4:25 and 5 p.m. except when a tray or another appropriate item was being placed into or taken out of it. The evidence of the casual employees did not establish with any clarity or certainty that the grievor 66 was in the office at all times between 4:25 and 5 p.m. Not to put too fine a point on it, the evidence did not establish with any clarity or certainty that the rolls of coin went missing between 4:25 and 5 p.m. or between 4:25 p.m. and the time that the grievor left to get the keys. The evidence did not establish whether the bundle of $1.00 coins and the bundle of dimes from which Ms. Craven said two rolls were missing on Wednesday morning, were at the front or the back of the safe. If they were located at the back of the safe, behind and/or under other full bundles, that would suggest that the culprit(s) would have needed more time to remove the rolls and place the bundles at the back. If they were located closer to the front, that would suggest that the culprit(s) required less time. In the absence of that evidence, no conclusion can be drawn as to the relative length of time the thief or thieves required. As a result of the foregoing, I conclude that the evi- dence was not sufficient to support assumptions #l and #2, and therefore to exclude the alternative possibilities that another CSR or CSRs or one or more of the casual employees removed the rolls of coin between 4:25 p.m. and the time that the grievor left for Mr. Chini's home. The evidence does not, in my view, establish that the grievor had the greatest opportunity to remove rolls of coin from the safe during this period. It does not, in my view, indicate that it is entire- ly implausible or that it was "not humanly possible" that one of the other employees could have done so without detection, notwithstanding that such a person or persons would certainly have been "squeezed for time". The evidence established that the safe combination(s) are periodically distributed on strips of paper by Ms. Craven to each of the full-time CSRs with the exception of Ms. Bry- ant. It established that once distributed, there is no system to collect them or destroy them, or to maintain those 67 strips of paper or those combinations secure and unaccessible to a casual employee who wished to avail him- or herself of it by indirect means. Had such a system existed, depending upon its reliability, that might have established a greater probability that a casual employee or employees had not obt- ained the combination(s). I conclude that the proposition/ assumption that none of the casuals had the combination to the safe is tenuous, at best. As stated in Durkin, supra, the onus is not upon the grievor to prove the alternative possibility that a casual employee or employees had obtained the combination(s). Rather, the onus remains with the employer, to provide clear and convincing evidence which excludes that alternative possibility. Another possibility is that the grievor was mistaken or was misrepresenting the facts when he alleged that he checked the safe before he left for Mr. Chini's home and that the safe was locked. As the grievor's evidence on this point was not tested, and the employer relied upon the assumption that the grievor's statement was correct in argument, I conclude that the employer does not challenge the grievor's credibili- ty on this point. However, there is no one else's evidence to support the grievor's. No one testified that they saw him check the safe, and no one else tested the safe to ensure it was locked. Logically, the possibility remains that the grievor thought the safe was locked and that it was not locked. The evidence did not, in my view, exclude this possibility. The evidence raised the possibility that the fifteen to thirty minute period of time in which the grievor was absent from the store to obtain the keys provided an ample opportu- nity for any of the casuals, who did not recall where each of them had been or that they had each had one another in their view throughout the time that the grievor was out of the store, to have entered the safe, particularly if it had been 68 left unlocked, but also if that person had the combina- tion(s). The evidence was that the casuals could see "into the office" through the window of the door. The dimensions of the window in the office door and the extent of the cashiers' view into the office through that window was not established in evidence. The evidence did not establish clearly that they were able to see someone at the safe through the window and/or what the person was doing at the safe. As a result, the evidence did not clearly and convincingly establish that the cashiers had a clear view of the safe and could observe whether someone was at the safe through the window of the of- fice door. It is reasonable to and I infer from the evidence of the casual employees that in any case they were not aware of any reason for them to be looking through the window into the office at any point during the shift, and there is no evidence that at any point during that particular shift any of them in fact looked through the window into the office. As well, the evidence was that when the casuals were not at a cash register, e.g. when they were in the washroom or on the floor, or in the back of the store, they could not view the office through the window in the office door. The evi- dence also established that the storage area was accessible to any of the staff through a back door to the office. It was not clear whether staff could enter the office from the storage area through the back door. Thus, the alternative possibility that one or more of the casual employees removed the rolls of coin without being detected while the grievor was out of the store cannot be excluded any more than can the possibility that the grievor did so during the evening without detection. Revisiting this point, the grievor's approximately fif- teen to thirty-minute absence provided a period of opportuni- 69 ty to any casual with the combination, or without it if the safe had been left unlocked, to have entered the office and the safe, without being observed by his or her fellow casu- als. On the other hand, the absence of vigilant observation by the casuals of the grievor, of one another and of the safe during the approximately 4 l/2 hours in which he was Night Manager and in the store where he was expected to be at the safe from time to time, provided the grievor with the same opportunity on March 4, 1997. However, it does not logically follow from the fact that the grievor had a lengthier oppor- tunity on the March 4, 1997 shift to access the safe, that it is more probable that the grievor, rather than any of the other employees, took the rolls of coin. The evidence pertaining to the grievor's gambling was quite limited. It did not set the grievor apart from any other employee as having a compulsion and/or a greater need or motive than any other employee to take the rolls of coin. As such, it was neither convincing nor helpful in determin- ing the grievance. The evidence with respect to Mr. Emmerson having over- written his initial time of arrival on Wednesday, March 5, 1997 was insufficient to enable any conclusion to be drawn from it. As Mr. Emmerson did not testify, the only evidence as to when he and Ms. Craven arrived and what each of them did prior to concluding that $60.00 in rolls of coin was missing from the safe, is Ms. Craven's. The possibility, however remote, that the coin was removed that morning before the count, was not excluded by the evidence. The conclusion which the employer drew, that the grievor took $60.00, is also based upon assumptions regarding the relative credibility of the employees: a. that none of the casual employees would misrepresent as to whether they had the combinations and as to their recall of the 70 . b. C. events of that evening; that only the grievor would have been moti- vated to misrepresent or fail to recall in detail the events of the evening of March 4, 1997; that the other full-time CSRs who were present in the store between 4:25 and 5 p.m. did not have any information which would have been of assistance to the board. None of these assumptions, in my view, was supported by the evidence. There was little in the evidence of each of the casuals, Ms. Craven and the grievor which would permit a trier of fact to assess their relative credibility. If any of the casuals had had the combination and/or had entered an unlocked safe and taken the rolls of coin, it is unlikely that any of them would have admitted to the theft. As stated in Canada Post, supra, at p. 143, "slight inconsistencies or minor matters . . . tip the scales" and at times "the slightest inconsisten- cy is sufficient to tip the balance". The evidence in this case, in my view, did not disclose inconsistencies which would tip that balance. The evidence presented was as consistent with the conclusion that the grievor took the rolls of coin as that some other person or persons took them. The evidence with respect to the April 2, 1997 meeting did not establish the exact and complete questions asked, the order in which they were asked, and the exact and complete responses given to each question with any certainty. No conclusion as to whether the grievor took the rolls of coin can or should be drawn from the evidence as to the questions he was asked and as to the responses he gave. In my view, the insufficiencies in the evidence are attributable largely to the passage of several months between 71 the events which lead to the grievor's discharge and the dates upon which they gave their evidence, and the fact that the witnesses, particularly the casual employees and possibly the grievor, did not make specific observations of what was happening at the relevant time or times. As they did not expect or anticipate that their specific and detailed recol- lection of the events of March 4, 1997 would be required, they cannot have been expected to have made such observa- tions, or to have recorded them in detail. They each gave their evidence to the best of their ability and recall. The result, in summary, is that the evidence did not discharge the onus upon the employer, and the grievance must therefore be upheld. In view of the result, it is not necessary to rule on the issue of whether an adverse inference should be drawn from the failure to call certain witnesses. In so concluding, it should be understood that the grie- vor is not exonerated by the evidence. A "cloud" of suspi- cion as to his trustworthiness remains over him. He is not obliged to establish who took the rolls of coin. However, it should be pointed out that the evidence did not identify any of the store's employee(s) as the likely perpetrator(s). Ra- ther, it raised and did not exclude alternative possibilities which may result in a "cloud" of suspicion lingering over all of them equally, including the grievor. This is an unfortu- nate and unenviable state of affairs for the employer and the employees, and it is to be hoped that no further theft occurs as this store, and that the mystery is eventually resolved. A further matter should be addressed by the board. The employer argued that it discharged the grievor for theft of $60.00 in rolls of coin. It also stated in the letter of termination that the grievor was discharged because he was "responsible for the theft of LCBO funds". The union did not argue that this constituted a change of grounds, although 72 this was alluded to. On the other hand, the employer did not argue in the alternative that if the board concluded that the evidence did not support the discharge, that it should consider an alternative form of discipline. As the parties did not deal with this matter, the board will refrain from doing so. Accordingly, the grievor is to be reinstated forthwith without loss of compensation, seniority or benefits, and with interest. I will remain seised with respect to implementation. Dated at Toronto this 3rd day of January, 1998. Susan D. Kaufman Vice-Chair L _ .- 73