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HomeMy WebLinkAbout1994-1215.Bzdyl.96-11-25BOARD DES GRIEFS I ONTARIO EMPLOY& DE LA COLIRONNE CROWN EMPLOYEES DE L’ONTARIO I GRIEVANCE C(lMMlSSlON DE SETTLEMENT REGLEMENT 180 DUNDAS STREET WEST, SUITE 2100, TOPONTO. ONTARID M5G lZ8 180, RUE DUNDAS OUEST, BUREAU 2 100. TORONTO (ONTARIO). M5G lZ8 BETWEEN BEFORE: FOR THE R. Murdock GRIEVOR Counsel Ryder, Wright, Blair & Doyle Barristers & Solicitors FOR THE EMPLOYER HEARING TELEPHONE/TEL~PHONE 14 10) 326- :388 FACSIMILE/TELiCOPIE (4 161 .?A-1396 GSB # 1215/94 OPSEU # 94E268 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (Bzdyl) Grievor - and - The Crown in Right of Ontario (Niagara Parks Commission) Employer H. Finley G. Majesky D. Montrose Vice-Chairperson Member Member C. Riggs Counsel Hicks, Morley, Hamilton, Stewart, Storie Barristers & Solicitors February 22, 1995 April 5, 6, 7, 1995 July 12, 1995 September 15, 1995 October 5, 6, 1995 November 10, 1995 January 26, 29, 1996 GSB 1215/94 DECISION INDEX SECTION PAGE BACKGROUND 02 CASH HANDLING PROCEDURES 09 CASH SHORTAGES 32 INVENTORIES 34 AUDIT AND MYSTERY SHOPPER 38 CHRONOLOGY OF EVIDENCE 44 IMPACT OF THE ALLEGATIONS AND THE DISMISSAL ON MS. BZDYL 98 ARGUMENT 98 DECISION 110 ARBITRAL CONTEXT 110 FINDINGS 111 ALLEGATIONS AND DETERMINATIONS 116 CONCLUSION 146 BACKGROUND Stephanie Bzdyl was a Seasonal Supervisor with the Niagara Parks Commission, most recently at Naturally Niagara, until she was dismissed by her Employer on August 29, 1994, for engaging in a series of thefts from the Naturally Niagara Store as well as violating the trust that the Niagara Parks Commission accorded [her] as a Seasonal Supervisor. She grieved on September 6, 1994, that she had been unjustly fired and asked that she “be rehired with a clean record and [receive] all monies lost while off’. The Union clarified that this included back pay with interest, benefits and seniority. The Union asked that the Panel remain seized. Ms. Bzdyl received the following formal notice of her dismissal on August 29/30, 1994; it was dated August 29, 1994: Dear Stephanie: On August 22, 1994, Mr. Peter Adams advised you that the Retail Department had reason to believe that you had stolen Commission funds by fraudulently voiding a customer purchase and claiming that the customer had returned one item and purchased another. As a result of this conversation with Mr. Adams, you contacted me, and requested that a complete investigation be conducted. I agreed and requested Miss Barbara Amdt, Director of Human Resources to immediately conduct that investigation. Ms. Arndt’s investigation revealed the following: I. The Manager of Naturally Niagara began closely monitoring the cash system in the store after the occurrence of a large cash shortage in July. 3 -. As a result of this monitoring a number of discrepancies came to her attention which necessitated an in-depth analysis of the daily register tapes. 3. The analysis of the register tapes revealed a distinct pattern of merchandise returns and voids, In each case, the voids were performed by yourself and the majority occurred when other staff were not in the store. As well, on two occasions items listed as returns were not in the inventory which the Manager check immediately after the incidents. These sales had been voided by you and the money supposedly refunded to the customer. 4. Mr. Adams requested that the Finance Department supply a “shopper” to attempt to pinpoint the problem. On August 19, 1991 the shopper purchased a compact disc from 2 DWSich you. Immediately following that purchase, you performed a void for a cassette tape which was purchased immediately prior to the purchase made by the shopper. On the back of the void you wrote that the purchaser changed her mind and purchased a compact disc. At that time you did not realize that it was an individual sent by NPC who purchased the compact disc. When Miss Arndt met with you during your investigation you stated that you were innocent and alleged that you were being harassed because of an earlier complaint that you had lodged with Miss Amdt through Colleen McComb-Page. You also stated that you were being discriminated against because of your nationality. Today a meeting was held with yourself, Colleen McComb-Page, Barbara Amdt, Peter Adams and Lisa Daniels in order to acquaint you with the information that Miss Amdt discovered in the course of her investigation. Miss Amdt first explained that during her investigation she found no evidence to substantiate your charges of harassment and discrimination. Further, she advised you that Debbie Whitehouse had conducted an investigation of a prior claim by you and most of the issues had been dealt with at that time. Mrs. Daniels presented the information that she had discovered during her analysis. The cash register tapes, cash register receipts and reports from the Cash Office were presented. After the information was outlined in detail, you were offered the opportunity to reply and/or explain. You were unable to do so. The evidence shows that you have engaged in a series of thefts from the Naturally Niagara Store as well as violating the trust that The Niagara Parks Commission accorded you as a Seasonal Supervisor. Consequently, although you have been a valuable employee of the Commission for the past seven years, it is with genuine regret that we must terminate your employment effective August 30, 1994. You are expected to return your employee identification card, uniform and any other property belonging to The Niagara Parks Commission prior to receiving your final pay cheque. Yours sincerely, “Signed” D.W. Schafer General Manager cc. P. Adams B. Amdt R. Woodrow Barbara Arndt, the Director of Human Resources, testified that “the August 19th incident was what she was found guilty of stealing” and that Mr. Schafer 3 was convinced because there was no explanation that it showed a series of inconsistencies, but that August 19th is the incident. [and she] could not say that she is accused of the other incidents [which were] indicators. She stated in evidence that she could only speculate on Mr. Schafer’s reference to a “series of thefts”. During the hearing, the Panel heard evidence from a number of witnesses. Detailed evidence was presented respecting the financial procedures which were in place at Naturally Niagara prior to, during, and subsequent to the period of the allegations. The following individuals testified in the order in which they are listed: Lisa Daniels Laurie Brisson Peter Adams Heidi Archambault An employee of The Niagara Parks Commission for three seasons at the time of the initial hearing day; She was an adult seasonal supervisor in Naturally Niagara in 1993 and became its Manager in January 1994. Finance Department Employee Served as the “Mystery Shopper” Bargaining Unit Member Co-ordinator 12 retail operations and several attractions, responsible for staffing, policy follow-up, shrinkage, and health and safety. Student Seasonal Supervisor and Sales Clerk/ Cashier at Naturally Niagara at time of alleged incident. As a Student Supervisor, she was not a member of the Union in the summer of 1994. At the time of the hearing she was the Adult Seasonal Supervisor and Sales Clerk/Cashier at Naturally Niagara (the position previously held by Ms. Bzdyl) and would have been a member of the Bargaining Unit. At this point in the hearing there was a change of Counsel for the Union. As a result, there was a change in the approach of the Union, and a ruling was made during the hearing that certain evidence which had not been put to management witnesses would be admissible and that the 4 Employer would have the right to recall any of its witnesses in reply. Counsel for the Employer chose not to call any witnesses in reply. Stephanie Bzdyl Adult Seasonal Supervisor and Sales Clerk/Cashier at Naturally Niagara at the time of her dismissal. Sonia Delaney Worker in Distribution Centre Warehouse; has also been Cashier at Maid of the Mist; a Union Steward. Kam Tai Chan (Jojo) With The Niagara Parks Commission for seven years; normally Elevator Operator at Great Gorge. At Naturally Niagara as Cashier/Sales Clerk from May to mid-August 1994 due to pregnancy accommodation. Last scheduled day at Naturally Niagara was August 19, 1994. The Niagara Parks Commission (the Commission) operates approximately 2 1 of retail outlets as well as a number of attractions. It runs a scaled-down operation during the winter period and is fully operational during its peak season in the late spring, summer and early fall. Its varied shops, attractions and services cater to an international tourist clientele and its staff is required to communicate with many individuals who speak little or no English. Many of the tourists arrive by bus and therefore the staff often serve a large number of purchasers who are there for a fixed, often short period of time, given that they are subject to the schedule of the tour operator. Two retail operations are relevant in this particular case. The Table Rock Complex, located at the Horseshoe Falls, is the largest and busiest of the Commission’s retail outlets and offers a variety of souvenir items. Naturally Niagara is a small, retail operation located in the Botanical Gardens at the Niagara Parks School of Horticulture. It opened initially for the 1993 season and in that year remained open in November and December. It reopened on April 1, 1994. The shop specializes in items with a nature theme. It offers for sale, wildlife carvings, china ornaments, live and silk plants, science and gardening items, books, tapes and compact disks (CDS). It also stocks such items as T-shirts, post cards, films, and confectionary items such as soft drinks and candy. It increased its sales during the second year of operation by $50,000 over the previous year. Its staff in 1994 consisted of the Manager (Ms. Daniels), one Adult Supervisor (Ms. 5 Bzdyl), one Student Supervisor (Ms. Archambault), and four Cashier/Sales Clerks (Kam Tai Chan , Adult Cashier, and Derek Broerse, Joanne Provenzano and Shannan Poole. Student Cashiers. The staff have differing degrees of responsibility for the handling of cash and product, depending on their status. The Manager is responsible for the overall running of the store, the staff and its well-being, performance and scheduling, the handling and accounting for cash, accessing the safe, the supervision of merchandising and floor control, and inventory. The Supervisors are responsible for merchandising and floor control, cash handling and procedures, in particular, accessing the safe, initialling voids and returns, and checking bills of large denomination. As well, they see to the conduct of the sales staff and the daily closing of the store. The Adult Supervisor has particular responsibilities which flow from her being second in command and replacing the Manager in her absence. She opens the store, carries out supervision of the staff, floor, and cash, makes schedule adjustments and does call-ins. She also deals with customer complaints. Naturally Niagara is open 7 days a week from 0900 to 2000 hours and is staffed from approximately 0830 to 2015 hours by no fewer than two persons at any given time, except at the very beginning and end of the day and in the very early spring when custom is fairly slow. In order to maintain a staff of two, the Manager schedules three staff to allow for lunch hours and breaks. Staff normally work 5 8-hour shifts a week. Two mid-shift breaks are included in that time period. The Manager of Naturally Niagara reports to the Co-ordinator Retail Operations and Attractions, Peter Adams, who in turn, reports to the Director of Operations, Roy Woodrow. Mr. Woodrow is responsible to the General Manager, in 1994, Dennis Schafer, who reports to a Board of Directors. Financial matters and revenues are handled by a central Finance Department. One of the individuals working there is John Wallace who, as one of his accounting duties, carries out audits of the various commission operations. Daily revenues from the retail operations in question are sent, uncounted, to the cash office, located in the Finance Department, to be processed and reconciled. 6 Ms. Bzdyl is married, the mother of a daughter who was sixteen, and a son who was eleven at the time of her testimony. She was born in Poland, came to Canada in 1974, and attended school here. English is not her mother-tongue but she has acquired a command of it to the level that has allowed her to progress successfully in the retail trade, a large part of which involves communicating with a broad section of the tourism public. She was initially hired by The Niagara Parks Commission in May, 1987, to work as “a janitoress”. After her first year with the Commission she moved from this position into the Retail Department where she worked in several different locations: the Green House, Victoria Park, Maid of the Mist, the Christmas Store, Table Rock, the Fudge Shop, and Naturally Niagara. It was in Table Rock that she began to work as a Cashier/Sales Clerk and was promoted to the position of Adult Seasonal Supervisor. In 1993, she was given the position of Supervisor at the Fudge Shop. However, she testified that she was sensitive to the odours given off during the cooking process with the result that she found it an uncomfortable working environment. She also worked at Table Rock North as an Assistant Supervisor. In that position, she had between 14 and 16 Cashiers to oversee. In March 1994, she was transferred to Naturally Niagara as an Adult Seasonal Supervisor. The Manager of Table Rock also agreed to place Ms. Bzdyl on the roster at Table Rock so that she would have call-in opportunity during the winter. Prior to her dismissal in 1994 she had not attracted any discipline during her eight years with The Niagara Parks Commission. She received three performance appraisals which could be said to be in the B+ range. From her perspective, she was given “a lot of responsibility” and “was trustful”. She believed that “Management perceived [her] as an excellent Supervisor”. In 1992, Ms. Bzdyl had spoken with the Director of Human Resources concerning what she felt was discriminatory behaviour towards her by a Cashier and Manager in front of a customer. The discrimination she referred to involved comments on the difficulty she had pronouncing certain English words and. in her view, the two individuals had made fun of her. Ms. Bzdyl did not file a formal complaint, and the then Director of Human Resources arranged for an article to be published in the commission newsletter concerning treatment of individuals within the multi- cultural community. This was satisfactory to Ms. Bzdyl at that time. On August 4. 1994, Ms. 7 McComb Page had discussed some allegations of harassment on behalf of Ms. Bzdyl with Ms. Arndt. At the time of the hearing, Ms. Bzdyl testified that she understood that she had been terminated for theft, and that harassment was not part of the reason for her dismissal nor was it part of her grievance. She did, however, state that she believed that part of the conflict which arose between her and Ms. Daniels in August 1994 stemmed from her perception that Ms. Daniels was discriminating against Ms. Kam Tai Chan. , - In 1994, the year of the alleged incident, Naturally Niagara began to get ready for the April to November season on March 14th. During the first two weeks, the store was cleaned, stocked and prepared for opening by Ms. Daniels and Ms. Bzdyl. It opened to the public on April 1st and for the first few weeks, these two individuals staffed the store together without other assistance. According to Ms. Bzdyl, they got on well together. This was Ms. Bzdyl’s first experience using a computerized cash system or a computer. At the time of the incident, she did not have a computer, although by the time of the hearing there was a computer in her home. She was given instruction at random times by Ms. Daniels for a total of 5 to 6 hours during the two-week period when they were readying the store for its April 1st opening. Ms. Bzdyl recognized the value of the inventory control offered by the computerized system, but found that the use of the PLU (Price Look Up) number rather than simply the category lengthened the time of the process and resulted in customers waiting longer for transactions to be completed. Ms. Daniels gave no evidence as to her own training on the system, and Ms. Bzdyl explained that no trainer came from the computer company. Ms. Bzdyl testified, as well. that it was her experience that staff found the computer system confusing, that errors on the part of staff were not infrequent, and that more errors were found with adult staff than with the student staff. 8 CASH HANDLING PROCEDURES Physical Set-up The Naturally Niagara store consists of the display and sales floor, the stock room, a storage/furnace room with a staff eating area and, an office. From the evidence, there appears to be one entrance/exit from the store itself which leads directly to the outside. The store proper contains an air conditioning unit, a stereo, a refrigerated unit for soft drinks and a display where people listen to music through headsets. It was pointed out in evidence that all of these units contribute to a certain level of background noise. A safe is located in the office and there are two computerized cash registers on the display and sales floor - Register 1 and Register 2. These registers are part of a system which carries out inventory control and certain accounting procedures. They produce customer sales and void receipts and a sequential daily journal tape which provides a record of every transaction on the respective registers. It can also furnish an X report which gives an up-to-date snapshot, by category, of transactions to that point in the cash day and a Z report which gives the report, by category, of transactions taken during the whole cash day and then provides the same list of categories with a zero balance for each category prior to moving into the next cash day. The time of each transaction is recorded, although the timing on the registers was, according to Ms. Daniels, approximately 7 minutes slow, that is, if a transaction was recorded as having taken place at 1945 hours, it actually took place at 1952 hours. There was no key for the registers themselves, but there was a single key for both register drawers. It was located in the store as opposed to on a person at the time of the alleged incidents. The registers themselves were never locked, although the cash drawers were opened in the morning and locked at night by the Manager or by one of the Supervisors. It was not the practice to lock the drawers during the day. There were no individual cash drawers. Although Ms. Daniels testified that it was a store policy to have one person on one register, the Manager and Supervisors worked on both and. even if a Cashier was assigned to a specific register, that person was relieved during lunch and other breaks. although no record was kept of this. 9 Daily Cash Routine Prior to August 18, 1994 During the summer of 1994, the following daily procedures were in place. Each morning the staff person in charge for that day, either Ms. Daniels, as the Manager, or Ms. Bzdyl, as the Adult Supervisor, opened the store, and, among other preparatory duties, retrieved the key for the cash drawers, unlocked the drawers and activated the registers. Ms. Bzdyl testified that when she had responsibility for opening the registers she would ring in the sale of a small item and then void the sale, to be certain that the computer was working and did not require rebooting. At opening, each register contained the drawer from the previous night, a $100 Canadian float, a $100 US float, as well as the money from sales between approximately 1630 hours to 2000 hours the previous evening, that is, from the time of the Z Report, which is the beginning of the new cash day. During each cash day at Naturally Niagara, a Charge Record was kept next to each register and all credit and debit card sales were entered on it. This record was totalled at cash closing time. Ms. Delaney testified that at Table Rock, where Ms. Bzdyl had previously been a Seasonal Supervisor, for each register during each shift, there were three Control Sheets: the Signature Sheet which was signed by each Cashier working on that register, the Adjustment Sheet on which the voids were recorded and the Credit Card Sheet on which credit card transactions were recorded. Ms. Bzdyl testified that at Table Rock one did not do the voids on the register; instead, because returns were done on the “pink” [Customer Refund Slips] and mistakes [errors] on the Adjustment Sheets. Refunds and exchanges, she explained, did not go on the Adjustment Sheets. It was not the practice for the cash to be counted at the opening of the cash day, during the cash day, or, at the end of the cash day. The Manager and the two Supervisors worked on both registers, and while Ms. Daniels testified that it was store policy that each Cashier was assigned to one of the registers. the evidence demonstrated that other Cashiers worked on each register during breaks, although, as noted above, no record was kept of this. Further, the registers did 10 not in any way record the person keying in the sale. Without individual cash drawers, four or five employees could, therefore, be working out of each till on any given day. That number would be increased for a cash day given that other staff would often be working the previous evening during the period following the start of the new cash day. Ms. Daniels testified that she would always check the tapes in the morning and would call in to the Cash Office, where the register information and the cash were reconciled to check the balances. It was not clear in her evidence which tapes she was checking since the journal tapes of the previous cash day would have gone to the Cash Office. The only one which would have been available to her, would have been the journal tape of late afternoon/early evening of the previous day and that day following opening, of the current cash day, which would still have been in the registers. She might also have journal tapes of previous cash days which she might have requested from the Cash Office. The Manager and Supervisors were not responsible for balancing the tills; they were, however, responsible for balancing the float for each register. Throughout the time the store was open, purchases were made with cash, travellers’ cheques, credit cards (several were accepted) or debit cards. For approving and processing credit and debit card purchases, the store had a swipe machine through which the Cashier would pass the customer’s card. In this type of sale, a two-sided receipt was generated which the Cashier would separate. One part would be signed by the customer and ultimately be sent to the Cash Office; the other would be given to the customer for his/her record. These transactions would be recorded on the Charge Sheet showing the register number, the sale number, the amount of the sale under the card type, and the card transaction number. The entry was verified by the Cashier‘s initials. Returns for refund, exchanges, with or without refunds, aborted sales, and cashier errors all known at the time as “voids”, were also processed through the cash registers. Returns for refund or exchanges could be made for purchases made at other commission stores. There was no evidence that credits for future use were offered. The voids were usually, although not necessarily, processed through the register of the original transaction, given that the original 11 register could be busy or the sale could have originated in another commission retail outlet. The returns, exchanges, aborted sales and errors were processed only by the Manager and the Supervisors. The only verification required was the Manager’s or Supervisor’s initials on the journal tape. No explanatory note was required, nor were the original or void receipts retained. At Table Rock, according to Ms. Delaney, Supervisors came by each register, hourly. It was the procedure there that all credit card sales and voids were initialled by a Supervisor and that all voids were initialled by both the Cashier and the Supervisor on the Adjustment Sheet and the journal tape. She explained that while the initialling of the Adjustment Sheet could be left until later during the shift if business was brisk, the initialling of the journal tape, needed to be done fairly promptly. Some Supervisors, she testified, insisted that Cashiers not serve another customer until a void transaction was initialled; she stated that this was not Ms. Bzdyl’s practice. At Naturally Niagara, the registers were closed off by the Manager or one of the Supervisors at approximately 1630 hours. That process involved generating a Z Report. The first portion of the report shows 11112 purchase categories and under each a percentage, the total number of units sold, and a total dollar amount for the category. There is a function for “markdown” and “return”, as well. However, on the journal tapes presented in evidence, neither category was used, although the use of the “return” function was to be part of the August 18, 1994 change. Following the product categories, there is detailed accounting and inventory information, and included in this are “void”, “voids”, and “return” categories. Once the Z Report was complete, the outgoing cash-day journal tape was detached from the journal tape which was to remain in the register to begin the next cash day. The Manager or Supervisor doing the closing would then sign her name, and write the date and register number at the end of the removed portion of the journal tape. A zero balance was then generated in the form of a Z Report. Instead of presenting the transaction figures for the cash day, this second report showed zero for every category, with the exception of 3 GT categories at the end. This indicated that the register had been cleared. The zero balance and subsequent transactions of that day were kept on the journal 12 tape for the new cash day. This included the transactions for the rest of the new cash day, and the following day until cash closing, and the Z reading for the cash day was taken. As part of the cash day closing/opening, the cash drawers were changed and a new float of $100 Canadian and $100 US was placed in each register. Sometimes the floats would have been prepared in advance. The money from each register was placed, uncounted, (except for a period of approximately 1 month in July 1994), in green bags, one for each register. These bags had one pocket for Canadian currency and one for US currency. They were zipped up and placed in a larger, brown bag. The Charge Record, the credit and debit card vouchers and the journal tape from each register were then placed in a white bag, and this was also placed in the brown bag. The brown bag was locked and the Niagara Parks Police were informed that the monies were ready for pick up. An officer would pick up the locked, filled, brown bag and deliver it to the Cash Office where the money, the travellers’ cheques, the credit and debit card vouchers from each register were counted and reconciled with the journal tape from that register. Processing of Individual Transactions at Naturally Niagara Each item in the Naturally Niagara shop had a twelve-digit identification number referred to as the “Price Look Up Number” (PLU number). For example, there was a separate PLU number for each T-shirt size and colour. The item also had a brief identifying description, such as “Garden Design” for a specific book, “Favorit” for a specific compact disk. This could be the title or the name of a specific product. The same numbers and item designations were used in the cash register procedure and the inventory. When a purchase was being made, the staff person processing the purchase carried out this transaction with the customer either by receiving Canadian or US cash or travellers’ cheques, or by processing a credit or debit card purchase. If there were several units of a single item the price and number of units were keyed in first. The person on the cash then noted the PLU number on the item and keyed it into the register on which the item description and price were displayed. 13 After each item was keyed in, the person on the cash keyed for a subtotal, then for Provincial Sales Tax against the applicable items in the subtotal, and then for the Goods and Services Tax against the applicable items in the subtotal. As the GST was included in the price of most items, that key input usually had a neutral effect. The Cashier next keyed in for a total, then the amount received from the customer. At that stage, the amount of change was calculated. The Cashier then provided a receipt and change according to the register. When a credit or debit card was used for the transaction, the sale was rung in, the type of card keyed into the register, the drawer closed, and the card run through the swipe machine. The Cashier would then hit the “No Sale” key to open the drawer, would put the store’s copy of the transaction in the drawer and close it. The person handling the transaction then entered the credit or debit card sale on the daily Charge Record and initialled it. The above information was recorded simultaneously on the journal tape of the cash register and on the individual receipt given to each customer. Six other items of information were recorded on the receipt and the journal tape at the end of each transaction: the date, the time, the sequential number of the transaction, the terminal number, the register number and the number of units sold. The following is a transcription of such a journal entry/receipt for a Canadian cash purchase of 3 bottles of apple juice and one coffee crisp for which $20.00 was tendered by the customer and on which both PST and GST were payable: 3 @ 1.001 000060130200 APPLE JUICE 3.00 g 000060700102 COFFEE CRISP 0.80 b SUBTL 3.80 PST 0.06 GST SL 3.80 GST 0.25 TOTAL 3.86 14 CASH 20.00 CHANGE 16.14 08/02/94 #004 coo1 12:17 TOO01 4047 In a normal, completed transaction, the customer would take the items purchased, the change, if due, and the receipt, leave the store and not be heard from again. The store would be left with the payment and, two records of the cash, travellers’ cheque transaction or the record of the credit or debit card transaction, one in the cash drawer, the other on the journal tape. Four August 1994 journal tapes, were submitted. They showed voids processed by Ms. Bzdyl which Ms. Daniels considered questionable, and contained voids by others as well. They were the following: (Computer time is approximately 7 minutes slow.) (1) Register 1 From August 1st @ 1645 to August 2nd @ 1630 (Z reading) Signed off by Ms. Archambault Showing . a cash sale (#3989) @ 1932 on August 1 st for GARDENING, GRIN DESIGN, total of $21.38 . A cash void (3992) @ 1959 on August 1st for GARDENING, GRDN DESIGN, total of $21.38 Initialled by Ms. Bzdyl (2) Register 2 From August 3rd @iJ 1638 to August 4th, @ 14:32 (End of tape) (#1186) Signed off by Ms. Archambault Showing . a sale (#1085) @ 1929 on August 3rd for dog team, total of $19.29 . a void (#1099) @J 1020 on August 4th for dog team, initialled by Ms. Bzdyl, total of $19.29 . a sale (# 1153) @ 1308 on August 4th, for (8), total of $23.10 . a void (#1155) @ 1309 on August 4th, initialled by Ms. Bzdyl for (8), total of $23.10 (3) Register 1 From August 15th @ 1330 to August 15th @ 1623 (Z reading) 15 Signed off by Ms. Bzdyl Showing . a cash sale (#7156) on August 15th @ 1443 for CD FAVORIT, total $20.37 a . a visa sale (#7 167) on August 15th @ 15 17 for disc appala, total $20.37 . cash void (#7 169) on August 15th at 15 19 for CD. FAVORIT, total of $20.37 not initialled (4) Register 1 From August 18th @ 1641 to August 19th @ 1624 (Z reading) Signed off by Ms. Bzdyl Showing . a sale (# 79 18) @ 10 17 on August 19th for appala tape, total of $13.95 . a sale (#79 19) @ 102 1 on August 19th for CD FAVORIT, total of $20.37 . a void (#7920) @ 1024 on August 19th for appala tape, total of $ 13.95 not initialled VOIDS Voids were a necessary transaction under several circumstances. The Cashier might have needed to check the computer, re-enter a transaction or correct an error made while keying in. The customer may have had a change of mind, or wished to change his or her method of payment part way through the transaction and this would necessitate the Cashier voiding the sale. This same procedure of voiding the sale was in effect prior to August 18, 1994, when a customer chose to return an item previously purchased. Although these items had usually been bought at Naturally Niagara, it was permissible for customers wishing to return or exchange items purchased at another store to do so at Naturally Niagara. Voids, in other words, were processed for the following reasons prior to August 18, 1994: . morning opening of cash registers to ensure computer is functioning . computer failure requiring rebooting . replacement of departmental number with PLU number when PLU not available at time of sale . cashier errors . returns for exchange 16 returns for refund returns for exchange and partial refund return for exchange and additional payment mid-transaction customer changes (aborted sale) [Should this be treated as a return or a cashier error ?] Ms. Daniels testified that voids would be in the system and recorded on the journal tape for 2 reasons : (a> Customer return (b) Change in payment, i.e. cashier error. She testified that Ms. Bzdyl Had lots of practice doing voids [which are] a simple transaction for a small amount; she never had problems with these. However, she also told Ms. Amdt on August 24th that Ms. Bzdyl had problems with voids early in the year. In 1993 and 1994, Naturally Niagara was on a different system for returns from the other retail operations, of which there are approximately twenty-one operated by the Commission. The reason for this, Ms. Daniels explained, was that Naturally Niagara, being a fairly new operation, had a computer/cash register which was programmed for inventory control. The other stores, being older operations, were not, at that time, on a computerized cash system. The void system elsewhere required the retention of original receipts, the use and retention of a customer refund slip with the customer’s and the Supervisor’s signatures, and the maintenance of an Adjustment Sheet which was initialled by the Cashier, who made the original transaction, and by the Supervisor or Manager who completed the void. Ms. Delaney testified that at Table Rock. the correction of errors and the process for giving refunds was entirely “a paper process”. There 17 was no mechanical means of carrying out these procedures on the register. Ms. Bzdyl stated that these documents were forwarded daily to the Cash Office and it was her experience that under the Table Rock system there had not been a problem as long as all voids were written up on the Adjustment Sheet and voided out properly. Under this system, she had never been questioned if a large number of voids occurred. According to Ms. Delaney, during the busy season, she could have up to 40 voids during a single shift at Table Rock. She also testified that one could, at the end of the day, look at the journal tape and see which Supervisor had been responsible for a particular void but that one could not tell from this tape which Cashier had carried out the transaction. To do that, it would be necessary to go to the Adjustment Sheet and since there was a requirement for Cashiers to sign the Adjustment Sheet when carrying out an adjustment transaction, that Cashier’s signature would appear on the Adjustment Sheet. She pointed out that the Cashier could be the one assigned to that register for the day who had signed in, or could be a relief Cashier who was filling in for breaks. It was the procedure that relief Cashiers were to sign the Signature Sheet as well. However, it had been her experience that on occasion, they forgot, and she would then ask them to sign as she did not wish to assume responsibility for what went on during her break. Managers and Supervisors were the only staff authorized to carry out void transactions in the commission retail outlets. At Naturally Niagara, this meant that only Ms. Daniels, Ms. Bzdyl and Ms. Archambault entered voids in the registers during the summer of 1994. The void system at Naturally Niagara, prior to mid-August 1994, did not require retention of original receipts or of void receipts. It was the practice to discard them following the keying of the void in the cash register. Nor was the use of Customer Refund Slips, the obtaining of customer signatures, or the maintenance of an Adjustment Sheet required . Ms. Bzdyl testified that being relatively new to computers she did not feel “comfortable as [she] didn’t understand exactly how it would work, the way not to keep receipts as [she] used to do”. She was concerned that, even though the transaction was on the journal tape, once you had thrown the receipt out, if there was a problem, the Manager would not be able to see it on the receipt, and further, it was not possible to trace an error through the Adjustment Sheets, as she was previously able to do at Table Rock. 18 Further, she explained that all the Cashiers were aware of the void procedure at Table Rock and that when a customer brought a return to a Cashier, that she/he would call for a Supervisor while the customer was still there, and the Supervisor would try to determine the reason for the return of the item. Following this, the Cashier, the Supervisor and the customer would each sign the customer refund slip and the appropriate entry would be made on the Adjustment Sheet. According to Ms. Bzdyl, she made a lot of mistakes doing voids at Naturally Niagara which Ms. Daniels had to redo and adjust and for that reason, when Ms. Daniels was available, she would do her voids, although she did them herself when Ms. Daniels was not available. Ms. Bzdyl acknowledged, however, that carrying out void transactions was part of her job. Ms. Chan testified that she found the computer system at Naturally Niagara confusing and that she normally made 1 or 2 errors during a shift and that the largest error she made during her approximately 3 months there, was an error of $400,000. Ms. Bzdyl’s training with respect to voids took place in March and she testified that it lasted for approximately one hour of the 5/6 hours set aside for training. Ms. Bzdyl did not find the training adequate, and on one occasion asked Ms. Daniels to write out the steps of the void procedure down so that they could be available for her when Ms. Daniels was not in the store. She also asked for further training. According to Ms. Bzdyl, she received neither. Ms. Daniels did, however, offer to explain specific problems when they arose and did so when asked. Ms. Bzdyl testified that on a few occasions she voided more than she should have, and Cash Office staff members were upset since they were not able to balance the till. Ms. Daniels was contacted and, according to Ms. Bzdyl, once she had the journal tape, she was able, according to Ms. Bzdyl, to find and correct the problem right away and then explain it to her. On occasion: however, Ms. Daniels was not able to correct the problem, particularly when the amounts were large. This difficulty which was also common to both Supervisors, according to Ms. Bzdyl, remained unsolved at the time of her dismissal. In cross-examination Ms. Bzdyl testified that when she was concentrating on serving a customer, she would not worry about completing the 19 void at the same time. Rather. it was her practice to complete it later, at her convenience. She stated that this practice had not been raised as a problem by Management in the past. At Naturally Niagara, prior to August 18, 1994, if a Cashier who was not a Supervisor needed to void a sale, that person would inform either the Manager or one of the Supervisors who would key in the void transaction which would generate a void receipt and a copy on the journal tape. The Manager or Supervisor would then initial the void on the journal tape. The Cashier’s signature was not required. During July and August 1994, voids could have been required by one of Ms. Daniels, Ms. Bzdyl, Ms. Archambault, Ms. Chan, Ms. Poole, Ms. Provenzano or Mr. Broerse. Ms. Daniels, Ms. Bzdyl or Ms. Archambault was responsible for the voids of Ms. Chan, Ms. Poole, Ms. Provenzano and Mr. Broerse, and for their own. Ms. Bzdyl testified that Ms. Chan had problems entering numbers and when she made an error, it was her responsibility as Supervisor to correct it through the void procedure. She cited one occasion in July 1994 when this employee keyed in a sale of 8,000,OOO items and testified that to correct the error, she had to do at least 20 voids. She found that when she was keying in the void, that “it was adding more instead of going back”. It showed that Naturally Niagara sold 8,000,OOO of one item and they did not have that inventory. On that occasion, she eventually left the problem for Ms. Archambault who was coming on duty later. She explained that Ms. Archambault, having worked on the computer system during the previous summer, had more experience in the voiding process. Ms. Bzdyl provided the Cash Office with a note to let them know the approximate figure she expected they would be out, and according to her testimony, the error was eventually sorted out among the Distribution Centre, the Cash Office and Ms. Daniels. According to Ms. Bzdyl, prior to the mid-August 1994, and the introduction of the new system at Naturally Niagara, if a customer wishing a refund came in, a void would be entered directly on the register. If that person did not have his/her original bill. as a courtesy to the customer, it was the practice to try to look through the journal tape and, if the transaction was found, a refund was given. If the customer came in several days later having purchased several products and wanting to return one for a refund, Ms. Bzdyl testified that she would do a void for the returned 20 product on the condition that the customer was willing to leave the receipt. On the other hand, if the customer was not willing to leave the receipt, she would “void the whole sale and ring back the piece they [did] not want” and “keep the whole receipt and [she] would circle for [her] knowledge which one [she] voided out”. The journal-tape initialling procedure allowed some measure of control to be kept on the cash handling and inventory since a void has a direct effect on inventory. The evidence showed that it was not unusual for a void to be processed considerably later than the original transaction which precipitated it. This was due to the importance placed on prompt customer service and the frequent need to serve a number of customers within a short period of time. According to Ms. Daniels, 2 or 3 voids in one day on a cash register was not unusual. The Void Summary (Appendix A) shows that this figure is low. A void slip would show the following: VOID 000010365020 appalach ta 12.98-b SUBTL 12.9% PST 0.97- CST SL 12.98- GST 0.85- TOTAL 13.95- CASH 13.95 08/19/94 #OOl- coo1 lo:24 TO001 7920 [Exhibit 1 l] It would not show the reason for the void, that is, whether it was due to an error, a mid- transaction customer change, a refund or an exchange, and further the void receipt was not retained following the transaction. Nor was it the practice to note the reason on the journal tape. This procedure was in place until August 10, 1994. Void due to Morning Start-up or Computer Down-times before and after the August 18,1994 Changes Ms. Daniels and Ms. Bzdyl were the only two staff who had the responsibility of opening the store in the morning at 0900 hours. Ms. Bzdyl testified that she found that it took several minutes for the computer to start up and often there was a considerable number of customers 21 requiring her prompt assistance since their bus was there only for a short time. When it was her responsibility to open up, she would select an item of merchandise, usually a tissue for cleaning camera lenses, and she would “punch it in as a regular sale” with its PLU number. total it and would then have a receipt, as if it were a regular sale. She would then press the void and the PLU number and “it would show [her] minus as the price it would come to”; Ms. Bzdyl would then throw the initial receipt and the void receipt away. Ms. Bzdyl testified that on other occasions when the system did not work and there were customers waiting, she would enter the item “under the department [category]“, rather than using the PLU number. Once the system was working, she would go back and reboot the computer and would then void the sale from the department, enter the PLU number and “get zero off’. Having done this, she would discard the void receipt. This resulted in the computer adjusting the inventory of product sold that day. She stated that on 2 occasions there was a power outage when the back-up system did not function and in those cases, they had to write the sales down, void them out, and enter the PLU number again. Those occasions were handled, one by Ms. Daniels, the other by Ms. Archambault. Void due to Error before the August l&l994 Changes Cashier errors occurred when incorrect information was keyed into the register by the Cashier, Supervisor, or Manager. It could have been an error relating to the PLU number, the amounts, the entering of currency instead of a charge card, etc. The error was sometimes compounded and this accounts for some of the very large amounts which show in the Void Summary (Appendix A). When the Manager or one of the Supervisors keyed in incorrectly, she would put through a void immediately, to correct the error, or later, at her convenience. If she did so before keying in any other transaction, the void would have shown up on the journal tape directly following the error. If she did it later, it would have normally shown up later on that cash day‘s journal tape; however, not necessarily on that day, since voids might not have been completed till the 22 following day, although that would still be on the same cash day. It was the usual process to void mistakes on the register on which the error was made. However, Ms. Bzdyl testified that once in a while, “if Register 1 was busy and [she] did not want to lose the receipt, she would do it in Register 2, but if the register was clear, [she] would do it in Register 1.” When a Cashier keyed in incorrect information, it was necessary to call the Manager or one of the Supervisors, since he or she did not have the authority to complete or sign a void transaction, or to initial the void on the journal tape. If done immediately, the void would show up next in sequence to the error on the journal tape. If done later, its location in the sequence, as cited above, would bear no sequential relationship to the original error, although it would in most cases be on the same cash day. Ms. Bzdyl testified that if she made a mistake, since she needed to “take time with [hers]“, she would attach the error receipt to the side of the register and when the opportunity arose, she would void it. It was not the practice of the Manager, the Supervisors or the Cashiers to record the reason for the void, nor was it a requirement. Void due to Mid-transaction Customer Change prior to August l&l994 A customer could have begun by using one method of payment and decided after the Cashier had begun keying in the transaction, that he or she wished to change the method of payment. For instance, a customer might have begun paying by cash and then discovered that to do so would leave him or her short, and so decided to pay by credit or debit card. A customer could also have begun paying in Canadian currency and discovered that he or she did not have sufficient Canadian funds and decided, after the Cashier had begun keying in the transaction, to tender American funds. In such cases, the person carrying out the sale had to finish the initial transaction, take the receipt from the aborted transaction and do one of two things. If she was a Manager or Supervisor she could have keyed in the void while the customer waited, or she could have completed the new transaction and set aside the receipt of the aborted transaction to enter the void at a more convenient time. If he or she was a Cashier without authority to approve voids, he or she would have had to call the Manager or a Supervisor to complete the void while 23 the customer waited or could have completed the new transaction and set aside the receipt of the aborted transaction and asked the Manager or Supervisor to enter the void at a more convenient time. Void due to Return for Exchange with or without a Refund before the August l&l994 Change The policy of the Commission allowed customers to exchange items. No time limit was mentioned. Customers wishing to exchange one purchase for another were expected to present the appropriate receipt, although Ms. Bzdyl testified that as a service to the customer she would, on occasion, exchange an item without a receipt provided that she was able to find the transaction on the journal tape. In the case where a customer came to the store and wished to exchange a previously purchased item for an item which had the same PLU code, Ms. Bzdyl testified that she would simply exchange one for the other and the exchange would not be keyed in to either of the registers. Since customers were also allowed to return items purchased in the Commission’s retail outlets for exchange or refund at any of the other retail outlets operated by the Commission, a customer could have made a purchase or several purchases at Table Rock and while shopping at Naturally Niagara, decide that he or she wished to exchange one of the items for another in Naturally Niagara. If the customer wished to exchange a previously purchased item for one with a different PLU code, then that code would need to be keyed into one of the registers, because, even though the price may have been the same, the inventory control requires the exchange to be recorded. Therefore, the Cashier would have accepted the item the customer wished to exchange with the original receipt, and once the customer had selected his or her new purchase, would have keyed in the amount of the new purchase. Then the Supervisor or Manager would have keyed in as a void the amount of the exchanged item with taxes, and a void receipt would have been produced. The Manager or Supervisor would then have initialled the void on the journal tape. Following this, either the Manager or Supervisor would, if necessary, have calculated the difference between the original sale and the new transaction and returned that amount to the customer or collected the amount owing. The 24 original receipt and the void slip would then have been discarded prior to August 10, 1994. and prior to August l&1994, no reason for the void would have been recorded. At the other stores operated by the Commission, when an item was returned for exchange, [although it was not clear whether this applied strictly to situations in which a refund was provided] the Supervisor was required to fill out a Customer Refund Slip and have the customer and the Cashier sign this slip and then attach the original receipt to it. The transaction was then recorded on an Adjustment Sheet. This procedure was in place at Table Rock where Ms. Bzdyl had previously worked and she testified that she was more comfortable with this system and had suggested to Ms. Daniels that it be instituted. Ms. Delaney confirmed that on an exchange at Table Rock the original receipt and the refund receipt were put together and attached to the Adjustment Sheet. She emphasized that the Cashier “cannot throw anything away”. Such a procedure was not in place, however, at Naturally Niagara prior to mid-August 1994. The system used there required no customer refund slip, no customer signature, no cashier signature, no retention of the original receipt, no retention of the void receipt and no recording of the reason for the void. According to Ms. Daniels, it was not necessary because of the computerized system used by Naturally Niagara. She testified that Naturally Niagara operated on “the honour system”. Void due to Return for Refund before the August l&l994 Change If a customer determined that he or she wished to return an item purchased at Naturally Niagara or in any of the Commission’s stores, and receive the money back, that person would present him or herself at one of the stores, in this case Naturally Niagara, and would present the item to the Cashier with the original receipt, and ask for a refund. The Manager or Supervisor would ring in the return for refund as a void and the register would produce a void slip which would be initialled on the journal tape by the Manager or the Supervisor. There was no evidence as to whether credit and debit card returns were credited to the customer by giving cash or a credit 25 slip. Ms. Delaney testified that at Table Rock, if a customer returned an item, as the Cashier, she was required to fill out a Customer Refund Slip, and staple it to the original receipt. As part of this routine, as Cashier, she was required to have the customer’s signature, the Supervisor’s signature and her own signature. Void Summary A Void Summary by register based on the “Z” readings taken daily on each cash register was prepared by Rebecca Murdock, Counsel for the Union, during the period of the hearing. It takes in the period from April 1, 1994 to August 2 1, 1994, with the exception of August 15, 1994. It does not differentiate between errors, mid-transaction changes, or returns for exchange and/or refund. This summary was not challenged by the Employer and it is accepted by the Panel as accurate. The summary is found in Appendix A. A brief analysis shows the following: . 137 cash days were recorded. . The summary was by cash day and register, not by shift. . No voids are recorded on 6 days on Register 1, and on 15 days, Register 2 showed no voids. . The daily number of voids on Register 1 ranged from 0 to 36 and on Register 2 from 0 to 78. . Daily void totals on Register 1 ranged from $0.00 to $2,180,065.39 and on Register 2 from $0.00 to $2,089,092.61. There were no daily void totals between $2,372.3 1 and $106,370.48 on Register 1 and none between $646.13 and $102,944.69 on Register 2. . It is reasonable to assume that daily void totals over $ 3,000 were cashier errors or problems with the computer. There were 4 of these on Register 1 and 11 on Register 2. 26 Changes Instituted to the Void Procedures between August lo,1994 and August l&1994, and the Reasons for Them Mr. Adams testified that the opportunity to steal both cash and merchandise existed within the retail operations and could happen in one of the following ways: . One could steal merchandise. . One could steal cash from the cash register or the safe. . One could steal through an incorrect voiding procedure. A merchandise shortage would become evident because the inventory would be “all out of skew”. A cash shortage would be reported through the Cash Office, A theft through the void procedure, however, would not be noticed at that time but would show up only in the general shrinkage figures of the store. The voiding procedure is not, he explained, within the responsibility of Cashiers, but is solely the responsibility of the Supervisors and Managers. It is they who correct cashier errors and give refunds to customers. If someone were mishandling voids, there would be, according to Mr. Adams, a build up of cash which would show as an overage. There was no further evidence on this final point. Ms. Daniels explained that she considered “being suspicious”, as part of her job as Manager of Naturally Niagara and testified to the accumulated circumstances which aroused her suspicions. She explained that in 1993, the opening year, there were six voids for return or exchange for the entire season which included November and December. She did not provide supporting documentation for this and she was not the Manager at that time. She gave evidence that in 1994, there were 1 or 2 returns weekly during the first weeks and that this number began to increase at the end of June and the first part of July to the point where there were 2 or 3 returns each week. Ms. Daniels also gave evidence that sales for the entire year at Naturally Niagara increased from 1993 to 1994 by $50,000. 27 The specific triggers for her suspicions in late July/early August 1994 were cash shortages and certain void transactions and she focussed on Ms. Bzdyl as the staff person likely to be responsible for what she perceived initially as financial discrepancies. As a result of these suspicions, Ms. Daniels “began to track and document” and spoke with Peter Adams several times beginning in the first week of August 1994, about her concerns, her suspicions, and the object of her suspicions. She came to the conclusion early on that there was a “pattern” to what she perceived as void discrepancies, and testified that most of the questionable transactions were exchanges and most were Ms. Bzdyl’s transactions, although Ms. Daniels recognized that there was the odd return for the other employees. She noted, although she did not provide complete documentary evidence for this, that the transactions which concerned her were all cash sales, all in Canadian funds and all for around $20 .OO. Nor was evidence produced to show the proportion of inventory items priced in this range or the number of sales in that range. She testified that there “may have been a few instances of US cash returns which could have been plausible so [she] did not document them”. She thought the transactions were 95% Canadian funds and acknowledged that she, herself, may have been involved in one or two credit card returns. She also explained that the normal procedure on a return both before and after the mid- August changes is that one does a sale, then a void and then a sale. It was her observation when looking at the journal tapes that, for example, a sale made on a Wednesday night would be voided out Thursday morning, and so the order of the transactions was sale, sale, void. This did not make sense to her because, she explained, on an exchange, customers want to see the credit before “they owe you more money”. Ms. Daniels did not address the situations wherein customers would exchange an item for an identically priced item, nor does she appear to have considered the situation wherein the customer exchanges an item for one of lesser value and therefore receives money along with the new item. Mr. Adams testified that “he looked at the tapes closely” and “looked at the journal tapes” and “felt reason was there”. One of the results of Ms. Daniels’ suspicions being conveyed to Mr. Adams, was that he suggested certain changes to the procedure for dealing with voids: “receipts from customers or cashier errors would be kept along with the corrected receipt on file by the week or month for 28 [Ms. Daniels’] reference”. He also instructed her to “follow-up on the number of voids and what was happening”. The initial change was instituted on Wednesday, August IOth, a day when Ms. Bzdyl was working but Ms Archambault and Ms. Poole were off. Ms. Daniels asked all supervisors to keep the original receipt and the void receipt and that they be kept and initialled by a supervisor and a cashier. According to Ms. Bzdyl, the receipts were to be kept in the till. She also gave evidence that there was no time limit placed on when the voids should be done and that Supervisors were free to process the voids at their convenience in order to respect the service needs of the customers. Ms. Bzdyl often did hers at a lull during the day or at the end of the cash day before closing the registers. The result of this is that there were often one or more sales between the original transaction and the void relating to it. Ms. Daniels began to use the Customer Refund Slips herself on Sunday, August 14, 1994, and they were introduced as mandatory for the first time, with the customer’s signature and the supervisor’s signature along with a copy of the original receipt and refund slip on Thursday, August 18th when both Ms. Bzdyl and Ms. Archambault as well as Ms. Provenzano and Ms. Poole were working, and Ms. Chan and Mr. Broerse were off. Ms. Daniels described it as the use of “Customer Refund Slips requiring the customer’s signature”. She explained that on that date, both Ms. Archambault and Ms. Bzdyl were there at the time she announced the change. She showed the Customer Refund Slips and put pads of the “pink refund slips” on each cash register. The slips are numbered and are set out as the following example submitted in evidence: 29 No 7660 THE NIAGARA PARKS COMMISSION CUSTOMER REFUND Location Naturally Niagara . . . . . . . . . . . . . . . . . . . . . . . . . . , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Reg. No. . . . . . . I.. . . . . . . . . . . . . . . . Date . . . . . . . . . . . . . . . . . . . . . . . . 9.!... . Aug 14 Article Amethyst Charm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Customer changed mind . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sale $ 2.29 . . . . . . . . . . . . . . . . . . ..*....... Tax 17 . . . . . . . . . ..*......... . ..*..... Total 2.46 . . . . . . . . . . . . . . . . . . . . . s......... Exchange . . . . . . . . . . . . . . . . . ..a . . . . . . . . . . . Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . PLEASESIGN Customer Signed by customer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Clerk . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Supervisor Signed by Lisa Daniels . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RECORD ON REGISTER ADJUSTMENT SHEET According to Ms. Daniels, only the signature of the customer and the Supervisor were required. The Cashier’s [Clerk’s] signature was not necessary. She did not explain why. Ms. Daniels testified that she explained to Ms. Archambault and Ms. Bzdyl that if it is a customer return then y press the return button & fill out a customer refund slip w/customer signature & original receipt & supervisors [sic] initials. and anytime merchandise and money exchange hands over the counter a refund slip with a customer signature should be used. She testified that when she explained this to the two Supervisors, Ms. Bzdyl said “that’s the way it was at Table Rock” and, in Ms. Daniel’s opinion, she was “well aware of the policy”. The restriction of “only Supervisors doing voids did not change”, Ms. Daniels testified, and emphasized the three necessary elements of the process: 30 (1) Refund slip (2) Original receipt (3) Void of the return. According to Ms. Daniels, the changes were “communicated to staff on August 10th and 18th”. However, it was Ms. Bzdyl’s testimony, and clear from testimony of Ms. Daniels that she did not inform the Cashiers of the changes but rather limited her disclosure of these changes to the Supervisors, that is, to Ms. Archambault and Ms. Bzdyl. What Ms. Daniels explained to Ms. Bzdyl and Ms. Archambault was the procedure to be followed when a customer returns previously purchased merchandise . She stated that the changes were necessitated because there were a lot of overages or shortages on the floor because Supervisors were voiding the wrong way. She indicated that the changes, which provided her with both the original and the void receipt would assist her in checking the adjustments. According to Ms. Bzdyl she “agreed 100%” and told Ms. Daniels that she hoped that with the retention of these it would be possible for her, Ms Daniels, to explain what she, Ms. Bzdyl, had done wrong. There was no evidence that any written notice of the changes was produced. Ms. Bzdyl believed that the failure to inform the Cashiers meant that none of the Cashiers knew the system and therefore, if a customer changed his or her mind, then the Cashier would leave a receipt to be voided, without the Supervisor knowing whether the merchandise was returned and that this could result in a mistake. [There was no requirement for a reason to be written on either the original or the void receipt, or on the journal tape, and if a customer changed his/her mind before paying, money would not have changed hands and therefore the transaction would not fit into the parameters set out by Ms. Daniels.] 31 CASH SHORTAGES While the Employer has stated it is not relying on cash shortages as a ground for dismissal, it was a cash shortage of $74.20 on July 30th, that was the first financial factor which resulted ultimately in Ms. Bzdyl’s dismissal. It was referred to in the letter of dismissal as “a large cash shortage” and the rationale for the close monitoring of the cash system at Naturally Niagara. Mr. Adams did not disagree with the Union’s statement that “a large amount of cash ($42 15.00) went missing from Table Rock in March, 1994. Both Ms. Daniels’ and Mr. Adams’ statements which were tiled as exhibits refer to 3 cash shortages. In her statement, Ms. Daniels stated that there was “no history of cash shortages” at Naturally Niagara, although no further evidence was produced to verify this. Nor was any documentary evidence produced to verify the cash shortages which were part of the suspicions surrounding Ms. Bzdyl. Ms. Daniels acknowledged that she does not document cash shortages under $3.00. She also testified that she did “not quote the 3 days of shortages because of the Grievor”, . . . that she “just documented them” but “was not accusing the Grievor”. Ms. Daniels testified that she documented specific items because of the dates and amounts and “how they fitted in with the voids”. When it was put to her in cross-examination that it was possible that the other supervisor might have taken the money, she acknowledged that, if that person were working, it was a possibility. When it was put to her that “anyone working those days is a possible suspect for taking the money” she replied that she “certainly did not take it”. The following shortages were noted by Mr. Adams in his statement: July 30, 1994 Register * $74.20 August 7, 1994 Register * $ 20.63 August 10, 1994 Register * $ 30.22 *Register not noted The following shortages were noted in Ms. Daniels’ statement: July 30, 1994 Register 1 $74.20 August 7, 1994 Register * $20.00 August 10, 1994 Register * $30.00 us *Register not noted 32 According to the schedule the following persons were working on Saturday, July 30, 1993, Ms. Daniels, Ms. Bzdyl, Ms. Archambault, Ms. Provenzano, Ms. Poole and Mr. Broerse; Sunday, August 7,1993 Ms. Daniels, Ms. Bzdyl, Ms. Provenzano, Ms. Poole, Mr. Broerse; Wednesday, August lo,1996 Ms. Daniels, Ms. Bzdyl, Ms. Chan, Ms. Provenzano, Mr. Broerse. Ms. Bzdyl testified that she was not aware of how soon, as a matter of practice, the Cash Office counted the monies which were delivered to them but testified that if there was a large shortage they would receive a telephone call a couple of days later, and normally they would receive a statement in about two days. According to Ms. Daniels, Ms. Bzdyl and Ms. Archambault discovered the shortage of $74.20 when they carried out an audit of Register 1. Ms. Daniels noted that she was informed of the July 30th shortage by the Cash Office and she ten asked for the journal tapes. Ms. Bzdyl was not informed that she was being suspected as the cause of this shortage. Ms. Daniels noted that she was informed of the July 30th shortage by the Cash Office and she then asked for the journal tapes. The shortage on August 7th was not assigned in the evidence to one particular cash register. Ms. Bzdyl claims she was not informed of this shortage. Ms. Daniels connected the alleged shortage on August 10, 1994, with Ms. Bzdyl because of the following conduct which she reported as follows in her statement: I bad afeeling something waa..[Italics were struck ] I waited a few minutes & followed her into the office. She jumped when I came in. She was huddled practically inside the safe with the brown bag open. Her hands were inside, (where the green bags were) I stood behind the desk but my view was obscured by the safe door. I heard her put the elastic bands back on the money & repack the brown back [sic] and zip it up. That day we were short $30. U.S. This shortage was not brought to the attention of Ms. Bzdyl at the time at the time it was discovered. 33 INVENTORIES Through the numerical coding programme in the computer cash registers, the retail operations keep a reasonably current inventory. According to Ms. Daniels, the files are cleared at the Distribution Centre every Sunday and Thursday. She also testified that the Distribution Centre closed on Fridays at 1630 hours and remained so until Monday morning. A centrally-generated computer printout of the inventory of Naturally Niagara is made available to the Manager each Thursday. However, Ms. Daniels explained, there is not an accurate daily printout of inventory on this system. Mr. Adams testified that the weekly printout was “an approximation for sales performance and was not necessarily accurate”. It does not, he stated, serve an accounting function, and does not even match up at the annual inventory in October. A year-end physical inventory of the entire stock is taken at Naturally Niagara by the Manager and Staff, and verified by Staff from the audit and account sections of the Finance Department. This occurs at the end of the Niagara Parks Commission’s fiscal year which is, according to Ms. Daniels, October 30th. The inventory of Naturally Niagara, she explained, would have balanced on October 30, 1993. [Ms. Daniels must have meant that the inventory was balanced at the end of the fiscal year, since the shortages would prevent a balanced inventory unless the shortages were written off.] Ms. Daniels testified that she did not receive a final printout of the 1993 inventory, nor had she seen the results, and was not therefore aware of shortages which might have shown up at that time. Neither was she provided with an itemized discrepancy list. She commented that during the previous year, there had been a Store Managers’ meeting prior to the opening of the stores at which the year-end statements were distributed and examined. Such a meeting did not take place in 1994. It was her first year as Manager, and the previous Manager did not provide her with the previous year’s itemized list. It was Ms. Daniels’ opinion that the discrepancy for 1992-93 must not have been of the magnitude for it to have been brought to her attention and she \vas sure that she would have been told if there had been something unexpected. She acknowledged that it was possible for “tapes” to have gone missing during the seven-month period between the annual audit and the April 1, 1994 opening. 34 In August, 1994, Ms. Daniels arranged for four physical inventories which Mr. Adams agreed were “sorely lacking”: . A book inventory in which she was looking at Item # 40068100 - GARDENING and Item # 40068000-GRDN DESIGN . A dog team inventory, in which she was looking at Item # 10714500-DOG TEAM . A CD inventory, in which she was looking at Item # 10367400-CD.FAVORIT . A CD/cassette inventory, in which she was looking at Item # 10367400- CD. FAVORIT and Item # 10365030 - disc appala. The Book Inventory This inventory was carried out on Wednesday, August 3, 1994, by Ms. Archambault. She undertook an inventory of all books in the store. On Thursday, August 4, 1994, Ms. Daniels carried out an inventory of 4 to 6 titles, a separate group of books. In cross-examination she testified that there were six titles and that she had received 4 or 6 of each title. Ms. Daniels testified that when the physical inventory carried out on August 3rd, and the computer printout received on August 4th, were compared, the only book discrepancies were found in Items # 40068 loo-GARDENING and # 4006800-GRDN DESIGN. These titles, which were new in May, 1994, according to Ms. Daniels, were short one each. Ms. Daniels testified, however, tha following the finding that these were the only two book shortages in the entire listing of thirty books, she “thought the Grievor cancelled the sale and took the money” and she reported this to Peter Adams. The computer printout was not offered in evidence, nor was the physical inventory. Ms. Daniels testified that she threw out the physical inventory as it was “not proof, but still suspicion”. The Dog Team Inventory The inventory on this item was carried out on Thursday, August 4th: by Ms. Daniels. According to Ms. Daniels, there should have been 1 and there was none. There had originally been 2, she explained, and Ms. Archambault recalled selling one. The computer printout and physical 35 inventory were not submitted in evidence. Ms. Daniels testified that she threw out the physical inventory. The CD Inventory Ms. Daniels testified that she undertook an inventory on Tuesday, August 16th, “to verify [their] suspicions”. She later described it as an unverified “spot check”, she thought, of all the CDS, although she stated that she did “not compute all CDS”. She did not retain her notes of this exercise. On the basis of this, she telephoned the Distribution Centre to get the status on the CDS. She counted the CDS and went through the August 15th tape, only recording the one in question. She testified that she did not know if others were off since, having concluded they did not “fit a pattern”, that is, they did not have a particular sequence, a particular dollar value, and were not in Canadian currency, she did not check them. In her view, they were not questionable. The CD/Cassette Inventory Two items were of concern on August 19th, Item # 10367400- CD. FAVORIT and Item # 10365030- disc appala. By the time this inventory was carried out on Thursday, August 25th at 0900 hours, the day the most recent inventory printout was available from the Distributing Centre, it was 6 days after the occurrence of the mystery-shopper transaction on August 19th. Ms. Daniels carried out the inventory and it was verified by Derek Broerse. Although the computer printout was not submitted in evidence, the physical inventory was, and it showed a shortage of 2 CD. FAVORITs on August 25th and an overage of 1 disc appala, on that same date. On August 25th, there should have been 11 CD. FAVORITs whereas there were 9, and on that date there should have been 9 disc appalas, whereas there were 10. Ms. Daniels looked at a total of 36 items - 19 cassettes and 17 CDS. She counted the number of each item in the store at that time and compared it to the number listed on the inventory printout. that is, the number which the system said should be in the store. There were shortages in 23 of the 36 items, overages in 4: and the correct number according to the printout in 9 items. There was a shortage of 30 cassettes and an overage of 8, a shortage of 22 CDS and an overage of 3 36 CDS. In her summing up of the inventory, Ms. Daniels subtracted the number of overages from the number of shortages to demonstrate the total monetary value of the inventory loss, showing a shortage of 23 cassettes and 21 CDS. This calculation does not reduce the total number of shortages from 52 (231-30). Nor does it reduce the number of inaccurate items from 27 inaccurate items out of 36. Ms. Daniels was asked to explain what accounts for that number of missing items. She offered four possible explanations, although she acknowledged she had no way of knowing what had happened in the individual cases of shortage: Theft She explained that anyone might take the items but that she did not believe that “[her] staff’ would do so. She stated that the store experienced losses most frequently in the “small, pocketable items, for example, CDS are taken the most”. [Emphasis added] Cashier Error A Cashier might ring something in when it should not be rung in, but that proper voiding by the Supervisor should cancel out the error. Distribution Centre Error Naturally Niagara was on a separate system and when she ordered stock, she received an invoice which was printed by their computer. However, it was necessary that the Distribution Centre staff make a file and download it into the Naturally Niagara system. That had to be done manually at the time. Inventory Taker’s Error Ms. Daniels stated that she did not believe that mistakes made by her and Mr. Broerse could account for the shortages on the inventory but that human error could occur on any level. She acknowledged that the fact the items were missing according to the inventory on August 19th does not tell her anything. She did not, however, think that the inventory could be all wrong, or all discrepancies the result of mistakes. One can tell, she stated, that there are shortages and discrepancies and acknowledged that, given the discrepancy in 27 out of 36 items, that the Grievor would have 3 out of 4 chances of being wrong. Ms. Daniels stated that she had never tried or been asked to go back through the inventory and other paperwork to eliminate any of the above possibilities. She explained that “whatever is short is gone” and her response to the shortage of approximately seven hundred and fifty dollars of inventory was to “instruct the Staff about proper security”. She testified that the shortage had not been discussed with her in the time period between August 25, 1994 and the initial hearing 37 day in February, 1995. Mr. Adams testified in the context of the inventories, that he did not know Ms. Daniels “checked [the inventory of August 25th] with the voids”, nor did he know how this inventory found its way into Ms. Bzdyl’s personnel file. Ms. Delaney testified that, for her part, she was aware that theft was a problem in the retail outlets at the Niagara Parks Commission and she accepted that Management recognized there was a problem with theft in its retail operations. She testified that in one week, she had caught three individuals stealing at one of the retail operations where she was working. It was her impression that the Commission “did not really have a good security system” and that “no one seemed to deal with it”. She acknowledged that there are both practical and legal problems associated with apprehending individuals whom one believes may have been stealing. AUDIT AND MYSTERY SHOPPER On August 9th, Mr. Adams asked John Wallace of the Finance Department to carry out a surprise audit at Naturally Niagara on August 1 lth, a day when Ms. Bzdyl was scheduled to work. It took place in the morning when Ms. Bzdyl was the only store supervisory staff person present. Mr. Adams was also in attendance. Register 1 was audited by Mr. Wallace and balanced within 6 cents. On Monday, August 15, 1994, Peter Adams asked John Wallace of the Accounting Department to send a Mystery Shopper to Naturally Niagara on Friday, August 19, 1994, to “check on Stephanie’s cash register handling”. Mr. Adams asked Mr. Wallace to direct the “mystery shopper” to purchase a CD in Canadian Funds. This way [they] could test if Stephanie may be tempted to void this sale. The person selected was a long-term female employee of the Accounting Department and a member of the Bargaining Unit, Laurie Brisson. Though she had not received training for her mystery-shopper work, this was her fourth “undercover” assignment. She testified that she did not know what happened as a result of her work, but acknowledged that there might have been a previous dismissal as a result. 38 Ms. Brisson was given this assignment on the morning of August 19th, and was asked to accompany Mr. Wallace to Naturally Niagara. She had never been to the store before, nor did she know any of the staff. She testified that she was given $30.00 Canadian, in cash, and was asked to purchase a CD from “an employee called Stephanie”. Mr. Wallace told her that “they had certain suspicions” concerning “a girl named Stephanie” and Ms. Brisson assumed that since she was asked to make a purchase of a CD, that the Employer suspected either fraud or theft with respect to CDs. He did not, according to her, elaborate. In Ms. Brisson’s viva vote evidence and her report she presented the following detailed version of events: . Ms. Brisson’s assignment was “to purchase a CD from Stephanie”. The observation of other activity was not part of her assignment. . Ms. Brisson was accompanied to Naturally Niagara by John Wallace with whom she spent approximately 3 minutes in the parking lot before entering at about 1000 hours. . There were other people in the store at the time she went in, about 6 customers and 2 Cashiers - 2 groups of couples looking and talking to each other and picking up merchandise. There was also “much stacked all over”. . For the first 15 minutes, Ms. Brisson wandered around the store. . At approximately 1015 hours, Ms. Brisson went to the “Solitude display” where she put on a headset, and “kept pressing buttons to hear what the different tapes sounded like”. . During the time she was “pressing the buttons” and listening to the tapes, Ms. Brisson had a conversation about music with a woman who “was approximately 50-60 years old”, “casually dressed”, “english-speaking”, “without an accent”. This person kept coming back with her husband (Ms. Brisson assumed it was her husband) and they decided, after 15 minutes or so, to purchase a cassette tape, entitled “ ‘Wilderness’ or something like that”. . She did not see Ms. Bzdyl “for the first 5 minutes” as “she was not there”. She identified Ms. Bzdyl at the hearing as “Stephanie”. Ms. Brisson testified that this woman made her purchase from “Stephanie”, whom she had identified in the store by her name tag. She testified that she saw Ms. Bzdyl for the first time when she was completing the sale of the cassette to the casually-dressed, English- speaking lady. 39 Ms. Brisson testified that she saw the English-speaking lady hand over the money to Ms. Bzdyl, and testified that she knew “Stephanie cashed out those people” and was sure of this because she “waited for them to leave the register to make her purchase. ” She testified that she did not know the denomination of the money given to Ms. Bzdyl by this customer, but stated that she also saw Ms. Bzdyl give her change. . Ms. Brisson testified that she spoke with Ms. Arndt, she thought, more than a week after the incident. Ms. Arndt testified that she spoke with Ms. Brisson, who, in reply to one of her questions, stated that “she didn’t know if Stephanie was the cashier who cashed out the lady” and that “she could have misunderstood”. Ms. Brisson also stated that she saw the cassette being put into an opaque white bag, although she could not recall if there was anything on it as she “didn’t study it”. This was the same type of bag in which she received her purchase. Ms. Bzdyl testified that the CD was shown to her on August 22nd by Mr. Adams and at that time, he “pulled out the disk from the brown bag”. The CD purchased by Ms. Brisson was presented as evidence in a kraft bag with a dark-green design and it was not confirmed whether or not this was the original bag used at the time of purchase. . According to Ms. Brisson, following this purchase, the woman and her husband, or “significant other”, “went out in that direction” and “left the store”, although she noted in her statement that she “did not see them leave the store because [her] back was turned”. She noted that she did not see them again, inside or outside the store, although she testified that she was not looking for them. She acknowledged that she did not actually see the couple open the door and leave but assumed that they did so and believed, in hindsight, that they could not have remained in the store. . Ms. Bzdyl then “passed by Ms. Brisson” and Ms. Brisson took the opportunity to speak with her. According to Ms. Brisson’s statement, Stephanie then walked by coming from the cash counter and [she ] asked her some questions about the “Niagara” cassette tape (if it was available in cd) and [they] discussed which was the best cd to purchase. She recommended one to [her] and [she] purchased it. . Ms. Brisson believed that “between the time the lady bought the cassette, [hers] was the next transaction to be rung up.” . Ms. Brisson testified that she gave $30.00 to Ms. Bzdyl and received change of $9.63. The CD was then put into the same kind of white opaque bag as Ms. 40 Brisson had seen the cassette put into a few minutes earlier. The purchase was recorded at 1021 hours according to the computer which was, according to Ms. Daniels, 7 minutes slow. At the time of her purchase, according to Ms. Brisson, there was no other Cashier at the other register. She was not certain whether or not Ms. Bzdyl left the floor following her completion of the sale. When she completed her purchase, Ms. Brisson left the store. It was, according to her watch, 1029 hours. Ms. Brisson calculated her total in-store time as 29 minutes. She did not scan the store or walk over in the direction of the “other part of the store” following her purchase, and could not say how many persons were in the store at the time she left. Ms. Brisson then returned to the Accounting Department, gave the CD she had purchased and the change to Mr. Wallace and reported that “everything was fine; [Ms. Bzdyl] gave the proper change and a receipt” , and Ms. Brisson did “not notice anything she should not have been doing”. She did not, at that time, mention the woman who had purchased the cassette. . Ms. Brisson went home from work and that evening, committed to paper, the substance of her assignment. . On Monday, August 22nd, Mr. Wallace asked her if anyone else was in the store making purchases and inquired as to what had been going on around her in the store, and if she had seen anyone else making a purchase. She told him about the casually-dressed English-speaking woman and her husband and he asked if they had come back into the store. As she had not yet typed her written version of the assignment, he asked her to put down any details surrounding the purchase made by the other customer as well as details of her purchase and when she made it. She did so and wrote I spent the next 15 minutes at the display for the Solitude music. I listened to demos of several tapes and spoke for a while with a tourist about the music. This woman was approximately 50-60 years old and was english speaking. I kept pressing buttons to hear what the different tapes sounded like. The lady and her husband kept coming back to listen to the music and had decided to purchase a cassette tape. (I think it was titled “Wilderness” or something like that.) The husband seemed to be “hovering ” which led me to believe he was ready to leave, and they made their purchase. I did not see them leave the store because my back was turned, but I didn’t see them again. . On that day, Mr. Wallace also enquired whether or not there was a family making a lot of noise to which Ms. Brisson replied that there was not. He also enquired as to whether or not there was a Spanish lady leaving. She did not offer a reply in her testimony as to her response to this question. 41 . Ms. Brisson testified that Mr. Wallace asked her to remember what she did. She testified that she spoke only to Mr. Wallace about her assignment and did not speak to Mr. Adams. Mr. Adams testified that he recalled talking to her about her assignment, and although he could not recall the specific day, he believes that he spoke to her from Naturally Niagara. Ms. Bzdyl described her work day on August 19th, up to approximately 1030 hours as follows: . She arrived around 0830 hours and opened up the computer by doing a void and then opened the cash. She had planned to do a display of T-shirts that day. Ms. Chan arrived at 0900 hours and the two of them opened up the store. . When Ms. Provenzano arrived around 1000 hours, she directed her to work with her on the display and Ms. Chan to remain on cash. . Before starting their work on the display, she arranged for Ms. Provenzano to replace Ms. Chan during her morning break (a ten-minute break). Just before the beginning of the break, the Manager from the Ice-Cream Store came in and asked for some “clerical papers” which had to be filled out. As Ms. Bzdyl was in the office with this individual for several minutes, Ms. Chan’s break did not start until 10 10 hours, just after Ms. Bzdyl came out of the office. . When she came out of the office with this person, Ms. Bzdyl testified, there were 2 groups of 2 ladies at the disk/cassette listening display. One of them, according to Ms. Bzdyl, asked her for a specific disk which was not in stock and Ms. Bzdyl then suggested a substitute which the customer “asked [her] for”. . At approximately 1015 hours, she left the ladies and went to the stock room to pick up the T-shirts to arrange the display. When she was returning from the stock room to the floor to do the display, at the point at which she was still behind the counter, Ms. Provenzano was still taking Ms. Chan’s place, and Ms. Bzdyl noticed that “she had foreigners, paying with American currency [and] had a hard time to explain currency exchange to these people.” Ms. Bzdyl testified that she did not get involved in this transaction, but as “Joanne still had a hard time with people, so as a courtesy and according to policy, [she] went on Register 1 to help these two ladies” who Lvere coming towards the register. In cross- examination, she agreed that Ms. Brisson, the “Mystery Shopper”, had been speaking with one of them. an “English-speaking lady”. . Ms. Bzdyl testified that the first lady gave her a cassette tape with a bird on it. that she put in the 8 numbers (PLU number) and the total came to $13.95. During 42 this transaction, she heard the two ladies, as best she could recall, discussing the difference between a disk and a tape and that one of them remarked that the disk is better and lasts longer. Ms. Bzdyl mentioned the price a second time. As the conversation between the two ladies continued, the first lady pulled out $20.00 from her wallet and held it in her hand. While she was doing this, Ms. Bzdyl went and picked up a bag to put the tape in from a location on the “left side by a drawer near the register”. Just as she picked up the bag, and put the tape into it, someone called the lady from the front door and said “the bus is leaving” and the lady who was making the purchase “just turned around and ran out”. According to her evidence, the lady never did hand her the $20.00 but left with it. For her part, she was left with the cassette tape in her hand and never did hand it over to the customer. . Ms. Bzdyl testified that she then cleared the sale by pressing “the cash button” and left the cassette tape on the side of the register. She did not remove the cash register receipt which was generated by this transaction at this time. l Ms. Bzdyl then explained that after the register cleared, she took the next sale which was a compact disk. The customer was a woman. She rang in the PLU number and the total was $20.37 ($18.95 + tax). The woman tendered $30.00 and Ms. Bzdyl testified that she asked her if she had 37 cents. The woman looked unsuccessfully while Ms. Bzdyl picked up a bag and placed the CD inside. She then gave the woman change of $9.63. She ripped the receipts from the register, and separated them. She did not void the $13.95. She then, gave the customer who had purchased the CD the $20.37 receipt and the woman left the counter. Ms. Bzdyl was not certain whether or not she left the store. She testified that she then voided the cassette tape transaction and initialled the original receipt tape (transaction # 79 18, timed at 1017 computer time) and the void tape (transaction # 7920, timed at 1024 computer time). Following that, she taped the original and the void receipts together and gave them to Ms. Chan who had now finished her break and was standing beside her. She went in and picked up the T-shirts and cassette tape. Ms. Chan went on the till and began to serve a customer. Ms. Bzdyl thought that she had asked Ms. Chan to put the 2 receipts in her register with charges to keep as a record. Ms. Bzdyl then took the T-shirts and the cassette tape and replaced the tape in its display space and went to do the T- shirt display as she had originally planned. . The original receipt shows that Ms. Bzdyl failed to initial this receipt (transaction # 7918, timed at 1017 computer time). The original void receipt shows that she did initial the void receipt (transaction # 7920 timed at 1024 computer time). The original journal tape shows that she failed to initial the journal tape void receipt ( transaction # 7920 timed at 1024 computer time). 43 . Ms. Bzdyl could not recall at first whether or not she initialled the journal tape, but then acknowledged. having seen the tape, that, although it was her habit to initial, she had made the mistake of failing to do so on this occasion. CHRONOLOGY OF EVIDENCE Although the Employer is not relying primarily on the shortages and the other incidents which were contained in the statements of Ms. Daniels and Mr. Adams, they nonetheless form part of the momentum of suspicion drawn from the alleged series of cash and inventory shortages and the alleged “pattern” of fraudulent voids which accumulated and resulted in Ms. Bzdyl’s dismissal. It is, the Panel believes, both appropriate and helpful to set out the evidence in detail and chronologically, that is, day by day from July 30, 1994, the date of the first shortage to August 30, 1994, the date she received her notice of dismissal. The Panel is also of the opinion that it is important for the differing versions and perceptions of various actions and incidents to be detailed in order for the parties to gain an understanding of the development of the situation of which Ms. Bzdyl became the focus. OVERVIEW FROM JULY 24,1994 TO AUGUST 30,1994 Ms. Bzdyl brought with her from her time at Table Rock, a feeling that she had been discriminated against by certain workers, none of whom was at Naturally Niagara. An earlier performance appraisal noted that she had a tendency to take things personally. She was, one could say, emotionally sensitive to incidents which she might view as discriminatory both relating to herself and others. Tension began to grow between Ms. Bzdyl and Ms. Daniels in July 1994 and on one occasion, Ms Bzdyl took offence at a remark made by Ms. Daniels which Ms. Daniels testified she had not intended as discriminatory but rather as a joke. It was a statement, however, which while it would be perceived by most as an amusing observation, could be interpreted by an individual who was emotionally sensitive to discrimination to be hurtful. 44 Ms. Bzdyl also believed that it was embarrassing and inappropriate for a superior to admonish a subordinate in front of customers. She explained it was a practice she avoided as a Supervisor and that when she was the subject of admonition in public, in front of customers, she found it extremely upsetting. Incidents began to accumulate within a short space of time at Naturally Niagara which were worrisome for both Ms. Bzdyl and Ms. Daniels. Ms. Daniels became concerned about cash shortages, and she began to monitor voids and inventory and believed that certain transactions were questionable. She began to believe that Ms. Bzdyl was at the root of these problems and, in consequence, focussed her monitoring exclusively on Ms. Bzdyl. She contacted her superior, Peter Adams, and according to him, asked him to discuss “one employee who was “dishonest and taking funds”. Mr. Adams accepted Ms. Daniels’ concerns as valid and spoke to Mr. Wallace of the Accounting Office and Ms. Arndt from Human Resources. For her part, Ms. Bzdyl began to believe that because of the developing friction with Ms. Daniels, she was at risk of losing her job. The incidents which caused concern began, and the tension increased, shortly after Saturday, July 30, 1994, when Ms. Daniels learned of the shortage of $74.20 on Register 1. This was the first notable shortage to which Ms. Daniels referred, mentioning in her testimony that there was no history of cash shortages at Naturally Niagara. Ms. Bzdyl testified that in the summer of 1994 because of shortages in the retail operations at the Niagara Parks Commission, a temporary procedure was instituted on orders from Mr. Adams. It began at Naturally Niagara when Mr. Adams spoke to Ms. Bzdyl on a day in July when Ms. Daniels was not scheduled. The cash was to be counted, and the total noted and initialled by two of the Manager and the two Supervisors. A note of the total was then to be sent to Mr. Wallace in the Finance Department, and the note was to be returned and checked. Finally, the cash bags were to be sent to the Cash Office, as usual. This process did not include balancing the tills. According to Ms. Bzdyl, no shortage was brought to her attention during the July period and the procedure was terminated at the end of that month. Ms. Daniels did not allude to this temporary procedure in her evidence. It was during the first week of August 1994, that Ms. Daniels confided her suspicions to Mr. Adams and that he, in turn, informed Ms. Arndt that there were suspicions of theft at Naturally Niagara and that an investigation was underway with the Accounting Department. Although Ms. Daniels worked with Ms. Bzdyl for 6 days following a “suspicious” transaction and spot check she did not mention her concern to Ms. Bzdyl. Her explanation for not doing so was that “it was suspicion” and because she is very cautious, she gave the benefit of the doubt before accusing someone”. She explained that she therefore documented, verified and carried on. However, she later testified that had “she been working that day [she] would have,” and then that she did “not pursue it” because “other things came to light”, then that she did not “recall if [she] did nor did not question her”, and then that she “did not have anything to lead to a conclusion of theft on August 2nd.” 45 EVENTS FROM JULY 30,1994 TO AUGUST 30,1994 [The register reports of each day are from the compilation prepared by the Union Counsel which is found at Appendix A. They take in the approximately 24-hour time period from the point on the previous day when the Z reading was taken, at about 1630 hours, to the point in time on the day noted when the Z reading is again taken at the end of the 24-hour period. For exampte, the information about August I st, would span the period from approximately 1630 hours on July 3 1 st to 1630 hours on August I st.] IBold typeface has been used throughout the chronology for headings, to identify the source of the evidence, and for highlighting.1 SATURDAY JULY 30,1994 CASH SHORTAGE $74.20 Staff working, according to the schedule: Ms. Daniels 0830 to 1530 hours Ms. Bzdyl 1000 to 1800 hours Ms. Archambault 1200 to 2000 hours Ms. Poole 1600 to 2000 hours Ms. Provenzano 0900 to 1600 hours Register 1 Voids Shortage: 9 Register 2 Voids Shortage: 7 $ 106.05 $ 74.20 $ 20.83 $ 00.00 According to Ms. Daniels, she and Ms. Archambault audited Register # 2. Her report did not indicate whether or not there was a shortage. She further reported that “[she] went home leaving Stephanie and Heidi to audit Register # 1.” She went on to report that “This was the Register that was short $74.20.” The only evidence of the audit and the shortage is found in Ms. Arndt’s notes of her meeting with Ms. Daniels. Neither Ms. Archambault nor Ms. Bzdyl testified to having carried out the audit. Ms. Daniels told Ms. Arndt, according to the simultaneous notes of the latter, that an audit was done on this day, that “S. counted first alone in office - Heidi verified short 74.20.” 46 Relevant Information and Activities on July 30, 1994 . Ms. Daniels noted in her statement (it is not clear from the evidence when she reviewed the journal tape) that “there were no voids on that register”, (Register 1) that there were “no sales rung in twice - explaining a need for a void”. The void summary, however, shows 9 voids totalling $106.05. Ms. Daniels noted that on this day “All credit card sales balanced. The US money also balanced with the exchange pd out at 34% exactly” and there were no cash sales in Canadian currency over $50.00. Ms. Daniels commented in her statement that there was an offer of concert tickets worth approximately $60.00, which, according to Ms. Daniels, Ms. Poole made to Ms. Bzdyl and which Ms. Bzdyl accepted, offering to repay Ms. Poole the following day. No evidence was introduced as to whether Ms. Bzdyl received the tickets, attended the concert that evening or whether she paid Ms. Poole the following day or at any other time. Ms. Daniels denied in her testimony that she was implying that there was a financial connection between the ticket arrangement and the shortage. She stated that its presence in her statement was there to jog her memory. [The Panel finds it difficult to accept Ms. Daniels’ explanation that her recording of the concert ticket incident was simply “[her] way of remembering that”, particularly in view of the fact that she mentioned this to Ms. Arndt during her interview with her on August 23rd.l Ms Daniels drew the conclusion, from the information available to her “that the money had gone missing from the drawer at some point during the day.” She was certain that the shortage was not caused by “a clerical error or a cash office error” and in cross-examination she stated that she had “concluded the money had gone missing from the drawer at the store level” and “that would have to mean that someone took the money”. She testified she did not mention this to Ms. Bzdyl. There was no evidence indicating that she mentioned it to other staff. l According to Ms. Bzdyl, no one from Management ever asked her to explain this shortage. Nor did anyone inform her that she was being held responsible for this shortage, and she only became aware of it on December 12,1994, when she received her personnel file which she had requested for her Unemployment Insurance appeal. It was at that time that she read Mr. Adam’s statement. (Exhibit 19 prepared on August 24, 1994) He referred therein to various refunds and shortages at the Naturally Niagara Store, which upon investigation brought into question Stephanie’s honesty. . . . and the cash shortages were 30th July, 1994 $74.20. 47 SUNDAY JULY 31,1994 MS. BZDYL SUSPENDED FOR PART OF SHIFT Staff working , according to the schedule: Ms. Daniels 0830 to 1700 hours Ms. Bzdyl 1200 to 2000 hours Ms. Archambault 1600 to 2000 hours (Originally off) Ms. Poole 0900 to 1600 hours Ms. Provenzano 1300 to 2000 hours Mr. Broerse 1000 to 1300 hours Register 1 Voids: Shortage : 5 $ 16.26 None noted Register 2 Voids: Shortage: 15 $ 215.06 None noted Relevant Information and Activities on July 31,1994 . Ms. Daniels testified in cross-examination that on this day she had wanted to discuss something with Ms. Bzdyl and that Ms. Bzdyl had said “no”. She therefore decided that she “had to send her home”. She spoke with Peter Adams and he came down and told her she had to go home. Ms. Bzdyl left around 1430 hours. She was paid for the time and from Ms. Daniels’ perspective, “this incident went no further”. [Ms. Daniels must mean that it went no further as far as she was concerned. It did go further for Ms. Bzdyl.] Ms. Bzdyl described the incident from her perspective, in somewhat more detail and provided the following background. She perceived this as an issue of “favouritism”. A rule had been instituted by Ms. Daniels with respect to where. within the store, employees should take their breaks and lunch. The rule was that the Manager and Supervisors could eat in the office. For other Staff, an eating location with desk and stool and a coffee machine was set up in the storage/furnace room, with one stool outside. At the outset, she testified, the rule was complied with. as the only individuals who were there were the Manager and the two Supervisors. The arrival of Ms. Chan, who was pregnant at the time, meant there was one full-time, Adult Cashier. In the beginning, Ms. Bzdyl testified, Ms. Chan was allowed to eat with the Manager and Supervisors in the 48 office. However, that changed when one day in early June when Ms. Daniels announced that the rule excluding all but the Manager and Supervisors from taking breaks or lunch in the office would be applied. Ms. Daniels, according to Ms. Bzdyl, stated that it was important that the exclusion rule be in effect for the duration of the students’ employment because of “money and papers”. It was Ms. Bzdyl’s perception that the implementation of the rule followed Ms. Chan’s bringing a strong-smelling Chinese dish for her lunch. She concluded this because she was asked if the smell bothered her; it was not clear from the evidence by whom she was asked. From that point on, when Ms. Bzdyl was supervising and Ms. Daniels was not there, the non-supervisory employees ate on a bench outside the building in nice weather. Ms. Bzdyl became concerned when one day, Ms. Chan, went outside to her car to eat her lunch and in doing so became “soaked”. When Ms. Bzdyl inquired as to why she had done so, she explained that the smell of the cleaning materials in the storage/furnace/lunch room made her feel sick and she had been told that she was not allowed to eat in the office. According to Ms. Bzdyl the following day, signs were posted in the office saying that “this office is not a lunch room”. On July 31st, Ms. Bzdyl testified, she was having her first break of the day and was sitting in the office having coffee and a muffin. Ms. Provenzano went by to begin her break and Ms. Bzdyl, who was finishing hers, asked her if she were going back to school. Ms. Provenzano then sat on a chair in the office. Shortly after, Ms. Daniels, who was quite busy, came into the office to look up a price, said nothing, and Ms. Bzdyl went onto the floor, As there was a line up, she went on one of the tills. At that point, with customers present, Ms. Daniels asked Ms. Bzdyl if she knew the rules and Ms. Bzdyl responded that she did. Ms. Daniels then asked why she had allowed Ms. Provenzano to stay in the office during her break. According to Ms. Bzdyl, she said to Ms. Daniels, that “right now there is a line and I would like to discuss this later in the office”. When Ms. Daniels continued to discuss the subject, Ms. Bzdyl asked her to wait. According to Ms. Bzdyl, Ms. Provenzano came onto the floor and at that point Ms. Bzdyl went to the stock/staff room because she “didn’t want to get upset, crying or look rude in front of customers”. According to Ms. Bzdyl, Ms. Daniels ran after her and “we started it”. Ms. Bzdyl asked why she could not have a break with a Cashier, and Ms. Daniels made the point that there were rules and regulations. The situation with Ms. Chan was mentioned and finally as Ms. Bzdyl put it “I did blow up with steam” . She was then told to go home by Ms. Daniels. She questioned why, perceiving that she had done “nothing wrong”. It was her understanding that she was being sent home because she did not agree with Ms. Daniels’ rule; however. she testified that she agreed with the rule but was unhappy with the effect it had had on Ms. Chan. 49 Ms. Bzdyl asked to call her Union Steward so that Ms. Daniels could explain why she was being sent home, and Ms. Daniels allowed her to do so. Ms. Bzdyl telephoned and left a message on the Steward’s answering machine and then waited for the Steward to arrive . She testified that she did not think to telephone her at work. In approximately an hour, Mr. Adams arrived, called Ms. Bzdyl into the office and asked her if Ms. Daniels had asked her to go home. She acknowledged that she had, and Mr. Adams told her that she was to go home; further that she was suspended without pay. She asked if she was fired and he told her that she was not. She stated that she wanted to wait until her Union Steward came for a reason to be given to her for her being sent home but, according to Ms. Bzdyl, Mr. Adams did not want to hear that. Ms. Bzdyl spoke later with her Union Steward and the end result was that she was to be paid for the shift on July 3 1 st, that she would return to work the following day as scheduled, and that she was to receive a performance appraisal. MONDAY AUGUST 1,1994 PERFORMANCE APPRAISAL OF MS. BZDYL SALE AND VOID OF FILM SALE AND VOID OF GARDENING BOOKS Staff working, according to the schedule: Ms. Daniels 0830 to 1700 hours Ms. Bzdyl 1200 to 2000 hours Ms. Archambault 1200 to 1600 hours (Originally off) Ms. Poole 1300 to 2000 hours Ms. Chan 0900 to 1600 hours Register 1 Voids: Shortage: 2 $ 2.00 None noted Register 2 Voids: Shortage: 10 $ 29.42 None noted Relevant Information and Activities on August 1,1994 . Ms. Daniels testified that on this date, she and Mr. Adams met with Ms. Bzdyl when Mr. Adams presented her with a previously prepared, unscheduled, performance appraisal, the first she had been given since coming to Naturally Niagara on March 14, 1994. In the normal course of events, she would have 50 received a performance appraisal from Ms. Daniels towards the end of October. However, according to Ms. Daniels and Mr. Adams, this appraisal and the regular performance appraisal form were used “to communicate between management and the employee” . They did not have her personnel file, and indeed Ms. Daniels testified that she had never had it. Ms. Daniels did have her own tile on Ms. Bzdyl which contained the transfer memo and the start-up contract. She thought that it might also have contained some payroll information. This tile was turned over to Peter Adams. Ms. Daniels’ impression was that “there was nothing about her work performance there”, but she, Ms. Daniels and Mr. Adams “had a problem to discuss”. They did not rate Ms. Bzdyl, but the appraisal was placed in her personnel file and went to her master file in Human Resources. According to Ms. Daniels, she would not have disciplined an employee but would report matters which she considered might require a disciplinary response to Mr. Adams. Ms. Bzdyl perceived the “appraisal process” as an interrogation. It was her expectation, when it had been conveyed to her by her Union Steward, that Ms. Daniels would be doing the appraisal, that no one else would be involved. She was, therefore, surprised Mr. Adams was there. During this time her Union Steward was waiting outside the store. Mr. Adams carried out the appraisal, although the appraisal form, already drafted, was handed to her by Ms. Daniels. (The check-off section was not completed.) The comment section read as follows: Stephanie’s on the floor job performance is very good however there are other parts of her job that she needs to work on. (1) Insubordination: Full cooperation with mgmt is a must Must improve ability to take direction Must improve ability to accept constructive criticism (2) Following company policies at all times regardless of a mgrs presence. (3) Communication between mgmt and supervisors must be constant. Feedback is important. Improvement in these areas must be seen or further disciplinary action will be taken. Ms. Bzdyl testified that she read the comments and while she did not understand what “insubordination” meant, nor did she ask, she did understand the other comments. She asked Mr. Adams, under whom she had worked and who, she believed, valued her as an employee, what she had done wrong; if she had ever not done as he had asked, telling him she thought that she “did have proper direction to have trust”. At this point, she recognized that she was getting upset and she began crying, and then, she testified, she became offended when he asked her “how [she] could be stupid after you do your job”. She was then told by Mr. 51 . Adams “to forget it its only an evaluation” and to sign. Although she had been told by her Union Steward that she should not feel under pressure to sign the appraisal form, she was concerned that she might lose her position as a Supervisor. She agreed to sign on condition that she add her comments under “EMPLOYEE COMMENTS”. She wrote the following: 1 feel that was discrimate and my rights were striped. I was harassed My human rights were (1) demane (2) hersment (3) discriminst. [sic]. The three numbered words were then underlined by Mr. Adams and, according to Ms. Bzdyl, he said that he hoped she understood them, to which she replied that she did, and that she would not have put them there, had she not meant them. She observed that Mr. Adams was also upset. she then asked to see her Union Steward and was told that she could go home because she was upset. She asked for half an hour and said that she would return. She then went outside, met with her Union Steward, “took lunch, got [herlself together, and went to work”. Ms. Archambault who had been brought in on her day off to substitute for Ms. Bzdyl, was sent home. A particular sale and void of film attracted Ms. Daniels’ attention, when she reviewed the journal tape on August 3rd, for this day, August 1 st. The sale (#557) and void (#571) for a film, Item 50501100 were on Register 1 and were recorded, according to her, at 17 17 and 1728, computer time respectively, following her departure for the day. The total in question was $12.20. The void was the last transaction rung into Register 1 before the drawers were changed and the Z reading was taken. In the interval between these two transactions, she noted that 14 other transactions were processed. Ms. Bzdyl testified that she had no recollection of the transaction. She explained that she had “just voided the sale of film” and that it “could be a cashier error or [her] error” and it could have been a sale or an error. She first became aware that Management considered there was a problem with this transaction when she came to the Grievance Settlement Board for the prehearing when her Grievance Officer asked Mr. Adams about this. She testified that she did not understand what she was being accused of. No one from Management had shown her the original journal tape. Nor had she seen a photocopy, either of the original void or the original receipt (They would have been discarded.), and no one from Management had asked her to explain the transaction. . According to Ms. Daniels, on Mondays, Ms. Poole usually left at 1950 hours. Ms. Poole told her that on this particular Monday she left at 1955 hours with Ms. 52 Bzdyl’s permission as “her mother had come early”. Ms. Daniels indicated that Ms. Poole would not have been present for the void transaction of the gardening books referred to below. She also testified that 2 people were in the store after Ms. Poole left. [This must have been information she gleaned from Ms. Poole.] According to Ms. Daniels, “the sale was made, the person left and the void was done”. Ms. Daniels wrote in her statement that at “7:59 the store was closed” and testified “the void would have been put through when the store should have been closed”. This, she stated, “suggested suspicion, something fraudulent”. TUESDAY AUGUST 2,1994 Staff working, according to the schedule: Ms. Daniels 0830 to 1700 hours Ms. Archambault 1200 to 2000 hours Ms. Chan 0900 to 1600 hours Ms. Poole 1300 to 2000 hours Mr. Broerse 1000 to 1300 hours Register 1 Voids: 15 $ 2, 180,065.39 Shortage: None noted Register 2 Voids: 10 $ 19.45 Shortage: None noted Relevant Information and Activities on August 2, 1994 . Ms. Bzdyl was on a scheduled day off. . According to Ms. Daniels, “there were no returns & no voids that were out of the ordinary”. She states this in spite of the fact that there were 15 voids recorded on Register 1 for a total of $2,180,065.39. . On this morning, Ms. Daniels, according to her statement, “looked at the journal tape from the night before” to see what had been sold. She noted a number of voids on Register 2 and checked them satisfactorily with Ms. Poole who had been working the previous evening. She checked the tape on Register 1 and noticed the cash sale in Canadian currency of 2 gardening books @ $10.69 which took place at 1932 hours according to the cash register tape (which would have 53 been 1938/1939 hours due to the computer clock being slow). (This is sale # 557 according to her report but the sequential transaction number shows this as #3989. She appears to have confused this sale with the film on August 1st.) She noted it was voided at 1959 hours or 2005/2006 hours, just after scheduled closing. Ms. Poole was not present for the void of the gardening books, according to Ms. Daniels. Ms. Daniels then did an inventory of “those books”. Ms. Daniels would have had the inventory printout from Thursday, July 28, 1994. According to the inventory she made, based on the July 28th printout, there was a shortage of the 2 gardening books. . Ms. Bzdyl acknowledged that her signature was on the void, that is, on transaction #3992. She testified that she could not recall either the initial transaction or the void transaction but that from the tape she could tell that the initial transaction was done either by herself or by a Cashier earlier and that it was voided (transaction #3992) later on. It could, she testified have been either a purchase or a mistake. Ms. Bzdyl testified that she had not been shown the original of the journal tape, or the original receipt or void receipt. She stated that she was aware that she had been accused of some dishonesty with respect to this transaction on August 29, 1994, when it was put to her verbally that she had “voided gardening books”. WEDNESDAY AUGUST 3,1994 SALE OF DOG TEAM INVENTORY OF BOOKS CARRIED OUT Staff working, according to the schedule: Ms. Daniels 0830 to 1700 hours Ms. Archambault 1200 to 2000 hours Ms. Chan 0900 to 1600 hours Ms. Provenzano 1300 to 2000 hours Mr. Broerse 1000 to 1300 hours Register 1 Voids: 5 Shortages: Register 2 Voids: 8 Shortages: 46.92 None noted $ 111.14 None noted 54 Relevant Information and Activities on August 3, 1994 . Ms. Bzdyl was on a scheduled day off. . Ms. Daniels reported that “there were no returns & no voids that were out of the ordinary.” . Ms. Daniels had Ms. Archambault make an inventory of all the books “at close of’ this day. Ms. Daniels would have had the computer printout from Thursday, July 28, 1994, available as a basis for her inventory check. According to Ms. Daniels “All other book inventory corresponded with what was on the printout.” She then requested the journal tape from the day before, which would have been August 2, 1994. . According to Ms. Daniels’ statement, there was a sale (#1085) of a dogsled carving (Item 10714500) at 1929 hours computer time, and a subsequent void (#1099) on August 4th at 1020 hours. It is identified in the journal tape on Register 2 as “dog team”. This was a cash sale for which $20.00 was tendered. . According to Ms. Bzdyl, she was not working on this day and therefore could not have carried out the original transaction. She testified that it was possible that either Ms. Daniels, Ms. Archarnbault, Ms. Chan, Ms. Provenzano or Mr. Broerse could have made the sale. The sale was made at 1929 hours and, according to the schedule, only Ms. Archambault and Ms. Provenzano were working during that time period. . The sequence on the journal tape shows the following: AUGUST 3,1994 Transaction # 1082 at 19 18 - cash sale of a lion cub, total of $3.20 Transaction # 1083 at 1928 - cash sale of Wndr Glow St , total of $ 1.29 Transaction # 1084 at 1928 - US exchange, a total of $0.45 Transaction # 1085 at 1929 - cash sale of dog team, total $19.29 Transaction # 1086 at 1930 - cash sale of Wht Beaver, total $9.13 Transaction # 1087 at 2003 - X report THURSDAY AUGUST 4,1994 VOID OF DOG TEAM SALE OF RABBIT HOOK AND CD FAVORIT INVENTORY OF FOUR TO SIX BOOK TITLES CARRIED OUT INVENTORY OF DOG TEAM CARRIED OUT Staff working, according to the schedule: Ms. Bzdyl 0830 to 1700 hours 55 Ms. Archambault 1200 to 2000 hours Ms. Provenzano 1300 to 2000 hours Ms. Poole 0900 to 1600 hours Mr. Broerse 1000 to 1300 hours Register 1 Voids: 2 $ 12.98 Shortages: None noted Register 2 Voids: 5 $ 48.94 Shortages: None noted Relevant Information and Activities on August 4,1994 . Ms. Daniels was on a scheduled day off and Ms. Bzdyl was the senior person on duty from 0830 to 1700 hours. . The weekly inventory printout was available to Ms. Daniels on this day. Ms. Daniels testified that it was on this day that “we matched computer to physical inventories”. She was, however, on a scheduled day off and there was no evidence to show that she had come in or that she had carried this out from home. . The dog-team sale of the previous day was voided by Ms. Bzdyl. The journal tape from Register 2 showed the following: AUGUST 4,1994 Transaction # 1088 at 0816 - no sale Transaction # 1089 at 08 16 - no sale Transaction # 1090 to 1096 - cash and card sales from 0912 to 0948 Transaction # 1098 at 0948 - mastercard sale of birdfeeder, total $ 34.34 Transaction # 1098 at 0950 - no sale Transaction # 1099 at 1020 - cash void of dog team, total $19.29 Initialled by Ms. Bzdyl Transaction # 1100 at 103 8 - cash sale of seeds, total $1.20 Ms. Daniels testified that she spoke to Ms. Bzdyl about this and Ms. Bzdyl told her that it was a return, that the people had brought it back. . Ms. Daniels noted a single sale (#46 16) of two items on this day - a Rabbit Hook (20537013) and a CD. FAVORIT) (110367400). The total amount was $32.17 and the sale took place at 1630 hours on Register 1. According to Ms. Daniels, 56 a void (#4640) for a CD. FAVORIT (110367400) took place on the following day, August 5, 1994, at 100 1 hours. Ms. Daniels requested this day’s journal tape from the Cash Office on August 7th. Ms. Bzdyl stated that she was not able to verify the initials 100% on the CD void and had no special recollection of completing the original sale of the CD and the Rabbit Hook, or the void, nor was she able to tell why the void was made. She testified that the original sale could have been made by Ms. Archambault, Ms. Provenzano, Ms. Poole (she was scheduled to leave at 1600 hours), Mr. Broerse, or herself. In attempting an explanation, she stated that since there were 2 sales, that if it was an error then the whole thing (2 sales) would be voided, or if it follows another sale of a disk after that, it could be that, but in the end she concluded that she did “not really know”. Ms. Bzdyl testified that she was not aware that an inventory had been done in the store on August 4, 1994, and that she was not asked the whereabouts of the books by anyone. She stated that she was not shown the original or photocopies of the tape, the initial sale, or the void transaction, nor did anyone from Management asked her to explain why she made the void. She first became aware that dishonesty on her part respecting this transaction, was being alleged at the time of the arbitration hearing. . At 1020 hours, there was the void (#1099) of the dog-team sale (#1085), initialled by Ms. Bzdyl. It was on Register 2 and had the same PLU number as the one for which there was a sale the previous evening on the journal tape of Register 2. There were 14 transactions between the sale and the void. Ms. Bzdyl testified that she “had to do it” [had to have done it] but did not recall the circumstances around, either the void or the original transaction. l Ms. Bzdyl could not remember the particular item and first recalls having the dog- team accusation mentioned to her at the meeting of August 29th when Management, she did not specify whom, stated that she had voided that sale but that they did not find the merchandise in the inventory. FRIDAY AUGUST 5, 1994 VOID OF CD FAVORIT Staff working, according to the schedule: Ms. Bzdyl 0830 to 1700 hours Ms. Archambault 1200 to 2000 hours 57 Ms. Chan 0900 to 1600 hours Ms. Provenzano 1300 to 2000 hours Mr. Broerse 1000 to 1300 hours Register 1 Voids: 36 $ 500.78 Shortage: None noted Register 2 Voids: 8 $ 109.26 Shortage: None noted Relevant Information and Activities on August 5,1994 . Ms. Daniels was on a scheduled day off and Ms. Bzdyl was the senior person on from 0830 to 1700 hours. . A void for a CD. FAVORIT (#4640) and the amount, including tax was $20.37, at 1001 hours. It was assumed by Ms. Daniels that this void related to sale # 4616 (Rabbit Hook and CD. FAVORIT) from August 4th. (There was no specific evidence which linked this void to sale #4616 except that it was on the same register and within the same cash day.) SATURDAY AUGUST 6,1994 SALE AND VOID OF SOUWEST DIS Staff working, according to the schedule: Ms. Daniels 0830 to 1700 hours (Stayed to 1730 hours) Ms. Bzdyl 1000 to 1800 hours Ms. Archambault 1200 to 2000 hours Ms. Provenzano 1300 to 2000 hours Ms. Poole 0900 to 1600 hours Register 1 Voids: 11 $ 169.91 Shortages: None noted 58 Register 2 Voids: 3 Shortages: $ 25.22 None noted Relevant Information and Activities on August 6, 1994 . Ms. Daniels reported that she “worked on the floor all day monitored sales and stayed until both registers were taken off and money packed in brown bag.” . The void of the dog-team item attracted Ms. Daniels’ attention for several reasons: the void transaction initialled by Ms. Bzdyl, did not take place until 1020 hours, the following morning (August 4th); the transactions occurred when she, Ms. Daniels, was not present. Ms. Bzdyl was the only Supervisor in the store. Ms. Daniels testified that there had been 2 of this particular item, that one had previously been sold, and that the inventory printout showed 1 [this would be the printout of July 28th] and a physical inventory check showed there was no such item in the store. According to Ms. Daniels, this case, followed the “pattern” of “one sold and voided out”. Ms. Daniels asked the cash office for the journal tapes for the days she was off [August 4th and 5th] Ms. Daniels reported in her statement that “There were no voids done that day”. In fact there were 11 voids totalling $169.91 on Register 1 and 3 voids totalling $25.22 on Register 2. . Ms. Daniels stated that she “even took the key from the brown bag and asked Heidi to keep it in her pocket until the police came to pick it up”. [See August 19,1994] . Ms. Daniels reported in her statement that the cash balanced that day. . Ms. Daniels testified that she reported to Peter Adams her suspicion concerning the gardening books transaction of August 1 st and inventory of August 4th, although in cross-examination she stated that “she would have talked to him about the inventory” on August 3rd or 4th, and then testified that she “honestly could not remember specifically” on what date she first spoke to Mr. Adams about this matter. . A sale transaction (#5057) (total $20.37) was made on Register 1 at 1636 hours on August 6th cash day and the journal excerpt (Exhibit 27) shows the sale of “souwest dis” (PLU 0000 103650 10); a void transaction (#5082) for the same item was completed on Register 1 at 173 1 hours on August 7th cash day. Ms. 59 Daniels noted that the sale was not on that particular journal tape. (It was approximately 1 hour earlier, before the Z report had been done). (See August 7th) Ms. Bzdyl stated that she did not recognize the initials “100%” and that she had no recollection of either transaction. It was her opinion there was an error and the void had to be done for that reason. She testified that the initial transaction could have been carried out by Ms. Daniels, Ms. Archambault, Ms. Provenzano, Ms. Poole or herself. [Ms. Poole was scheduled to depart at 1600 hours.] She testified that she was not shown the original or photocopies of the tape, the initial sale or the void transaction, by any member of Management, nor was she asked to explain what happened in this void. She stated that she first became aware that she was being accused of dishonesty with respect to this transaction when her Grievance Officer asked Peter Adams about it. [This would have been when the parties attended the Pre-hearing.] SUNDAY AUGUST 7,1994 CASH SHORTAGE $20.00/$20.63 Staff working, according to the schedule: Ms. Daniels 0830 to 1700 hours Ms. Bzdyl 1200 to 2000 hours Ms. Provenzano 1300 to 2000 hours Ms. Poole 0900 to 1600 hours Mr. Broerse 1000 to 1300 hours Register 1 Voids: 4 $ 32.50 Shortages: $20.00/$20.63 (to which register ?) Register 2 Voids: 14 $ 91.09 Shortages: $20.00/$20.63 (to which register ?) Relevant Information and Activities on August 7,1994 . Ms. Daniels noted in her statement that on this day she found “another unusual void”. She stated that because of this she “called the cash office & asked for the journal tapes from my days off [August 4th and August 5th] to be sent to me...to verify the pattern”. 60 When Ms. Daniels came in at 0830 hours she “checked the journal tapes on the register[s] to see what had been sold” the previous night. She found that on Register 1 at 173 1 on the journal tape (just at the time she was leaving or had just left), “there was a void of a CD for which there had not been a sale of on that particular journal tape.” (See August 6th) The transaction was #5082 and it was for Item # 10365015, (total $20.37). According to Ms. Daniels, Ms. Bzdyl’s explanation for the sale of the item not being on the same tape was that “a man had been in earlier that afternoon and purchased the CD” and “he had come back & returned it”.[This is Ms. Daniels’ phrasing of Ms. Bzdyl’s explanation.] Ms. Daniels explained in her report that the store gets very few returns and “if a person does come back it’s for an exchange. The only time a CD is returned is when people buy the sampler album which has no music in the background, just nature sounds”. [This is a generalization which the Panel cannot accept.] Ms. Daniels reported there were no voids for the rest of August 7, 1994, although no evidence was presented to indicate the times of the voids that did occur. A number of voids on August 7, 1994, is noted in the Void Summary, (see above). . The cash was reported to be $20.00/$20.63 short, although no documentary evidence was presented to this effect and there was no indication on which register this shortage occurred. . Ms. Daniels testified that this must have been the day she spoke to Ms. Bzdyl about the dog team void and, that Ms. Bzdyl told her it was a return. . It is on this day, according to Ms. Daniels’ evidence, that she informed Mr. Adams that she had “something she could not explain” and thought “the Grievor was doing something fraudulent”. She did not mention any other suspects, nor, she stated, did she inform Ms. Archambault. [Other evidence points to Ms. Daniels having mentioned her concerns to Mr. Adams several days prior to this.] . Ms. Bzdyl said that she became aware that the till had been out by $20.63 only when she received her Personnel File on December 12, 1994. . Ms. Bzdyl testified that no one from Management had ever asked her to explain this shortage. 61 MONDAY AUGUST 8,1994 REVIEW OF CASH HANDLING PROCEDURES Staff working, according to the schedule: Ms. Daniels 0830 to 1700 hours Ms. Archambault 1200 to 2000 hours Ms. Chan 0900 to 1600 hours Ms. Poole 1300 to 2000 hours Mr. Broerse 1000 to 1300 hours Register 1 Voids: 11 $ 167.94 Shortage: None noted Register 2 Voids: 3 $ 37.91 Shortage: None noted Relevant Information and Activities on August 8,1994 . Ms. Bzdyl was on a scheduled day off. . Ms. Daniels “received the tapes from the cash office” for August 4th and 5th.. . Ms. Daniels brought her specific concerns to Peter Adams. [Other evidence suggests that this was done earlier.] . Mr. Adams and Ms. Daniels undertook a review of cash-handling procedures and the following changes were made: (1) All original receipts and void receipts would be retained. (2) The original receipts and the void copy would be attached to the daily summary sheets. (3) Supervisors would continue to initial all voids on the journal tape. [There was no evidence of a requirement at Naturally Niagara for reasons to be written on the original receipt, the void receipt or the journal tape in this new system, nor in the previous one.] . Ms. Daniels testified that she spoke to Ms. Archambault about the changes to the returns policy changes on this date. 62 TUESDAY AUGUST 9,1994 REQUEST FOR SURPRISE AUDIT AT NATURALLY NIAGARA Staff working, according to the schedule: Ms. Daniels 0830 to 1700 hours Ms. Archambault 1200 to 2000 hours Ms. Chan 0900 to 1600 hours Ms. Poole 1600 to 2000 hours Mr. Broerse 1000 to 1300 hours Register 1 Voids: 8 $ 105.16 Shortage: None noted Register 2 Voids: 8 $ 102,944.69 Shortage: None noted Relevant Information and Activities on August 9,1994 . Mr. Adams stated in his report that on this day he called John Wallace at the Accounting Department and “asked if he could undertake “a surprise audit” on August 1 lth. This was a day when Ms. Bzdyl and Ms. Archambault were scheduled to be at work, and Ms. Daniels was scheduled to be off. WEDNESDAY AUGUST lo,1994 CASH SHORTAGE $30.00 US RETENTION OF ORIGINAL AND VOID RECEIPTS BEGAN MS. BZDYL SENT HOME BEFORE THE END OF HER SHIFT Staff working, according to the schedule: Ms. Daniels 0830 to 1700 hours Ms. Bzdyl 1200 to 2000 hours Ms. Chan 0900 to 1600 hours Ms. Provenzano 1300 to 2000 hours Mr. Broerse 1000 to 1300 hours Register 1 Voids: 5 $ 87.10 Shortage: $30.00 US (which register?) 63 Register 2 Voids: 2 $ 15.54 Shortage: $30.00 US (which register?) Relevant Information and Activities on August 10, 1994 . Ms. Daniels wrote the following about events involving Ms. Bzdyl which raised her suspicions: On August 10th Stephanie took her lunch early, 3:50 pm. When she returned at 4:20 she sent the cashier on her lunch. [According to the schedule, this would be Ms. Provenzano.] She then said “well, I might as well take these tills off before you go home. She then brought the bags out of the office and took off the registers while I waited on customers. When there was no one at the counter I went into the office and got a brown locking bag and brought it to where Stephanie was standing at Reg #1 . She was holding both green bags under her arm. I held out the brown bag in an open position and said to her [sic] Here, Stephanie, put the bags in here. She ignored me. I said it 2 more times, no response. She was sweating. Finally she looked up at me and grabbed the brown bag out of my hand and put it under her arm with the other 2 bags. When I said I could take that for her again she ignored me. There were customers at the register so I started serving them and she took the money into the office to pack in the brown bag & she said she would I had a feeling something wa.. [The words in italics are struck.] I waited a few minutes & followed her into the office. She jumped when I came in. She was huddled practically inside the safe with the brown bag open. Her hands were inside, (where the green bags were) I stood behind the desk but my view was obscured by the safe door. I heard her put the elastic bands back on the money & repack the brown back [sic] and zip it up. That day we were short $30. U.S. In cross-examination, Ms. Daniels explained that she “did not see her take the money” but that she had (still at the time of the hearing) “a strong suspicion that she took $30.00 US. . Ms. Daniels spoke to Mr. Adams about this incident on August 14, 1994. . Ms. Daniels testified that she sent Ms. Bzdyl home on this day, because in refusing to talk to her, she ignored her. Since that time she had learned that ignoring is synonymous with insubordination, She concluded at the time that ‘*it was not a major deal” since Ms. Bzdyl had simply ignored her: she had “not said no” or “defied her”. She did not understand Ms. Bzdyl’s actions at the time but then, “the next day the cash office called and said there was a shortage.” . Ms. Bzdyl was not spoken to about the shortage of $30.00. The first time she became aware of it was on December 12, 1994, when she received her Personnel File. 64 Ms. Daniels testified that she spoke to Ms. Bzdyl about the changes to the returns policy on this date. THURSDAY AUGUST 11,1994 Staff working, according to the schedule: Ms. Bzdyl 0830 to 1730 hours Ms. Archambault 1200 to 2000 hours Ms. Chan 0900 to 1600 hours (was sick and did not attend) Ms. Provenzano 1300 to 2000 hours Ms. Poole 0930 to 1200 hours (Originally scheduled to be off) Mr. Broerse 1000 to 1600 hours (May have been originally scheduled for 1000 to 1300 hours) Register 1 Voids: 4 $ 41.81 Shortage: None noted Register 2 Voids: 2 $ 4.68 Shortage: None noted Relevant Information and Activities on August 11,1994 . Ms. Daniels was on a scheduled day off . The weekly inventory printout was available for Ms. Daniels. . John Wallace from the Accounting Department, at Peter Adams’ request, carried out an audit on one of the registers and reported it to be in line. Ms. Daniels believed that the audit was carried out because of the suspicions surrounding Ms. Bzdyl. . Ms. Daniels testified that she did not know on which register the audit was carried out but was told that “nothing came of it” and “that everything was fine”. Ms. Arndt’s notes of their meeting on August 24th, note that on this date that the “auditors arrived - no voids done”. There was no mention of the fact that the register balanced within 6 cents and Ms. Arndt could not recall if she had heard that it had balanced. [It would be unusual, the Panel believes, for Ms. Arndt to fail to make that notation, had she been given the information.] 65 . Mr. Adams reported that he happened to be in the store when John Wallace undertook the audit and he testified that “He did this audit at approx 11:OO a.m. on 11 th August. 1994, but the register balanced within 6 [cents].” . Ms. Bzdyl testified that she was present when John Wallace came to carry out the audit. According to her, he asked her to do an “X” reading on Register 1 which she did; he then counted the float in the office and the outcome was that Register 1 was 6 cents short. She stated that Peter Adams arrived within a couple of minutes of Mr. Wallace’s arrival. Ms. Daniels was on her day off and that she, Ms. Bzdyl, was not permitted to be present when the funds in the safe were counted. [She was the person in charge of the store on that day.] Following this, she stated, she was asked to sign the audit and she said that she did not see it. Mr. Adams told her that it was “OK” and then she signed it. According to her, Register 2 was not audited that day. FRIDAY AUGUST 12.1994 Staff working, according to the schedule: Ms. Bzdyl 0830 to 1700 hours Ms. Archambault 1200 to 2000 hours Ms. Chan 1000 to 1300 hours Ms. Provenzano 0900 to 1600 hours Ms. Poole 1300 to 2000 hours Register 1 Voids: 5 $ 41.81 Shortage: Register 2 Voids: 3 $ 1.93 Shortage: Relevant Information and Activities on August 12,1994 . Ms. Daniels noted in her report that it was pay day. 66 SATURDAY AUGUST 13 1994 Staff working, according to the schedule: Ms. Daniels 0830 to 1700 hours Ms. Bzdyl 1000 to 1800 hours Ms. Archambault 1200 to 2000 hours Ms. Provenzano 0900 to 1600 hours Ms. Poole 1300 to 2000 hours Register 1 Voids: 8 $ 49.23 Shortage: None noted Register 2 Voids: 8 $ 35.95 Shortage: None noted Relevant Information and Activities on August 13,1994 . Ms. Daniels reported in her statement that there were no voids on this day when in actuality there were 16 for a total of $85.18. SUNDAY AUGUST 14.1994 Staff working, according to the schedule: Ms. Daniels 0830 to 1500 hours Ms. Bzdyl 1200 to 2000 hours Ms. Chan 0900 to 1400 hours Ms. Provenzano 1100 to 1900 hours Mr. Broerse 1300 to 2000 hours Register 1 Voids: 6 $ 111 .oo Shortage: None noted Register 2 Voids: 17 $ 155.94 Shortage: None noted 67 Relevant Information and Activities on August 14,1994 . Ms. Daniels reported no voids in her statement although there were 23 with a total of $267.04. MONDAY AUGUST 15,1994 Staff working, according to the schedule: Ms. Daniels 0830 to 1700 hours Ms. Bzdyl 1200 to 2000 hours Ms. Chan 0900 to 1600 hours Ms. Poole 1000 to 1800 hours Mr. Broerse 1600 to 2000 hours Register 1 Voids: Shortage: * None noted Register 2 Voids: Shortage: * None noted *This date was omitted from the compilation and this may be due to the fact that the journal tape which was submitted in evidence for August 15, 1994, was incomplete, in that it began at 1330 hours. Relevant Information and Activities on August 15,1994 . Ms. Daniels reported that while she was walking around the store discussing merchandise with Diane Chopp, a buyer, “a tape was sold”. The documentary evidence shows that on Register 1 between 1443 hours and 15 19 hours 14 transactions took place (#7 156 to #7 169). Ms. Daniels found three of these worthy of attention. They were the following: (1) Transaction #7156 At 1443 hours a cash sale of one “CD. FAVORIT” (Item 10347400 @ $18.95) with tax a total of $20.37 On the back of the this receipt were written the words “change the tape and by VISA paid”. Ms. Bzdyl did not verify the signature but testified that she did write the explanation. 68 L . (2) Transaction # 7167 At 15 17 hours a visa sale of one “disc appala” (Item 10365030 @ $18.95) with tax a total of $20.37. This transaction was entered on the “Charge Record” which is the daily summary of credit and debit card purchases as Number cc 17 Register: 1 Sale Number: 7 167 VISA: 20.37 Ret’d: 3563 (Visa transaction Number) INT. Ms. Bzdyl’s initials. (3) Transaction # 7169 At 15 19 hours a cash void of one “CD FAVORIT” (Item 10367400 @ $18.95) with tax a total of $20.37. Ms. Daniels testified that she found the time lapse between the cash sale at 1443 hours and the cash void at 15 17 hours, suspicious. She would, she testified, have expected to find the cash void “right after the visa sale”. She would, she said “expect to see ‘void’ before ‘sale”‘. Ms. Bzdyl’s explanation to Ms. Daniels when questioned for the first time on August 22, 1994, in the presence of Peter Adams, was, according to Ms. Daniels, that the customer changed her mind and wanted to pay by VISA. She told Ms. Daniels that the husband had purchased the CD and paid for it with cash and the wife then came and wanted to get the money back and pay by VISA because they were short of cash. Under those circumstances, Ms. Daniels testified, the “normal procedure would have been to refund the cash and re-ring the sale, but here the sales were rung up and after the VISA sale there is no sales”. She explained that when the Cashiers ring VISA, they close the drawer and run the VISA card through the swipe machine and then hit “NO SALE” to open the drawer to put the store’s VISA copy away. Ms. Bzdyl did not recall if she carried out transaction 7 156 (CD - Favorit @ $18.95) nor did she recall doing the void (# 7169). She noted in her testimony following an examination of the journal tape, that there were no initials on transaction #7 169. Ms. Bzdyl testified that she was not shown the original or photocopies of the tape, the initial sale, the VISA voucher for transaction 7 167, or the void transaction, nor was she asked by anyone from Management to explain the 69 transactions. She testified that she did not understand the allegation over the VISA. She thought that she first became aware of the allegations of her dishonesty over these transactions at the arbitration hearing. TUESDAY AUGUST 16,1994 CD INVENTORY DONE Staff working, according to the schedule: Ms. Daniels 0830 to 1700 hours Ms. Archambault 1200 to 2000 hours Ms. Chan 0900 to 1600 hours Ms. Poole 1000 to 1800 hours Mr. Broerse 1600 to 2000 hours Register 1 Voids: 9 $ 2,372.3 1 Shortage: None noted Register 2 Voids: 8 $ 71.61 Shortage: None noted Relevant Information and Activities on August 16,1994 . Ms. Bzdyl was on a scheduled day off . Ms. Daniels “discussed the situation with Peter Adams & did an inventory on the CD’s [sic] to verify our suspicions”. She reported in her statement that “Again the CD’s that had been voided did not match up with the printout. . The printout available to Ms. Daniels would have been from August 11, 1994. WEDNESDAY AUGUST 17.1994 Staff working, according to the schedule: Ms. Daniels 0830 to 1700 hours Ms. Archambault 1200 to 2000 hours Ms. Chan 0900 to 1600 hours Ms. Provenzano 1000 to 1800 hours Mr. Broerse 1600 to 2000 hours 70 Register 1 Voids: 7 $ 23.51 Shortage: None noted Register 2 Voids: 2 $ 20.47 Shortage: None noted Relevant Information and Activities on August 17, 1994 . Ms. Bzdyl was on a scheduled day off. THURSDAY AUGUST l&l994 USE OF RETURN FUNCTION AND CUSTOMER REFUND SLIP BEGAN Staff working, according to the schedule: Ms. Daniels 0830 to 1700 hours Ms. Bzdyl 1000 to 1’800 hours Ms. Archambault 1200 to 2000 hours Ms. Provenzano 0900 to 1600 hours Ms. Poole 1600 to 2000 hours According to Ms. Bzdyl’s testimony, she was not on a register this day. Register 1 Voids: 16 $ 149.14 Shortage: None noted Register 2 Voids: 7 $ 19.99 Shortage: None noted Relevant Information and Activities on August 18, 1994 . Ms. Daniels would receive the weekly inventory printout on this day. . Following Ms. Bzdyl’s arrival, Ms. Daniels, according to her statement, “ reviewed void & return procedures with them at the cash registers.” She stated that she explained the procedures as follow: If it is a cashier error it is to be initialled by the cashier (original receipt) voided in the register & initialled by the supervisor. 71 If it is a customer return then you press the return button & fill out a customer refund slip w/customer signature 81 original receipt and supervisors [sic] initials. A return is anytime mdse & money change hands & a void is a cashier error. Ms. Daniels related in her statement that “After going through this at that time [she] asked if they both understood if anyone had any questions. They both said no & Stephanie went on to add that, that’s the way it is done at Table Rock & it should be done like that everywhere.” She stated that Stephanie worked at Table Rock for 8 years, so she was very familiar with their cash handling procedures.” . Ms. Daniels noted that there were no unusual voids or return on this day. . Ms. Arndt was informed by Mr. Adams of the mystery-shopper plan. FRIDAY AUGUST 19,1994 THE DAY OF THE MYSTERY SHOPPER DAY MS. DANIELS CHECKED VOIDS WITH MS ARCHAMBAULT BY TELEPHONE Staff working, according to the schedule: Ms. Bzdyl 0830 to 1700 hours Ms. Archambault 1200 to 2000 hours Ms. Chan 0900 to 1600 hours Ms. Provenzano 1000 to 1800 hours Ms. Poole 1600 to 2000 hours Register 1 Voids: 4 $ 62.88 Shortage: None noted Register 2 Voids: 3 $ 20.44 Shortage: None noted Relevant Information and Activities on August 19, 1994 . Ms. Daniels was on a scheduled day off. Mr. Adams was not at work on this day. . Mr. Adams had previously arranged with Mr. Wallace for a Mystery Shopper to come to Naturally Niagara on this day and she did so. According to Mr. Adams, 72 . the purpose of this exercise was “to check on Stephanie’s cash register handling.” Mr. Adams stated in his report that he “asked him [John Wallace] to direct the “mystery shopper” to purchase a C.D. in Canadian Funds.” He explained that “This way we could test if Stephanie may be tempted to void this sale.” The journal tape of Register 1 shows the following relevant sequential transactions: At 1017 hours 000010365020 appalach ta 12.98 b SUBTL 12.98 PST 0.97 GST SL 12.98 GST 0.85 TOTAL 13.95 CASH 20.00 CHANGE 6.05 08/19/94 #OOl COO1 lo:17 TOO01 7918 At 1021 hours 000010367400 CD. FAVORIT 18.95 b SUBTOTAL 18.95 PST 1.42 GST SL 18.95 GST 1.24 TOTAL 20.37 CASH 30.00 CHANGE 9.63 08/19/94 #OOl coo01 10:21 TOO01 7919 73 At lo:24 hours VOID 000010365020 appalach ta 12.98 - b SUBTL 12.98 - PST 0.97 - GST SL 12.98 - GST 0.85 - TOTAL 13.95 CASH 13.95 - On back of void receipt in handwriting “Change for CD B 08/19/94 #OOl - COO1 lo:24 TOO01 7920 Ms. Archambault testified that at the time of the incident, August 1994, she was a Student Supervisor, that she did not consider herself equal to Ms. Bzdyl who was an Adult Supervisor, and that she “always took orders from Stephanie”. She explained to the Panel that it was her practice on arriving at the store for her shift to “check all charges and voids”. It was also, she stated, usual for Ms. Daniels to telephone the store on her days off “to see everything was OK”. When she did so, Ms. Archambault said that she would go through the voids, her own included and “usually [would] tell her the reason on the back’or, “if she would go through the voids and ask what’s that about [she] would explain the reason”. On this day, Ms. Archambault testified, she was working from 1200 hours to 2000 hours, and she checked the voids as soon as she came in. She believed there was only one “for a tape done by Stephanie” and later stated that she believed that the only void transacted that day was the one in question (#7920). She identified the writing and initials on the back of the void (#7920) as Ms. Bzdyl’s and testified that it was there on August 19th when she talked to Ms. Daniels “during the day” and “told her about the void and what was on the back”. She thought that she would have received Ms. Daniels’ telephone call before she rang off, possibly around 1745, although she acknowledged that she was not able to recall. [This must have been Register 2, as the journal tape for Register 1 shows that Ms. Bzdyl rang off at 1624 hours.] Ms. Archambault testified that she did not know about the suspicions surrounding Ms. Bzdyl prior to August 19th and, she thought, her awareness may have even been subsequent to that. [The Panel finds this difficult to accept given the closeness of the work environment and Ms. Daniels’ request of August 6th for Ms. Archambault to keep the cash bag key in her pocket until the police arrived to pick up the day’s sales revenue.] She was certain that she was aware at the point at 74 . . which she was asked, and she did not say by whom, to submit a report. She also stated that she had “a conversation” with Ms. Arndt after August 19th, although she could not recall the subject. [No report from Ms. Archambault was submitted in evidence.] Ms. Daniels testified that on this day, she “had [her] suspicions” but had no real proof’ of theft. She noted in her statement that she called the store to speak to the Supervisor around 1800 hours “to check & make sure everything was OK”. She acknowledged in cross-examination that her main purpose was to see if the Grievor had done anything. [This would be just after Ms. Bzdyl’s departure.] She also testified that she was telephoning “because of the recent transaction change to procedure” and because she “wanted to ensure the policy was being followed.” She testified that she had called in previously on her days off, although she “used to leave Stephanie a note because she would have phone calls that were not all that necessary”. She did not clarify what she meant by this comment. Ms. Daniels spoke with Ms. Archambault, whom she believed was not aware of her suspicions, and recorded the conversation as follows: I “asked how busy it was”, and inquired about “ the state of the store, the business and sales.” It was then that Heidi reported to me the void in the register. There was the original receipt & the void with Stephanie’s signature on the back saying that customer had changed mind and bought CD. The reason why Heidi reported this to me was because there was no pink customer refund slip filled out with the customer’s signature on it.” Ms. Daniels testified slightly later that Ms. Archambault “went through all the voids in the register [s ?] and then told me this: “no refund slip, no signature, and Stephanie’s initials.” She stated that she was given the name of the tape and CD sold and the tape voided, and the transaction times and told Ms. Archambault that she would look at it on the Sunday, when she came in. She testified that Ms. Archambault told her that she had not spoken to her [Ms. Bzdyl].” [Ms. Archambault’s evidence was that Ms. Bzdyl’s void was the only one for the day.] She explained that she could not get the journal tapes at that time since they had gone to Cash Office and the information from the computer (the inventory information) was not available until the next Sunday. She also explained that the Distribution Centre was closed from Friday at 1630 hours until Monday morning, and that while the Cash Office where the journal tapes are sent closes before 1800 hours, it is open on the weekends and the journal tapes could have been checked that day, although she was not working on that day. Ms. Bzdyl described her workday on this date as follows: She arrived around 0830 hours and opened up the computer by doing a void and then opened the cash. She had planned to do a display of T-shirts that day. Ms. Chan arrived at 75 0900 hours and the two of them opened up the store. When Ms. Provenzano arrived around 1000, she directed her to work with her on the display and Ms. Chan to remain on cash. Before starting their work on the display, she arranged for Ms. Provenzano to replace Ms. Chan during her morning break (a ten-minute break), just before this started, the Manager from the Ice-cream Store came in and asked for some “clerical papers” which Ms. Bzdyl had to fill out. and Ms. Bzdyl was in the office with this individual for several minutes. Ms. Chan’s break did not start until 1010 hours, just after Ms. Bzdyl came out of the office. When Ms. Bzdyl came out of the office with this person, she testified there were 2 groups of 2 ladies at the disk/cassette listening display. One of the ladies , according to Ms. Bzdyl, asked her for a specific disk which was not in stock; Ms. Bzdyl suggested a substitute which the customer “asked [her] for”. At approximately 1015 hours, she left the ladies and went to the stock room to pick up the T-shirts to arrange the display. When she was returning from the stock room to the floor to do the display, at the point at which she was still behind the counter, Ms. Provenzano was still taking Ms. Chan’s place, and Ms. Bzdyl noticed that “she had foreigners, paying with American currency [and] had a hard time to explain currency exchange to these people.” Ms. Bzdyl testified that she did not get involved in this transaction, but as “Joanne still had a hard time with people, so as a courtesy and according to policy, [she] went on Register 1 to help these two ladies” who were coming towards the register. In cross- examination, she agreed that Ms. Brisson, the “Mystery Shopper” had been speaking with one of them, an ‘*English-speaking lady”. She testified that the first lady gave her a cassette tape with a bird on it, that she put in the 8 numbers (PLU number) and the total came to $13.95. During this transaction, she heard the two ladies, as best as she could recall, discussing the difference between a disk and a tape and that one of them remarked that the disk is better and lasts longer. She mentioned the price a second time. As the conversation between the two ladies continued, the first lady pulled out $20.00 from her wallet and held it in her hand. While she was doing this, Ms. Bzdyl went and picked up a bag to put the tape in from a location on the “left side by a drawer near the register”. Just as she picked up the bag, and put the tape into it, someone called the lady from the front door saying “the bus is leaving” and the lady who was making the purchase “just turned around and ran out”. According to her evidence, the lady never did hand her the $20.00 but left with it. For her part, she was left with the cassette tape in her hand and never did hand it over to the customer. Ms. Bzdyl cleared the sale by pressing “the cash button” and left the cassette tape on the side of the register. She did not remove the cash register receipt which was generated by this transaction at this time. 76 In cross-examination, it was put to Ms. Bzdyl that the proper way for a Cashier to conduct a transaction is to receive the amount tendered prior to ringing it in. While Ms. Bzdyl agreed that this was the correct procedure, she testified that her action can occur, and does so frequently at the Niagara Parks Commission because people are in a rush to be served, that the Cashier, assuming that a customer will pay with the amount he/she is taking out or holding, rings in that amount before the money has actually been tendered; in other words, before it is in the possession of the Cashier. It may happen that the customer then, decides it would be preferable to pay by debit or credit card. She testified that If you have rung in the total, you would not he able to clear the transaction as the computer would already have picked it up. Ms. Bzdyl then explained that after the register cleared, she took the next sale which was a compact disk. The customer was a woman. She rang in the PLU number and the total was $20.37 ($18.95 + tax). The woman tendered $30.00 and Mx. Bzdyl testified that she asked her if she had 37 cents. The woman looked unsuccessfully while Ms. Bzdyl picked up a bag and placed the disk inside. She then gave the woman change of $9.63. She ripped the receipts from the register, and separated them. She did not void the $13.95. She then, gave the customer who had purchased the compact disk the $20.37 receipt and the woman left the counter. Ms. Bzdyl was not certain whether or not she left the store. She testified that she then voided the cassette tape transaction and initialled the original receipt tape (transaction #7918, timed at 1017 computer time) and the void tape (transaction #7920, timed at 1024 computer time). She then taped the original and the void receipts together and gave them to Ms. Chan who had now finished her break and was standing beside her. She “went in and picked up the T-shirts and cassette tape. Ms. Chan went on the till and began to serve a customer. Ms. Bzdyl thought that she had asked Ms. Chan to put the 2 receipts in her register with charges to keep as a record. Ms. Bzdyl then took the T-shirts and the cassette tape and replaced the tape in its display space and went to arrange the T-shirt display as she had originally planned. She could not recall at first whether or not she initialled the journal tape, but then acknowledged, having seen the tape, that, although it xvas her habit to initial it she had made the mistake of failing to do so on this occasion. [The original receipt shows that she did not initial transaction #7918, timed at 1017 computer time; the void receipt shows that she did initial the void receipt of transaction #7920; the original journal tape shows that she did not initial the journal tape void of transaction #7920]. 77 It was put to Ms. Bzdyl in cross-examination for rejection or confirmation that “when the customer came to the cash register, the transaction was never, in fact completed, the customer never gave you the money and the customer left without the tape and the customer still had the money”. She confirmed that this was so. Ms. Bzdyl also denied in cross-examination that she had the $20.00 tendered by the customer who was involved in the cassette transaction. She firmly maintained her version of this transaction even though it was put to her that Ms. Brisson, the Mystery Shopper, observed the change being given to the customer. When asked to explain her failure to bring forward her explanation of the transaction on August 22nd during a meeting with Mr. Adams and Ms. Daniels she tried to tell them the money was never exchanged but they did not want to listen. She did, however, try to tell the police officer and he was quite willing to speak with Mr. Adams and Ms. Daniels. There was, to her mind, nothing out of the ordinary with either the tape or the compact disk transaction and she worked through the balance of her shift without the occurrence of any notable incident with one exception. This was to be Ms. Chan’s last day at work before commencing her maternity leave and she asked Ms. Bzdyl whether she would be able to retain her employee discount card, which was valid from May to October, even though she was going on maternity leave. Ms. Bzdyl told Ms. Chan that she could not answer her question but that she would telephone Ms. Arndt and ask her, which she did. Ms. Arndt was not able to answer the question immediately and telephoned later to say that Ms. Chan would be permitted to keep her card until the normal layoff date in October. Mr. Adams testified, when asked to clarify the “thefts” in cross-examination, that he viewed the “theft” of August 19th as the most significant as he saw it as “a culminating theft which was incontrovertible” evidence invoIving a “series of voids and cash shortages which were suspicious enough to feel it was part of a pattern” and that “she was guilty of stealing money”. He clarified that they “did not say that she stole $74.20” and that they “felt that . . . they formed a pattern” and that August 19th was the culmination of the suspicions”. Mr. Adams further testified that he “would not accuse someone of stealing unless [he was] 100% sure” and acknowledged, in cross-examination that he felt 100% sure on August 19th and that “as far as [they] were concerned, she was guilty of August 19th, - irrefutable”, and, “in light of the suspicions, it would follow that [they] would consider it naturally a series of thefts”. 78 SATURDAY AUGUST 20.1994 Staff working, according to the schedule: Ms. Bzdyl 0830 to 1700 hours Ms. Archambault 1200 to 2000 hours Ms. Provenzano 0900 to 1400 hours Ms. Poole 1300 to 2000 hours Mr. Broerse 1000 to 1800 hours Register 1 Voids: 8 $ 42.36 Shortage: None noted Register 2 Voids: 4 $ 36.76 Shortage: None noted Relevant Information and Activities on August 20,1994 . Ms.. Daniels was on a scheduled day off Mr. Adams was not at work this day. . Ms. Bzdyl recalls working this day and testified that, she did not believe that anything out of the ordinary occurred. SUNDAY AUGUST 211994 MS. DANIELS SPOKE TO MS. BZDYL ABOUT THE VOID OF A CASSETTE SALE FROM AUGUST 19TH Staff working, according to evidence other than schedule: Ms. Daniels Ms. Bzdyl There was no evidence as to other staff working this day. Register 1 Voids: 6 $31.79 Shortage: None noted Register 2 Voids: 4 $20.44 Shortage None noted 79 Relevant Information and Activities on August 21,1994 . Ms. Daniels checked the paperwork on her arrival at work and found the day’s records of August 19th and the receipt and void “with Stephanie’s signature on it.” She also pulled the “Summary Sheet [Charge Sheet]. [This was not submitted in evidence.] She spoke to Ms. Bzdyl when she arrived for work and noted the conversation as follows: When Stephanie came in for her shift, [she] asked her about the void, because it should have been rung in under return & a customer refund slip [should have been] filled out as well. [Ms. Bzdyl] said she didn’t know that had to be done when the customer returned it on the same day. [Ms. Daniels] said yes & again reminded her that any time merchandise & money change hands a refund slip is required. Ms. Daniels went on to testify that when Ms. Bzdyl came in for her shift at approximately 1200 hours, her usual practice being to arrive early, she (Ms. Daniels) was in her office and mentioned to Ms. Bzdyl that she had the “summary sheet with copies” of August 19th and asked her about the transaction which she considered questionable. She testified that she asked her “if it was a return” and that Ms. Bzdyl said “yes, it was a Spanish family all there at once, a large group talking” and that “one woman bought the tape (Appalachian) and changed her mind and wanted to trade for the CD”. Ms. Daniels testified slightly later that Ms. Bzdyl said that there were ten people all around the register, but that basically, there was one customer and that she was not aware that she needed a customer’s signature. Ms. Daniels testified that “she (Ms. Bzdyl) did not say anything else”. She then stated that she “asked about the refund slip” and Ms. Bzdyl replied that “she thought she did not need it on an exchange”. She then, according to her testimony, told Ms. Bzdyl that “anytime merchandise and money change hands, a refund slip is necessary with the customer’s signature”. At no time, she testified, did she tell Ms. Bzdyl that the refund slip with the customer’s signature was not required for exchanges. Ms. Daniels was asked what conclusions she would draw from the sequence of tape sale, CD sale and tape return, in the case of the “sale to the woman in the Spanish family.” She testified she told Ms. Bzdyl that “they are returning and purchasing”, that “you do not pay twice and get money back” and that “ you would refund the money and then change”. Ms. Daniels spoke with Mr. Adams who told her about the August 19th Mystery Shopper and informed her that “he wouldn’t know the results until Monday morning.” 80 . Ms. Bzdyl testified that she arrived at work slightly in advance of 1200 hours and that it was her responsibility to close up that night at 2000 hours. She gave evidence that it was a busy day, as Sundays usually are, and for that reason, there were not a lot of other things to do. Ms. Bzdyl testified that, in compliance with her evaluation that she should communicate with Managers, she told Ms. Daniels, at about 1400 hours, that she had been asked by Ms. Chan about keeping her employee discount card until October and that, she, Ms. Bzdyl, had telephoned Ms. Arndt to enquire about this matter. Ms. Bzdyl testified that Ms. Daniels became “really upset” when told of her contacting Ms. Arndt and Ms. Bzdyl pointed out that she had left no instructions. She was told by Ms. Daniels, according to her testimony, that she had no right to do so and that she should have telephoned her at home. She was then told to go for her break and Ms. Daniels went to her office. She testified it was at approximately 1430 hours that Ms. Daniels called her into the office and asked her about the void which she entered on August 19th, (#7920). According to her, Ms. Daniels began by asking her if she had entered the void and she replied that she had done so. When Ms. Bzdyl was handed the original receipt (# 7918) and the void (# 7920) by Ms. Daniels she asked what she had done wrong with it, looked at the numbers and compared them and said that there was nothing wrong. According to Ms. Bzdyl, Ms. Daniels said, “Are you sure that this tape was not sold” and she replied “I’m sure it was not sold, I had it in my hand and that is why I had to void it”. It was Ms. Bzdyl’s testimony that Ms. Daniels then asked her why she had not prepared a pink slip for a refund, and that she had replied that it was not a refund, that the lady had not returned it, that she had simply left and did not buy the tape. She was then asked by Ms. Daniels to explain what she recalled happening that day. She was mindful at that time of her evaluation and Mr. Adams telling her she was to do what her Manager tells her to do and since she did not want any conflict with Ms. Daniels which might jeopardize her job. Ms. Daniels then told her that a pink slip should have been used while Ms. Bzdyl stated that in the particular situation, she did not think it should have been used because it was not a refund. According to Ms. Bzdyl, Ms. Daniels said that she needed a comment written on the slip and that she asked her what she wanted her to write. She testified that she tried to explain the situation of the two ladies standing there discussing which was preferable, the tape or the CD. Ms. Bzdyl thought that Ms. Daniels said “do you think that only one lady chose to buy a disk?” and that she replied that it was a possibility. Ms. Bzdyl testified that she was then asked by Ms. Daniels to write on the slip that the customer changed her mind for a CD. Ms. Bzdyl stated that 81 she did not put “mind” because that never happened. Eventually, she testified, she wrote what Ms. Daniels wanted, left it on the desk, and went to “do her job” while Ms. Daniels stayed in the office. It was her recollection that Ms. Daniels was not taking notes at this meeting. In cross-examination, Ms. Bzdyl confirmed her version with respect to the notation on the void receipt, since Ms. Daniels told her she needed an explanation and suggested one. In spite of the fact Ms. Bzdyl knew that the explanation was not true, she wrote it down rather than enter into a discussion with Ms. Daniels which might lead to a confrontation. Her explanation for having lied about the reason on the void receipt was that when she received her recent evaluation from Mr. Adams, he told her she was to avoid conflict with Ms. Daniels and was to do whatever Ms. Daniels told her. It was then put to her that Ms. Archambault had testified that on August 19th, she saw the notation and she replied that she could “not believe that Heidi would have any reason to look at [her] voids, because if there was a question, she could ask [her] .” Ms. Daniels went home at the end of her shift; Ms. Bzdyl remained and closed the store at approximately 2000 hours. MONDAY AUGUST 22,1994 THE DAY OF MS. BZDYL’S MEETING WITH MR. ADAMS AND MS. DANIELS THE DAY OF MS. BZDYL’S SUSPENSION Staff working, according to evidence other than schedule which did not extend this far: Ms. Daniels Ms. Bzdyl Arrived at 1145 hours No evidence of which other Naturally Niagara staff were working this day. Register 1 Voids: Shortage: After end of summary None noted Register 2 Voids: Shortage: After end of summary None noted Relevant Information and Activities on August 22,1994 . Mr. Adams was working this day. 82 . . Ms. Daniels saw the tape which recorded the August 19th transactions for the first time on August 22nd, the day she and Peter Adams met with Ms. Bzdyl. . According to Ms. Daniels, she spoke with Mr. Adams who asked her to telephone the Cash Office to arrange for the journal tapes. They wanted “to look up the sale and verify the sequence of events”. Mr. Adams in his turn spoke to Mr. Wallace, picked up the journal tape from the Cash Office and brought it to the store along with the CD and the original customer receipt from the Mystery Shopper showing the purchase of CD FAVORIT. They reviewed the information. She testified that the sales of the Appalachian tape and the CD from the Solitude Series were sequential and four minutes a part. She stated that “on the back of the tape [the journal tape] were Stephanie’s initials”. [This journal tape is in evidence, however, Ms. Bzdyl’s initials are not on the back.] Ms. Daniels acknowledged that she did not go through all the tapes, or through the whole journal tape of August 19th. It was not, she stated, necessary for her to do so as she could telephone the Distributing Centre and they could then key up her inventory and provide a print. Further, she herself, could undertake a physical inventory on Monday morning. She recalled that she did call the Distributing Centre and did do an inventory of all the CDS and cassettes and had it verified by Derek Broerse although she was not able to recall when she did so. The physical inventory did not correspond with the record of the printout. Ms. Daniels testified that Peter Adams was to discuss the matter with John Wallace, and that she was aware that there might have been a Mystery Shopper but that she had no details. Mr. Adams testified that he contacted Mr. Wallace for the results of the Mystery Shopper’s visit to Naturally Niagara. He was given the CD with the receipt and was told that $30.00 had been given to the Cashier called Stephanie; a CD was purchased and correct change was handed to the Mystery Shopper. . Mr. Adams then proceeded to the Cash Office and picked up the cash tapes for Register 1 and went to Naturally Niagara where he reviewed the situation with Ms. Daniels. According to Mr. Adams, she showed him the void in question and the “original cash register receipt from the first purchase” on the back of which was a signature that he believed to be Ms. Bzdyl’s and the note “changed for CD”. Mr. Adams’ testified that this implied that a customer made a purchase of a cassette and changed [his/her] mind between the cassette and a void was done to refund the original sale of the cassette. There are 3 transactions and one customer. 83 What should have happened, according to Mr. Adams, was the following: . (1) (2) (3) the original purchaser with the receipt would have come back the Supervisor would have done the void the Supervisor would have rerung the CD, got a balance and made change. One more transaction should have occurred, according to Mr. Adams. The CD “which was exchanged”, Mr. Adams testified, “was the one purchased by the mystery shopper” and “obviously 2 customers were involved in the transaction”. This “suggested that the note on the void was incorrect and that Stephanie had lied”. According to him, both he and Ms. Daniels felt that this was enough evidence to imply that “Stephanie was taking funds by an improper void procedure”. Mr. Adams testified that he did not recall the details of some minutes during the meeting and that for a portion of that meeting “Stephanie was saying not much sense” and was upset. He acknowledged that he did not offer union representation to Ms. Bzdyl for this meeting. He was asked in cross-examination that, if a customer had a change of mind and did not purchase anything, would Ms. Bzdyl then have to make up a void? He acknowledged that she would have to do so. He was further asked if the Mystery Shopper purchased a CD, and the Grievor did not process the void transaction until later, whether or not that would explain it. Mr Adams acknowledged that it would. He also agreed that, if one wanted to steal money from Naturally Niagara, the least risky way to do that was to take cash, because of the number of employees using the registers. He acknowledged that by signing her name to the voids, Ms. Bzdyl has, in effect, announced what she has done. Ms. Daniels went on to relate her understanding of the mystery-shopper incident. [Her knowledge of this incident is third and fourth hand and came to her via Peter Adams on August 22nd. He had received the information from John Wallace, who had in turn received it from Laurie Brisson.] She stated that the Mystery Shopper came into the store about 10:00 a.m., having been instructed by John Wallace “to buy a CD and to purchase it from Stephanie”. She “hung around” the interactive display (a display stand with tapes and CDS, with headphones and buttons) for about fifteen minutes, and made use of the headphones. While she was there, another woman, who appeared to be Canadian or American (not 84 Spanish), came up and was looking at the CDS and tapes and trying various things. There was no large family. She testified that she understood that Ms. Brisson spoke to her and actually helped her pick out a tape, the Appalachian tape, which the woman took to the register, where Ms. Bzdyl waited on her and rang up the sale. Having completed the sale, Ms. Bzdyl then started to leave the counter; however, the Mystery Shopper stopped her and asked about a CD, and at that point, Ms. Bzdyl recommended the CD FAVORIT which the Mystery Shopper then selected and took to Ms. Bzdyl who went to the register and rang it in. The Mystery Shopper tendered $30.00 in cash, received change, and left the store. When she did so, no one was at the registers, and few people were in the store. Ms. Daniels understood that the Mystery Shopper did not see the Appalachian customer at the counter at the time she was leaving, nor “did she notice them in the store”. Ms. Daniels recounted the meeting with Ms. Bzdyl as follows: Mr. Adams concluded that they “had enough to proceed with a meeting with Stephanie”. Therefore, before noon, at approximately 1140 hours, when Ms. Bzdyl arrived at work she was invited into the office at Naturally Niagara so, as Ms. Daniels noted, “Peter could talk to her”. She went on to testify about this meeting at which she, Mr. Adams and Ms. Bzdyl were present, and she made the observation that Mr. Adams was “in authority” and “conducted the meeting”. She did not make notes during the meeting, and believed that Mr. Adams only made notes after the meeting. The meeting was, Ms. Daniels said, “very confusing” and a lot was said that day”. She recalled that Mr. Adams told Ms. Bzdyl, words to the effect that she could confess and be fired or, if she chose not to confess, that the Employer would bring in the Niagara Parks Police. She testified that when Ms. Bzdyl responded “bring in the police, I am not confessing”, they were brought in, and, Ms. Daniels, while she was not informed of any investigation, given that she was at the store level and was not a Manager who communicated with the police, was under the impression that “there was a police investigation”, although she explained that she did not know how they did it. It was her understanding that Ms. Arndt took over the investigation on the instructions of the General Manager. Ms. Daniels’ only contact with the police was during their presence at Naturally Niagara following the meeting with Ms. Bzdyl and a consultation which she attended on August 25th, with other members of Management. Ms. Daniels testified that Mr. Adams confronted Ms. Bzdyl with the CD receipt for the CD FAVORIT and the fact that they had had a Mystery Shopper purchase the CD. She said that he explained to Ms. Bzdyl that they knew that there was no Spanish family and that more than one person was involved in the transaction and that he had “caught her red-handed”. Ms. Bzdyl, according 85 to Ms. Daniels responded “Let me see this woman, I didn’t do anything wrong”. Ms. Daniels testified that Ms. Bzdyl also said that she did lots of voids and could not remember them all, that she didn’t do the void, had no knowledge of the void and did not see it until Sunday, (August 21st) when Ms. Daniels made her sign it (initial it on the back and write an explanation). This, Ms. Daniels testified, she had not done. In Ms. Daniel’s opinion, Ms. Bzdyl had lots of practice doing voids and this was a simple transaction for a small amount, the type of transaction which Ms. Bzdyl previously never had trouble with. According to Ms. Daniels, Mr. Adams explained to Ms. Bzdyl that they did not want to involve the police but that he would call them if necessary. When Ms. Bzdyl continued to deny everything, Mr. Adams called the Niagara Parks police. She was suspended on that day, with pay, pending an investigation. . Mr. Adams reported the meeting as follows: Ms. Bzdyl went into detail about the “Spanish family”, that a cassette was purchased, that there was a crowd of them and that someone changed her mind and wanted to change a cassette for a CD. Mr. Adams testified that Ms. Bzdyl said they did, and that actually “they did”. He replied that he did not believe her story and explained that he knew who had purchased the CD, and that he actually had the CD and the receipt for its purchase. He testified that he then told her that, as far as he was concerned, she was lying about the void and that she had used the void procedure to take the money for herself. Mr. Adams stated that he did not recall the details of the next few minutes, except that “Stephanie was obviously upset as would be natural” and he told her that “unless she came up with a good explanation, they would consider it as theft.” He testified that he went on to tell her that he “was convinced that she had stolen funds, as was Lisa Daniels, and that she could confess and leave the employ of the Niagara Parks Commission, and if not that [he] would have to call the Niagara Parks Police Force to begin an investigation”. Her response was that he should do so, and he did. This was between 1220 and 1230 hours. Mr. Adams testified that the police could not understand the tapes and that at this point, Ms. Arndt took over the investigation. . Ms. Bzdyl related how she perceived the meeting of August 22nd: She arrived at work and Mr. Adams said he wanted to talk to her and she told him that if there was a problem, she wanted to have her Union Steward present. The conversation took place in the office and Ms. Daniels was present. Mr. Adams told her that the trouble she was in, no one could help her and refused to allow her to use the telephone in the store to place a call to her Steward. When she said that there was still 15 minutes remaining before she was due to start work and that she 86 was going out to use a pay phone, he then told her, that she could not leave the office. She related that Mr. Adams stated that Ms. Daniels told him that she, Ms. Bzdyl, was stealing and that on Friday, August 19th, there had been a Mystery Shopper purchasing from her, whereupon he brought out a CD from a brown envelope and then produced the original receipt, the 2 receipts initialled by her for $13.95 and the journal tape, and asked her to explain the void. She testified that she “tried to explain how it happened as far as [she] she could recall but each time she tried “to explain proper” he said “that’s not the way it happened”. She gave evidence that “he referred to Spanish people” and that she “said it could be possible that Spanish was referred to by another cashier but not by [her]” but that “he did not believe [her] that”. Ms. Bzdyl went on to testify that when Mr. Adams pulled out the disk [CD] receipt from the brown bag he told her that the comment she put on the slip was a lie because the cassette was never changed for a disk, since the customer who purchased the disk was a Mystery Shopper. When she replied that this was not true and that the tape was never sold, Ms. Bzdyl stated that Ms. Daniels told her she had a printout of the inventory, which she did not show to Ms. Bzdyl even though she had it in her possession, and that the tape was missing from the inventory. Ms. Bzdyl then asked Mr. Adams to have the three of them go into the store and do a count, but this request was denied. Ms. Bzdyl gave evidence that she was told that they had enough evidence to charge her but that they would give her the opportunity of confessing. It was her understanding at that time that she was being accused of stealing the tape. She was told by Ms. Daniels if she didn’t confess that her name would be in the newspapers, that her family would be embarrassed and that she would never find a job working with money again. At this point, Ms. Bzdyl recounted, she demanded to be allowed to contact her Union Steward and she was once again refused. She stated that she asked them to call the police because she knew that she had not taken anything and felt that they should charge her if they thought she had, and she told Mr. Adams that if he would not contact the police, she would do so. Mr. Adams did so, according to Ms. Bzdyl, and at that point she asked once again for the opportunity of contacting her Union Steward and this was once again refused. During the 20 minutes it took the Police Officer to arrive, Ms. Bzdyl sat in the office with Mr. Adams, and Ms. Daniels went out on to the floor of the store. Ms. Bzdyl was told by him “Honey, we got you red-handed” She asked a third time to be allowed to call her Union Steward and Mr. Adams refused once again. 87 When the Police Officer John Audibert, arrived, according to Ms. Bzdyl, Mr, Adams and Ms. Daniels initially spoke with him in the store, and he then came into the office to speak with her. She tried to explain the cashiering problem but Officer Audibert did not understand the system. She also asked to go with him, Mr. Adams, and Ms. Daniels, to check the inventory and see if the tape were missing. At that point he went out into the store and spoke again with Mr. Adams and Ms. Daniels. He returned and informed Ms. Bzdyl that Mr. Adams and Ms. Daniels would not agree to do a count of the tapes. She was then told to move from the office to the store, where she stayed for at least half and hour while the business of the store continued, and while Mr. Adams spoke with Officer Audibert in the office. Ms. Bzdyl was not aware of Ms. Daniels’ whereabouts during that time. Finally, she recounted, Officer Audibert came in [to the store] and told her that they had sufficient evidence to charge her and she replied that she wished to be charged but that before he did that, she wanted to speak with her Union Steward. He then said that he could not charge her, but failed to explain why. She gave evidence that she then asked Officer Audibert whether or not she was to go home, or to stay and finish her shift. The Officer went and brought Mr. Adams who told her in front of Officer Audibert that she was suspended without pay and that he wanted her Supervisor’s key. The key was, she stated, hanging on her belt, and Mr. Adams tried to grab it; and she told him to “just wait I will give it to you”. Once she had done that, Officer Audibert told her that she could use the telephone to call her Union Steward, which she did, only to find that her Union Steward was not home, (She did not telephone her at work.) and she therefore left a message on her Union Steward’s answering machine. Ms. Bzdyl testified that she then left the store, went home and called Mr. Schafer, the General Manager, and left a message with his secretary. She related that she was “really upset”. He returned her call 2 minutes later, and, according to her, stated that he could not understand and she thought this was perhaps because she was crying. In any event, he told her to leave the matter with him, and that he would take care of it. She then telephoned the family lawyer and explained the situation. He told her that if there were any charges, she should contact him and he would assist her. Ms. Bzdyl testified in cross-examination that “they [Mr. Adams and Ms. Daniels] did not want to listen to what happened that day (August 22nd)“. In cross-examination she was presented with the report of Peter Adams in which he referred to the meeting on August 22, 1994 and wrote that ““She (Ms. Bzdyl) said that a Spanish family had bought the cassette, had changed their mind and returned it for the CD instead.” It was also put to her that Ms. Daniels testified to the Spanish family story. Ms. Bzdyl stated that she knew “100% that she did not say that about Spanish people” and that 88 he [Mr. Adams] never asked me, [rather] he told me to confess, that they have 100% proof 1 am guilty and if my family does not want to suffer it was to my benefit to confess. Ms. Bzdyl testified that she did not have a purse with her in the store, that she was not searched, nor was her purse or access to her car requested for inspection, nor was she asked for the whereabouts of the tape. During this meeting she was not accused of anything other than the allegations relating to August 19th. She was never arrested for this alleged theft, had never spoken again with the Police Officer who attended, nor with anyone else from the Niagara Parks Commission Police. [There was no evidence of a Niagara Parks Commission Police investigation, or of a Niagara Regional Police investigation. Charges were never laid.] Ms. Arndt testified that Peter Adams informed her during the afternoon that the Mystery Shopper had completed her assignment, that he had been through the journal tapes and the transactions and that it had “become apparent that an employee had fraudulently voided a sale and it happened that it was the mystery- shopper sale”. [Ms. Arndt’s version of Mr. Adams’ part of the conversation] She testified that when he came to her for advice on how to proceed, he gave her a copy of the voided register tape and receipt, as well as the back of the void [Exhibits 10 and 1 l] and told her that he was convinced that he had enough evidence to dismiss the employee. His explanation to her of Ms. Bzdyl’s version of the August 19th incident as recounted at the meeting earlier that day was that “a Spanish family had come in and bought a tape and changed [their] mind and exchanged it for a CD.” She stated that he also told her that Ms. Bzdyl requested that the police be brought in and that he had called Officer Audibert. Ms. Arndt testified that she advised Mr. Adams to hold Ms. Bzdyl out of service with pay pending direction from Mr. Schafer and that by the time she spoke to Mr. Schafer, he had already spoken with Ms. Bzdyl. It was decided that the best course was to do an investigation. TUESDAY AUGUST 23,1994 MEETING BETWEEN MS. ARNDT AND MS. BZDYL . Ms. Arndt testified that she thought she said something to Ms. Bzdyl about “Peter and Lisa” saying she mentioned a Spanish family. It is reasonable to conclude from this comment that Ms. Arndt had spoken with both Mr. Adams and Ms. Daniels prior to meeting with Ms. Bzdyl. 89 . Ms. Bzdyl testified that Ms. Arndt telephoned to arrange a meeting with her, since she had been requested to do so by Mr. Schafer. Ms. Arndt insisted on meeting that day and Ms. Bzdyl stated that, if the meeting had to take place on that day, the only place she was able to meet was at her home, since she was caring for a neighbour’s children. . Ms. Arndt described the meeting as follows: When she telephoned to arrange a meeting with Ms. Bzdyl for the following day, to discuss August 19th and harassment, Ms. Bzdyl explained that she felt uncomfortable coming into the workplace and when she replied that a neutral location was acceptable, Ms. Bzdyl suggested her home. She arrived there and met Ms. Bzdyl for the first time. She attended there from approximately 1100 hours to 1330 hours. Ms. Arndt testified that she explained that she had come to talk about the “alleged theft and some harassment issues which she had brought up”. Ms. Amdt described her as very agitated and commented that she was popping up and down looking after children. Ms. Bzdyl, according to Ms. Arndt’s testimony, started talking about stealing a tape, and saying that she did not take a tape and continued to state that she did not steal a tape while Ms. Arndt was trying to go through the cash register documents from August 19th, which she did 2 or 3 times. After some time, Ms. Amdt managed to direct the conversation from the tape to money and asked for an explanation. She wanted Ms. Bzdyl to be certain she was talking about money. Ms. Arndt testified that Ms. Bzdyl told her that Lisa Daniels asked her on Sunday what the void was and that she had said that it was about a lady who had purchased a CD and It]hen she said that a lady was holding a tape and that she [Stephanie] rang it in and the lady changed her mind about the tape and left. Ms. Arndt also testified that Ms. Bzdyl said that she had not written anything on the journal tape when it was voided, except for her initials. [The journal tape was presented in evidence and there was no writing of any kind on the CD sale, the appala tape sale, or on the appala tape void.] Ms. Arndt did not recall any mention of a Spanish family. She also heard from Ms. Bzdyl that she had always had a problem with voids and that up until a week before, all the receipts were thrown away. Ms. Bzdyl also stated to Ms. Amdt that she was not even sure that she was on the cash at that time because she was doing display, and she knew that Ms. Provenzano was not doing T-shirts. This discussion was 90 and that she limited to August 19th. Ms. Arndt had no specific information about the other allegations at that time. She was only aware of the suspicions. Ms. Bzdyl described the meeting as follows: She invited Ms. Arndt into the dining room where they met for an hour to an hour and a half, and that during the meeting a two-year old child whom she was caring for was running around. Ms. Arndt said that Mr. Schafer wanted to know what had happened and that she wanted to hear specifically about August 19th. She explained that there was a lot of theft going on within the Commission and that people were fired for theft. Ms. Bzdyl testified that she told her that she did not take anything at anytime during my work for the Niagara Parks Commission, that she respected her job and did anything to protect their products against theft anytime there was a crime committed” , was a witness for crimes on a few occasions in the police investigation and in court as a witness”. The harassment issue came up and was discussed and then Ms. Arndt returned to the issue of the missing tape. At that point Ms. Bzdyl related, she thought that it was possible that she was being accused of stealing a demonstration tape of which both she and Ms. Archambault had been given a copy by Ms. Daniels. She brought it out and asked Ms. Amdt if this was the missing tape and because Ms. Amdt did not know exactly which tape was missing she was unable to answer that particular question. Ms. Bzdyl testified that she explained the situation of the 2 ladies to Ms. Amdt and that she wrote it down. She did not respond to Ms. Bzdyl’s recounting. Ms. Arndt testified that she had some difficulty since she was getting so much differing information, and she ended the interview feeling that she needed more information. She gave evidence that she asked Ms. Daniels to telephone Ms. Archambault and ask her to put in writing when she saw the reason for the void. She made this request because Ms. Bzdyl had told her that she did not write a reason on the Friday, that is on August 19th. [Ms. Archambault testified that she was asked to write a report, although there was no evidence that she did so.] [There was no evidence that Ms. Amdt had the journal tapes or other transaction slips with her or that if she did that she showed them to Ms. Bzdyl.] 91 WEDNESDAY AUGUST 24,1994 Relevant Information and Activities on August 24,1994 . Ms. Bzdyl went to a doughnut shop at 1500 hours to attend a previously arranged meeting concerning harassment with Ms. Arndt. She was accompanied by her friend. Ms. Amdt did not attend and Ms. Bzdyl did not receive an explanation for her failure to do so. Ms. Arndt testified that this meeting was to take place on August 23rd and the meeting at Ms. Bzdyl’s home replaced it. . Ms. Arndt spent 3 to 4 hours with Ms. Daniels, having her recount her experiences from when she first had suspicions or doubts, the events of August, and then, making her go through each step of the cash register operation and the cash bags. She also spoke with Ms. Archambault briefly to ask if she saw “writing on the back of the void on August 19th”. Ms. Arndt testified that Ms. Archambault said that “she saw writing of the reason on August 19th”. Ms. Arndt testified that she also spoke with Ms. Brisson, [the Mystery Shopper] who, in reply to one of her questions, stated that “she didn’t know if Stephanie was the cashier who cashed out the lady” and that “she could have misunderstood”. Ms. Arndt stated that because of the Spanish reference she asked Ms. Brisson what she did. She believes she did so without conveying to Ms. Brisson whether or not Ms. Bzdyl had made a Spanish reference. She recalled asking if “Stephanie had waited on the tourist” and Ms. Brisson replying that “she did not know if Stephanie had”. [This contradicts Ms. Brisson’s testimony.] Ms. Arndt did not ask Ms. Brisson about the inconsistency between the information which she provided directly to her, and her report. THURSDAY AUGUST 25,1994 INVENTORY OF CDS AND CASSETTES CARRIED OUT BY MS. DANIELS MEETING OF MS. ARNDT, MR. ADAMS, & MS. DANIELS WITH SGT. HOLLIDGE Relevant Information and Activities on August 25, 1994 . Ms. Daniels carried out an inventory of CDS, and cassettes, looking at a total of 36 items. This related to the transaction of August 19th. There were shortages in 23 items, overages in 4 and the correct number, according to the printout, in 9 92 items. There was a total of 52 shortages. The inventory was verified by Derek Broerse. . Barbara Arndt, Peter Adams, and Lisa Daniels went to the police offices and consulted Sergeant Fred Hollidge at the request of Mr. Schafer who wanted them to get a police perspective. It was the understanding of Ms. Arndt from Mr. Schafer that Sergeant Hollidge of the Niagara Parks Police, was an officer with FBI investigative training. According to Ms Arndt, she wanted to make sure that “our information gave us a bona$de case”. They showed him, according to Mr. Adams, the shortages and transactions from July 30th to August 19th listed on the first page of his statement, and asked him if he felt there was enough evidence to pursue a charge of theft. Assuming they were correct, and based on their investigation and their verbal report to him, Sergeant Hollidge “felt that it would stand up in Court.” According to Ms. Daniels, Sergeant Hollidge was of the opinion that they “had a case of fraud”. According to Ms. Arndt, if Sergeant Hollidge had said that they “didn’t have enough here, we would have said to Dennis Schafer, we do not believe we have enough evidence here”. She testified that they “did not want to make the decision lightly.” However, Sergeant Hollidge, according to Ms. Arndt, said “if I had this case, I would say you have enough evidence to charge and convict.” She testified that Sergeant Hollidge “did not speak to the suspect” but heard her (Ms. Arndt’s) version of what Ms. Bzdyl had said and that she made sure that everyone there knew that Ms. Bzdyl maintained that she was innocent. Mr. Adams did not know whether or not the police undertook a further investigation following the attendance of Officer Audibert on August 22nd, nor did he know if Sergeant Hollidge had spoken with Ms. Bzdyl. Ms. Daniels testified that she thought a police investigation was carried out by the Commission, although she did no know how. FRIDAY AUGUST 26,1994 SATURDAY AUGUST 27,1994 SUNDAY AUGUST 28,1994 93 MONDAY AUGUST 29,1994 MEETING IN THE ADMINISTRATION BUILDING DECISION TO DISMISS MS. BZDYL AND NOTICE TO MS. BZDYL Relevant Information and Activities on August 29,1994 . Mr. Adams testified that he spoke to Ms. Brisson by telephone and obtained details of her visit to the store. [This conflicts with Ms. Brisson’s testimony that she did not speak to him prior to February 22, 1995.1 . A meeting was called at the initiative of Mr. Schafer for the morning of August 29, 1994. Ms. Bzdyl was informed of the meeting by Ms. Amdt and it was Ms. Bzdyl’s understanding that Mr. Schafer would attend. He did not do so. She was also informed that she could bring her Union Steward. The following individuals attended: From Management: Barbara Amdt who took notes of the meeting Peter Adams Lisa Daniels From the Union: Stephanie Bzdyl - did not take notes of the meeting Colleen McComb Page . Ms. Arndt described the meeting: Ms. Amdt testified that she explained to those present that they were at the meeting “to show Stephanie all the evidence which [they] believed that [they] had and the suspicions and to give her an opportunity to explain what was going on”. [Ms. Amdt testified that it was not a disciplinary meeting. It was, rather, an information meeting and her role was to gather information for Mr. Schafer.] She stated that Ms. Daniels went through the tapes and incidents, methodically and thoroughly and that at first, Ms. Bzdyl agreed that all the initials on all the voids were hers - film, gardening books, dog sled and CD. She then identified the initials on the back of the void slip for the Appalachian tape. [#7920], stated that she could not explain it and denied doing anything. At one point, according to Ms. Arndt, Ms. Daniels pointed out that there were 2 or 3 explanations and Ms. Bzdyl replied that “there may be 2 or 3 by the time she finished.” [Ms. Arndt’s version of Ms. Bzdyl’s statement]. Ms. Arndt stated that on a couple of occasions Ms. McComb Page reminded Ms. Bzdyl that this was her opportunity to explain and that when the Union Steward asked her “Is it your signature?“, Ms. Bzdyl said that “It might not be”. . Ms. Daniels described the meeting: It was her understanding that this was a meeting set up by the General Manager following a “thorough investigation” by Ms. Arndt, to allow them to “disclose all 94 the evidence to [Ms. Bzdyl] and get a response”. She testified that “we were there to hear her side of the story”. She stated that at the outset of the hour-long meeting , the Union brought up the issue of discrimination relating to Ms. Bzdyl’s Polish ancestry and her accent and tried to make a connection between the discrimination allegations of Ms. Bzdyl and the money allegations of the Employer. She stated that Ms. Arndt dealt with the matter by explaining that each individual possessed an accent and that a comment on someone’s accent “is not meant as a slur of any sort”. Ms. Daniels testified that she [Ms. Daniels] “did the physical evidence”, “going through everything”. [There is no evidence that this included either the inventory printouts or the inventories which Ms. Daniels had undertaken.] She laid out the journal tapes and the summary sheets [Only one was presented in evidence.] and then went through the relevant transactions of August 19th, her conversation with Ms. Bzdyl and the actions of the Mystery Shopper. [Ms. Daniels was not present on the day the Mystery Shopper came.] Ms. McComb Page also went through the transactions with Ms. Bzdyl who, once again, had no explanation. During the meeting, according to Ms. Daniels, Ms. Bzdyl confirmed all her initials on copies of all voids ( the Garden books, the dog sled and the Appalachian tape) and gave no explanation for any of these. Ms. Daniels testified that she did not volunteer the information that Ms. Archambault had relayed to her on August 19th that her initials and explanation were on the back of the Appalachian tape void slip. Ms. Bzdyl spoke of a Spanish family, claimed that she had no knowledge, that she did not do the void, that Ms. Daniels had made her sign, and then said that she might change “three times, who knows?‘. Ms. Daniels testified that Ms. Bzdyl kept repeating that the Employer should go ahead and press charges, while the union representative kept explaining to Ms. Bzdyl that the Employer did not want to press charges. At the end of the meeting Ms. Daniels’ impression was that a lot had been said and that the atmosphere of the meeting was stressful. In her opinion, the signatures were Ms. Bzdyl’s; she had changed her story; and, she was guilty. Following the meeting she, along with Ms. Arndt and Mr. Adams spoke with Mr. Schafer who, authorized the termination of Ms. Bzdyl, based on the information and recommendation provided to him. . Mr. Adams described the meeting: From Mr. Adams’ point of view, the purpose of the meeting was “to summarize the investigation done during the previous week and most of this was directed by the General Manager. He wanted [us] to treat it as fair as we could. . . . The point was to give Stephanie a chance to hear the findings of the investigation and give her another chance to explain voids and problems we had drawn before her. . . . We 95 wanted to give her a chance to explain if there was a misunderstanding , confusion or a genuine misunderstanding, or, perhaps we were wrong” . He stated in cross- examination that, in his opinion, it was fair to wait 28 days to confront an employee who would serve approximately 1200 customers over that period, with an alleged discrepancy, although he tempered this by adding that “If no one had brought any of the voids to her attention, that [he] would say ‘yes’, it would be unfair”. He was not able to recall if the shortages were brought to her attention and explained that they “were not sure enough about those”, although, he stated, “(they] were suspicious and remain suspicious to this day”. There was, he testified, some discussion between Ms. Amdt and Ms. Bzdyl concerning the harassment issue, and to his mind, this was not pertinent. “She had the opportunity to see all the evidence and signatures” but “did not give any explanations for the evidence we presented.” He observed that the union representative told Ms. Bzdyl that this was her chance to explain but at that point, Ms. Bzdyl said no more. In the end, when Ms. Bzdyl said, “do what you have to do” [quotation from Mr. Adams], he testified that they concluded they had “good reason to believe that Stephanie was guilty of stealing this money and, although it was not a large sum, [they] felt she had breached trust”. Ms. Bzdyl described the meeting: She recalled that Ms. Arndt started to read from her notes and brought up the issue of harassment. This was upsetting for Ms. Bzdyl as she understood she was there to discuss August 19, 1994, and she believed that this issue of harassment should be for another time. Ms. Bzdyl was told “just to listen” [She did not say by whom.] and Ms. Arndt stated that she did not find any harassment or discrimination towards Ms. Bzdyl in the workplace. She then read a statement of the “Mystery Shopper”. According to Ms. Bzdyl, it differed from the typed statement of Ms. Brisson that was entered in evidence (Ex. 18) in that Exhibit 18 does not say that Ms. Brisson observed the lady buying the tape, saw Ms. Bzdyl giving change, saw the bills she gave in change and saw her voiding the $13.95 transaction. Ms. Bzdyl testified that Ms. Daniels showed her entries on the three journal tapes and asked her to identify her initials. Some she acknowledged, others she questioned. She was not shown any other sections of the journal tapes except the sections where the initials which Ms. Daniels produced were located. She was also shown two of the three receipts for August 19th, and asked to give an explanation but she testified that she tried to explain but “they had mind set up [she] did it” and “each time I tried to explain it they interrupted and said what happened” and “the more [she] explained the more interruption and therefore it became confused and the Union Steward advised me not to say anything”. Ms. Bzdyl testified that at that time it was her understanding that she was accused of stealing a tape and that she was never told whether the register was short or over and she still did not know this at the time of the arbitration hearing. 96 . It was Ms. Bzdyl’s recollection that during the meeting neither the issue of the film void nor the cash shortages was mentioned. She recalled that the issue of the gardening books was brought up but that she did not respond since she was not shown the void slip for them. She remembered the issue of the dog sled coming up, but could not recall whether or not she had been shown the void slip for that item, nor for the compact disk issue of August 5th6th. Ms. Bzdyl maintained that rather than being asked to provide an explanation, as was suggested to her, she “was specifically asked to confess and if, as she put it, I do not confess I will be charged and my family will suffer”. This explanation was challenged in cross-examination and it was put to Ms. Bzdyl, that she did not explain during the meeting of August 29th, for the simple reason that she had yet to come up with an explanation. Her response to this suggestion was that she was not offered an opportunity to explain, that what she was offered was an opportunity to confess to something which she did not do. She testified that she had already tried to explain it to the Police Officer. At the end of the meeting, Ms. Bzdyl left with her Steward and when they were outside Oak Hall, she asked why Mr. Schafer was not there. When she left, it was with the hope that she had explained things sufficiently clearly so that Management understood that she did not commit any kind of theft on August 19, 1994. She had no knowledge there were other allegations, which had not been presented. . According to Ms. Arndt, she, Mr. Adams and Ms. Daniels “did not feel [they] had a reasonable explanation for the incident on the 19th except that money had been taken. [There was no evidence that money had been taken.] Based on past practice it was the view of all that termination was appropriate and with that 1 perspective, they went to Mr. Schafer, who asked them for their opinions and whether or not they had the evidence. They replied that they did. Following the departure of Ms. Daniels and Mr. Adams, Mr. Schafer and Ms. Arndt discussed the situation and Mr. Schafer made the final decision to terminate Ms. Bzdyl. TUESDAY AUGUST 30,1994 . On this day (or the previous day) “a confidential, personal letter” for Ms. Bzdyl was hand-delivered to her husband. It was her letter of dismissal for having engaged in a series of thefts from the Naturally Niagara Store as well as violating the trust that The Niagara Parks Commission accorded [her] as a Seasonal Supervisor. 97 IMPACT OF THE ALLEGATIONS AND THE DISMISSAL ON MS. BZDYL Ms. Bzdyl testified that the allegations of theft and the consequential dismissal, as well as the humiliation she suffered in the presence of customers, have had both physical and emotional repercussions for her. She lost a considerable amount of weight and at the time of the hearing was still seeing both a social worker and a psychiatrist for assistance in dealing with the effect that the situation had, and continues to have, on her. She put it that “[her] life is just destroyed by this”. She gave evidence, that the repercussions were not limited to her alone, but that the other members of her family were affected as well. Her husband sees her as obsessed by the allegations against her, her son worries that she will be arrested and her daughter has been told by one of her peers that her mother is a thief. ARGUMENT The Employer Counsel for the Employer, Christopher Riggs, submitted to the Board that most of the evidence which was heard was not helpful in a decision on the fundamental issue which is the termination of employment of the Grievor, Ms. Bzdyl, “as a result of theft from the Niagara Parks Commission on August 19, 1994”. Much of the evidence concerning incidents prior to that date is, he argued, evidence of reasonable suspicion which led to the decision to “have someone come in and purchase a CD to determine whether or not the Employee was stealing from the Employer.” Mr. Riggs emphasized that this employee was in a position of trust, given that she worked in a retail setting where a number of people have access to both cash and merchandise and where it is easy to steal. Further, she was in the position of knowing how the system worked. From the Employer’s perspective, it is very difficult to conclude who is responsible in such situations for the theft of product or money and the Employer’s use of the “Mystery Shopper” is justified under such circumstances. Laurie Brisson, he offered, was an appropriate person for the mystery-shopper assignment in that she had no connection with Naturally Niagara 98 or its staff, and while she was a member of the same bargaining unit as the Grievor, she undertook the assignment straightforwardly and carried it out to the best of her ability. Her evidence was not, Mr. Riggs argued, challenged in any respect and was supported by her notes which were submitted as part of the evidence. Her evidence with respect to the purchase of a cassette by a woman who was accompanied by her husband, and her evidence regarding the fact that the woman was English-speaking should, therefore, be accepted. The Panel should also accept the evidence of Lisa Daniels, Peter Adams and Barbara Arndt as it was consistent where it overlapped and was given, by all three directly and without hesitation. The evidence of Ms. Archambault, and Ms. Brisson was the evidence of witnesses called by Management but not from Management. They were both, he pointed out, simply witnesses doing a job and recounting in a straightforward way what had occurred, and their evidence should be considered with this in mind. Mr. Riggs submitted that the evidence of the Grievor is inconsistent and cannot stand up to the evidence of the management witnesses. He went on to set out the areas of her testimony which he considered problematic: . Ms. Bzdyl’s mentioning of the Spanish family on August 22nd and her failure to mention it on August 29th. . The proposition put forward on August 22nd by Ms. Bzdyl flies in the fact of the evidence of Ms. Brisson that she was the one who had purchased the CD and that the family in question was English-speaking. . The Grievor’s explanation that the transaction was never completed and that the purchaser had changed her mind prior to the transaction’s completion was not suggested to Peter Adams, Lisa Daniels, or Barbara Arndt when they were giving evidence. [Because of this, the Counsel for the Employer was permitted to recall these witnesses in reply. However, he chose not to do so.] This explanation does, he argued, conflict with the evidence of Ms. Brisson, who was quite explicit in stating that the transaction was completed, that change was provided and that the purchaser went out of the store with her purchase in a bag. There are two problems with the Grievor’s evidence respecting the signing on the back of the void slip. The first, Mr. Riggs submitted, was Ms. Brisson’s evidence that she was the one who had purchased the CD; the second. the Grievor’s 99 explanation of the manner in which the statement on the back of the void slip came into existence; that is, that she wrote the reason for the void on August 2lst, at the behest of Ms. Daniels, because she was directed to provide an explanation and did so even though she knew it not to be true. He submitted that her response to the question of why she would write something down that she knew to be untrue, - “When your job is in jeopardy you write it down”- is illuminating and was “a defining moment”. . The Grievor’s theory of her having written the comment on August 2 1 st, must be rejected in the face of Ms. Archambault’s evidence that she recognized the Grievor’s writing and her initials and recalled that it was there on August 19th. Mr. Riggs made the point that Ms. Archambault had nothing to gain from the giving of this evidence. . The Grievor’s recall of the meeting of August 29th is inconsistent with that of Ms. Arndt and others in that Ms. Arndt recalled Ms. McComb-Page, the Grievor’s union representative at the meeting, telling Ms. Bzdyl that now was her chance to “tell what happened” and that the Grievor’s recall was that she was prevented from providing an explanation. It is clear, Mr. Riggs put forward, that, at the August 29th meeting. The Niagara Parks Commission gave the Grievor the opportunity to provide a more honest response of the events of August 19th. The Board cannot, according to Mr. Riggs, avoid the conclusion that the Grievor, while occupying a position of trust, has demonstrably stolen from her Employer and has consistently lied in her evidence to the Board. Her failure to own up to the theft and her consistent lying to the Board make it clear that the Board should not exercise its remedial authority to reinstate. The Union Rebecca Murdock, Counsel for the Union, stated that the Union’s position is that the Grievor, Ms. Bzdyl, is innocent; that no admission of guilt has been forthcoming prior to or during her evidence, that she has not committed any fraud or been responsible for theft from her Employer and that her evidence is consistent and coherent. When one listens to her evidence in totality, Ms. Murdock submitted, all the parts fit together. The onus is on the Employer, she argued, to show, first, that a theft or a crime has been committed and second, that Ms. Bzdyl committed that crime. The Employer has still not said whether the Grievor “is accused of stealing a tape, a 100 $20.00 bill or $13.95, the price of the tape. The absence of a crime leaves a gaping hole in the Employer’s case. Ms. Bzdyl was never caught in the act of taking money or merchandise from the Employer, no one ever discovered money or merchandise in her purse or on her person, nor has anyone observed her pocketing money or merchandise while in the store or leaving the store with merchandise. The most that is there is that “something funny happened on August 19th” and from that the Employer is asking the Panel to draw an inference that Ms. Bzdyl stole either money or merchandise. Ms. Bzdyl has never understood what she is being accused of. The Employer has, Counsel for the Union argued, at the conclusion of its case, narrowed the grounds of dismissal from the letter of termination which refers to 4 grounds . 1 cash shortage . 2 voids . 3 items of missing merchandise . August 19th incident involving the Mystery Shopper. Ms. Murdock maintained that the Employer has shifted the emphasis of its case, because during the hearing it has become evident that there is no substance to the first three allegations. It is the Union’s position that there is no substance to the fourth ground although it acknowledges that there is a factual dispute and, she submitted, the Employer is seeking to hang its whole case on this dispute of fact. The suspicions which the Employer had about Ms. Bzdyl arose, she stated, because of two factors: . inferior cash handling procedures that protected neither the Employer nor the Employees. and . the inexperience and lack of training of the Store Manager, Lisa Daniels, who was having periodic episodes of conflict with the Grievor. Ms. Murdock submitted that the allegations prior to August 19th, that is, the shortage and void allegations, were used by. the Employer to discredit Ms. Bzdyl and to lend greater weight to the Employer’s allegations respecting August 19th. It is always easier, Ms. Murdock maintained, to suspect a troublesome employee than one with whom you have a great relationship. It is clear, 101 she stated, that the suspicions surrounding Ms. Bzdyl arose against a backdrop of Ms. Daniel’s not getting along with Ms. Bzdyl. Ms. Murdock then made submissions on the separate grounds for dismissal set out in the Employer’s letter of August 29, 1994. Shortages The Employer alleged the Grievor was responsible for 3 cash shortages in Peter Adams statement of August 24, 1994. In that respect one should consider the following, she submitted: . The cash registers are rung off daily at approximately 1630 hours and as part of that procedure the money, uncounted by the Naturally Niagara staff, is put into the cash bags and is sent to the Cash Office. . Cashiers are not informed of shortages or overages unless the Cash Office considers them significant. . At Naturally Niagara potentially a dozen people each day could have access to the cash drawers at different stages during the cash process. . A Cashier scheduled to work from 0900 to 1600 hours would operate a till that had been operating since 1630 hours the previous day. . Cashiers are not required to count the float, they simply assume that the requisite amount is in the drawer and that the balance of the sales from the previous evening had been removed from the till. . The cash, once picked up, is exposed to still more people during the transportation and cash office processing stage. It was the Union’s submission that, given such an inferior system of cash handling, there is no way that an individual Cashier could ever be linked to cash shortages, barring direct evidence, that is direct observance of a Cashier pocketing money out of a cash drawer. Ms. Murdock submitted that the Board should apply the same logic set out in the Employment Standards Act, s. 8, that is that if you do not have 100% control over a cash drawer, you cannot be held liable. The sections of the Act and the Regulations are set out below: Except as permitted by the regulations, no employer shall claim a set-off against wages, make a claim against wages for liquidated or unliquidated damages or retain, cause to be returned to 102 himself, or accept, directly or indirect, any wages payable to an employee. [R.S.O. 1980, c. 137, s. S] and Regulation 325, s. 14: 14. (I) Despite section 8 of the Act, an employer may set off against, deduct from, claim or make a claim against or retain or accept the wages of an employee where, ;;‘, a statute so provides; an order or judgment of a court so requires; or 0 subject to subsection (2), a written authorization of the employee so permits or directs. (2) No written authorization of an employee shall entitle an employer to set off against, deduct from, retain, claim or accept wages for faulty workmanship, or for cash shortages or loss of property of the employer where a person other than the employee has access to the cash or property. [Emphasis added] (3) Where an employee has been given or paid a vacation with pay or payment for vacation in excess of the requirements of Part VIII of the Act, no employer shall set off or deduct such excess against or from any vacation with pay, pay for vacation, or payment under section 30 of the Act. [R.R.O. 1980, Reg. 285, s. 15.1 Ms. Murdock submitted that on the issue of shortages, Ms. Bzdyl’s evidence is credible and that she did not take money from her Employer. Voids The Employer, Ms. Murdock submitted, alleged that allegations were made against Ms. Bzdyl with respect to 5 voids in the statement of Peter Adams. She went on to state that it is clear from the compilation of daily voids prepared by her that voids at Naturally Niagara were a huge problem, reflecting a serious accounting problem that was never addressed by Naturally Niagara. Ms. Bzdyl acknowledged that she had difficulty with voids at this store and that difficulty seemed to stem from the fact that she was not familiar with processing them electronically. She was not, Ms. Murdock noted, the only one employed on the registers as the frequency and the amounts of the voids which are listed in the compilation of voids indicate. Everyone in the Naturally Niagara store had difficulty with the system; they made a lot of mistakes which were. however, corrected through the voiding procedure. Many mistakes occurred and were corrected on the days on which Ms. Bzdyl was not present. Prior to this time, Ms. Murdock explained. Ms. Bzdyl had done voids manually on a balance sheet. Ms. Bzdyl recognized that she had a 103 problem with processing voids and asked for more training and a list of written instructions but was, stated Ms. Murdock, denied both by Ms. Daniels. Ms. Murdock maintained that in the instances of voids due to error or a customer changing his/her mind, while the Supervisor would do a void, it would not be appropriate to require the customer to sign a Customer Refund Slip Ms. Murdock submitted that when one looks at any of the journal tapes, some of which were exhibits, all of the voids (of which there were hundreds over the summer of 1994) that the Employer alleges were suspicious according to Mr. Adams’ statement submitted in evidence, match up to original sales that were identifiable on the journal tape. When one looks at the journal tapes, there is no way of knowing, Ms. Murdock submitted, which Cashier made the original error and, since it was Ms. Bzdyl’s job to initial voids on the journal tape, there is nothing suspicious in finding her initials there frequently. Ms. Murdock acknowledged that it was common ground that it would be problematic if the voids did not match up to an original sale up and that such a discrepancy would be indicative of a Cashier voiding items on the register without explanation. Such a discrepancy would, however, be easy to trace because one could look at the preceding journal tape and see that the original sale was not there. Such a discrepancy could be difficult to prove if the void involved a return from another store because the original sale would not show up on the tape at the store in which the item was being returned. These circumstances do not apply in this case, however, since, Ms. Murdock stated, in all instances cited by the Employer in Mr. Adams statement, the original error has been identified on the journal tape and it is followed by the appropriate void. The pattern of original sale/void is the same pattern that one would find on examining the hundreds of voids recorded on the journal tape on other days. In this case, the Employer has singled out Ms. Bzdyl and suggested that something is improper with her voids, and it would be just as easy to do that with any other employee in the store, particularly those who are in a position to initial the journal tape when a void is entered, such as Ms. Daniels. The Employer, Ms. Murdock submitted, could point to a void initialled by any Supervisor or Manager and say, we believe this void is suspicious, we think you have voided something which was an actual transaction. The Employer could also point to an earlier sale and say, this was not an error it was an actual sale. She explained she was 104 making this point because she maintained there is no way the Employer can prove one way or another, if it was a mistake, since the system is not set up to accommodate that type of thing. Unless there is direct evidence of a Cashier pocketing money while completing a void, it is simply impossible to conclude that the void is improper. The Union submitted that on each of the void allegations, Ms. Bzdyl was simply correcting a legitimate error and that there is nothing but innuendo to suggest otherwise, -- only the Employer’s suspicion that the voids were not in fact proper voids correcting an original error. There is, she argued, no evidence which demonstrates the alleged impropriety. Missing Merchandise According to Counsel for the Union, the Employer alleged that two gardening books and a dog sled were missing based on the physical inventories to which Ms. Daniels referred in her evidence. The Union takes the position, Ms. Murdock submitted, that such an “eyeball” inventory is inadequate. It is not tenable or credible for a Manager to wander around the store and eyeball what the inventory or stock is. A real physical inventory involves, she stated, a team of people doing a proper accounting, during which the cash register is rung off just prior to the commencement of the inventory and directly following its completion, and that it is balanced against all the stock counted individually in the store. Such an inventory was not carried out here. The eyeball inventory here, was even done several day later. This left open the possibility of customer pilferage (a frequent occurrence in a tourist store), the erroneous placement of an item, and the possibility of internal theft by another employee. It is, Ms. Murdock submitted, an unreasonable conclusion based on the evidence, to say that Ms. Bzdyl took either the gardening books or the dog team when so many others had potential access to those items for 2/3 days before the inventory was carried out. The only way, Ms. Murdock argued, to link a Cashier to the loss of merchandise, is through direct evidence, that is, observing an individual leaving the store with the item or later find it in her possession, in her car or at her home. It is the Union’s position, Ms. Murdock submitted, that the customer in the line-up in front of the Mystery Shopper would have been of no interest to her, and in fact, that sale was of no interest since it 105 was not mentioned in her report. The Union has difficulty with the accuracy of her recollection 3 days later, because of the length of time before it was brought to her attention and also the lack of information respecting the context in which the recollection was extracted from Ms. Brisson. It is. Ms. Murdock maintained, a situation in which the Employer, unable to “nail” Ms Bzdyl in a surprise audit or in the mystery-shopper transaction which both came out clean, was committed to reaching for and finding something to which they could “point their finger” and this led them to scrutinize the journal tape before and after the Mystery Shopper, hoping they would have some direct evidence; that is, the Mystery Shopper would have observed something while standing in line. Looking at the journal, Ms. Murdock submitted, there is nothing unusual in that series of transactions, and the Employer’s whole case turns on Ms. Brisson seeing Ms. Bzdyl taking money for this sale. Further, it is understandable, where Cashiers are ringing in hundreds of sales a day, that as a matter of course, Cashiers will not themselves remember why they voided a particular sale and in a store as busy as Naturally Niagara, with a constant stream of customers, mistakes happen and are corrected throughout the day through voids, and it is unlikely that a Cashier will have a clear recollection of why she made an error and why a particular void appears. Ms. Murdock put forward another possibility for the journal tape sequence on August 19th, noting that it was a plausible theory which would mesh with Ms. Brisson’s version, and she suggested that the couple purchased a CD [sic] and got back in line behind the Mystery Shopper and dealt with the purchase again. Under that scenario, she posited that Ms. Bzdyl’s error would have been that “she filled the void instead of a refund slip”. The net result in the till would be the same whether it was a void or a refund. There are, Ms. Murdock argued, 6 inconsistencies between the recollections of Ms. Bzdyl those of the management witnesses: l The Spanish family This is a red herring and is not determinative of anything. Ms. Bzdyl stated that prior to the Mystery Shopper coming in she had assisted on the other register for several transactions and, if she had mentioned a Spanish family, it was probably 106 in relation to what had gone on at the other register, and all this is against the backdrop of several hundred customers a day. . Purchase or No Purchase Ms. Brisson states that there was an actual purchase by the customer in front of her while, Ms. Bzdyl maintains that there was not. Ms. Brisson claims it was completed and Ms. Bzdyl that it was not. . Transaction Completed or not Completed The Employer states that Ms. Bzdyl did not raise the matter of the tape until the hearing, whereas, the Union takes the position that throughout, the Employer was not interested in hearing from Ms. Bzdyl concerning what had happened. The theory suggested above is a possible resolution to this factual dispute. At the meeting of August 29th, which was not as the Employer has stated a fact finding meeting, Ms. Bzdyl was confronted with a dozen or so allegations of voids, missing merchandise and refunds all related to specific transactions over a period of several weeks and asked for her confession. She was not confronted with an eye-witness saying she left the store with something. The Employer, according to M. Murdock, was convinced by August 29th that its suspicions were true and was not interested in hearing what had happened. Further, it could take a Cashier, based on cashier memory, hours or even days going over documents to recall, even in part, what had occurred. . Back of the Void Slip Ms. Bzdyl stated that she was told by Ms. Daniels to write the explanation on the back of the void slip (#7920) and the Employer is voicing disapproval that Ms. Daniels was not cross-examined on the timing of the writing of the explanation, Ms. Murdock submitted that while there is some factual discrepancy, and that Ms. Archambault’s evidence was that she remembered it on Friday, one cannot take from that, that Ms. Bzdyl did something improper relating to that particular sale or that she stole something . Ms. Murdock put forward the point of view that it was most likely Ms. Archambault who was incorrect, and that it was unlikely, given the number of voids accumulating on a daily basis, that she would recall this particular void. Further, there is no evidence of the circumstances under which this information was extracted from her. Employees interested in keeping their jobs, she stated, tend to recount things to please. When Ms. Bzdyl was asked about that void on August 22nd, the Employer had already learned that Ms. Bzdyl had “come out clean” on the mystery shopper assignment and, given its theory of void discrepancies, Ms Adams and Ms. Daniels were not committed to finding inconsistencies that the Mystery Shopper could have observed when she happened to be in the line. 107 The defining moment referred to by Counsel for the Employer is certainly not that in the sequence of events, according to Ms. Murdock. The Union submits that it is highly unlikely that under most circumstances, a Cashier could remember what happened on a particular void transaction two days earlier. Ms. Bzdyl stated she was to told to write “change for CD” and “when your job is in jeopardy you write it down”. This statement is not a confession of anything, Ms. Murdock emphasized. Ms. Bzdyl had been told a few days previously in a performance appraisal, which put her on notice that insubordination was a problem and that she should tow the line, that if her Manager said the sky was green she was to agree with that. There was absolutely no reason, Ms. Murdock stated, for an innocent and busy Cashier to know that this void was of such critical importance, given that one did not hear about problems from the Cash Office until the day after. There was nothing, she maintained, that was conclusive about the exchange between Ms. Daniels and Ms. Bzdyl in the office on Sunday, August 2 1 st. . Timing of the Notation on the Back of the Void Slip The inconsistencies between the timing of the notation on the back of the void slip between Ms. Archambault and Ms. Bzdyl. . Failure of the Union to Call Ms. McComb Page The fact that Ms. McComb-Page was not called by the Union has been brought forward by the Employer as an issue. Ms. Murdock explained that because Ms. Bzdyl had serious problems with how she was represented on August 29th has resulted in “more of a procedural misfortune” in that several things were taking place simultaneously, which made it, in the Union’s opinion, impossible for Ms. McComb-Page to be a witness in the case at hand. It was argued by the Union, on behalf of Ms. Bzdyl, that the gravity and seriousness of raising criminal allegations against the Grievor and the effect that they will have on her future employability, and have already had on her employability, on her personally and on her family, warrants intense scrutiny of the evidence which is being put forward. In Ms. Bzdyl’s attempt to find employment she has already experienced some difficulties. The Employer has never said that cash was missing on August 19th, nor has it found Ms. Bzdyl in possession of money, in fact, the Employer has not made out that a crime has been committed. It is the Union’s case that the Commission, while it may have had legitimate reasons for suspicion, was irresponsible in that there was a serious accounting problem with voids in the Naturally Niagara Store; its 108 failure to have checks and balances in place has meant that Ms. Bzdyl has become a casualty of the Employer’s failure in this regard. Ms. Murdock listed a number of the procedural deficiencies: . a failure to provide cashier codes to employees to identify Cashiers; . a failure to supply keys to Cashiers that give exclusive access to one Cashier per drawer . a failure to permit or require Cashiers to count the cash in the drawer at the beginning and end of a shift . a failure, which was remedied in August 1994, to retain refund receipts and obtain customer signatures If the Employer suspected Ms. Bzdyl of theft, it should have observed her, used surveillance equipment, marked or dusted bills along with a Mystery Shopper in order to attempt to accumulate direct evidence, according to Ms. Murdock. None of these means was employed here and it is the position of the Union, she stated, that the Employer has put forward no evidence of a crime, let alone who might have committed the crime if it took place, and has, as a result, not come close to establishing just cause. The Union seeks reinstatement, plus lost wages, benefits and seniority on behalf of the Grievor. The Employer’s Reply Mr. Riggs submitted that this case is not an evaluation by a Management Consultant as to whether or not the Commission’s accounting system is good, bad or in need of improvement, nor of the way in which the cash system works. He acknowledged that there was some validity on this point, however, he argued, the cash arrangements do presuppose a considerable level of trust by the Employer in the way in which transactions are completed, and it may be necessary to have a completely self-contained system for employees which would negate the need for trust. That, however, according to Mr. Riggs, is not the issue. 109 The Employer had suspicions, Mr. Riggs submitted, and set about finding out whether or not the Grievor was acting appropriately and whether the voids were legitimate errors or whether they involved dishonesty. Counsel for the Union has not been able to address any of the inconsistencies in the evidence, but could only acknowledge that factual disputes exist. Further, it is not that the Grievor is not able to remember about the transactions that day, but that she offered various deceitful and changing explanations which were internally inconsistent, did not coincide with the truth as set forth by Ms. Brisson and others. One cannot conclude that Ms. Brisson, Ms. Daniels, and Mr. Adams are all providing deceitful answers to the Board. As well, they were explanations which came out months after the incident. The Grievor’s explanations of the timing of the reason on the void and the non-completion of the transaction are in this category. As to the suggestion that the Employer has fabricated evidence, there is, he emphasized, no evidence whatsoever of any such fabrication. Mr. Riggs submitted that, given the evidence against Ms Bzdyl is clear, cogent and compelling, the only rational construction that the Panel can put on the evidence it has heard is that the Grievor is a dishonest employee whose version of the transactions is not to be believed. DECISION ARBITRAL CONTEXT In its decision the Panel is following well-established arbitral jurisprudence in two particular areas. It is accepted in arbitral jurisprudence that within the retail industry, theft of product or money directly or through fraudulent means, attracts discipline at the upper end of the discipline scale. That discipline is frequently dismissal. It is also accepted that in such cases, progressive discipline is not necessarily a prerequisite to dismissal. As well, positions in the retail industry which involve access to product and money are considered positions of trust and there is even greater trust which is integral to a supervisory position. Further, the balancing of the interests of Employer and Employee, in the result, if the allegations of theft are proven, weighs more in favour of the Employer. In other words, the personal impact on the individual of the commission of theft or fraud and its consequences does not weigh heavily in the outcome. Given that the 110 potential outcome for the Employee is extremely severe, that is, loss of job, livelihood and future job prospects. it is accepted that when dismissal, particularly dismissal involving criminal allegations, is faced by the Employee, that the standard of proof, while not “beyond a reasonable doubt” falls within the upper range of the spectrum of proof which runs from the civil standard of “on a balance of probabilities” to the criminal standard of “beyond a reasonable doubt” Therefore, the Panel will require “clear, and cogent evidence” to find the Grievor responsible for the allegations brought against her. The Panel has also taken into account that an Employer’s inferior accounting system or an inexperienced Supervisor/Manager does not mitigate against proven theft or fraud. Such shortcomings, however, sometimes make it more difficult for the Employer to discharge its onus of proof which must be based on “clear and cogent” evidence. FINDINGS As a result of its consideration of the evidence set out above, and its deliberations, the Panel has made the following findings: . Naturally Niagara was in its second year of operation. . Ms. Daniels, the Manager, had previously been an Adult Seasonal Supervisor in Naturally Niagara for a two-month period in 1993. She had been assigned to her present managerial position for 7 months as of July 3Oth, 1994, and had been actively functioning as a Manager for 4 months. She had experience on the computerized system during her 1993 employment at Naturally Niagara. There was no evidence of her training on the computerized system. . From 1987 at the point of hiring, to July 30, 1994, no evidence was offered indicating any concern or any questionable incident respecting the Grievor’s honesty. . The Grievor was a trusted Supervisor at the time of her transfer to Naturally Niagara and was experienced on the cash system which pre-dated the computerized system. . Conflict and tension had been growing between Ms. Daniels and Ms. Bzdyl since early summer of 1994. 111 The work schedule (Exhibit 3) was not amended or challenged and the Panel accepts that this schedule accurately reflects the periods worked by the Staff at Naturally Niagara. Theft of product at Niagara Parks Commission retail outlets is an ongoing problem. Cash shortages were a major concern at the Niagara Parks Commission retail outlets, particularly in light of a recent, large shortage of over $4,000. The Grievor was new to the computerized cash system at the time of her transfer to Naturally Niagara and her training on this system, given by the Manager, Ms Daniels, was limited to 5/6 hours generally, one of which was specifically concerned with voids. The Panel considers this training inadequate for an employee expected to function as a “senior” Supervisor. . The increase in the number of returns which caused Ms. Daniels concern, coincided with the increase in revenue and the peak season. . The computer printout inventories are not accurate for accounting purposes. . The discrepancies which are manifested in the inventories, and the conditions under which the inventories were undertaken by Ms. Daniels demonstrate that the inventory information is inaccurate and cannot be relied upon. . The cash system at Naturally Niagara does not assign cash drawers to individuals. Ms. Daniels testified that “it is a store policy” that there is “one person on one register”. While it may be true that Cashiers are assigned to a single register, one cannot conclude that this provides any effective restriction of personnel using the registers, given that Cashiers are replaced while on break. The Manager and Supervisors work on both registers, and shift changes and register closings do not coincide. In fact, within a given cash day there could be 8 individuals using a single register. . While the Panel does not condone the keying in of the amount received prior to the money actually being in the hands of the Cashier in a retail sales transaction, it accepts that in a busy retail operation, this expedited procedure can occur and become habitual. Cashiers key in the amount yet to be tendered when that amount is observed by them. At that point in time, the cash amount is still in the customer’s hands and has not actually been received by the Cashier. 112 . The processing of voids and returns in all the possible situations in which they occur is not a simple matter. . If Ms. Bzdyl were creating a fraudulent void and taking a like amount of money from the cash register, that would not show up as a cash shortage at the end of the day. The Panel finds that there is no link between the cash shortages of which Ms. Bzdyl was suspected and the voids which were part of the allegations. . There is nothing unusual or untoward when there are several transactions between an original sale and a void of that sale. . The void system at Naturally Niagara, up to August 18, 1994, was deficient, from the standpoint of recording and the retention of records. . Ms. Daniels’ view that the new system for dealing with voids was the same as the Table Rock system was only correct in part. . Ms. Daniels’ presentation to the Supervisors of voids occurring in only 2 situations - cashier error and customer returns- was inaccurate and limited. . There was no evidence that Supervisors at Naturally Niagara were ever instructed to note reasons for voids on the reverse side of either the void or the original receipt. Nor was there evidence that this was expected of them. The instructions which Ms. Daniels gave to the Supervisors concerning voids and returns on August 18th left considerable room for misunderstanding. [See below] Ms. Daniels founded her suspicions on an increase in the number of returns, certain cash and inventory shortages, and what she perceived as an unusual pattern of voids. It was her conclusion at that time that the Grievor took money from the till, and had also rung in voids and taken the money. Further, she interpreted certain behaviours of Ms. Bzdyl as suspicious and as evidence of her guilt. Ms. Daniels was convinced from early in the first week of August, 1994, that the Grievor was responsible for cash shortages and cash system fraud and she concentrated her efforts on proving this. Her suspicions of the Grievor appear to predate even this, since she indicated she was concerned that in undertaking the audit of July 30th that “S. Counted first alone in office - Heidi verified short 74.20”. Mr. Adams believed from the first week in August, 1994, there was an employee- theft problem at Naturally Niagara, there was a dishonest employee, and that 113 Ms. Bzdyl was that employee. From that point, he concentrated his efforts on proving her responsible for theft and dishonesty. . Ms. Daniels concluded that because several of the voids and one of the shortages was around $20.00, this formed part of a distinctive pattern. She did not offer evidence of the relationship between the number of items stocked by Naturally Niagara and the sales of those items in the store to support her contention. She also testified that CDS which cost $20.37 including tax were one of the items most frequently stolen. The Panel accords no significance to the $20.00 figure. . The Concise Oxford Dictionary defines “pattern” as a “regular form or order” and defines “regular” as “consistent”. Ms. Daniels referred to requesting journal tapes “to verify the pattern.” Mr. Adams referred to “part of a pattern”, “a pattern of suspicions”, and “they formed a pattern”. The Panel finds that there was no regularity, consistency or pattern in the transactions which Ms. Daniels found suspicious. There were simply not enough consistent “suspicious” transactions to establish a pattern. The transactions were deemed suspicious for a variety of reasons. However, it appears to the Panel that these transactions had either reasonable explanations or there was inadequate information presented to explain them, because no timely inquiry had been made. Further, no evidence was presented to demonstrate the proportion of Canadian to US sales, the number of sales in the $20.00 range in comparison to others, or the number or type of voids made by Ms. Bzdyl compared to those of Ms. Daniels and Ms. Archambault. . It is expected, the Panel believes, that an Employer will draw to the attention of an Employee any shortcomings or allegations promptly following an incident which might generate discipline. This is done in order that the Employee may have the opportunity of responding to the Employer’s concerns within a space of time which allows reasonable recall. There was a failure of the Employer in this case to do so following the occurrence of most of the incidents. . The meeting of August 22, 1994, attended by Ms. Bzdyl, Ms. Daniels and Mr. Adams, and conducted by Mr. Adams was intimidating for the Grievor. Mr. Adams described her as “saying not much sense” and “obviously upset” to the extent that he “did not recall details of the next few minutes”, In the Panel’s opinion, the manner in which the meeting was conducted would have been found intimidating by any reasonable employee. It was as Ms. Daniels said, “confusing”. It was not, therefore, conducive to the Employer and the Grievor communicating, that is, speaking and listening, sensibly with a view to arriving at a determination of what had occurred on August 19th and at other times which were mentioned. 114 The meeting of August 22nd was clearly disciplinary. During it, accusations were made directly against Ms. Bzdyl and pressure was applied to her to “confess” and go quietly. Ms. Bzdyl should not have been refused the opportunity for union representation. . The meeting of August 29th was clearly disciplinary. To characterize it as a factfinding or information sharing meeting ignores the potential outcome for the Grievor. . The Employer stressed that it had, at the meetings, provided all the evidence to Ms. Bzdyl, when in fact, she was not provided with the inventory evidence on August 22nd. She had been told by Ms. Daniels that she, Ms. Daniels, had a printout of the inventory which Ms. Bzdyl understood showed that the tape was missing from the inventory. [It is not clear to which inventory Ms. Daniels was referring.] There was no mention of inventories as part of the information provided to Ms. Bzdyl on August 29th. Ms. Daniels testified that she did not volunteer the information to Ms. Bzdyl that Ms. Archambault had reported that she saw the writing on the back of the cassette void receipt on August 19th. The question arises as to whether this information was deliberately withheld from her in a meeting which purported to present her with all the information. . There were allegations about suspicious behaviour not presented to Ms. Bzdyl until the time of the arbitration hearing, long after her dismissal. This resulted in her not knowing the precise nature of some of the allegations being made against her, in some cases not until the actual arbitration hearing. The Panel considers that this is prejudicial to the Grievor since time impedes one’s ability to recall the details of incidents about which allegations are made. . It is not unreasonable, the Panel believes, for a Cashier or a Supervisor, when faced with transaction records, to need time, peace and quiet, in order to recall the details of transactions. The Panel believes that, unless there is something which distinguishes a customer or a purchase, such as a very large purchase, a scene, or a conversation of particular interest, most Cashiers or Supervisors would have very little memory of particular transactions and the individuals who made them. It would also follow, that the busier the day, the less likely the Cashier or Supervisor would be to remember particular customers. Further, the likelihood of recall diminishes, according to the length of the interval between serving the customer and the request for recollection. The Panel believes that it is not unexpected that Ms. Bzdyl could not recall or had difficulty or confusion in recalling some of the numerous transactions presented to her. Further, the Panel does not believe she was ever afforded the time, peace, and quiet while in possession of the documentary evidence which might have assisted her with a timely recollection of some of these transactions in August 1994. 115 . Ms. Bzdyl was set 2 tests by the Finance Office (a) the surprise audit, and (b) the purchase by the Mystery Shopper to see if she would void the Mystery Shopper’s purchase following it. She passed the audit (The register balanced within 6 cents) and did not void the sale to the Mystery Shopper. . Ms. Arndt, Mr. Adams and Ms. Daniels, at the suggestion of Mr. Schafer, sought Sergeant Hollidge’s opinion on the information they had gathered. They placed a great deal of faith in his opinion and some of this faith was based on information that he had had “FBI investigative training”. This training could have been two months, or two days. There was no evidence that they were informed of the extent, but this qualification seems to have added considerable weight to the value of Sergeant Hollidge’s opinion in the minds of the four members of Management. Ms. Amdt stated that if Sergeant Hollidge had said that they did not have enough evidence, that would have been conveyed to Mr. Schafer, and the outcome for Ms. Bzdyl might have been quite different. The Panel did not have the opportunity of hearing from Sgt. Hollidge to be able to assess his understanding of the cash system and the information presented to him. It is noteworthy that he had a crucial role as an advisor to the decison makers, in whether or not to proceed with dismissal. . When specific allegations were made against Ms. Bzdyl in August 1994, she responded in several ways: (1) She refused to confess. (2) She denied any wrongdoing. (3) She asked for the police to be called. (4) She asked for a police investigation. (5) She invited the Employer to charge her. (6) She asked to participate in an on-the-spot inventory. (7) She asked for a face-to-face meeting with the Mystery Shopper. The police were called on August 22nd, but not to act on her request for an investigation. No police investigation was carried out and there was no evidence that such an investigation was requested by the Employer; no criminal charges were laid; the Employer was not willing to carry out an on-the-spot inventory; and, while she was given the name of the Mystery Shopper by Ms. Arndt and could have confronted her herself, no meeting between Ms. Bzdyl and the Mystery Shopper was ever arranged by the Employer. The Panel finds that Ms. Bzdyl’s response to the allegations was, from the outset, consistent denial and showed a willingness to be investigated. 116 ALLEGATIONS It is the Panel’s intention to deal with the allegations made against the Grievor from July 30th to August 19th, inclusive, and to make a finding respecting the Grievor on each. It has decided to take this approach as it believes that the allegations preceding the allegation of August 19th provided a of suspicion against the Grievor and that those suspicions need to be dealt with since they were, from early on, presented as allegations by the Employer. Further, Mr. Adams testified that suspicions remain that Ms. Bzdyl is responsible for the cash shortages. At the hearing, he and Ms. Daniels were convinced that the Grievor was guilty of both theft and fraud. As well, the evidence demonstrates that the Employer had concluded early on, that is, during the first week in August, that the Grievor was stealing, and the efforts subsequent to that were directed at proving her guilt. While the Employer has indicated it is not relying on certain of the allegations, it has not stated clearly that it has withdrawn them. The result of this failure is that a cloud of suspicion remains over the Grievor and will do so until the allegations are withdrawn or are determined to be without proper basis. CASH SHORTAGE ALLEGATIONS There was no documentary evidence presented of the three cash shortages, ($74.20, $20.63/$20.00 and $30.00 US). However, the Panel accepts that these cash shortages showed up in accounting since their existence was not challenged. The Panel noted that a considerable number of individuals has access to the cash at Naturally Niagara, and from the time of pick-up throughout the processing at the Cash Office. CASH SHORTAGE OF $74.20 ON JULY 30TH CASH DAY (Pages 45 to 46) Although Mr. Adams and Ms. Daniels did not believe they could prove Ms. Bzdyl was responsible for this shortage, they clearly believed that she was. The allegation remains in her file. The only evidence relating to the audits came from Ms. Daniels. However, no documentary evidence confirming the audits or the shortages was submitted. 117 The cash day for July 30th included July 29th, from register closing time to register closing time on July 30th. Ms. Bzdyl, Ms. Archambault and Ms. Poole were working July 29th, after 1600 hours. Ms. Daniels, Ms. Bzdyl, Ms. Archambault, Ms. Provenzano and Ms. Poole were all working on July 30th. Their shifts differed but overlapped. According to Ms. Daniels, an in-store audit was undertaken on both cash registers on July 30th. She was the only witness to testify to the audit. No details were submitted on the register closing times. It was not clear whether the audit was carried out before the Z report on July 30th or after, although the times suggest that it was after. She testified that Register 2 was audited by her and Ms. Archambault. It must have been audited prior to 1700 hours, since that was the departure time of Ms. Daniels. Register 1, she testified, was audited by Ms. Bzdyl and Ms. Archambault following her departure. This must have taken place between 1700 and 1800 since Ms. Bzdyl’s departure time that day was scheduled for 1800 hours. According to Ms. Daniels, the audit of Register 2 showed no shortage, while the audit of Register 1 showed a shortage of $74.20. She also told Ms. Amdt that “Stephanie counted first alone in office - Heidi verified short 74.20”. It is reasonable to conclude that Ms. Daniels gleaned the information that Ms. Bzdyl counted the money alone in the office, from Ms. Archambault. She was not there to observe that herself, nor was she there to verify the audit. Further, there was no evidence of instructions that both Supervisors were to be present during the audit [although it makes sense for them to be together] and activity in the store may have been such that Ms. Bzdyl determined that it was not appropriate to stand there and count the cash in the till. Ms. Daniels stated that the Cash Office notified her immediately. “Immediately” must refer to the realization of the shortage at the Cash Office, and that would have been on the following day. Sunday, July 3 1 st, assuming the Cash Office was open, and Ms. Daniels’ evidence suggested that it was. Ms. Daniels reviewed the journal tape which she had requested and received from the Cash Office. On receiving it, which would have been 1 or 2 days later, she found everything in order. 118 Ms. Daniels also recalled a discussion between Ms. Poole and Ms. Bzdyl which took place on July 30111, and the time must have been between 1600 and 1700 hours, given the schedule of the three individuals concerned. In this discussion, the Grievor was offered two concert tickets of a value of approximately $60.00. According to Ms. Daniels, the offer was accepted and Ms. Bzdyl indicated that she would repay Ms. Poole the following day. Ms. Daniels found this information sufficiently suspicious to include it in her report written after August 22nd. Her explanation for its inclusion as a “memory-jogger” is not one which the Panel is willing to accept. The Panel believes it was there if not to establish, at least to suggest, a link between the cash shortage and the purchase of tickets. The evidence does not show whether or not Ms. Bzdyl took the tickets, paid the money or went to the concert that night, or if she did, whether she repaid Ms. Poole on the following day. Further, there was no evidence that Ms. Daniels considered any other possibilities. There was no evidence of anyone witnessing the Grievor removing money from the till or pocketing money. It is the Panel’s conclusion that there is no evidence to support a link between the concert tickets and the shortage, nor is there any evidence to support the finding that the Grievor was responsible for the cash shortage of $74.20 on the July 30th cash day. CASH SHORTAGE OF $20.63 (MR. ADAMS) /$20.00 (MS. DANIELS) ON AUGUST 7TH CASH DAY, VOID OF CD SOLD ON THE PREVIOUS CASH DAY (Pages 59 to 60) Ms. Daniels linked this with the void of a CD ($20.37). This transaction was on Register 1 and the Grievor explained to Ms. Daniels following her enquiry, that a man purchased a CD and returned it but that because of the timing, the void and the original sale were not on the same cash day. The evidence did not specify which register had the shortage. Ms. Bzdyl was not asked to explain this shortage, although she was asked to explain the void and she only became aware that she was being held responsible for the shortage on December 12, 1994, when viewing Mr. Adams statement in her Personnel File. 119 There is no evidence which would lead the Panel to conclude that there is a link between the void of the CD and the cash shortage, nor is there evidence to demonstrate that the Grievor is responsible for the shortage of $20.63/$20.00 on August 7th cash day. CASH SHORTAGE OF $30.00 US ON AUGUST 1OTH CASH DAY (Pages 62 to 63) The evidence did not provide the information as to which register was short. There was no evidence that anyone observed the Grievor taking this money. Ms. Daniels, who on that day, had had a confrontation with Ms. Bzdyl in front of customers, and who was focussing on Ms. Bzdyl as the person responsible for 2 previous cash shortages. She interpreted the Grievor’s behaviour in the office as suspicious and guilty and this impression was confirmed for her when there was the subsequent report of a shortage on that same day. In her report, she described the behaviour: I had a feefing something wu.. [Words in italics struck.] I waited a few minutes & followed her into the office. She jumped when I came in. She was huddled practically inside the safe with the brown bag open. Her hands were inside, (where the green bags were) I stood behind the desk but my view was obscured by the safe door. I heard her put the elastic bands back on the money & repack the brown back [sic] and zip it up. Ms. Bzdyl testified that she was upset at having been, as she saw it, humiliated in front of customers. Although she did not offer this evidence as an explanation for her conduct in the office, it is consistent with her being upset, trying to avoid facing Ms. Daniels, and making an effort to control her emotions. It is the conclusion of the Panel that there is no evidence here to prove that the Grievor is responsible for the shortage of $30.00 US on the August 10th cash day. There were three cash-shortage allegations and the Panel has concluded that the evidence does not demonstrate that Ms. Bzdyl was responsible for them. 120 VOID ALLEGATIONS THE FILM VOID ON AUGUST lST, AUGUST 2ND CASH DAY (Pages 49 to 52) This void was questionable, according to Ms. Daniels, because there were 14 transactions on Register 1 between the original sale of the film and the void. They took place between 17 17 and 1728 computer time. That is a space of 11 minutes and 14 transactions within 11 minutes must indicate that Ms. Bzdyl and Ms. Poole were quite busy. This does not include any transactions which might have occurred on Register 2. It would have been reasonable to postpone processing of this void. The Panel finds nothing questionable or suspicious concerning this void. THE GARDENING BOOK VOIDS ON AUGUST lST, AUGUST 2ND CASH DAY (Pages 49 to 53) When Ms. Daniels reviewed the journal tapes on the morning of Tuesday, August 2nd, her attention was drawn to a sale and void of 2 gardening books ( total $2 1.38) which were transacted around closing time on the previous evening. She concluded that the sale was made, the customer left, and “the void would have been put through after the store should have been closed”. This, suggested to her, “suspicion, something fraudulent”. There was no evidence for her to base her version of this transaction on, nor was there evidence of a rule that at precisely 2000 hours, Supervisors were responsible for telling people to leave. We have no information as to when the customers came or went except that Ms. Daniels testified, presumably from her conversation with Ms. Poole, that there were 2 customers in the store “after she left” at 1955 hours. Ms. Daniels’ version of the scenario is, as far as the Panel could determine, based on her own assumptions. Further, there was no evidence of a rule which stated that a void had to be completed while the customer was still in the store. This is particularly true of an aborted transaction or an error. From the journal tape of Register 1, one can see that there were 9 sales on this register between 1902 computer time and 1944 computer time. We cannot, however, determine how busy Ms. Bzdyl and Ms. Poole were with sales, since we do not have the journal 121 tape from register 2. We are, nonetheless, able to establish some activities and their times (all times converted to real times on the basis of the computer registering 7 minutes slow): 1939 - “sale” of gardening books 1943 - second to last sale on Register 1 1951 - last sale on Register 1 1955 - departure of Ms. Poole according to Ms. Daniels 2 customers still there, according to Ms. Poole/Ms. Daniels 2000 - official store closing time 2006 - void of gardening books 2010 - X report closing on Register 1 by Ms. Bzdyl Close to the time of Ms. Poole’s leaving Ms. Bzdyl as the Supervisor would have had to do an X report and close that register, see Ms. Poole off and tend to any other end-of-day items. There is no evidence of when Ms. Bzdyl actually closed and left the store, although it must have been at least 15 minutes after official closing time. It was Ms. Daniels’ view that since Ms. Bzdyl was alone in the store and because she, Ms Daniels, was unable to account for the 2 books in the inventory she believed that “the Grievor cancelled the sale and took the money”. Ms. Daniels testified that the inventories “should match with the computer printout”. When she got the computer printout on August 4th, it confirmed for her that the gardening books were missing. But the Panel heard from Mr. Adams that it would be unlikely for the computer printout to match with the actual inventory. The inventories were not submitted. However, the Panel has, in any case, declared them unreliable. Ms. Daniels checked out the voids on the other register with Ms. Poole, who was not a Supervisor, but did not check them with Ms. Bzdyl who was the Supervisor that evening and the one who would have carried out any voids transacted on either register. Ms. Bzdyl’s absence the day following a questionable transaction, should not have meant that the transaction of which Ms. Daniels was suspicious was not brought to Ms. Bzdyl’s attention, particularly since she was the Supervisor and therefore responsible. Ms. Bzdyl, who had no recollection of the sale or the void, testified that the sale would have been carried out by herself, or the Cashier, [Ms. Poole] and she 122 acknowledged that since her initials were on the void receipt, she would have carried out the void transaction. She suggested that the void could have been as the result of either a purchase or a mistake. There is no evidence of Ms. Bzdyl taking money, or of money missing. (A cash shortage would not show at that time if Ms. Bzdyl had entered a sale, then a void, and taken the money.) There was no void slip or written reason on the back of the void receipt since the void slip was, no doubt, according to the practice at the time discarded, and there was no rule that a reason be given. It is the determination of the Panel that the fact the void was done a few minutes after the official store closing time, the fact that Ms. Bzdyl might have been alone in the store at the time the void was done, the fact that the sale was in the $20.00 range, and in Canadian dollars, is not conclusive of theft or fraudulent voiding of the transaction. THE SALE AND VOID OF THE “DOG TEAM” ON AUGUST 3BD AND AUGUST 4TH CASH DAY, RESPECTIVELY (Pages 53 to 58) On the evening of August 3, 1994, according to the journal tape of Register 2, a dog team was sold for $19.29 total at 1929 hours. Ms. Daniels testified that Ms. Archambault sold it. Ms. Archambault did not testify to this, although the Panel was informed that she would do so. However, Ms. Provenzano and Ms. Archambault were the only staff on at that time and this evidence was not challenged and the Panel is prepared to accept it. Ms. Daniels testified that she could “go back to the Cash Summary Sheets by the Visa Summary Sheets”. [There was no further mention of Cash Summary Sheets throughout the hearing and the Panel cannot follow Ms. Daniels’ explanation of this since the dog team sale was a cash sale and would not show on the Credit/Debit Card Summary Sheets.] On the following day, a day off for Ms. Daniels, prior to Ms. Archambault’s noon-hour arrival at work, the journal tape shows that Ms. Bzdyl completed a void transaction for a dog team on Register 2. According to her evidence, Ms. Daniels’ attention was drawn to this on August 6th, and she stated she spoke to Ms. Bzdyl on August 7th. In cross-examination, however, she testified that she did not receive the journal tapes until August 8th. Ms. Daniels stated that when asked, Ms. Bzdyl said the item had been 123 returned. Ms. Bzdyl claims not to have heard of this allegation until August 29th, and when this was put to Ms. Daniels, she testified that. while it was highly unlikely, it was possible that she had not spoken to her. Ms. Daniels testified that there was an inventory of 2, that 1 had been sold, and there should have been 1 remaining. There were at least 2 days between the time the void transaction was carried out and Ms. Daniels checked the inventory. The item could have gone missing during that period - the store was open 7 days a week and theft was a recognized problem at all the retail outlets. Further, there is a vagueness in the inventory information and the lack of reliability of the inventories generally. There was no record of the void being a return because there was no requirement for a written reason and the void and sale receipts were routinely discarded. There was no evidence that money was stolen or that the void was fraudulently transacted; only the suspicions of Ms. Daniels. The Panel has determined that there is no reason to conclude that Ms. Bzdyl stole money or fraudulently transacted the void of the dog team. THE SALE OF THE RABBIT HOOK AND THE CD-FAVORIT SELECTIONS ON AUGUST 4TH AND THE VOID OF CD-FAVORIT SELECTIONS ON AUGUST 5TH (Page 56) The sale of these two items in a single transaction took place at 1630 hours on August 4th on the August 4th or 5th cash day ( the evidence does not show when the Register was closed off), on Register 1. Any one of Ms. Archambault, Ms. Provenzano or Ms. Bzdyl could have made the original sale. The void for one of the same items, CD FAVORIT, took place the following morning, August 5th at 1001 hours, transaction # 4640. The void on the journal tape bears initials similar to those of Ms. Bzdyl, although she testified that she was uncertain they were hers. However, based on the similarity with the other initials on documents submitted, the Panel is prepared to find that this void on the journal tape was initialled by Ms. Bzdyl and that it was a transaction that she carried out. Ms. Daniels linked this void (#4640) to sale (#4616), although the only foundation for this appears to be on the journal tape where the item and price are identical. However, one cannot, with certainty make that connection, although the Panel acknowledges that given the fact that the bulk of the customers are short-stay, tourist customers. it is not unreasonable to consider that it is a possibility. There was no original or void receipt 124 available, since both would have been discarded according to practice; nor was their any reason for the void stated anywhere. Ms. Bzdyl had no recollection of the transactions. There was no evidence that money had been stolen, or that there was anything fraudulent about the transactions. The Panel finds that there is no evidence here to support an allegation of theft or fraudulent voiding of a sale. THE SALE AND VOID OF THE “SOUWEST DIS” ON AUGUST 6TH AND ON CASH DAYS AUGUST 6TH AND AUGUST 7TH RESPECTIVELY (Pages 59 to 60) The fact that the sale and void of this item were not on the same journal tape caused Ms. Daniels to question the void. She testified that Ms. Bzdyl stated that a man had come in and returned a purchase made earlier that afternoon. According to Ms. Daniels, she did not accept that explanation, because the store gets very few returns and if a person does come back it is for an exchange. The only time a CD is returned is when people buy the sampler album which has no music in the background, just nature sounds. While that may have been her experience, one cannot draw the conclusion from Ms. Daniels’ explanation that all returns are exchanges, or that all CD returns are exchanges of the nature- sound-only CD. Such conclusions would be unreliable and unrealistic. Ms. Bzdyl testified that she could not recall either transaction and was unaware an allegation arose out of it until it was mentioned at the Pre-hearing. On reviewing the transaction tapes, she stated that she thought the most likely explanation was that the void had been entered to correct an error. There were 23 transactions between the sale and the void of the “souwest dis”. They took place over 55 minutes during which time one staff person, it appears to have been Ms. Dar-Gels, was occupied taking off the registers and readying the cash for pick-up; this occurred following the departure of Ms Poole at 1600 hours. If all were sales, and there is no reason to conclude that most were not, then approximately 23 customers were served during a period of 55 minutes. that is, approximately 2 l/2 minutes per customer. In other words, the store was busy during that time 125 and it would not have been unreasonable for the Supervisor to have left the void until later. According to the evidence, Ms. Daniels stayed on for an extra half hour and left just prior to the void being entered. She did not provide any evidence as to why she remained, except that she stated she “worked on the floor all day, monitored sales and stayed until both registers were taken off and money packed in brown bag.” This was also the day on which she entrusted to Ms. Archambault, the key to the cash bag. She could have stayed because she did not trust Ms. Bzdyl with the taking-off of the registers and the handling of the cash. No reference was made to inventory in this instance, however, even if had been, the Panel has found all the inventories presented to be unreliable and therefore would have had no influence on the conclusion. The Panel finds no link established between the cash shortage of $20.63/$20.00 on August 7th, the day of the void, and the Souwest CD void of $20.37 on that same cash day. Further, with either explanation, the return or the error, there is no evidence of anything untoward with this sale and void. CASH SALE OF CD FAVORIT, VISA SALE OF DISC APPALA AND CASH VOID OF CD FAVORIT ON AUGUST 15TH AND AUGUST 15TH CASH DAY (Pages 67 to 69) The journal tape shows that there was a cash sale # 7156 (total $20.37) of one “CD FAVORIT” on Register 1 at 1443 hours. The original receipt confirms this. Ms. Bzdyl indicated she had written the words “change the tape and by VISA paid” on the reverse of the receipt. There was no requirement at this time that she do so. The journal tape and the Charge Record also show a VISA sale # 7167 ($20.37) of one “disc appala” at 15 17 hours. The journal tape shows a cash void #15 19 ($20.37) of one “CD FAVORIT” at 15 19 hours. These transactions captured Ms. Daniels’ attention because there was a period of 34 minutes between the original “CD FAVORIT” cash sale and the “disc appala” visa sale. Ms. Daniels was also troubled by the sequence of sale, sale, void. According to her, Ms. Bzdyl explained that a man had made the original cash purchase and the wife came later and explained that they wanted to change their purchase from “CD FAVORIT” to “disc appala”, an item identically priced, and at the same time, as they were short of cash, they wished to pay by VISA. This would mean that they would, in effect, retrieve the $20.37 cash that the husband had previously paid. Ms. Daniels testified 126 that she would expect to see sale, void, sale, as she explained it, “the normal procedure would have been to refund the cash and then re-ring the sale”. Ms. Bzdyl re-rang the sale and refunded the cash, in that order. The Panel has concluded that there is nothing unusual about the explanation offered by Ms. Bzdyl nor is there anything untoward about the 34-minute time lapse in the sequence. While the order of transaction is not the order which Ms. Daniels considers “normal”, there was no evidence to suggest that it was incorrect, or that Ms. Daniels’ order would have been the preferred order under the circumstances. The Panel has concluded that there is nothing problematic with this series of transactions. FRAUDULENTLY VOIDING A TRANSACTION AND POCKETTING THE MONEY ON AUGUST 19TH, AUGUST 19TH CASH DAY (Pages 71 to 95) August 19th was the first day following that when Ms. Daniels’ new, mandatory instructions on returns were given to both Supervisors. Neither Ms. Daniels nor Ms. Archambault was present the morning of August 19th, Ms. Daniels being on her regularly scheduled day off and Ms. Archambault not being scheduled to come in until noon. Ms. Bzdyl, therefore, was the only person working that morning with authority to deal with voids and returns and the new, procedural instructions. Ms. Chart was scheduled to begin work at 0900 hours and Ms. Provenzano, at 1000 hours. According to the evidence, they were there as scheduled. As the senior staff person on that day, Ms. Bzdyl was responsible, within her supervisory duties, for the operation of the store. She was accused of fraudulently voiding a transaction for a cassette at 1024 hours and pocketing the money. The Employer’s allegation arose out of the sequence of the transactions - sale, sale, void, the reason written on the back of the void receipt, the disputed time of its notation, the inventory of cassettes and CDS, the “completion” of the transaction, and the failure of Ms. Bzdyl to provide a prompt and clear explanation these procedures. An understanding of the evidence requires a consideration of the new rules, as well as each aspect of the Employer’s allegation. 127 Void and Return Instructions and Procedures There was, in the opinion of the Panel, a considerable opportunity for misunderstandings to arise around the instructions which were given by Ms. Daniels to the Supervisors. Ms. Daniels testified that the void which Ms. Bzdyl was processing was “a simple void”. The processing of voids and returns is not simple, as the history of problems suggests. In fact, it is quite complex. The Panel can attest to this. There was evidence that Sergeant Audibert did not have an understanding of the functioning of the tapes. Ms. Arndt testified to the time she spent with Ms. Daniels trying to get a grasp of the system. Her understanding then relied on Ms. Daniels’ explanation. Ms. Daniels’ explanation of voids and returns appears to have involved only reference to cashier error and customer returns. It does not appear to have included aborted sales. Ms. Daniels also stated that the system was the same as the returns system at Table Rock. In part, she relied on Ms. Bzdyl’s comment that the change set out on August 18th was like the system at Table Rock. While some aspects may have been, the fundamental difference was that returns were to be keyed into the register at Naturaliy Niagara as returns not as voids, whereas at Table Rock, the register was not involved in the processing of either voids or returns. The one person who might have had a thorough understanding of these procedures, John Wallace, was not involved in the investigation of the voids. He was only asked to carry out a surprise register audit and to supply the Mystery Shopper. As of August 19th, the retention of original and void receipts, had been in place at Naturally Niagara since August 10th. On August 8th and 1 Oth, Ms. Daniels introduced Phase 1 of the changes and asked all supervisors to keep the original receipt and the void receipt and that they be kept and initialled by a supervisor and a cashier At that time, there was no distinction made between the various reasons for the voids (i.e. errors and returns). Ms. Daniels testified that the original receipt and the void receipt were to be kept in the cash drawer. This was also Ms. Bzdyl’s recollection of the instructions. According to Ms. 128 Daniels, at the end of the day, these would get attached to her paperwork. Mr. Adams testified that these receipts from customers or cashier errors would be kept along with the corrected receipt on file by the week or month for [Ms. Daniels’] reference. Ms. Daniels wrote in her statement that all original receipts [were to] be kept along with the void copy & attached to the daily summary sheets The retention of the receipts meant that, in the case of cashier error, the link between the incorrect transaction and the void which provided the correction, could be made with more certainty. Prior to this, the only information that was available was the journal tape, and in making the link between the original incorrect sale and the correcting or adjusting void, it was only possible to arrive at a conclusion by taking the information on the journal tape, that is, the item, the price, and the sequence, and fitting the information together. As part of the new instructions, there was still, however, no instruction to record the transaction number of the original on the void receipt and/or the transaction number of the void on the original receipt, on the other. This new procedure made the Manager and the Supervisors responsible for providing documentary proof of the link by retaining, together, both receipts. There was no evidence that Ms. Daniels as part of her instructions on August 10th told the Supervisors: . to process voids in a particular sequence. . to process voids in a particular time frame. . to process voids on the same cash day. . to process voids on the same register. . to write the reason for the void on the original receipt, the void receipt or the journal tape. On August 18th, Ms. Daniels introduced Phase 2 of the changes and gave instructions to the Supervisors that there were to be 2 distinct categories: (1) A void which was “a cashier error” (2) A return which was “anytime mdse & money change hands”. At this point, she gave them the following instructions concerning the void/cashier error: 129 If it is a cashier error, it is to be initialled by the cashier (original receipt), voided in the register & initialled by the supervisor and the following instructions concerning the processing of “returns”: If it is a customer return then you press the return button & fill out a customer refund slip w/customer signature & original receipt and supervisors [sic] initials. Anytime merchandise and money exchange hands over the counter a refund slip with a customer signature should be used. This instruction required that whenever merchandise and money exchanged hands, a Customer Refund Slip was to be used and customer signature was to be secured. Merchandise and money are not exchanged over the counter when an aborted transaction occurs, or when there is an exchange which does not involve a monetary variance. An item may be returned for . a refund . an exchange for an item of the same price . an exchange and partial refund . an exchange and additional payment. An exchange of merchandise and money only happens when there is a return for refund, return for exchange and partial refund, and exchange and additional payment. If the transaction is aborted because a customer changes his or her mind, there is no return, no refund, no additional payment, and no exchange. The Customer Refund Slip requires the customer’s signature. The customer signs, acknowledging that he or she has received something - a refund or an item in exchange. If there is an aborted sale, the customer receives nothing and therefore, the obtaining of the customer’s signature would not appear to be appropriate. Ms. Daniels appears to have assumed that everything that was not an “error” was necessarily a “return”, and that everytime there was a “return” both merchandise and money would change hands, which is an erroneous assumption. Ms. Daniels placed pads of printed, numbered Customer Refund Slips, used throughout the commission retail outlets, at each register. There was no evidence that instructions were given 130 to include a reason on the original receipt, the void receipt, or the journal tape. The refund slip has spaces for providing the following information: Register Number Date Article Sale Tax Total Exchange [Dollar value] Total It also provided a space for The customer’s signature The Clerk’s [Cashier’s] signature [not necessary, according to Ms. Daniels] The Supervisor’s signature There was no place on the Customer Refund Slip designated for the reason the customer returned the particular item. The example which was submitted in evidence and which was filled out by Ms. Daniels’ did give a reason under the heading “Article”. However, with this exception, there was no evidence, in chief, cross or re-examination of Ms. Daniels, or in her written statement, where she stated that a reason was either a requirement or a practice when processing a return. Ms. Bzdyl testified that as a Supervisor at Table Rock, when a customer returned an item, she would attempt to determine the reason. She also wrote a reason on the back of a receipt submitted in evidence for August 15th, “Change the tape and by Visa paid”. Once again there was no evidence that Ms. Daniels instructed Ms. Bzdyl and Ms. Archambault . to process voids in a particular sequence. . to process voids in a particular time frame. . to process voids on the same cash day. . to process voids on the same register. . to write the reason for the void on the original receipt, the void receipt or the journal tape. Since during Ms. Bzdyl’s employment at Naturally Niagara, there was no requirement to record a reason the question must be raised of whether it is reasonable to assume that Ms. Bzdyl had written the reason “Changed for CD” prior to meeting with Ms. Daniels. According to her, there 131 was no exchange, no return, and no connection with the CD sale. If there had been an exchange involving money or a refund, her Table Rock experience would, one would expect, lead her to fill out the Customer Refund Slip. Ms. Daniels emphasized that there were 3 necessary elements of the returns process: (1) The Refund Slip (2) The original receipt (31 The void of the return Ms. Daniels’ instruction about “the void of the return” is on its face confusing as she also gave an instruction to key in “return” instead of “void” in the case of returns. The above reasons lend credence to Ms. Bzdyl’s explanation of why she did not fill out a Customer Refund Slip. There was no refund and no return in the explanation she offered and her reasoning is not lacking in logic. Sequence of Transactions The three transactions in question were as follows: cassette sale, CD sale, and cassette void. Ms. Daniels testified that she would have expected to find, as a matter or normal procedure, cassette sale, cassette void, and CD sale. The Panel has previously concluded that the practice of not transacting a void immediately following the transaction necessitating it is not evidence of any wrongdoing or fraudulent activity and reaffirms its conclusion in the case of this allegation. Inventory On April 25th, Ms. Daniels carried out an inventory of CDs, and cassettes, looking at a total of 36 items. This related to the transaction of August 19th. Her inventory, when compared with the computer printout and the stock, showed that there were shortages in 23 items, overages in 4 and 132 the correct number in 9 items. There was a total of 52 shortages. The inventory was verified by Derek Broerse. The Panel has previously concluded that all the inventories were unreliable, and this one is particularly so, given that it was carried out 6 days after the “questionable” transaction. Completion or Abortion of the English-speaking Woman Customer’s Purchase of the Appalachian Cassette Ms. Bzdyl’s explanation for the void of the above sale is that the notation on the back of transaction #7920 has nothing to do with the real reason which is, that the transaction # 79 18 was incomplete. She maintains that transaction # 7918 was aborted at the point when the customer, an English-speaking lady who was engaged in a conversation with her female fi-iend, took a $20.00 bill to hand over the counter, and at the point when she, Ms. Bzdyl, having seen the bill, rang in the sale and had placed the Appalachian tape in a store bag. Just at that moment, someone, according to Ms. Bzdyl, called from the door to say the bus was leaving, with the result that the purchaser left suddenly, taking her money and leaving the Appalachian tape behind. If one does not consider the notation, this explanation is compatible with the documentary evidence: the original sale receipt, the void receipt and the CD sale receipt, as well as the journal tape. In practical terms, it is a situation which, at Naturally Niagara, given its clientele, could have occurred. One could, therefore conclude, that Ms. Bzdyl’s explanation was plausible, if one countenances Ms. Bzdyl’s version of the notation, or believes that she might have written the reason on August 19th, and noted a false reason. The Employer challenges Ms. Bzdyl’s version based on the testimony of Ms. Brisson, the Mystery Shopper. Ms. Brisson was asked to purchase a CD from Ms. Bzdyl and to observe that transaction. She did so, reporting to Mr. Wallace that there was nothing out of the ordinary. The point of the exercise was to see if Ms. Bzdyl, having made a CD sale, would then void that sale. 133 If the journal tape had shown that, the Employer thought it would then have confirmation of its suspicions that Ms. Bzdyl had a practice of making a sale and following the customer’s departure, transacting a void and pocketting the money. This would not have shown up as a cash shortage. The journal tape did not show that Ms. Bzdyl transacted a void for a CD at anytime during that cash day. In other words, the original premise on which Ms. Brisson’s assignment was based, was not proven. However, according to Mr. Adams, the assignment did, nonetheless, “bear fruit”. Three days after her assignment, Ms. Brisson was asked by Mr. Wallace if there was anyone else in the store making purchases and asked her to include anything she remembered about that in her report. She acknowledged that she had not given her assignment any thought since she completed it on Friday morning, (although she had in the interim, written a draft of her report). Ms. Brisson added the following to the initial version of her report: I spent the next 15 minutes at the display for the Solitude music. I listened to demos of several tapes and spoke for a while with a tourist about the music. This woman was approximately 50-60 years old and was english speaking. I kept pressing buttons to hear what the different tapes sounded like. The lady and her husband kept coming back to listen to the music and had decided to purchase a cassette tape. (I think it was titled “Wilderness” or something like that.) The husband seemed to be “hovering” which led me to believe he was ready to leave, and they made their purchase. I did not see them leave the store because my back was turned, but I didn’t see them again. . . . I did not see the tourist return to the store, return her cassette purchase, or pass her on the walkway. This is the complete excerpt concerning the English-speaking lady customer. The report does not say that Ms. Bzdyl served this customer. It says “they made their purchase”. It also says that “Stephanie then walked by coming from the cash counter”. This was while Ms. Brisson was still at the CD/cassette display. This establishes that Ms. Brisson was not in the line-up at the register waiting to transact her purchase. She had not testified specifically that she was in the line-up, however. one could draw that conclusion when she testified that she was waiting to make her 134 purchase, if one did include her further testimony, that Ms. Bzdyl came over to the display stand and they discussed which tape to purchase. Ms. Brisson testified that she thought there were 2 groups of 2 people and 2 Cashiers in the store but acknowledged that she was not sure how many people were there. She referred to an impatient and hovering “husband” who seemed ready to leave, while Ms. Bzdyl spoke of someone at the door announcing that the bus was ready to leave. This could be one and the same person. Ms. Brisson did not recall when she spoke with Ms. Amdt, other than she did not speak with her on the Tuesday, (August 23rd). She could not recall exactly what Ms. Amdt asked her or if Ms. Arndt took notes. She recalled speaking to her about the incident, but did not recall saying that “she did not know whether or not it was Stephanie who cashed them out”. Ms. Amdt testified that Ms. Brisson had told her, in reply to one of her questions that she “did not know if Stephanie was the cashier who cashed out the lady”. Ms. Amdt recalled asking Ms. Brisson if “Stephanie had waited on the tourist” and she testified that Ms. Brisson replied that “she did not know if Stephanie had”. Ms. Brisson testified as follows: I know Stephanie cashed out those people. I would not have said I didn’t know Stephanie cashed them out because after she cashed them out I waited for them to leave the register to make my purchase, In her report she said “they made their purchase” but testified at the hearing that she recalled further details. She was not able to determine the denomination the woman paid in, but confirmed that she saw the Grievor give money to Ms. Bzdyl, saw Ms. Bzdyl give change back and saw the cassette in a white opaque bag. She also received her CD in a white opaque bag. We do not know how the questions were put to Ms. Brisson, by either Mr. Adams or Mr Wallace.. Ms. Brisson’s recollection 18 months later, of the unrecorded details of the purchase which were seemingly unimportant at that time, strikes the Panel as unusual, in part, since neither the observation of the other customers, nor that of Ms. Bzdyl’s interaction with other 135 customers was part of her assignement. Furthermore, during that period, she testified that she was still at the display stand, and while there, she testified, she wore a headset. and was pressing buttons and trying out various demonstration tapes. Ms. Bzdyl testified that she waited on two older women who were conversing and were English- speaking, one of whom handed her a cassette which she rang in and then, when she observed the purchaser take out a $20.00 bill for payment, she rang that in as the amount tendered before the amount had actually been given to her. She put the cassette in a white opaque plastic bag and it was at that point, she stated, that someone called to the women from the door saying the bus was leaving. With that, according to Ms. Bzdyl, the women left the cash desk, and the store, and that was the last she saw of them. After removing the cassette from the bag, she placed it beside the cash register and went to the display stand and assisted Ms. Brisson with her CD selection, returned to the cash desk, as did Ms. Brisson, and completed that cash transaction. Ms. Brisson then left. Ms. Bzdyl testified that she then rang in a void for the cassette, put the original and the void receipts together and returned the cassette to its place in the display. The Employer claims this explanation is a fabrication created by Ms. Bzdyl during the intervening period. The Union maintains that it is a credible, valid explanation. The explanation put forward by Ms. Bzdyl is one which fits with the documentary evidence. Further, on certain points it coincides with the testimony of Ms. Brisson. This was an explanation which Ms. Bzdyl gave to Ms. Amdt on August 23rd and claims to have explained to Sgt. Audibert on August 22nd. She also testified that she tried to explain it to Ms. Daniels and Mr. Adams but that they were unwilling to listen. It is unclear whether she maintained this explanation at the meeting on August 29th. She gave the matter thought following August 22nd. Ms. Brisson, however, according to her testimony, had not given the matter any thought from the time she wrote her report of August 22, 1994, until the hearing date at which she testified, February 22, 1996. These details, that is, the handing over money and receiving change, were not in her report, were not asked of her at the time, and were not part of her assignment. It is 136 difficult to accept that she has a recollection of these details, as opposed to an assumption that they occurred as part of a normal transaction. Mr. Adams was asked in cross-examination whether, if a customer had a change of mind and did not purchase anything, would Ms. Bzdyl then have to make up a void ? He acknowledged that she would have to do so. He was further asked if the Mystery Shopper purchased a CD, and the Grievor did not process the void transaction until later, whether or not that would explain it. Mr Adams acknowledged that it would. He also agreed that, if one wanted to steal money from Naturally Niagara, the least risky way to do that was to take cash, because of the number of employees using the registers. He acknowledged that by signing her name to the voids, Ms. Bzdyl has, in effect, announced what she has done. The Panel has concluded that the evidence presented by Ms. Brisson is not sufficiently strong to override the explanation offered by Ms. Bzdyl and the Panel accepts Ms. Bzdyl’s explanation of an aborted transaction. The Notation, “Change for CD”, and Time it was Written on the Back of Transaction # 7920 Ms. Daniels claimed that Ms. Bzdyl wrote “Change for CD” on the reverse of transaction # 7920, the $13.95 void of the Appalachian cassette tape on Friday, August 19th at 1024, before 1800 hours. Ms. Archambault testified that she saw this reason on August 19th at least by 1800 hours. Ms. Bzdyl claimed to have written these words on Sunday, August 21st at Ms. Daniels’ behest to satisfy Ms. Daniels’ apparent need for a reason when she was asked to come to Ms. Daniels’ office to explain the void. The Employer submitted that Ms. Bzdyl is lying, that she has, over time, managed to concoct a story which suits her purposes, and that the Panel should prefer the evidence of the management witnesses since it was given directly and without hesitation, and was, in the case of Ms. Amdt, Mr. Adams and Ms. Daniels, consistent where it overlapped. One would expect, however, a certain consistency since the source of most of the overlapping evidence of Mr. Adams and Ms. Arndt was Ms. Daniels. 137 The Panel notes that Ms. Bzdyl’s evidence was also given directly and without hesitation, but that she was not in a position to have anyone whose evidence would corroborate hers, as the Employer was when it presented Ms. Archambault’s evidence. The Employer submitted that the fact Ms. Bzdyl testified to writing a reason which she knew to be untrue to satisfy the demands of her Manager should put her credibility in serious doubt. The accusation of insubordination and the order from Mr. Adams to comply with Ms. Daniels’ requests and demands was the explanation given for her action, if one believes that this version of the notation writing is the truthful one. Ms. Bzdyl acknowledged her lie in that instance, to the Panel. The Panel notes that Ms. Bzdyl is not the only witness who has interests to protect. Ms. Archambault would find it difficult to testify against her Manager, particularly when she must continue to work with her and from her perspective, and what she must have heard, to support Ms. Bzdyl against Ms. Daniels would have been to support a fellow employee whom Management was convinced had been stealing and committing fraud. For her part, Ms. Daniels, as a relatively new Manager, was no doubt feeling some pressure to produce positive results in her performance as a Manager, and she would not want to be seen to have told an employee to supply a reason to satisfy what she perceived as a failure in the implementation of the new procedure. In her statement, Ms. Daniels stated that the reason why Heidi reported this to me was because there was no pink customer refund slip filled out with the customer’s signature on it. This seems to be an assumption on Ms. Daniels’ part. Ms. Archambault testified that she believed that this void was the only “void” for the day, which was not true. She did not refer to it as a “return”. She then said nothing about the failure of Ms. Bzdyl to fill out a Customer Refund Slip. This report on voids was initiated by Ms. Daniels and the Panel believes from the evidence. that its purpose was to find out if Ms. Bzdyl had undertaken any suspicious transactions. The Panel is also of the opinion that Ms. Archambault knew what Ms. Daniels was seeking, that is, some fault with Ms. Bzdyl’s voids. Ms. Bzdyl’s failure to fill out a Customer Refund Slip was 138 the most obvious, and Ms. Archambault gave that information to Ms. Daniels. She would have had the original receipt of the transaction, and the void receipt attached to the paperwork of the previous cash day available to her. The journal tape would have already been sent to the Cash Office or would have been in the cash bag ready to be picked up. Ms. Daniels testified that Ms. Archambault went through all the voids in the register. However, it is a reasonable assumption that the voids were attached to the paperwork of the August 19th cash day, not calendar day. It would not be reasonable to have some of the cash system working on the cash day, and other parts on the calendar day. If that is so, then it is difficult to give credence to Ms. Daniels’ testimony concerning all the voids in the till, which she believed included the cassette void transacted by Ms. Bzdyl. The voids from the August 19th cash day would have been removed from the tills at the time the Z Reports were completed and put with the paperwork. It would have been unusual for them to remain in the till with the August 20th cash day journal tape and revenues. Ms. Daniels went on to report that [o]n Sunday, August 21st ‘94 when I came in to work I checked the paperwork records from Friday. . . . When Stephanie came in for her shift I asked her about the void, because it should have been rung in under return and a customer refund slip filled out as well. Ms. Daniels had given as one of the essential elements when instructing the Supervisors “the void of a return”, and she had also told them that returns were to be keyed in by using the return key. It is not unreasonable for someone who claims not to have an item returned but to have had an incomplete transaction not to key in under “return” and not to fill out a Customer Refund Slip, as Ms. Bzdyl did. Further, Ms. Daniels instructions of “void of a return” when one was not to key in “void” for return but rather to key in “return” for return, could have created confusion. In her report which Ms. Daniels testified she wrote on August 22nd and on a couple of subsequent days, Ms. Daniels notes that 139 [o]n Sunday August 2lst ‘94 when I came in to work I checked the paperwork records from Friday. The receipt & void were there, that Heidi described to me, with Stephanie’s signature on it. When Stephanie came in for her shift I asked her about the void, because it should have been rung in under return & a customer refund slip filled out as well. There was no mention of the note on the back “Change for CD”. At that point the problem seemed to be that Ms. Bzdyl had not filled in a Customer Refund Slip and had rung the transaction in as a void instead of as a return. When reviewing the transactions of August 19th in chief, Ms. Daniels stated [ojn the back of the tape were Stephanie’s initials; Stephanie rang this in. . . . . [Ms. Archambault] went through all voids in the register and then she told me about this - no refund, no signature, Stephanie’s initials Once again, there is no mention of the notation on the back of the void receipt. Ms. Daniels later testified that she “did not have her make the notation”. Ms. Archambault was asked by Ms. Arndt, through Ms. Daniels, to write a report setting out her recollection of when she saw the explanation on the back of transaction # 7920. Whether or not she did, the report was not established in evidence, and no report was introduced. When presented during her examination-in-chief with the void receipt of this transaction with the writing on the back, Ms. Archambault testified that she was sure it was Ms. Bzdyl’s writing, and her initials. She was quick to state this, although there was only a letter “B” whereas Ms. Bzdyl, in all other initial signatures in evidence signed with “SB”. She further testified that she was certain that she saw the explanation on August 19th, and that it could not have been put there later, and that she told Ms. Daniels about the void and what was on the back. She as well testified that she recalled speaking with Ms. Arndt but could not recall the subject of their conversation. Ms. Archambault further testified that she usually informed Ms. Daniels of the reason for the void on the back when she telephoned on her days off. In August 1994, prior to August 1 Oth, the receipts were routinely destroyed following the transactions; further, when the 140 requirement to retain them was established, there was no requirement to write the reason for the void to be written on the back of the receipts. It is, therefore, difficult to accept that Ms. Archambault’s statement refers to the period of August 1994, in particular, when she testified that at that time, that is, prior to and subsequent to August 19th, informing Ms. Daniels of the reason which she gleaned from the back, was her usual procedure. On Monday, August 22nd, Mr. Adams and Ms. Daniels met with Ms. Bzdyl. Mr. Adams referred in his testimony to the note on the void , stating that he suggested the note on the void was incorrect and that Stephanie had lied. It was not clear whether his suggestion was made folIowing an explanation by Ms. Bzdyl. Ms. Bzdyl did testified that the note on the void receipt was not true and explained how she came to write it. Further, there was nothing in Mr. Adams’ testimony regarding the disputed timing of the notation, although there was considerable evidence on the meetings of August 22nd and 29th. Ms. Daniels attended both of these meetings and testified that at the meeting of August 22nd, Ms. Bzdyl said that [s]he didn’t see the void until Sunday when [she] made her sign it, [Ms. Daniels’ testimony of what Ms. Bzdyl said] Ms. Daniels testified that Ms. Bzdyl stated once again at the meeting on August 29th, that she, Ms. Daniels, had made her write the explanation on the back of transaction # 7920 on Sunday, August 2 1 st, which she denies. Ms. Arndt began her investigation by meeting with Peter Adams on the afternoon of Monday, August 22nd. He gave her a copy of the “voided register tape”, and “receipt” and the “back of the void”. There was no evidence that he mentioned a concern about the notation on the back of transaction #7920. She referred to speaking with “Lisa” in her testimony prior to her meeting with Ms. Bzdyl. She then met with Ms. Bzdyl for about 1 to 1 % hours and wrote in her notes made simultaneously at this meeting on Tuesday, August 23rd, that Ms. Bzdyl said that she 141 “didn’t write on the tape of Friday”, and testified that she said “she didn’t write it on the Friday.” Ms. Arndt also testified that she went through the “tapes 2 or 3 times” and that Ms. Bzdyl told her that she had not written anything on the tape when it was voided - except for her initials. [The Panel accepts that the tape here is actually the void receipt rather than the journal tape. It was confirmed in evidence that Ms. Bzdyl failed to initial transaction # 7920 on the journal tape.] Ms. Arndt testified that at the time she interviewed Ms. Bzdyl she “did not know about the cash registers”. The next day, Wednesday, August 24th, Ms. Arndt met with Ms. Daniels for 3 to 4 hours to review the situation from the time of her initial suspicions in order for the situation and procedures at Naturally Niagara to be clear in her mind. At that meeting she noted that Ms. Daniels told her that Ms. Bzdyl Signed receipt on Fri n&Sun with reason for void - (as per Heidi) Ms. Arndt wrote in the notes which she submitted that Heidi - saw writing of reason on back of void. She did not note when Ms. Archambault said she saw the writing. Ms. Arndt testified that she spoke to Heidi at the store briefly... to ask if she saw the writing on the back of the void on August 19th....She saw the writing of the reason on August 19th. She did not, it appears, ask her if she saw any writing on the back of the receipt, and if so when. In other words, her question suggested the answer she was seeking. Ms. Arndt also testified that she had had Ms. Daniels telephone Ms. Archambault and asked her to put that in writing. There was no evidence about the sequence of these events, and there was no evidence concerning who was working at Naturally Niagara on August 24th. It is reasonable, however, to assume that because Ms. Archambault was the only other Supervisor at Naturally Niagara and because she was familiar with the computer system, that she was acting as Supervisor during the period Ms. Daniels and Ms. Arndt were meeting on August 24th. The schedule shows that she had previously come in on her days off when requested, so that even if it were her scheduled day off it is possible that she was working. Ms. Daniels’ telephone call requesting written confirmation 142 would have been, it appears, after Ms. Arndt’s brief conversation with Ms. Archambault, not before. There was no evidence of a requirement for a reason to be written on the back of the receipts, or on the journal tape. The evidence did not demonstrate that this had been the procedure at Naturally Niagara nor that it was part of the changes which were instituted. It was clear from the void of August 15th, however, that Ms. Bzdyl did write an explanation at least on one occasion. and from the Customer Refund Slip which Ms. Daniels completed which was submitted as an example, that she wrote a reason on at least one occasion. The question arises as to why Ms. Bzdyl would write an explanation if one were not required. The Panel is faced with 2 conflicting and plausible versions of this particular aspect of the case. The two versions were presented soon after August 19th. There is no dispute that the notation was written by Ms. Bzdyl. She also identified the initial, in spite of the fact that it appears different from the other initials signed on other documents submitted in evidence. There is, however, a dispute about the substance of the meeting held between Ms. Daniels and Ms. Bzdyl on August 2 1 st, and on the timing of and the reason for the notation. The weaknesses in the testimony of Ms. Archambault cited above negate the possible value that her testimony might have had as corroborative evidence. The Panel does not believe that this difference in versions is simply a difference of recall. One of the versions is an untruth. Following considerable scrutiny of the evidence, and discussion, the Panel has concluded that the evidence before it does not point clearly in the direction of either version and it has therefore determined that it is not appropriate for it to select one as the true version. The risk of doing so without clear and cogent evidence is that of labelling the wrong person a liar. The Panel believes that Ms. Bzdyl and Ms. Daniels know very well which version is the untruthful one and the Panel wishes to emphasize that the seriousness of lying to the Panel is compounded by the untruthful version being put out early in the investigation. Further. the selection of one version would not alter the outcome. 143 The Panel has concluded that, on this point, the Employer has failed to satisfy the onus of proving Ms. Daniels’ version with clear and cogent evidence, and on a balance of probabilities. Explanations Offered by Ms. Bzdyl Ms. Daniels testified that on Sunday August 2 1 st, she enquired about a “questionable” transaction on a Summary Sheet from August 19th. She stated that this was the same transaction about which she spoke to Ms. Archambault about on August 19th, although Ms. Bzdyl would not have made that connection since she was unaware of their conversation, it having taken place after her departure on August 19th. Although Ms. Bzdyl and Ms. Archambault were working together on August 20th, the questioning of her by Ms. Daniels about the August 19th transaction, appears not to have been brought up by Ms. Archambault. According to Ms. Daniels, when she asked Ms. Bzdyl on August 2 1 st if it was a return, the latter replied, in Ms. Daniels’ words, [y]es, it was a Spanish family all there at once, a large group and talking . . . one woman bought the tape (Appalachian) and changed her mind and wanted to trade for the CD. Ms. Bzdyl denies that she mentioned a Spanish family. Ms. Bzdyl testified that prior to her waiting on the two ladies at the store, she observed that that Ms. Provenzano was having difficulty explaining currency exchange to a non-English-speaking customer. According to Mr. Adams, at the meeting of August 22nd, Ms. Bzdyl went into detail about the Spanish family, and stated according to him that a cassette was purchased, that there was a crowd of them and that someone changed her mind and wanted to change a cassette for a CD and that actually they did. Ms. Daniels stated that Mr. Adams told Ms. Bzdyl that they knew there was no Spanish family. According to Ms. Bzdyl, at the meeting on August 22nd. she tried to explain how it happened as far as [she] could recall [but each time she tried] to explain proper [he said] that’s not the way it happened. 144 In Ms. Bzdyl’s testimony, Mr. Adams “referred to Spanish people” and “it could be possible that Spanish was referred to by another cashier but not by [her]” but that “he did not believe her that”. According to Ms. Bzdyl, when it was put to her that a Spanish family had bought the cassette, had changed their mind and returned it for the CD instead”, that she knew “100% that she did not say that about Spanish people”. Mr. Adams told Ms. Arndt that Ms. Bzdyl’s version of the August 19th incident centred on a Spanish family and one woman making a purchase, However, Ms. Bzdyl did not, according to Ms. Arndt’s recollection and notes, mention a Spanish family to her on August 23rd. Ms. Bzdyl testified that she told Sgt. Audibert only about the incomplete sale of the tape, and Ms. Arndt testified that Ms. Bzdyl informed her that she told Ms. Daniels on August 2 1 st, first, about “a lady who purchased a CD” and then spoke of “a lady holding a tape and she [Ms. Bzdyl] rang it in and the lady changed her mind about the tape and left”. The Employer believes that Ms. Bzdyl concocted the Spanish family to cover up her fraudulent voiding and pocketing of the money. The Union sees the Spanish family story as “a red herring” and “not determinative of anything”. Ms. Murdock made the point that there were several hundred customers each day and that, if Ms. Bzdyl did mention a Spanish family, it was probably in relation to what had gone on at the other register. The Panel believes that as part of her discussion with Ms. Daniels, Ms. Bzdyl did mention a Spanish family, and that a woman bought a CD. The Panel would not go so far as to say that at the meeting of August 22nd, mention of the Spanish family was initiated by Ms. Bzdyl. But, based on the testimony of Ms. Daniels, and the wording of her report of this, which says “one woman bought the tape” . It does not say “one of those women”, “one of the Spanish women”. or even, “one of the women”. The words reported by Ms. Daniels are not inconsistent with foreign-speaking customers being around, and a woman, other than a woman with a foreign accent making a purchase. Further, when the question of this transaction was first put to Ms. Bzdyl, it was three days after the transaction occurred and Ms. Bzdyl had worked the day between as well. By that time she would have dealt with a considerable number of customers and a number of other voids. Unless there were something about the transaction which would 145 have brought it to her attention and recall, she would very probably not have remembered it the moment it was presented to her. The Panel believes that the Spanish family did stand out in her mind, that she mentioned them, as one incident of general confusion. Its presence could even have been at a different time. There was no evidence about the other void transactions around that time, nor did we have evidence from other cashiers working in the store during the same period. The Panel has concluded that there is not clear and cogent evidence to demonstrate that Ms. Bzdyl was lying to the Employer about an explanation of the transaction on August 19th. There was no evidence of cash stolen or money missing on August 19th, nor was Ms. Bzdyl found to be improperly in possession of monies. She did not have her purse in t he store, and she was not searched nor was a request for access to her purse, or car presented to her. Further, she cannot be held responsible for any discrepancies in inventory for the reasons stated above. It is the conclusion of the Panel that the evidence presented by the Employer does not prove that on August 19th, 1994, Ms. Bzdyl fraudulently voided transaction (# 7920) and pocketed the money. In summary, the Panel has determined that the Employer has not proven any of the allegations that it raised against Ms. Bzdyl and for which she was dismissed CONCLUSION In the letter of dismissal sent to Ms. Bzdyl by Dennis Schafer, the then - General Manager of The Niagara Parks Commission, Ms. Bzdyl was accused of having engaged in a series of thefts from the Naturally Niagara Store as well as violating the trust that The Niagara Parks Commission accorded [her] as a Seasonal Supervisor. 146 It was stated and/or inferred that she had done this by stealing “commission funds by fraudulently voiding a customer purchase and claiming that the customer had returned one item and purchased another”, by voiding sales and “supposedly” refunding money to the customer, by writing on the back of a void that a purchaser “changed her mind” [She wrote “changed for CD”] and purchased a compact disk, when the compact disk was purchased by “an individual sent by NPC”. The letter also referred to the “occurrence of a large cash shortage”. The Panel has considered the evidence of the allegations brought against Ms. Bzdyl in detail, and where there was conflicting evidence has weighed the different versions and their plausibility carefully. It has also noted Ms. Bzdyl’s, discipline-free record and her persistent and consistent denial of any wrongdoing. As well, it has been cognizant of the tension and conflict between Ms. Daniels and Ms. Bzdyl and the influence this may have had on Ms. Daniels in her search for answers to the cash shortages and transactions which she questioned. The Panel has come to the conclusion that the evidence does not support the allegations and they are, therefore, not proven. Ms. Bzdyl is to be reinstated in her position as an Adult Seasonal Supervisor with back pay and interest at 8.36%, benefits, and seniority. The rate of interest is prime +l, based on the average of the prime rate for 1994, 1995 and the first 8 months of 1996, according to Statistics Canada. The time which she might have worked during the winter season is to be based on an average number of winter hours from 199 1 to 1993 inclusive. The Panel believes that it is important that Ms. Bzdyl’s reinstatement be positive and with that in mind it is ordering that certain conditions be attached to the implementation of its order and the reinstatement. They are the following: . Ms. Arndt is to assume the respons ibi!ity of overseeing the reintegration of Ms. Bzdyl into the workplace. . All documentation relating to the allegations against Ms. Bzdyl, including the “Performance Appraisal” carried out on August 1 st, is to be removed from Ms. Bzdyl’s Personnel File and any other file in which it may be located. 147 Ms. Bzdyl is not to be given an assignment for some considerable time (years, not months) where she would be supervised by Ms. Daniels. It would be preferable if Ms. Bzdyl did not have to work under Mr. Adams, although the Panel is not prepared to place that restriction on the Employer. Ms. Bzdyl is to be placed on the call-in list for the 1996- 1997 winter season and is to be offered her fair share of days based on the current system of assigning them. Prior to Ms. Bzdyl’s return to work this fall, the Employer and the Union are to post for a period of one week, or place in the commission newsletter, on a one- time basis, a notice welcoming her back and noting that she has been exonerated of the allegations against her. The posted notice or newsletter notice is to be repeated at the start of the spring season. Ms. Bzdyl is to receive training suitable for a Supervisor on the computerized system which, we understand, has been installed throughout the Commission’s retail operations. Any problems with or conflicts arising from Ms. Bzdyl’s reinstatement are to be promptly referred to Ms. Amdt. The reintegration of Ms. Bzdyl into the workplace will also require a commitment on her part with respect to moving forward positively. With that in mind, the Board recommends to her, that she personally make every effort to avoid unofficial discussions in the workplace about her dismissal, the process and the parties’ involvement in that. Further, we advise her not to initiate such discussions in the workplace and to inform those who may inquire unofficially about her dismissal, the process and the parties’ involvement, that she has been advised to avoid discussing these matters in the workplace by the Grievance Settlement Board. 148 The Board will remain seized of this matter to assist the parties in the event that difficulties arise with the implementation of its order. Date&at Kingston November 25, 1996 Addendum attached. G. Majesky, Member D. C. Montrose, Member 149 IN A MATTER OF ARBITRATION UNDER THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT OPSEU (BZDYL) GSB # 1215/94 BOARD MEMBER ADDENDUM I have carefully reviewed the award in the above rioted matter and concur with the findings that Ms, Bzdyl (grievor) did not commit the alleged offences of theft. Further, I also support all the evidentiary conclusions, and the reinstatement conditions. This case presented i; ntirnher of difficulties. These was a se;-ies of allegations coxcerning theft. There were also issiles conserning personality conflicts. And -there were >nst terr2inatior-i issues in that the grievor pursued a number of avenues In order 'to raise concerns about the quality of union representation at her greatest :noment in need in the early stages, Throughout t!:z course of the hearing, it was not herd to appreciate th.e employer 's c~r-~~ern regsrding theft and pllfarage. : t. appeared that thy Niagar?. Parks Commission had concerns about these issues, b-tit, in the firlal analysis did not present clear and cogent evidence in which to validate their actiorls to dismiss the grievor. I believe ktie award speaks to all Qf these issues and I do not think 1: can add anything of significance by way of this addendum, However, the Board has clearly made it's determination based on the facts, and concludes quite properly, 'that the grievor was improperly terminated without just cause. The award vindicates the grievor on a11 counts and allegations which were raised aga?.nst her. But more importantly, the award takes a very sensttivs and humanistic approach, and provides an important back to work protocol that should alleviate any problems concerning the mechanics of the grievor's reintroduction to the workplace. The grj.evor throughGut these proceedings presented herself in a consistent and emotionally aggrieved manner. She was unhappy with the treatment she received and was concerned about the Long term stigma that iler dismissal would cause, especially when theft was alleged. The grievor's life was clearly destroyed, and no award can heal or take away the hurls, anxiety, and frustration that plagued not only the grievor, j*ut her fmily. She is a person who shares her emotions, and cne can OR' &y imaglr.e the anguish to which the grievor was exposed. In chat, respect, our award should provide soime support and vindication for the grievor, especially in the eyes of her family and friends. However, the grievor at th3 very easly stages of her dismissal, was confused and unsatisfied with the quality of union representation she was receiving. One can only assume that the grievor did no,t feel that her trade union at the local level was handling the matter to her satisfaction. Although there was some suggestion during the evidence at the hearing that some problems were experienced by the grievor, these did not form an essential. part of the union's overall defense of the grievor. As indicated earlier, the award is a complete vindication of the grievor on the charge of theft. She is going to get her job back, and certain conditions will apply concerning not working with Ms. Daniel's, More importantly, a notice will be posted twice for one week or will appear twice in the Niagara Parks Commission newsletter, advising that ,the grievor was cleared of ail aLlegations brought against her, and that she is formally being welcomed back. I, cannot think of any better way to clear one's name with one's peers and co-workers. That notice will go a lorq way to erasing th, p doubts and suspicisns that this whole unfortunate situation created. But more importantly, our decision permits the parties to forge ahead and resume a Froductive working reLationship based on mutual respect and understanding. That's good labour relations. In fact, the spirit of the award applies C,he principles of good labour relations so that the grievor can go back to work and c,or?mencG ner employment: and once again become a valued member of the Niac;ara Parks Commission. 3 With that in mind, I would caution the grievor to ride the tide and begin her personai process of forgiving and forgetting. As unbearable and traumatic as these events have been on her, she must recognize that she was exonerated by an independent board of the charges levelled against her. There is no question that the grievor was provided good and reliable counsel at the hearing, as was the employer. I believe, in light of the arbitration decision, the griavor must _ lav her sword and shield down because the war is over, and it's time to make peace. Peace with herself, Peace with ,the Niagara Parks Commission. And peace with the trade union. I do not believe it would serve the grievor?s short: or long term irtesests to be distracted by focusing her attention on the past and treatment she received durir,g t,he early stages of her dismissal. For this reason, I wouid recommend that the grievor focus her energies on going back to work with the knowledge that her character, reputation, and right to dignity and fair treatment have been resolved in her favour. TES MARKHAM, r"Jntzri.0