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HomeMy WebLinkAbout1991-1594.Huffnegel.94-08-05~..- .~. ONTARtO EMPLOYES DE LA COURONr~,- CROWN EMP~. 0 YEE$ DE £'ON TA RiO GRIEYANCE C,OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 OUNDAS STREET WEST, SUtTE 2100, TOF~ONTO, ONTARIO. M5G 1Z8 TELEPHONE/TELEPHONE: (4;6) 326-~388 ~80, RUE DUNDAS OUEST, BUREAU 2 tO0, TORONTO {ONTARIO~. M5G IZ8 FACStMILE/TELECOPIE : (416j 326~1396 1594/91,2990/91 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEE8 COLLECTIVE Before THE GRIEVkNCE SETTLEMENT BO]%RD BETWEEN · - OLBEU (Huffnegel) ~rievor - and - The Crown in Right of Ontario (Liquor Control Board of. Ontario) Employer BEFORE: W. Kaplan Vice-Chairperson E. Seymour Member M. O'Toole Member FOR THE M. McFadden GRIEVOR Counsel Koskie & Minsky Barristers & Solicitors FOR THE R. Dramaj E~PLOYER Counsel Hicks Morley Hamilton Stewart & St°rie Barristers & Solicitors HEARING November 30, 1992 February 26, 1993 March 23, 1993 July 9, 1993 January 28, 1994 June 7, 1994 Introduction ~ By a grievance dated July 23, 1991, Jeff Huffnegel, formerly an employee of the Liquor Control Board of Ontario (hereafter "the employer"), grieves' that he was'suspended from employment without just cause. By a grievance dated March 18, 1992, Mr. Huffnegel grieves that he was dismissed without just cause. Both cases proceeded to a hearing in Toronto. Unfortunately, for a variety of a reasons including illness and inclement weather conditions, a number Of scheduled hearing dates had to be adjourned leading to some delay in the final determination of this matter. In brief, this is a case of alleged theft of product from a retail store. At the outset of the hearing, the union took the position that the grievor was innocent of.any wrongdoing and should therefore be reinstated to his employment with' full back-pay, seniority and benefits. The employer took the position that the evidence would establish that the grievor had committed one or more acts of theft and that it, therefore, had just'cause to both suspend and, following an investigation, terminate him. Both parties were agreed that this case did' not involve any mitigating circumstances given the position of the .union and the grievor with respect to the alleged theft. It should also be noted that at the outset of these proceedings the employer raised a preliminary objection.. It argued that the discharge grievance was out of time, it having been filed long after the mandatory time limits set out in the Collective Agreement had expired.' It was agreed that this timeliness objection would be argued at the conclusion of the proceedings. The merits of this case were, accordingly, fully explored. Given our finding on the merits,, the grievance is effectively disposed of and there is, therefore, no need to either consider the evidence with respect to the timeliness objection, or to make any rul)ngs or findings in connection with it. The Employer's Case Evidence of Detective Michael Hand Detective Hand testified. Detective Hand is employed with the York Regional Police, and has been a member of that force since 1989. His police career be~qan in 1974. On Friday, July 12, 1991, Detective Hand was working the afternoon shift when he was contacted by.Mr. Michael Maciuk, a Special Investigator employed by the LCBO. Mr. Maciuk advised Mr. Hand about some thefts alleged to have taken place at a LCSO retail outlet located at 219 Main Street in Markham. The following evening, Detective Hand put the store under surveillance' beginning at 5:44 p,m. Detective Hand was accompanied by his partner, Constable Southwell, and Mr, Ma'ciuk, The three men positioned themselves in various locations outside of the store. The store closed on schedule at 6:00 p.m. At approximately 6:15 p.m,, three employees left the store. At 6:22, Mr. I~rian Armstrong, the Assistant Manager, left the store carrying a flat of beer. Detective Hand identified ~ the case of beer which he had initialed. The grievor exited the store immediately after Mr. Armstrong. Detective Hand testified that the grievor had the keys for the door and began locking the ,door. Meanwhile, Detective Hand began approaching Mr. Armstrong and the 9rievor along with Constable Southwell and Mr. Maciuk..Detecti~/e Hand and Constable Southwell identified themselves as police officers, and Mr. Maciuk identified Mr. Armstrong and the grievor by name. Detective Hand then said: "Brian is .that your beer?" Mr. Armstrong replied that it was. Detective Hand then asked if Mr, Armstrong had a receipt, and.Mr. Armstrong replied that he did \ not. Mr. Armstrong was asked if he had paid for the beer, and he replied that he had not and that he would put it back. At that point, the grievor took the store keys out of his.pocket and said: "We'll just .put it back." Detective Hand then said: "No, just hang on to it." Both Mr. Armstrong and the grievor were advised that they were under arrest. They were cautioned and taken to the police station. At the police station, Mr. Armstrong and the grievor were separated. Later that evening Mr. Armstrong made a complete confession, both with respect to this theft as well as to other thefts at the Store. He denied, knowing of anyone else who was involved in taking product from the store. He also asked for some paper to-write a letter of apology. Mr. Armstrong later plead guilty and was convicted of theft under $1000.00. For his part, the grievor also signed a statement. He denied any knowledge of Mr. Armstrong's theft, and further denied ever having taken any product from the employer. His statement indicates that he did not ask Mr. Armstrong', at any time, if he had paid for the fiat of beer, or if he had a receipt for it. The statement further indicates that the grievor was aware of a store policy with'respect to sales of product to employees, but was not aware whether it applied to Assistant Managers such as Mr. Armstrong. The grievor was also charged with theft under $1000.00. This charge alleges three separate acts of theft: the one that had allegedly just occurred, and two other thefts, one in June 1 991 and one in March 1991. Detective Hand testified that these charges were based on information supplied to him by Mr. Maciuk and other LCBO employees. The grievor signed a form promising to appear in court and was then released. On August 12, 1992, the criminal charges against the grievor were dropped on' the basis of ) ( 5 (' "unreasonable delay" pursuant to the ruling of the Supreme Court of Canada in R. v. Askov. Cross-Examination of Detective Hand In cross-examination, Detective Hand testified that the grievor exited the store virtually simultaneously with i~r. Armstrong. He refuted the suggestion that the grievor exited "moments" after Mr. Armstrong, testifying that they left the store virtually at the same time. At best, they were separated by a matter of seconds. While Detective Hand asked Mr. Armstrong if the beer he was carrying belonged to him, he did not ask the grievor any questions about the ownership of the beer. DetectiVe Hand could not recall the grievor going to check the back door after he was intercepted at the front door; nor could he recall the grievor;.walking towards his own car as if to go home, rather than walking with .the police towards the police car. Detective Hand had no recollection of having grabbed the grievor's arm as he moved towards his own car saying at that time "you are under arrest." Indeed, he had a specific recollection of actually arresting the grievor at the main exit after the grievor and Mr. Armstrong left the store. It should be noted that Detective Hand prepared notes of the surveillance and his role in it during the surveillance and immediately thereafter. These notes were introduced into evidence and were remarkably consistent with his viva voce testimony. Detective Hand could not recall the grievor acting surprised when he was 'placed under arrest. He agreed that Mr. Armstrong's police statement did not implicate the grievor, or anyone else in acts of theft. In Detective Hand's opinion, the grievor's statement, at the time of his arrest, namely "'we'll just put it back" indicated that he was participant in the tlieft. He I agreed that he did not challenge the grievor with these remarks, when the grievor, in his .police statement, denied any involvement in the theft. Detective Hand testified that he assumed that the grievor was the. Store tvlanager because he was the person locking the front door. He later found out that the grievor was not the Store Manager;, that Mr. Armstrong was acting in that capacity. While Detective Hand was prepared to agree, given this reporting relationship, that the grievor might not have demanded that Mr. Armstrong' produce a receipt for the flat of beer, he was of the view that it would have been reasonablel for the grievor to have asked Mr. Armstrong if he had paid for the'product. Detective Hand testified that he would question a superior officer in a case of this kind depending, of COurse, on what the superior officer was carrying out. With respect to the alle.gations of theft in June and March 199z; Detective Hand agreed that he did not, on July 13, 1991, specifically question the grievor with respect to them..Two additional Statements had been provided to him in support of these other allegations. One of the statements had been taken by Mr. Maciuk and Constable Southwell. The other statement was taken by Mr. Maciuk. Evidence of Salim Murii Mr. Murji testified. He is a casual employed at the Markham store. He testified that he was told on. his first day of work that if he wanted to buy any product, he had to go to the Store Manager or Assistant Manager. That person Would purchase the product for the employee, take the receipt and attach it to the bag containing the product. The employee's name would be written on the bag, and the employee would pick up the bag at the Conclusion of his or her shift. Mr. I~urji was advised that there were no exceptions to this procedure. (- 7 {.' Mr.' Murji knew the grievor, and testified that they would sometimes go out for drinks after work. Mr. Murji'testified that he had witnessed the grievor and Mr. Armstrong steal product. On July' lZ, 1991, he provided Mr. Maciuk with a written statement. This statement alleges that Mr. Murji had seen Mr. Armstrong steal product at least five' times since January 1991. The ; statement also' alleges that he saw the grievor steal a bottle of Silk Tassel in March 1991. Then, on June 28, 1991, Mr. Murji.saw the grievor remove a 26 ounce bottle of Wiser's Deluxe from the store without paying for it. The. statement reads: "The store was closed and the cashier's balanced and were picking up our keys from the store lunch room when he said, '1 was supposed to get'a bottle of Rye, oh well,-'l will pay for it another time.'" Mr. Murji testified that he then saw the grievor put the bottle in.a LCBO bag and remove it from the store. The grievor was Acting Store Manager on this occasion. With respect to Mr. Armstrong, Mr. Murji testified that he saw him take product on numerous occasions, Generally, this would occur after all of the cashiers had rung off, and so there was no way that Mr. Armstrong could pay for the product. Mr: Murji did not report Mr. Armstrong's thefts, because Mr. Armstrong was the Acting 'Manager and Mr. Murji was simply a casual employee. He testified that he was worried that the employer would not believe him and that Mr. Armstrong would, in turn, give him a hard time. Mr. Murji did not report the grievor's, thefts for similar masons. He thought that as a casual employee he would not be believed. Mr. t4udi was asked to provide further details about the grievor's alleged thefts. With respect to the incident in March, Mr. Mudi testified that it occurred on a night shift after all of the cashiers had rung off. The two of them were about to leave and they were passing by the section of the store where rye was stocked. The grievor said that he was supposed to get a bottle of rye but forgot, and so he took one adding that he would pay for it later. It was a bottle of Silk Tassel rye which the grievor took to the Cash and placed in an LCSO bag. The two men then set the alarm, left the store and locked the doors. Mr. Murji testified that'the grievor did not leave any money for the rye. Mr. Murji thought that if he said anything about the incident he might lose his job. The second theft occurred on June 28, 1991. Mr. ~lurji was absolutely · certain about that date because some ten .days earlier the Store Manager, Mr. Jatinder Tandon, had begun spotting Shortages. The grievor'again took product, and Mr. Murji testified that he did so in the same way as he had the previous March, The only difference was that this time he took a bottle of Wiser's Deluxe. Another difference was that this time there was a second Witness, another employee named Marlo Caggianiello. Mr. Murji told the Board that a new computer system was put into the store 'around the middle of June.. This new system could accurately identify inventory shortages. Apparently the Store Manager advised employees that there were shortages in American beers, and he approached all staff asking for information. Mr. Murji was approached. At first Mr. Murji did not want to say anything. Then Mr. Tand°n told him that he better report what he knew, and so Mr. Murji reported that he had witnessed the grievor and Mr. Armstrong taking product. Mr. Murji was scheduled to work on July 13, 1991. He arrived at work at 9:00 a;m. The grievor and Mr, Armstrong were also on duty, as was Marlo Caggianiello and another employee named Mike Slaughter. Messrs. Caggianiello and Slaughter are also casuals. Mr. Murji was assigned to the cash, and he testified that he did not sell either the grievor or Armstrong any product. Towards the end of the shift, Mr. Murji was in the office balancing his cash. The new computer system took a little longer than usual to close the store. Most of the time, all of the employees .leave together. On this occasion, Mr. Armstrong advised Mr, Murji that he could leave first. He went to get his car keys and then returned to the office. Mr. Armstrong again advised Mr. Murji that he could leave, and the other two 'casuals were also.roid to go home. As the three men left the store, they were approached by the .police and Mr. Maciuk. They were asked who else was in the store, and they identified the grievor and Mr. Armstrong. All three men were then asked if either the grievor or Mr. Armstrong had purchased any product that day, and all three replied that they had not. The three men were then told to leave. Cross-Examination of Mr. Murji In cross-examination, Mr, Murji testified that as a married man, job Security was extremely important to him. He regularly worked thirty to forty hours per week. He also testified that .he was friendly with the grievor, and they would sometimes go out after work together for drinks. 'Mr. Murji does not drink liquor, and so would generally order a coke. He never saw the grievor drink rye. Mr. Murji told the Board that he never said anything about the incident in March because he was worried about his job statds. Even though he was aware that what the grievor did was contrary to policy, he did not feel he Could say anything because the grievor was, at the time, his manager. He 10 had never seen any other-employee previously take product, and he did not know how the grievor would respond if he raised the Policy breach with him. It-was not possible that Mr.. Mudi was confusing the grievor with' another employee. On June 28, 1991, Mr. Murji was still on friendly terms' with the grievor,. and he was still concerned about the grievor taking product because with' the new computer system it would be' easy to pinpoint missing inventory, It was pointed out to Mr. Murji that the new computer system would resolve any credibility issues by providing corroboration for any allegation of theft. Mr. Mudi agreed that this was true,, but observed that on this .occasion the grievor said that he would pay on Monday, and he would not have any way of determining whether this occurred. Mr. Mudi was alarmed by the second incident, and he believed that the grievor was' placing his job at risk.~ Mr. Murji did not want to report on either the grievor or Mr. Armstrong; he was friendly with both men. However, he felt somewhat threatened by Mr. Tandon and decided that he had no choice but to report what he knew. Although he did not want to be accused of being involved, he knew, because of the new computer system, that there would be proof of the thefts. In all of these circumstances, he felt that he. had no .choice but to accede.to Mr. Tandon's request and to make a full report. Mr. Murji agreed that there was nothing unusual about ~fr. Armstrong advising him and the other casual employees that they could leave the store at the end of their shift.. Store policy only .requires two employees to be present to close a store, It was common practice for any other employees present to be told that they Could go home, although in many cases everyone (:'~' 1 1 m( ' stayed behind and left at the same time. Re-examination of Rr. Mudi - In re-examinatiOn, Mr, Murji testified that he was concerned about his own employment status when he was interviewed by the Store Manager. However, he was not so concerned about it that he would lie about the grievor. Evidence of Marlo Caggianiello Mr. Caggianiello testified. At the time of the events in question, he had worked for the LCBO as a casual employee for appr°Ximately one year. As soon as he began work he was made aware of the store poliCy with respect to the purchase of product by employees. The process described by Mr. Caggianiello was virtually the same as earlier testified to by Mr. Murji. Caggianiello testified that he had a good working relationship with the grievor. According to Mr~ Caggianiello, he had seen Mr. Armstrong take product from the store without paying for it on at least ten occasions. On June 28, 1991, he was working with the grievor and Mr. Murji. The grievor was in charge of the store. At the end.of the shift, after the cash was done, the grievor stated that he was going to a party. He asked Mr. Murji what bottle of rye he should bring. Mr. Caggianiello was not sure what Mr. Murji then said. The grievor then went to the back of the store and took a bottle of'Wiser's Deluxe off the shelf. He left the store without paying for it. At this time, Mr. Caggianiello, as already pointed out, had worked at the store for only one year, and he did not feel that he could report this theft as it would be the grievor's word against his. A short time later, Mr. Caggianiello was asked about shortages by Mr. Tandon, and he then reported the incident. Mr.. Caggianiello was asked some questions about the events on Saturday July 13, 1991. His account of these events closely mirrored that earlier provided, to the Board by Mr. 'Murji. He testified that neither the grievor nor Mr. Armstrong purchased any product that day. While it was true enough that' only two staff are required to stay and close the store,,.Mr. Caggianiello testified that because it was a Saturday, and because everyone was anxious to leave, the usual practice was for everyone to wait until all the store closing tasks had been cOmpleted and for everyone to leave at the same time. At about 6:IS.p.m., Mr. Caggianiello went to the office. The computer will still running. He testified that the grievor and Mr. Armstrong told him to leave. He made sure that this was okay, and upon being assured that it was, he and the two other employees left. The three men were approached by the police out'side the store, and after answering a few questions, Mr. Caggianiello went home. According to Mr. Caggianiello~. the grievor and Armstrong had a close personal relationship. Cross~Examination of Mr. Caggianiello Mr. Caggianiello was asked a number of questions in cross-examination. He agreed that in June and July 1991 he had a number of cash irregularities, and that on July 13, 1991 'the grievor had him close his cash a little earlier than usual so that he would have enough time to balance out. With respect to his evidence about the various thefts, Mr. Caggianiello was shown a Copy of a written statement he provided to the police on July 12; ? 991. He agreed that this statement did not describe the June 28, 1991 incident in as much detail as he had described it to the Board.. instead of referring to the grievor asking Mr. Murji what type of rye he' should take to a. party, all that the statement says is that "he mentioned something about 'Rye." Mr. Caggianiello.insisted, however, that the account he gave before the Board was both complete and accurate. Mr. Caggianiello was aware on June 28, 1991 that the grievor had breached policy, but he was afraid that he would not be believed. Moreover, he did not think that it was up to him to say anything about the incident. Mr. Caggianiello agreed that after the new computer system was installed, his account would be corroborated by the computer. Mr. Caggianiello still felt that it would be his word against that of the grievor, and so he did not report the incident. It was also pointed out'to Mr.,Caggianiello that his word would be corroborated by Mr. Murji, who also witnessed the June 28, 1991 theft. Mr. Caggianiello testified that they were both casual employees, and so did not feel as if they were in a position to do anything about the matter. One evening, prior to June 28, 1991, Mr. IVturji drove .Mr. Caggianiello home and the two men discussed what would happen if they were working at the store and Mr. Armstrong was caught stealing. Both men were concerned about that prospect and about somehow becoming involved. Sometime before July; 13, 1991, Mr. Tandon approached Mr. Caggianieilo and observed that it would be quite difficult for a member of the public to steal a case of beer. Mr. Caggianiello could tell that Mr. Tandon knew something, and so he told him what he knew. Mr. Caggianie!lo did not agree that he implicated the grievor in order to protect, himself. He pointed out that he. did not benefit from the incident. He is still a casual employee. Mr. Caggianiello never felt personally at risk because he is not a thief, although he was concerned that the grievor might say something to the Store Manager about him and affect him and his hours in that way. Mr. Caggianiello was not concerned that his problems balancing his cash would lead to his termination. He was aware of the gdevor's friendship with Mr. Armstrong · because he had heard the' two men discussing it. With respect to store closing, Mr. Caggianiello reiterated his evidence that it was common practice for everyone to stay at the end of a shift and leave together. Evidence of Jatinder Tandon Mr. Tandon testified. He is the Store Manager, and at the time that he gave evidence in these proceedings, had occupied that position for approximately seven years. He has been employed by the LCBO for approximately 19 years. He described the process to be followed by employees wishing to purchase product, and his description of 'that process did not differ in any material respect from that p~ovided by Mr. Murji and Mr. Caggianiello. According to Mr. Tandon, any employee, whether a manger or not, must buy product through.another employee. The grievor was aware of the LCBO's policy with respect to the purchase of product by employees, and a copy of the policy was introduced into evidence. When the grievor was first employed he was shown 'a copy of the policy, and signed a statement indicating that he fully understood it, 'Mr. Tandon testified generally about reporting relationships at the Markham store. He is the Store Manager. Mr. Armstrong was his Assistant Manager, and the store would ·also be managed by a Clerk 4 and the grievor. All of these individuals took turns managing the store. Mr. Tandon and the grievor had a good working relationship prior to his termination. In June 1991, a new computer system was installed at the store· Prior to its installation a full inventory was conducted. The new computer system kept a running count of product sold and inventory remaining,, including the number of bottles of specific brands. Soon after the system was installed,, Mr. Tandon went on holiday leaving Mr. Armstrong, a Clerk 4, Mr· Bill Kingsley, and the grievor in charge· He returned from vacation the second week of July 1991. upon his return, Mr. Tandon toOk an inventory of American beer and determined that seven to eight cases were unaccounted for. He also determined that the store was short several bottles of rye.. Mr. Tandon was particularly puzzled by the missing beer, as it would be difficult for a member of, the public to walk out of the store concealing, a whole case· Mr. Tandon began an investigation. He spoke with Mr. Murji, Mr. Caggianiello and with the grievor, among others. Mr. Murji Confessed to witnessing thefts by Mr. Armstrong and the grievor. Mr. Tandon asked him why he had not reported these thefts, and Mr. Murji told him that he did'not say anything because Mr. Armstrong and the grievor were in' charge, that it woUld be their word against his, and that he was simply a casual employee. · Mr. Tandon also spoke with Mr. Caggianiello who confessed to witnessing Hr. Armstrong taking beer as well as seeing the grievor stealing rye on June 28, 1 991. When 'Mr. Tandon asked the grievor if he 'knew anything about .missing product he denied any knowledge whatsoever. Finally, Mr. Tandon spoke to Mr. Kingsley Wh'o reported seeing Mr. Armstrong take product on one occasion, saying as he did that he would pay for it later. After conducting this investigation, Mr. Tandon contacted his district manager who in turn coi~tacted LCBO security. Eventually Mr; Tandon met with Mr. Maciuk on July 12, 1 991. Statements were taken later that day from Mr. 'MudJ and Mr. Caggianiello, Mr. Tandon testified that Mr. Armstrong and the grievor were good friends who often went- out together. Mr. Tandon understood that the grievor would periodically stay overnight at Mr. Armstrong's home. Mr. Tandon knew this because one night the alarm went off at the store and Mr. Armstrong arrived with the grievor in tow. Cross-Examination'of Mr. Tandon Mr. Tandon was asked a number of questions in cross-exammatton. He testified that when he met with the grievor to discuss shortages, the grievor did not offer any information whatsoever about the matter. The grievor also denied knowing of anyone taking productl When Mr. Tandon · spoke to Mr. Kingsley, Mr. Kingsley had already discussed product shortage with Mr. Mudi. Mr. Kingsley was aware at that'time that Mr. Murji had seen Mr. Armstrong stealing product. Mr. Tandon was asked about the night the alarm went off at the store. He was absolutely certain that the grievor and Mr. Armstrong arrived together in response to it. With respect to the cash balancing difficulties encountered by Mr. Caggianiello, Mr. Tandon testified that the amounts involved were not great. While it was a problem, it was not a big problem, and it was one that could be cured by Mr. Caggianiello paying more attention. Evidence of Michael Maciuk Mr. Maciuk testified. He is an investigator for the LCBO. At the.time of the hearing he had held that position for approximately five years, and had been employed by the LCBO for approxir~ately 14 years. He is responsible, among other things, for responding to allegations about employee theft. On July 1;~, 1991, he received a call from the Acting District Manager requesting a meeting to discuss problems at the Markham store. A meeting took place later that day, and that evening .Mr. Maciuk interviewed Mr. Murji, Mr. Caggianiello and Mr. Kingsley. He asked each of these witnesses open-ended questions. At the conclusion of the process, he asked all of them to read their statements and to make any changes they wished. The statements were then signed and witnessed.' For obvious reason, Mr. Maciuk did not interview either the grievor or Mr. Armstrong. After conducting these interviews, Mr~ Maciuk contacted the police. He met with Detective Hand the next day, and a surveillance was planned for that e~ening as both the grievor and Mr. Armstrong were scheduled to work. Mr. Maciuk described the surveillance, and his evidence about how it was conducted did not differ in any material way from the account earlier provided by Detective Hand. Mr. Maciuk testified that upon leaving the store, Mr. Murji, Mr. Caggianiello and Mr. Slaughter all reported that neither the grievor nor Mr. Armstrong had purchased any product that day. He testified that Mr. Armstrong then exited the store carrying a flat of beer under his arm, and the grievor followed immediately thereafter. Mr. Maciuk and the two police officers approached the grievor and Mr. Armstrong. Mr. Armstrong was asked if he had paid for his beer, and he replied that he had not. At that point, the grievor turned around and put the store key into the door and said "we'll just put it back." Detective Hand said no and advised both men that they were under arrest. The two men were cautioned. The grievor did not deny any involvement in the theft. ~ At this point the grievor and Mr. Armstrong were told to accompany the police to the police car. The beer was put in the trunk and the grievor 'and Mr. Armstrong were put in the back seat. The two men were taken to the police station at which time Mr. Maciuk advised both'of them that they were suspended from employment. He took custody of their store keys. Mr. Maciuk then advised the Acting District Manager and his Director of' the. evening's events. Cross-Examination of Mr. Maciuk Mr. Maciuk was asked a number of questions about his conduct of the investigation. He agreed that prior to July 12, 1991 he had no reason to suspend the grievor. All that he had were the statements of some witnesses. Mr. Maciuk was aware that the LCBO had installed a computer system at the Markham store that allowed the store to maintain a running inventory count. Mr. Maciuk was asked about his interviewing technique, and he told the Board that he asked open-ended questions. He also tested the answers ~o those questions by comparing those answers to computer inventory reports indicatin§ a loss of product. A copy of one,such report was introduced into evidence. This report states at the top: "Warning: Store is Open - Counts May Not Be Accurate." Mr. Maciuk testified that these computer reports indicated a number of flats of beer were missing.. Beer is very difficult to shoplift, and he formed the view, based on this fact, that the reports of Mr. Armstrong stealing beer were probably accurate. The computer report also indicates a missing bottle of Wiser's Deluxe. Mr. Maciuk agreed that it was possible that a customer could be holding a bottle during the count, and if that was so, the particular bottle would not show up either .on the computer or on the shelf. Mr. Maciuk was asked how much time passed between the grievor locking the door on July 1 3, 1991, and Mr. Maciuk and the police approaching him. He testified that no more than seven or eight seconds passed, and that the grievor and Mr. Armstrong were walking together when he and the two police officers approached. Mr.~ Maciuk was absolutely certain that the grievor said "we'll just put it back," and added that as he did so he turned towards the store door in an attempt to unlOck it. Mr. Maciuk rejected the suggestion that the grievor was simply turning back to double-check that the door was locked. Evidence of Tony Marcella Mr. Marcella testified.' At the time of the hearing he was the District Manager and had been employed by the LCSO for twenty-eight years. He was away on vacation when the grievor and Mr. Armstrong were arrested, and did · not return to the office until August 23, 1991. At that time he was made aware'of the events described in this award, and he conducted his owen investigation which included interviews with Mr. Armstrong, the grievor, Mr. Tandon, Mr. Murji, Mr. 'Caggianiello and Mr. Kingsley. Mr. Marcella then prepared a report. The statements recorded in this report are completely 'consistent with the statements'earlier provided to Mr. Maciuk and the police, as well as the evidence tendered in this proceeding. Mr. Armstrong advised Mr. Marcella that the grievor was not involved in the theft, and that he was no better friends with the grievor than with anyone else' in the store. The grievor told Mr. Marcella that he was not involved, that he, had never taken any product from the store and, furthermore, that he was not aware that Mr. Armstrong was doing so on July 13, 1991. He also told Mr. zo C.' Marcella that he and Mr. Armstrong' were fairly good friends. The grievor was represented by a union official during his interview with Mr. l~arcella. On August 26, 1991, Mr. Marc'ella submitted a report to Mr. David Marshall, the Regional Director. This report ended with a number of conclusions: Re: Jeff Hufnagel Since Jeff Hufnagel offered no defence regarding,the removal of product on June 28, 1991, and since it was witnessed by two employees, ~ can only conclude that the product was .stolen. With regard to the theft of product in March 1991 witnessed by Salim Mudi, I am not prepared to make any evaluation of this issue owing to the vague details (i.e. date, no other witnesses, etc.) With regard to the events of July 13, 1991, it is my determination that Jeff was involved in the theft of the case of beer. My reason~ are as follows: his comment that "we'll return the product" seems to be the response of one who knew that the product was stolen; his comment that "he did not realize that Brian had taken a case of beer" seems implausible; the fact that he did not initially protest to the police; the fact that he was previously observed takin9 product on June 28, 1991. I am not inclined to give much weight to Brian Armstrong's claim that Jeff was not involved as Brian- lied on a number of issues and both Brian and Jeff were good friends.. Brian's claim would have had greater credibility if he had mentioned it initially to the arresting officers rather than as an after-thought. ... RECOMMENDATIONS It is my recommendation that both Brian Armstrong and Jeff Hufnagel have their employment terminated with the LCBO as the result of their theft of product. Both employees were less than credible in their. statements and neither of them apologized for their actions. There is .nothing in their actions that makes me think this would not happen again and I do not think that I could ever trust them again. The LCBO policy of dismissing employees for theft is consistently applied and I cannot think Of any reason for it not to be applied in this case. It should also be noted that this report refers to a statement made by Mr. Armstrong. with respect to him and another employee having taken product from the store one day .and paying for it the next day. l~r. Armstrong asserted that Mr. Tandon was aware of this. This. statement was refuted by both Mr. Tandon and the other employee said to have been involved. Cross-Exami'nation of Mr. Marcella In cross-examination, Mr. Marcella agreed that the grievor denied any involvement whatsoever in any theft. A July 27_,'1 991 letter to Mr. Marcella from the grievor was introduced into evidence. It notes that the grievor was' not in possession of any product when arrested by the police. It further notes that the grievor has a clean employment record and values his job. It concludes by stating that the grievor has "caught people stealing from our store on previo~Js occasions, and as a result,"-find it ludicrous to be 'accused of said thefts, as I have never stolen anything from my employer." Mr. Marcella agreed that u~til the grievor was terminated he I~ad a satisfactory job record. He emphasized, however, that the grievor's record was not taken into. account in making his 'termination recommendation. Mr. Marcella testified that it was his view that the grievor was involved in the incident on July 13, 1991, and this view was strengthened by the fact that other employees had witnessed the grievor stealing on other occasions. Mr. Marcella also mentioned .that when he questioned the grievor about the June 28, 199"1 theft, the grievor refused to provide any information with respect to it. He said that he was refusing to do so on the instructions of his lawyer. M'r. Marcella then told the grievor that if he.did not answer questions with respect to this incident "we may have to assume the worst," at which time the grievor advised him that if he had any questions to call his. lawyer~ Mr. Marcella further indicated that in conducting his investigation, and in preparing his report,~ he reviewed the various -statements that were provided by the grievor and others to the police.' Mr. Marcella agreed that the grievor denied any involvement in any act of. theft to the police. He also agreed that Mr. Armstrong advised the police that the grievor was not involved, However, Mr. Marcella did not find Mr. Armstrong credible, and'did not believe that statement, along with .a number of other statements which Mr. Armstrong made.- Mr. Marcella might have believed Mr. Armstrong had he advised the police, when they first approached him, that the grievor was not involved. Mr. Marcella agreed that if the grievor was'indeed innocent, then he would have nothing to apologize for. The Union's Case Evidence of Jeffrey Huffnegel The grievor testified. At the time of his arrest, he was twenty-nine years old and had worked for the employer since 1985 when he was first hired as a casual employee. He joined the permanent ranks in 1989, eventually, being promoted to the position of Clerk 3. He testified that he liked his job, and that there Were no complaints ab°ut his work. He also testified that he was aware of store policy with respect to the purchase of product by employees. He told the Board that he was aware of at least one occasion when Mr. Tandon allowed Mr. Armstrong 'to take a case of beer home and pay for it the next day. The grievor later found the money in a special envelope in the store safe. The grievor was of the view that this kind of arrangement was permissible between managers. The griev0r enjoys a beer, but he does not drink liquor.' Some time ago he had a girlfriend who preferred Silk Tassel rye. The grievor would buy her bottles from time to time, and he could recall one occasion in March 1 991 ... When she called him at work and asked him to pick up a bottle for her. 'The ~ grievor could recall giving the money for this purchase to Mr. Armstrong. He recalled that the sale was properly rung in by Mr.' Murji, that the receipt was stapled to the bag and that his name was written on it. According to the grievor, he was friendly with Mr. Murji; the two of them would eat lunch together twice a~week, they had attended the wedding of another employee together, and on that occasion he had seen Mr. Murji drink alcohol. The grievor categorically denied stealing a bottle of Silk Tassel rye in March, or "~ stealing anything at any other time. He repudiated the evidence of Mr. Murji about the March incident in every respect. With respect to the incident alleged to have occurred on June 28, 1991, the grievor testified that he did not drink Wiser's Deluxe and that he did not steal a bottle of it. He repudiated the evidence o'f both Mr. Murji and Mr. Caggianiello in this respect. The grievor described his routine on July 13, 1991. He testified that it was a normal day. Mr. Caggianiello was taken off cash first because he was having difficulties in balancing his cash. The store was closed at the end of the day, and when:it was, the new computer system took longer than usual to complete the store closing functions. Given these delays, there was. no reason for the other employees to hang around and so they were told that they could leave. Th'e grievor then set the alarm in the office. The grievor did not notice Mr. Armstrong carrying any beer. After the alarm is set, everyone must be out of the store within 45 seConds; Mr. Armstrong then exited the store and the grievor followed. As he left the store, the grievor immediately turned around to lock the door.. In doing so he noticed that a number of men were approaching. They:began to talk to Mr. Armstrong first. The grievor testified that some 10 to 15 seconds passed between the time that he was locking the door and began making his way towards 'where Mr. Armstrong and the men were 'standing. He told the Board that these men were addressing their inquiries to Armstrong, not to him. They asked Mr. Armstrong if he had bought the beer, and he said that he had not. Mr. Armstr(~ng did not say anything indicating that the ~riev°r was involved. The grievor did not say."we'll just put it back." He testified that the beer belonged to Mr. Armstrong not to him. The grievor did not believe that he was under arrest, so he began to make his way to the back of the building to ensure that the other door was locked. He checked that door and then began to move towards his car. One of the police officers then grabbed him and said that he was also under arrest. The grievor replied: "me too?" He was then told that he would be briefed at the station. The grievor testified that he was in shock, and did not know what was going on. He figured that it would be best not to say anything. He testified that he gave a statement to the police, and that this statement, earlier introduced into evidence, was accurate. He als~ testified that he was good friends with Mr. Armstrong, and that he would attend card parties at the. Armstrong residence approximately once per month. The grievor was · not aware that I~r. Armstrong had been stealing prOduct. Cross-Examination of Mr. Huffnegel The grievor was asked, a number of questions in cross-examination. He agreed that he was well aware of LCBO policies regarding both the purchase of product and the consequences of employee theft. He is of the view that any employee caught stealing product should be dismissed,even if they have a clean employment record. He also agreed that Clerk 3's occupy a significant position of trust, land as a Clerk 3 he was responsibJe for store keys, security codes and the deposit of funds. Any breach of these important responsibilities were, in the grievor's opinion, also'juSt cause for discharge. The grievor further agreed that the employer was entitled to expect him to be forthright and frank, and he testified that he had no reason not to be absolutely truthful when responding to requests from the employer for information. His responsibilities also included reporting any breaches by others that he was aware of. /' The grievor a~greed that his version of events differed in a number' of important, respects from that provided by witnesses called by the employer. ' In'the case of every material difference.the grievor asse~ted that his version of events should be preferred.' He was telling the truth; the witnesses called by the employer were not. Accordingly, Mr. Tandon was lying when he said that he never allowed Mr. Armstrong to take product'one day and pay for it the next. Mr. Murji and Mr. Caggianiello were lying when they said they witnessed the grievor stealing. Detective Hand was lying when'he reported that the grievor said, upon being approached, that "we'll just put it back.'' . Mr. Maciuk was also lying in this respect. What really happened .was that Mr. Armstrong stated: "1'11 just put it back." The grievor did not know why Detective Hand and Mr. Maciuk would lie about him. He agreed that he was, at the time, on good terms with Mr. Murji, and he cannot think of any reason why Mr. Murji would lie. The only explanation that he could come up with is that his removal would create a permanent vacancy thus improving Mr. Murji's prospects, of obtaining a full-time position. The grievor agreed that he had a satisfactory working relationship with Mr. Caggianiello, but testified that he was a frustrating employee to supervise. The grievor did not know why Mr..Caggianiello was lying'about him. The grievor agreed that he did not, in his statement to the police the night he was arrested,.denY any knowledge that Mr. Armstrong had taken some beer. The grievor agreed that he told the police, in this statement, that'he · "assumed that Brian had purchased the beer." The grievor did not agree that this meant that he knew that Mr. Armstrong had the beer when he was locking up the store. The grievor testified that he did not see that Armstrong had any beer until he left the store and turned around to lock the door. That is why he told the police that he assur~ed that Mr. Armstrong had purchased it. The grievor agreed that when Mr. Armstrong was arrested he was carrying a flat of beer. A flat of beer is an open case comprised of four six packs. Accordingly, it had to be carried on one's hip. The grievor identified a detailed chronology of events he had prepared for 'the' benefit of his union advisor. This document was introduced into evidence, and the grievor was asked a number of questions about it. The ~grievor agreed that he had to go into the office area to arm the alarm system, and that Mr. Armstrong had to be clOse by when he was doing so or the motion sensors would pick him up. Accordingly, the grievor could see Mr..Armstrong at this point. The.grievor agreed that the beer flats were located by the cash register and are .piled up against the office door. Somehow, after the system was armed, Mr. Armstrong got a flat and made his way to the front door. The grievor did not see him do so. He agreed that he only had 45 seconds to leave the building so that he would have to move reasonably quickly. At 'some point, Mr. Armstrong handed the grievor the keys. to the store. The grievor also had to pick up his own keys and cigarettes, and it must have been at that point that IVtr. Armstrong grabbed a flat of beer. The grievor reiterated his evidence that he did not become aware of this until after leaving the store and locking the door. He was preoccupied with locking the door, and so was not paying any attention to Mr. Armstrong. The grievor did not agree that it was odd that he could be so close to someone and not be aware that he or She was carrying a flat of beer. The reason why IVtr. Armstrong gave him his store keys was because he was leaving on holiday. . The grievor told the Board that he did not tell the POlice, or'anyone else for that matter, that it was Mr. Armstrong wh° said "1'11 put it back." The' grievor also agreed that he received a letter from the employer asking for a complete explanation of what had occurred, and that he did. not advise the employer of Mr. Armstrong's statement in response to that letter, or at any other time. He agreed that he gave this explanation for the first time in giving evidence before this Board. The grievor did not provide the same explanation to Mr. Harcella because he was acting under instructions from his lawyer not to say anything. The grievor agreed that his evidence before this Board was the first time that. he provided an explanation for the alleged March theft. With respect to the June 28, 1991 theft, the grievor' testified that there was no explanation to give as he was completely innocent of any wrongdoing. This was also the case with respect to Hr. Armstrong's theft of a flat of beer on July 13, 1991. The grievor was questioned about a number of other inconsistencies in the various statements and letters he had prepared, and suggested that various matters were not inconsistent but were simply requiring further clarification. Re-Examination of Hr. Huffnegel in re-examination, the grievor testified that after he set the alarm he had to reach to a shelf to get his keys and cigarettes. Heanwhile, Hr. Armstrong had begun to walk ahead. The grievor was approximately five to ten paces behind him. Mr, Armstrong went out the door first. When the grievor, exited, he was preoccupied with locking the door and so did not immediately see that Mr. Armstrong was carrying a flat of beer. Evidence of Brian Armstrong Mr. Armstrong testified. He told the Board that he had not ~spoken with the grievor since they were both arrested on July .13, 1991. Prior to this incident, the two men had been friends. Mr. Armstrong discussed the store-closing process, and testified that he was standing by the main doors as the grievor was setting the alarm. He testified that the main doors were ¢ some thirty feet away from the office where the alarm pad was located, A diagram of the store was introduced into evidence, b4r. Armstrong was holding, a flat of. beer when he was standing by the door, He'could not recall where the grievor was when he picked it up. Mr. Armstrong described the manner in which he m W~ standing and the way in which he was holding the beer. It was, according to this evidence, not in plain Sight of the grievor who was in the office some distance away. Mr. Armstrong testified that after the grievor set the alarm, he backed out of the exit doors and the gFievor followed, m The gFi.evoF then mocked the door. At this moment,- Detective Hand and the others began to approach. Mr. Armstrong testified that the grievor did not say anything to the police. He told the 'Board that he later told the police that the gFievor was not involved in the incident. He plead guilty. .. Mr, Armstrong Was shown a copy of the transcript from his trial. Suffice it to say that the transcript indicates that it was the grievor and not Ivlr. Armstrong who was the ASsistant Manager of the ~arkham store, ~r, Armstrong has no idea how his lawyer came to be misinform, ed about that fact. Cross-Examination of Ivlr. Armstrong Mr. Armstrong was asked a number of questions in cross-examination. He 'is of,the view that' the grievor would not have had the authority to question him about taking product as he was the Assistant Manager. With respect to · whether the grievor actually saw him with product, .Mr. Armstrong was of the opinion that the grievor would have Seen that he was carrying a flat of (" ' ' " 30 ~': beer. Mr. Armstrong' insisted that the grievor did not say anything once they were both out of the store. Mr. Armstrong testified that the' grievor did not say "we'll just put it back." Mr. Armstrong also did not make this comment, or any comment like it. 'Mr. Armstrong has no idea why the police would make this up. Mr. Armstrong was asked a number of questions about how his lawyer in the Criminal proceeding came to be misinformed about his employment status. Mr. Armstrong insisted that he did not know. He also did not accept the suggestion that this misinformation assisted him as it indicated that the Manager of the store was also involved in the theft. Simply put, it was suggested to Mr. Armstrong that the effect of this assertion was to diminish his responsibility for the theft and in that way benefit his defence. Mr. Armstrong denied the suggestion. Mr. Armstrong insisted that the grievor was not involved in his July 13, 1991 theft. Mr. Armstrong was asked to comment on the evidence of Messrs. Murji and Caggianiello. According to Mr. Armstron§ bo{h men were lying, as was Mr. Tandon when he denied ever allowing him to take product one day and pay for it the next. When asked to provide an explanation or motive,' Mr. Armstrong testified that he was frequently discriminated against at work, and he used the word "conspiracy" to describe some of the mistreatment he had received. He gave a number of examples illustrating the conspiracy, and suggested that Mr. Tandon never liked him. Evidence of Anita Wiedemann Ms. Wiedemann testified. At the time of her evidence she was employing 'the grievor as a bartender at a restaurant called Graystones. She has known the grievor for approximately four years. Ms. Wiedemann first met the- grievor when he visited her restaurant as a customer. She .later learned that he had lost'his job, and she was aware of the reason why..The grievor has worked for her on a part-time basis for approximately two-and-a-half · years. Ms. Wiedemann has Complete trust and confidence in the grievor, and could' not believe that he had been accused of theft. In his job at Graystones, the grievor handles cash. Ms. Wiedemann completely.trusts him. She has no doubts about his honesty, reliability and trustworthiness. She described the grievor as a refined individual. Cross-Examination of Ms. Wiedemann In cross-examination, Ms. Wiedemann agreed that she was not involved in the' LC80 investigation and did not know anything about it. She also agreed that sometimes people do certain things, and when their friends and families find out they cannot believe that the person behaved in that way way as the behaviour is inconsistent with their experience of the particular individual. This does not, however, mean that the person in question had not behaved in the particular way. The evidence having been completed, the matter turned to argument. Employer Argument In employer counsel's submission, the evidence adduced in this case more than amply established that the employer had just cause to suspend and then terminate the grievor's employment. Counsel pointed out that the evidence of virtually every witness called by management was consistent. The .only'inconsiStencies in this case were in the evidence of the grievor' and Mr. Armstrong. There was no reason for Messrs..Murji and Caggianiello to lie about the grievor, and counsel suggested 'that their evidence should be believed. It Was pointed out that neither of these-employees accrued any benefit from their participation in this matter. Likewise, the evidence of Detective Hand and Mr. Maciuk was,infinitely preferable to the version of events provided by the grievor. Neither of these individuals had any reason to lie, and there was every 'reason to believe that they were telling the truth. In the employer's view, there was no reason to believe that the ' grievor was telling the truth. Counsel argued that the grievor's statement, "we'll just put it back," was extremely significant. It indicated that the grievor knew about the theft and was involved in it. This conclusion was reinforced by the fact that the grievor did not protest his innocence at the time' of his arrest, and that he had been witnessed stealing product on Other occasions. It was also noteworthy that Mr. Armstrong testified that the grievor must have seen him carrying the flat of beer. Speaking of Mr. Armstrong, counsel suggested that his views notwithstanding, there was no even a hint of a conspiracy against either him or the grievor. A number of cases were referred to in support of the employer's submission that both grievances should, on their merits, be dismissed. Of note is the Board's decision in Menzies 102/83 (Weatherill). in that case an employee was dismissed fOr theft. He Was also criminally charged. He was acquitted at trial. The Board made the following observations: The grievor was acquitted on charges of theft (one charge being withdrawn). With. gr.eat respect, it would be our view too, on the evidence before us, that there is "reasonable doubt" as to these events. Given the Standard of proof which applies (quite properly in our view) in these proceedings, which are .very different from criminal proceedings, it must nevertheless be our conclusion that the grievor did not properly record these transactions and did not account for the proceeds. Such is our finding (at 6-7). -The grievor's discharge in Menzies was accordingly upheld and his grievance dismissed. Counsel urged that the Board reach the same result in the instant case noting that the' grievor had not even gone to trial. Union Argument In the union's submission, the Board should begin its deliberations with a review of the dismissal letter. That letter, dated' August 30, 1991, states that it "was evident that" the grievor "was responsible for the theft of product from the LCBO." The letter adds that in these circumstances his working relationship could not be sustained and that he was therefore terminated for cause effective July 13, 1991. Union counsel argued that the evidence did not establish that the grievor was responsible for the theft of product from the LCBO. Instead, the evidence established that Mr. ArmstrOng was respOnsible and there was no r. eason, in these circumstances, why the grievor should be attributed With responsibility for the theN. Turning to the evidence, counsel 'pointed out that it has been long ' established, in cases involving allegations of employee theft, that while the civil standard applies, a board of arbitration must, if finding that the alleged offence actually occurred, be satisfied on the basis of clear and convincing evidence. Counsel Cited the Board's awards in IrWin 1377/86 34' (~ .... (Slone) and Tsialtas 282/79 (Eberts) in.support of this proposition, Counsel argued that the evidence adduced in this case did not meet that test. With respect to the specific allegations made against the grievor, it was noteworthy that Mr. Murji had' very few details about the incident said to have occurred in March 1997. Counsel urged the Board to disregard that evidence, and not take that alleged incident into account in deciding whether the employer acted with just cause. Counsel also pointed out that the grievor presented a perfectly plausible expl.anation for the June 28, 1991 incident, and here he suggested that the Board prefer the grievor's account to that of either Mr. Murji or Mr. Caggianiello. · Indeed, counsel suggested that insofar as matters, of credibility were concerned, there were a number of reasons to believe the grievor in Preference .to Mr. Mudi. Counsel.argued that Mr. Murji was concerned.about his job security, and that .his evidence should be considered in that context. When Mr. Tandon began making inquiries about missing product, Mr..Mudi felt threatenedl and this might explain why he said what he said. Counsel also pointed out that there were a number of inconsistencies in his evidence, Mr. Mudi's written statement was not nearly as detailed as his viva voce testimony. Moreover, there were a number of inconsistencies going to credibility. Mr. Mudi testified.that prior to reporting the grievor's · alleged thefts he had not discussed it with anyone. However,. Mr. Caggianiello testified that he and Mr. Mudi discussed the issue one night while driving home. in all of these circumstances, counsel urged the ~Joard &o disregard Mr. Mudi's evidenCe about having seen the grievor commit theft on June 28, 199,1. Counsel urged the Board to reach a similar conclusion with respect to the evidence of Mr. Caggianiello. Counsel suggested that Mr. Caggianiello might also have felt threatened by Mr.-Tandon, and that feeling may have been exacerbated by the fact that he 'was having cash, shortages and that his employment was quite possibly in jeopardy in the result. It was extremely odd, counsel argued, that neither man reported the incident alleged to have taken place on June 28, 1991, as they both purportedly witnessed it. Counsel argued that it was simply not reasonable, in these circumstances, to accept their explanation that they would not be believed. After all, counsel pointed out, they could corroborate each other, and their statements would find further support from the new computer inventory system. This was yet another reason for the Board to find their evidence less than credible and to prefer that presented by the grievor. Counsel candidly conceded, that there was no evidence of a conspiracy in this case. There was, however, evidence that Mr. Armstrong did not get along with some employees, and that he had a number of unresolved grievances with respect t° previous mistreatment. Counsel urged the Board not to focus on the specific word'Mr. Armstrong choose to describe his feelings about the cause of the treatment he had received; rather, counsel urged the Board to give its attention to the key evidence which he presented, namely his testimony that the grievor was not involved in the events of July 13, 1991. In the union's view, there was no proof of the grievor having committed any acts of theft in March or June 1991. And there was .no evidence that he was in any way involved with Mr. Armstrong's act of theft on July 13, 1991. Counsel argued that the evidence did not indicate that the grievor was involved in this theft. Rather,. 'it was to the exact opposite effect. The grievor did not say anything when apprehended by the police because Mr. Armstrong had already confessed. Counsel also pointed out. that the 9rievor was in.a state of shock, but still believed that he was not involved as was indicated when he attempted to make his way to his own car to go home.. Counsel urged the Board to'believe Mr. Armstrong's evidence that he alone was involved in the theft, and not to make too much of the fact that the grievor was referred to as Mr. Armstrong's manager at Mr.' Armstrong's criminal trial. In the union's view, the fact that Mr. Armstrong did not interrupt a criminal trial to correct a factual mistake could not assist the Board in making determinations about his credibility. There was no reason for Mr, Armstrong not to tell the truth about the grievor's non-involvement in his theft, and counsel urged the Board to find that he was in fact telling the truth in this respect. The grievo? was also, the union argued, telling the truth when he denied saying "we'll just put it back." That statement does not indicate ownership of the product, and even if the griev0r did say it, or something like it, that did not mean that he was involved in the theft. It was important to recall, in this regard, that the grievor, unlike I~r. Armstrong, was not asked at the time of the arrest whether the beer belonged to him. On' every occasion that the grievor has been asked that question he has consistently denied ownership or theft. It was entirely appropriate, counsel suggested, for the Board to find that the grievor did not even know about the beer until after he left the store. Counsel pointed out that the grievor was preoccupied with setting the alarm and locking up. 'There was no reason for him to focus his attention on Mr. Armstrong as he Went about these different tasks. In addition, Mr. Armstrong was the Assistant Manager, and it would not be surprising if ~the grievor was reticent, even if he saw him carrying out product, to challenge him in that respect, counsel pointed out that nothing in the employer's policies With respect to the purchase of product manda~ted subordinates to question managers about the manner in which they had purchased product. In counsel's submission, the grievor had been entirely forthright throughout these entire proceedings..Moreover, the grievor exuded'truthfulness. What was really' unfortunate in this case was that if the police had just Waited a few more minutes they would have seen the .grievor and Mr. Armstrong head off in different directions, and that would have conclusively established that the grievor was not involved in the theft. ~. In other submissions, counsel suggested that it was hardly surprising that the grievorls police statement did not refute the March 1991 and June 28,. 1991 allegations of, theft as those allegations were not brought to his · attention. Counsel also suggested that little significance could be attributed to the fact that the grievor did not provide details of the June zS, 1991 incident when questioned by Mr. MarCella. The'grievor had been advised by his lawyer not to comment on this matter, and he was simply following his lawyer's advice. The grJevor was entitled to maintain hiS. right to silence, and-counsel suggested that it was 'inappropriate for the employer to draw negative inferences from him having done so. Finally, counsel argued that the character evidence of Ms. Wiedemann was probative and useful. This witness was adamant in her view that the grievor was' trustwor~thy. She considered the allegations of theft ridiculous and unbelievable. Counsel urged the BOard to reach the same conclusion, and argued that the Board should, on the evidence before it, order that the grievor be reinstated forthwith, and fully compensated for all losses incurred as a result of his unjust suspension and termination. Counsel asked the Board to remain seized with respect to the implementation of its ' award. Decision Having carefully considered the evidence and arguments Of the parties, we have come to the conclusion that both grievances should be dismissed. As nOted at the outset of this award, 'given ~our determination of the merits of the matters in dispute, it has not been necessary for us to either review the evidence with respect to the timeliness objection made by the employer or · to make any findings in that respect. Simply put, having heard all of the evidence in this case we are of the. view that both grievances fail on their merits. There is, therefore, no need'to rule on the employer's preliminary objection that the termination grievance was out of time. Turning to the merits of this matter, and mindful of the requirement that the evidence must, in cases of this kind, be clear, cogent and compelling on the balance of probabilities, we find that the employer did indeed have just cause to suspend and then terminate the grievor. Having heard all of the witnesses, and having had an opportunity to assess their credibility, we are of the view that the evidence of the Detective Hand, Mr. Maciuk, Mr. Mudi, Mr. Caggianiello, Mr. Tandon and Mr. IVtarcella should be preferred to that of the grievor and Mr. Armstrong. There were many conflicts in the evidence presented by the different witnesses who appeared in these proceedings. On balance, it is our view that the~e conflicts must be resolved in favour of the witnesses who testified on behalf of the employer. In the circumstances of this particular case we do not give much weight to Wiedemann's ,evidence of the grievor's good character. In our view, the evidence of all of the witnesses called by the employer was consistent and persuasive. There was no reason whatsoever for Messrs. Murji and Caggianiello to lie, and we find their evidence truthful. Obviously they 'should have come forward before they did, but it is hardly surprising that casual employees would be reluctant to report acts of theft committed by the Assistant Manager and another employee Who often acted as the manager. Certainly their failure to come forward with this evidence before being questioned by Mr. Tandon does not lead us to conclude that their evidence was fabricated. We find, on the basis of this evidence, that the 'grievor did indeed take product from the store on June 2_8, 1991, and possibly, if not probably, did s'o on another occasion. We also find that the grievor knew that Mr. Armstrong was stealing product form the store on July 13, 1 991. The evidence.strongly suggests that the grievor was, at least implicitly, involved in this theft, and this suggestion .finds support in his statement to Detective Hand and Mr. Maciuk that' "we'll just put it back." The grieVOr denied making this statement, but we find, based on the evidence of Detective Hand and Mr. Maciuk, that he did indeed do so. (The evidence of Detective Hand indicates that Mr. Armstrong made a similar suggestion, although Mr.. Armstrong denied doing so.) In any event, the weight of evidence clearly indicates that the grievor made this statement, and his use of the word "we," along with his suggestion that the product should simply be put back indicates to us that he was involved in 'the theft. At the very least, it indicates responsibility for it. A few other observations are in order. 'Mr. Armstrong testified that the grievor was not involved in his July 13, 1991 theft. He also told the .Board that the grievor had to have seen him carrying product out of the store. He made various other statements in his evidence, as well as during the employer's 'investigation of this matter. Suffice it to say that Mr. Armstrong's various version Of events (as presented during the employer's investigation' as well as during these proceedings), is so full of inconsistencies that his testimony with respect to the grievor's non-involvement in ~the ~July 13; 1 991 theft can hardly be given much weight. Moreover, having read his trial transcript, we are left with little doubt but that the misinformation received by the court, to the effect that the grievor was Mr. Armstrong's manager and not the reverse, and .that the griev0r Was also involved in the theft, served Mr. Armstrong's personal 'interests. Very simply, in our view, Mr. Armstrong was not a credible witness. ~ Union counsel expressed some concern that the grievor's failure to provide Mr. MarCella with an explanation for the June. 28, 1991 theft was : inappropriately used by the employer as a basis for termination. Had this been the only basis for the grievor's termination we might share that concern. The grievor may have been improperly advised by his lawyer not to assist in the employer's investigation. But the fact of the matter is that this incident was just one of a number that led Mr. Marcella to conclude that the grievor had engaged .in such serious misconduct so as to result in a termination recommendation. In any event, there was no need for the grievor to wait until giving evidence before this Board to provide.the employer with an explanation in respect Of either the March '1 991 and June ;>8, 1991 allegations of theft. .\ At the end of the day, and having carefully considered the evidence of two of the grievor's co-workers who have nothing to.gain by not telling the ; truth, as well,as the evidence of Detective Hand and Mr. Maciuk, we are left with no choice but to conclude that the grievor was responsible' for theft of .:. LCBO product. There was, therefore, just cause to both suspend him and ' discharge him. This employment relationship has been irrevocably damaged, and given the fact that the grievor has maintained his innocence, this is not a case where mitigation principles' would be appropriately applied.. Both grievances are accordingly dismissed. 'DATED at Toronto this 5th day of August, 1994. William Kaplan Vice-Chairperson .~..~. I Dissent "Dissent Attached'" E. Seymour Member 'bt.' O"roole Member G. 8. B. FILES 1594/91, 2990/91 O.L.B. E. U. ( Hufnegle ) - and - The Cro~n in Right of Ontario (Liquor Control Board of Ontario) Edward E. Seymour, Employee Nominee DISSENT I have read the Majority Award, and find that I must, with respect, dissent. My concern with the decision arises from Store Manager Mr. Jatinder (Jay) Tandon's .immediate actions upon learning of ~he shortages. Mr. Tandon testified that prior to the installation of the new computer system in June, 1991, ~a full inventory wa~ conducted. Shortly after the'installation, Mr.. Tandon went on his holidays, returning the sec0nd~week of July, 1991. Upon his return, as outlined in the majority decision, Mr. Tandon "took an inventor~ of American beer,' and determined that Seven or eight cases were unaccounted for: He also.determined the store was short several bottles of rye." Mr. Tandon began his o~a7 investigation; he spoke to Mr. Salim Murji, Mr. Mario Caggianiello, and Mr. jeff Hufnegle (the griever) among others. He spoke to them individually and separately. We heard no evidence as to the order in which he spoke to these individuals, and how much time elapsed between each interview, nor do we know if the individuals interviewed interacted with one another following each interview. We do know, from Mr. Murji's evidence, that .upon his return from holidays, Mr. Tandon asked him if he knew anything about the shortages. Murji declared he was "reluctant to point fingers," but was Page 2 informed there was U.S. beer missing, and Mr. Tandon said it had to be one of the staff. Mr. Mario Caggianiello testified, under cross-examination, that when Mr. Tandon came back from holidays, he asked what was going on, referring to the shortage of product, and that he knew it was someone in the store. Mr2 Caggianiello agreed that being asked bY Mr. Tandon about the shortage would alert him to the fact that he knew about the theft of product. Both Mr. Murji and Mr. Caggianiello po'inted to Mr. Armstrong and Mr. Hufnegle as having taken product. I have grave concerns regarding Mr. Caggianiello's performance in cross-examination. When Union Counsel asked him questions a~out whether he felt himself implicated when Mr. Tandon told him of his suspicions, he responded, "What do you mean? I don't know, I was not there, I did not know what happened, I thought there was a chance to have my hours cut. So many things were going through my mind." He also said, "I don't steal, I know they would not catch me." I found Mr. Caggianiello t° be quite defensive and, at'times, arrogant in his responses. There is absolutely no evidence to suggest that either Mr. Murji or Mr. Caggianiello was responsible in any way for the theft; however, the manner in which Mr..Tandon conducted himself immediately following the discovery of missing product tarnished the effectiveness'of any investigation from that point. I have no problem with the manner in which the investigation was conducted once Mr. Masiuk became involved, up to, and including the arrest; however, the opportunity to conduct a proper investiga- tion had, by that point, been tainted. While I accept Mr. Tandon's actions were well-meaning, to have revealed his awareness that product was missing, and his suggestion, that he suspected the culprit(s) to be an employee(s) of the L.C.B.O., destroyed any opportunity for a proper investigation to be conducted. The actual store surveillance occurred on July 13. Mr. Tandon returned from his vacation t~e second week of July, and he conduc- ted interviews with Mr. Murji, Mr. Caggianiello, Mr. Hufnegle and others between his return and the surveillance. All of those interviewed, and who also testified, were informed that product was missing, and that they, along with other employees, were suspects. It is absolutely inexplicable why,. having that knowledge, that Mr. Hufnegle would steal product from the store so soon after those revelations were made. There was no evidence tendered as to whether Mr. Armstrong was interviewed, or that he was aware of Mr. Tandon's suspicions of theft. We are now left with the arrest itself, and its aftermath. This panel of the Board heard considerable testimony regarding ~he procedure followed during store-closing, i.e., the setting of the alarm, turning out of lights, and gathering of personal belongings. From the setting of the alarm, employees have only 45 seconds to vacate the premises. In the haste in which these activities must be executed, it is quite conceivable that Mr. Hufnegle could look directly at Mr. Armstrong, and fail either, to have it register that he was carrying a case of beer, or that it might not.have been paid for. I do not disagree with the evidence of either Detective Hand or Mr. Masiuk about what transpired when Mr. Armstrong and Mr. Hufnegle exited the premises. I am aware of, and accept entirely .Detective Hand's and Mr. ~Masiuk's evidence that t Mr. Hufnegle offered to put the beer back. I accept their evidence over'Mr. Hufnegle's, and agree he made the comments attributed to him; however, Mr. Hufnegle denied, and maintained~his denial of the theft'of any product from the outset, up to and including these proceedings. Had Mr. Tandon not informed any employees of his suspicions,I and had the surveillance occurred without any employee being aware of the Employer's knowledge of the thefts, and the events occurred as they did on the 13th, I woul'd have agreed with the Majority. In the circumstances, and for the reasons cited above, and despite the fact that I have concerns regarding Mrs. Hufnegle's comment, "We will put it ba~k," I do not believe that that, in and of itself, warranted dismissal; I would, therefore, have reinstated the griever under the conditions requested by the Union. ~seymou~, Empl6yee Nominee