Loading...
HomeMy WebLinkAbout1991-1899.Lafreniere.95-03-08 ONTARIO EMPLOY~*S DE LA COURONNE CROWN EMPLOYEES DE L'ONTARtO GRIEVANCE COMMISSION DE SETTLEMENT R~=GLEMENT BOARD. DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO .ON MEG IZ$ TELEPHONEIT~'LE'PHONE : (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILE/TLt'I..~-COPIE ; (416) 326-1396 .~ - OLBEU # 93/91, 169/91 MAR 1 ~ 1995 PUBLIC SERVICE APPEAL BOARDS TI[~ ORO~'~' EMPLOYEE8 COLL~.CT'rVE BARGAINTNG &CT Before TE~ GRIEV~CE SETTLE~T BOA~ BET~EN OLBEU (Lafreniere) ~r~evor The Crown in Right of Ontario (Libor Control Board of Ontario) Employer BEFORE: R.,Verity Vice-Chairperson P. Klym Member · R. Scott ,._ Member FOR THE R. Davis GRIEVOR Counsel Koskie & Minsky Barristers & Solicitors FOR TEE S. Gleave EMPLOYER Counsel Hicks, Morley, Hamilton, Stewart, Storie Barristers & Solicitors HEARING April 16, 1993 August 23, 24, 25, 26, 27, 1993 September 1, 2, 1993 February 15, 16, 17, 1994 March 22, 23, 24r 1994 August 24, 25, 26, 29, 30, 1994 2 DECIS~ION On August 23, 1991, Daniel Lafreniere was discharged from his position as manager of Store #604 near Alban, Ontario for alleged breach of trust involving improprieties in the handling of the garbage account. Mr. Lafreniere was suspended on July 19, pending investigation and the laying of criminal charges. Subsequently, he was charged with five counts of fraud against the Liquor Control Board of Ontario, contrary to s.380(1)(b) of the Criminal Code of Canada. In separate grievances dated July 21, 1991 and October 10, 1991' respectively, Mr. Lafreniere alleges .that he was suspended and discharged without just callse. , The criminal allegations against Lafreniere were to the effect that between the months of April 1987 and July 1991, he defrauded the LCBO by claiming to have paid $40.00 per month for garbage collection while in fact he paid $10.00 a month and kept $30.00.for his own use. Lafreniere's first criminal trial took place on January 10 .and March 25, 1992 before Judge W. F. Fitzgerald in Sudbury. However, due to the illness of the Judge, a second thai was held at Sudbury between January 5 and January 8, 1993. At the second trial, Lafreniere was acquitted of all five charges by Mr. Justice C. T. Murphy of the Ontario Court of Justice (General Division). Despite Lafreniere's acquittal, the employer continues to allege just cause for both his suspension and discharge. The parties agree that the Grievance Settlement Board is not bound by the disposition of the criminal proceedings and that this panel has the duty to 3 hear and determine the case on its merits.' Before turning to the evidence, it may be helpful to set out the general principles that have guided this panel in assessing the evidence. In any disciplinary matter, of course, the employer bears the onus of proof. The standard of proof is not the criminal standard of proof beyond a reasonable doubt, but rather the civil standard of proof upon the balance of probabilities. The parties agree, however, that where serious misconduct is alleged, as in this case, there must be clear and cogent evidence to discharge the burden of proof. In that xegard, we axe guided by the rationale of Mr. Justice O'Leary of the Ontario Divisional Court in Re Bernstein a_nd College of Physicians and Surgeons of Ontario (1977), 15 O.R. (2d) 447 where he states at p. 470: The i~portailt thing to remember is that in civil cases there is no precise formula as to the standard of proof required to establish a fact. Ia all cases, before reachln~ a conclusion of fact, the tribunal must be reasonably satisfied that the fact occurred, and whether the tribunal is so satisfied will depend on the totality of the cilcumstances including the nature and coasequences of the fact or facts to be proved, the seriousness of an allegatioll made, and the gravity of the consequences that wilt flow from a particular The standard of proof in civil proceedings was considered in Hanes v. Wawanesa Mutual Insurance Company. [1963] S.C.R. 154 in which the Supreme Court of Canada quoted with approval from the judgment of Denn/ng, L.J., in Bater v. Bater [I950] 2 ALL E.R. 458 at p. 459: Thc difference of opinion which has been evoked about the standard of proof in these cases may well turn OUt to be mom a lxlatter of words than anythln,~ el.~. It is true that by our law there is a higher standard o[ proof in crlmin al cases than in civil cases, but this is subject to the qualification tha~ them is no absolute 4 standard in either case. In criminal cases the charge must be proVed beyond reasonable doubt, but there may bc degrees of proof within that standard. Many great judges have said that, in proportion as the crime is enormous, so ought the proof to be clear. So also in. civil cases. The case may be proved by a preponderance of probability, but there may be degrees of probability within that standard. The degree depends on the subject matter. A civil court, when considering a ~harge of fraud, will naturally require a higher degree of probability than that which it would require if considering whether negligence xvas established. It does not adopt so high a degree as a criminal court, even when it/s considering a charge of a criminal nature, but still it does require a degree of probability which is commensurate with the occasion. The arbitration before us took the form of an exhaustive inquiry during 19 days of hearing. We make no attempt to repeat all of the evidence adduced but sufficiently,, to indicate the basis of our decision. The panel has, howe,~er, taken into account the whole of the evidence and submissions of counsel in arriving at our findings. It may be helpful to set out some facts by way of background information. The grievor is 46 years old and has been employed with the LCBO since October 1972. The grievor has been manager of Store #604 from the fall of 1983 until his suspension and subsequent dismissal in the summer of 1991. However, Mr. Lafreniere was absent for extended periods of time on two occasions. He was absent as a reSUlt of surgery between June and October 1987 during which time Paulette Viau, a casual employee at Store #64, served as acting manager. The second absence occurred when Lafreniere was involved in an automobile accident on May 13, 1988. He did not return to work officially until March 27, 1989. Debbie Shaw, a classified employee from Sudbury was acting manager between June and September 1988. After Ms. Shaw left, Paulette Viau again served as acting manager until the grievor's return to work in March of 1989. At all relevant times Store #604, located at the intersection of Highways #69 and #(}4, was a 300 square foot trailer 6 withdrawn from the cash register and the receipt generated is attached to the X-11 form accompanied by the initials of the manager. The transaction is recorded in the daily sales record, the weekly consolidated sales report, and eventually on LCBO form S-35 which is completed at the end of the LCBO four week accounting period. According to the grievor, he regularly paid cash to Mr. Nadon. After withdrawing the money from the cash register, he placed it in an envelope together with the X-II expense voucher and locked it in the safe for security purposes. The grievor maintains that when be'paid Ivlr. Nadon at a later time, he would withdraw the envelope containing the money and the X-ii form out of the safe and pay Mr. Nadon out of the office. The X-11 form contains a section entitled "received payment" and it is an LCBO requixement that a payee sign the X-11 form at the time of payment. The grievor maintains that from the time Store #604 opened in 1983, the arrangement for payment to Mr. Nadon for garbage collection was $40.00 an LCBO pay period or $10.00 a week, regardless of the number of garbage pick-ups. Appareittly, there are four weeks in an LCBO pay period and 13 pay periods in a financial year. According to the grievor, he made cash payments to Mr. Nadon in the amount of $40.00 each pay period at which time Mr. Nadon signed his name or that of Diane Gauthier or Hector Gauthier on a typed-up X-Il expense voucher. According to the grievor, Nadon picked-up the garbage two or three times a week during the "high season" (from Victoria Day weekend to mid-November) and twice a week 8 on to say that all of the cheques he received were given to his daughter, Diane, and her husband, Hector Gauthier. 'In the words of Mr. Nadon, "the cash was mine, the cheques were theirs." At the hearing, Mr. Nadon was shown 56 LCBO X-II expense vouchers for the period April 2, 1987 to July 12, 1991 (Exhibits 12A, B, C, D and E). He acknowledges that.. he wrote Adrien Nadon in the payment received column on the X-II expense voucher dated April 2, 1987. That expense voucher contains the particulars "garbage collection A. Nad~n for period No. 1 - 4 pick-ups at $10.00" and shows a total payment of'$40.00. Mr. Nadon ..~. .... testified that he Would not have signed the document had it contained the particulars and " the dollar banount He denied signing his name or that of Diane Gauthier or D. Gauthier on the remaining X-11 vouchers. He acknowledged signing Hector Gauthier on the final X-11 expense voucher dated July 12, 1991. According to Mr. Nadon, the voucher was blank when he signed it but he did receive $40.00 for four months at $10.00 per month. On numerous occasions in Cross-examination, Mr. Nadon contradicted evidence that he had given at the first and second criminal trials. At the first trial, he agreed that he had occasionally signed the name Diane Gauthier on X-11 expense vouchers. At the first trial he acknowledged that he had written Diane Gauthier's name on the voucher of May 19, 1989 and that thc name Diane Gauthier looked like his writing on the voucher of January 25, 1990. At the second trial, he acknowledged that he had signed Diane Gauthier's name on the voucher of April 8, 1988 and that the voucher of January 25, 1990 looked like his 9 handwriting. At the hearing before us, he changed -that evidence and testified that he could not remember signing his daughter's name. Similarly, he did not remember testifying before Judge Fitzgerald that to avoid paying income tax, "I hide everything." Mr. Nadon did acknowledge, however, that he had experienced problems with his memory. Diane Gauthier, the daughter of Adrien Nation, is a seasonal employee with the Ministry of Transportation. She has operated a garbage collection business known as "Poubelle Service" for some 10 years until it ceased operation on May 1, 1993, due to her father's declining health. She testified that her father collected the garbage with the assistance of her son, Richard, and that she recorded the monies, "mostly the cheques? According to her evidence, she maintained that the LCBO paid $6.00 to $8.00 a month for 1983, 1984 and 1985 until 1986 when the rate was set at $10.00 a month. Her record of payments (Exhibit 15) contains the notation in 1986, "Don't forget LCBO reports garbage pick-up to government in Diane's n~_m._e." The record also contains the statement ia April or May of 1991 "Liquor store declares pick-up at $10.00 a month - $120.00." Mrg Gauthier testified that her father retained the cash for garbage collection which he used to pay his expenses. She further testified that she did not sign any LCBO expense voucher. Her evidence was to thin effect: that by the summer of 1991 Poubelle Service had 20 to 30 business operations; that the highest rate charged a business for garbage collection was $30.00 a month wh/ch was paid by the Alban Community Centre; that Rivard's Gas Bar and Beausejour Hotel paid $20.00 a month; that Mr. R/yard paid by cheque on many occasions; that the Beausejour Hotel generally paid in cash; that most cheques received by Poubelle 10 Service Were reported on Diane Gauthier's income tax return but that most ff not all cash payments were not reported; that 60% of the customers of Poubelle paid by cheque; and that in her words "Nobody paid us $40.00 a month, for garbage collection between 1983 and 1991." Paulette Viau, now Ethier, has worked as a cashier at the Caisse Populaire in NoelviIle since December 1989.- Previously, she was employed for 6-1/2 years with the LCBO, the last five years of which she worked with the grievor at Store #604. Ms. Viau' testified that she served as acting manager during the grievor's first absence between June .... ' and October, 1987. During the grievor's second extended absence beginningMay 13, 1988, Debbie Shaw was acting manager for the period between May to September while Ms. Viau performed that duty from October 1987 to the grievor's return in March of 1989. At the hearing, Ms. Viau testified that during the grievor's 1987 absence, she typed out garbage vouchers in her capacity as acting manager, and pursuant to the grievor's ' instructions, on each occasion she withdrew $40.00 from the cash register, placed the money in an envelope with the X-ll form and later gave the envelope to the grievor to pay Mr. Nation outside the store. Exhibit 12A established that Ms. Viau's name as acting manager appears on five X-11 expense vouchers between the period June 17 and September 21, 1987. The thrust of her evidence was that dur/ng this period she never saw anyone sign the garbage expense voucher under the category of "received paymenff' Ms. Viau testified that during the grievor's second absence as a result of a car accident on May 13, 1987, she was greatly upset with the LCBO decision to appoint Debbie Shaw, a classified employee, as acting manager of Store #604. When told of the decision in late May by Regional Manager Duhammel, she recalled, "I was in turmoil." According to her evidence, she expressed her feel/rigs/n no uncertain terms to the grievor following Mr. Duhammel's visit. Ms. Viau testified that the grievor replied that he would let her on "a little secret" and then told her of his practice o~f withdrawing $40.00 for garbage collection expenses, paying Mx. Nadon $10.00 and retaining the difference. According to Ms. Viau, the grievor suggested that if site would continue preparing the X-11 vouchers he would pay Nadon $10.00 a period and Ms. Viau would keep the difference of $30.00. Ms. Viau testified that she agreed to participate in the scheme, and that between the months of June and September 1988 the procedure was as follows: on Debbie Shaw's day off, Ms. Viau would type out and sign the X-Ii garbage voucher; the grievor would come into the store and be given the $40.00 which Ms. Viau had withdrawn from the cash register, the grievor would give her $30.00 and leave the store with $10.00 presumably to pay Mr. Nation. According to Ms. Viau, the procedure changed in October 1988 when she was informed by the grievor that she would be the one to pay Mx. Nadon. She testified that Mr. Nadon came into the store, that he signed a blank X-II form and would be given $10.00 each pay period. 12 · In examination-in-chief, Ms. Viau testified that she saw the grievor write the name "A. Nadon" in the received payment column on the X-11 expense vouchers.of June 25, 1988, August 18, 1988 and September 1, 1988. However, in cross-examination Ms. Viau was referred to the transcript of her testimony at'the criminal proceeding on January 7, 1993 at which time she was Unable to identify any particular. X-II expense' voucher where the grievor had signed the name Diane Gauthier or Hector Gauthier or Adrien Nadon or A. Nadon. There is no dispute that Ms. Viau changed her evidence after testifying at the first hearing on June 10, 1992~ Apparently, after giving evidence on that date she called LCBO lmspeetor Maciuk in Toronto with words to the effect that she had additional information -. ' to prov{de. 'After admitting her own involvement in the scheme to Noelville OPP Officer Vincelette, she paid $150.00 to the LCBO by way of restitution. At the hearing before us, in cross-examination Ms. Viau testified that she saw Mr. Nadon sign the X-ii expense voucher for December 21, 1988, January 1989 and February 24, 1989. The employer called Mary Duncan of M.I. Duncan and Associates as an expert Witness. Ms. Duncan is a noted forensic'document examiner who is frequently called upon to give evidence both in court and in arbilxations. She was provided with 51 form X-11's relating to garbage expenses and alleged known signatures of the writing of Adrien Nadon; namely, (1) a 31 page receipt book for 1991 and 1992 containing handwritten names of business customers generally marked paid but without the amount of payment included, and 13 (2) a receipt from Poubelle Service to the Beausejour Hotel dated May 5, 1992 and purportedly signed by Adrien J. Nadon. In particular, Ms. Duncan was asked to examine 18 original form X-11 expense vouchers purportedly signed by Adrien Nation or A. Nadon ia the received payment column and to determine whether or not any of the 18 questioned signatures (labelled Qi to Q18) were written by the writer of the known documents. The expense vouchers were dated April 2, 1987, May 9, 1987, June 17, 1987, June 30, 1987, July 29, 1987, September 12, 1987, December 8, 1987, March 1, 1988, May 27, 1988, June 25, 1988, August 10, 1988, September 1, 1988, October 7, 1988, October 29, 1988, December 21, 1988, January 1989 and February 24, 1989. She was also asked to determine if the same person wrote A. Nation on all 18 questioned X-Il expense vouchers. Ms. Duncan testified at length as to the methods used and the manner in which she conducted her investigation. Her report dated January 24, 1994 was submitted as an exhibit (Exl~'bit 29). Ms. Duncan concluded on the basis of firm opinion" that the writer of the known standards, Adrien J. Nation, wrote the questioned signature, Adrien Nadon, on the form X-Il dated April 2, 1987 but did not write A. Nadon on any of the remaining 17 questioned X-il forms. Ms. Duncan ventured the opinion that the remaining 17 X-II forms were written by the same person. She also offered the opinion that the person who signed in the received payment column was using "disguised writing." The employer called 11 witnesses while the union called four. 14 For his part, the grievor adamantly denies any impropriety in the handling of the garbag6 account. In particular, he ,maintains that he paid $40.00 a pay period to Mr. Nadon, including th~ period when Ms. Viau was acting manager, that there was no scheme with Ma Viau or with any other person to defraud either the LCBO or Mx. Nadon, and that at no ~ne did he sign anyone else's name. in the received payment column of the X-11 garbage expense vouchers. The grievor 'testified that Mr. Nadon always signed his own name in the received payment column or the name of either Diane Gauthier or Hector Gauthier. The grievor attributes his difficulties to the fact that he refused to state that District Manager Norm Duhammel was stealing from Store #604. According to the grievor's evidence, LCBO Inspcctor'Maciuk told him in July 1991 that ff be would co- operate in incriminating Duhammel, he (Maciuk) would put in "a good word" at the LCBO and that the OPP '~vould go easy~' on him. Gaetan Rivard owned Rivard Gas Bar, a Petro Canada station, between May 1, 1986 and December 12, 1988. His business was located adjacent to Store #~4 on Highway 69. At that location, Mr. Rivard operated a gas bar, a propane service, a coffee shop, a live bait outlet, a tire changer and balancer operation, and. a beer bottle exchange. Mr. Rivard testified that Mr. Nadon collected his garbage from six 45 gallon drums three times a week in the summer and twice a week in the winter. According to Mr. Rivard, he usually paid Nadon $40.00 a month or $i0.00 a week._ Mr. Rivard's evidence was to the effect that he always paid Mr. Nadon in cash,, although he acknowledged that he occasionally gave Cheques to Diane Gauthier. He was unable to recall the amount paid by cheque. 15 Gerard Bedard has owned the Beausejour Hotel :near Alban since .1982. He testified that Mr. bladon picked up his garbage three times a w~ek in the summer and less irequenily at other seasons. According to his recollection, he regularly paid cash to Mr. Nadon. His evidence was to the effect that he paid approximately $40.00 a month to Mr. Nadon, although in cross-examination he acknowledged that in the absence of any meaningful record he could on]}, est/mate what his payments were for garbage collect/on. The employer contends that the board has heard signlficant new evidence not before the courts. In particular, Mr. Gleave argued that the evidence of handwriting expert Mary · '.. Duncan and the contents of the manager's log between 1983 and 1986 contradict the grievor's testimony, and that the board must conclude that the grievor was not a creda'ble witness. Mr. Gleave submits that the more l/kely explanation is that the grievor signed Nadon's name or that of Diane Gauthier on numerous X-11 forms~ Counsel for the employer contends that Ms. Viau was a credfole witness and that the evidence of Mess~ Rivard and Bedard as to what they paid Mr. Nadon for garbage collection service was for the most part speculative. In support, the employer cited the following authorities: R__~e Ministry of Finance & Corporate_Relations and British Columbia Governmem Employees' Union (1987), 33 L.A.C. (3d) 284 (Wefler); Ri2zo et al. v. Hanoverlnsurance Co. (1993), 14 O.R. (3d) 98 (Ont. C.A.); _.Re Steel Co. of Canada and United Steelworkers, Local 1005 (1991), 21 L.A.C. (4th) 242 (Rayner); Better Beef Limaed and United Food and Commercial Workers International Union, Local 617P (unreported, April 21, 1993 (Verity)); Nones Masonry Limited and Muia Bros. Contract°rs Ltd. & Masonry and Muia Bros. Contractors Ltd. 16 (unreported, April 10, 1991 (Anderson J.) (Ont. H}C.J.)); Canada Safeway Limited and United Food and Commercial Workers' Union, Local 2000 (unreported, December 10, 1991 . (Hope)); Rex v. Kadeshevitz (1934), O.R. 213 (Ont. C.A.); Hathewa. B et al v. Chaplin [1892], 2i S.C.R. 23 (S.C.C.); Wigmore on Evidence, ChadbournRevision Vol. 2 (1979), Sections 654 and 655; Re Fitzmartin and Village of Newburgh (1911), 24 O.L.R. 102 (Ont. Div. Ct.); Regina v. Smith_. '(1992), 94'~D.L.R. (4th) 590 (S.C.C.); Re Province of Manitoba and _Manitoba- Government Em. plovees' Union (Jackson) (1993), 32 L.A.C. (4th) 339 (Schulman); Regina v. Moore (1990), 63 C.C.C. (3d) 85 (Moldaver J.) (Ont. H.C.J.); Kendall's Ex'r v. Collier (1895), 30 S.W. Reporter 1002 (Kentucky C.A~); State v. Young (1936), 187 S.E. Reporter 561 (N.C. ." "'~' "- S.C.); The Ontario Produce Company The Oshawa Foods Division of the Oshawa Group Limited and Teamsters Local Union No. 419 (unreported, February 26, 1988 (Joyee)); R_.~e Hercules Canada Ltd. and United Steelworkers, Local 13159 (1974), 5 L.A.C. (2d) 257 (O'Shea); OLBEU (Brian McWdliams) and The Crown in Right of Ontario (Liquor Control Board of Ontario), 860/87 (Fisher); OLBEU ~Errol Mehmeti) and The Crown in Right . . Ontario (Liquor Control Board of Ontario), 1197/87 (Draper); OPSEU (Nelson Denomme) and The Crown in Right of Ontario (Minist~. Of Transportation and Communications), 664/83 (Verity); Re Canadian National'Railway Co. and Brotherhood qf Locomotive Engineers (1993), 35 L.A.C. {4th) 88 (M. G. Picher); Re City of Saint John and Canadian Union of Public Employees. Local I8 (1989), 4 L.A.C. (4th) 314 (Collier); The Ottawa-Carleton Public Employees' Union, Local 503 (Canadian Union of Public Employees) and The Corporation of the City of Ottawa (unreported, December 14, 1990 (Foisy)); The Corporation o[ the City o]' Ottawa and The Ottawa-Carleton Public Employees' Union, Canadian Union of Public 17 Employees, Local 503 (unreported,/Ianuary 20, 1992 (Burkett)); and OLBEU (Huffnegel) and The Crown in Right of Ontario (Liquor Control Board of Ontario), 1594/91, 2990/91 (Kaplan). The thrust of the union's argument is that neither Mr. Nadon nor Ms. Viau were credible witnesses. Mr. Davis maintains that Ms. Duncan's evidence is hearsay and cannot be relied upon. In the alternative, he argued that her evidence should be given little weight. The union requests the board to find that the employer failed to establish just cause for either the suspension or the dismissal in that it failed to establish that the grievor carried out a scheme as alleged by the LCBO. Mr. Davis seeks reinstatement with full compensation for lost wages and benefits. Reference was made to the following authorities: Re Madame Vanier Childrqn's Services and Ontario Public Service Employees' Union (1992), 25 LA.C. (4th) 242 (Verity); Palmer v. Wilbur (1857), 8 N.B.R. 443; andRe Gin,in et.at and Consumers' Gas Co._ (1973), 40 D.L.R. (3d) 509 (Ont. Div. Ct.). We do not accept the union's submission that the evidence of Mary Duncan is hearsay. It was admitted by all part/es that the signature of Adrien Nadon on the X-11 expense voucher of April 7, 1987 was genuine. The LCBO provided Ms. Duncan with known signatures of Mr. Nation's writing (F_,xhibits 25 and 27) which Ms. Duncan sa/d was the same writing as in Q-l, the X-11 expense voucher of April 7, 1987. In the particular circumstances of this case, complicated as it was by Mr. Nadon's declining health and his inability to reattend the hearing, we are sat/sfied that Ms. Duncan had the correct standard. 18 In this case, credibility is a determining factor. In assessing the credibility of the principal witnesses, we are guided by the oft quoted rationale of Mr. Justice O'Halloran of the British Columbia Court of Appeal in Fa~.na v. Chorn. y_, [1952] 2 D.L.R. 354 where he states at pp. 357: The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely .- by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subjoct his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical {md informed person would readily recognize as reasonable in that place and in those conditions. ..... Allowance must be made for the fact flaat when Adrien Nadon testified before us on August 25 and 26, 1993 he was unwell. Both parties sought to recall Mr. Nadon later in the hearing. Unfortunately, his reattendance was not possible due to his general physical deterioration as evidenced by a letter from his physician (Exhibit 59). When Mr. Nadon testified in August 1993 he readily acknowledged that he had difficulties with his memory. . There were a number of inconsistencies in his evidence at the hearing when' compared with testimony that he had given in the criminal proceedings. We are satisfied that Mr. Nadon retained monies paid by the LCBO in cash for his own personal use and that he kept no record of the amounts paid. Mr. Nadon was adamant, however, that during the period that Lafreniere was manager of Store #604 he received cash payments in the amount of $10.00 per month. However, we view Mr. Nadon's evidence with reservation. Diane Gauthier's evidence supported her father to the extent that at the relevant 19 times her understanding was that the grievor was paying $10.00 a month for garbage collection and that the highest monthly payment charged by Poubelle Service was $30.00 a month which was paid by the Alban Community Centre. In weighing the evidence of Panlette Viau, we must give very serious consideration to the fact that she changed her testimony during the course of the first criminal proceeding:~ Having made allowance for this change and for inconsistencies in her evidence given at the hearing when compared with selected portions from the transcript of the criminal proceedings, we are'satisfied from the surrounding circumstances that her story told to this board was the correct version of events. Simply stated, despite the union's argument to the contrary, we cannot bring ourselves to believe that she would perjure herself to admit to acts which' amounted to conspiracy to defraud. In the totality of the evidence; we accept Ms. Vian's evidence given to this board. : :..-.... We have no difficulty in saying that Mary Duncan, an experienced forensic document examiner, was a thoroughly cre&~ble witness. The parties acknowledged that the expense voucher dated April 7, 1987 (Exhibit 12a) was genuine and was signed by both Adrien Nation and by the grievor. Ms. Duncan-testified that with regard to Adrien Nadon it was the same writing as in the known samples of Nadon's writing provided to her by the LCBO. Ms. Duncan established that Mr. Nadon did not write any of the signatures appearing under the received payment column for 17 X-ii forms on which the name A. Nadon appeared. In that respect, she corroborated the evidence given to us by Mr. Nadon and directly 20 contradicted the evidence of the grievor. For the most part, Ms. Duncan's evidence is consistent with the testimony of Ms. Viau. There was insufficient evidence before us to establish the amount of monies actually paid by either Mr. Rivard or Mr. Bedard to Mr. Nadon for garbage collection services. We find that the evidence of Messrs. Rivard and Bedard is speculative at best. It is significant, we think, that in Diane Gauthier's records (Exhibit 15) there is a notation that a cheque was received in April 1988 from Rivard's Gas Bar in the amount of $240.00 by way of annual payment. The evidence established that the Tak family purchased Rivard's Gas Bar in December 1988 and operated it as a family business until October 1990. The documentary evidence introduced by Guljinder Tak established that he initially paid $15.00 a month for garbage collection, but the charge was raised to $20.00 less than a year later. On the evidence, the more probable account is that Rivard was paying $I5.00 a month to Nadon and Bedard was paying $20.00 a month for garbage collection services. This has not been an easy decision and has been made more difficult given the grievor's 19 years of apparently unquestioned service. In our view, the grievor's version of events is not in harmony with the preponderance of probabilities in the light of compelling evidence to the contrary. The grievor's evidence that the initial agreement which carried on through the years for garbage collection was $40.00 a month or per pay period is contradicted by the manager's log (Exhibit 47). That piece of evidence established that between October 1983 and October 1986 payments allegedly made by Lafreniere to Nadon 22 '' mitigation of penalty. In the result, this grievance must be dismissed. DATED at Brantford, Ontario, this 8 t h day of ga rc-h, 1995. IL L VERITY, Q.C. - VICE-CHAIRPERSON "l Dissent" (dissent attached) . . P. KLYM - MEMBER. R. SCO2~1' - MEMBER' 1 G.S.B. # 1899/91 O.L.B.E.U. (Lafreniere) and Liquor Control Board of Ontario DISSENT OF UNION NOMINEE I have studied the decision of the Chair and again thoroughly reviewed all the evidence and I must strongly disagree with the conclusions reached by the majority. The majority decision correctly accepts that the standard of proof in a case such as this is the civil standard of proof based on the balance of probability and that there must be dear and cogent evidence to discharge the burden of proof. In my opinion, the evidence before us does not come anywhere dose to being dear and cogent to substantiate the discharge of the grievor. In particular, besides other evidentiary problems, to arrive at the conclusions of the majority, the evidence of Mr. Adrien Nadon and Ms. Paulette Viau would have to be accepted as being dear and cogent and to be determinative of several key issues in this case. In my opinion this requires one to dose one's eyes and swallow hard when faced with facts when assessing their testimony. ~ First of all, Mr. Nadon admits to hiding income from his tax return by not declaring any income he received in cash. Obviously his testimony regarding the amount he charged for garbage collection is .at least highly suspect if not an outright lie. He is highly motivated in sticking to his story of only charging $10 per month for the garbage collection because he fears that admitting he received significantly more income could affect his income tax for the years in question. At the Court hearing of January 10, 1992, he told the Court that to avoid paying income tax, he hides everything. When questioned about this at our hearing he took the convenient cop out of saying "I don't remember", Indeed at our hearing Mr. Nadon consistently answered "I don't remember" to questions in cross examination and was either contradicting or vague frequently. To be fair, he obviously was in ill health and it is understandable that on many matters he could be vague or forgetful and he testified he had difficulties with his memory. 2 I note that in their decision, the majority states that they view Mr. Nadon's evidence with reservation. Yet, as will be shown later, they obviously accept his evidence over that of other witnesses who had no memory impediment such as he did nor had they any vested interest like his income-tax avoidance. Regarding Paulette Viau, her credibility is extremely suspect. She is an admitted perjuror during the Court proceedings and her. evidence before us has numerous inconsistencies. We should not ignore the fact that after her testimony in Court in January 1992, Mr. Nadon testified. 'In spite of her testimony, Mr. Nadon then testified to only being paid $10 per month even during the 'period when she was paying him directly. If he was telling the 'truth, she was implicated and the LCBO would be hard pressed not to also charge her with fraud as the grievor had been charged. By then she was in a ne~-job at the Caisse Populaire and she testified that, if. she was charged with fraud, she would be fired from her employment immediately simply for having the charge laid. · ~ She obviously had a serious 'problem even if Mr. Nadon was not telling the truth by '" '~ ::..-'.- implicating lier. I have difficulty in aCCepting her story .that she had a feeling of guilt about not telling the truth initially and so she called Mr. Maduk of LCBO security and .~ offered to repay the amount she had "taken fraudulently" and to change her story in court. Firstly, she only paid the LCBO $150.00 as full "restitution"; I note this is only 5 months worth of "restitution" while she testified that she had been pocketing the $30 monthly for 11 months.' Questions are raised as to whether Ms. Viau contacted Mr. Maduk or whether he initiated the contact. There are further questions as to why charges were not in fact laid' and why less than full "restitution" was agreed upon. In light of serious problems with Ms. Viau's credibility and the fact that virtually the same story she gave us was not believed by the Court, we could have benefited from testimony from Mr. Maciuk regarding these arrangements. Because Mr. Maduk was not called, we must draw a negative inference and the failure to back up Ms. Viau's version of these events serves to destroy her credibility further. So-in assessing the various aspects of this case, I believe we should give very little weight to the evidence given to us by Mr. Nadon and Ms. Viau. Certainly their evidence gives no assistance to .establishing the dear and cogent standard required. Amount Paid For Garb_age Pick-up The real issue in this case is to decide the amount actually paid to Mr. Nadon for the garbage pick-ups at the LCBO store. The evidence from both the grievor and Mr. Nadon was that in the high season Nadon picked up the garbage three times a week and in the low winter season twice a week. Mr. Nadon testified that during the high season there were at least 25 boxes per pick-up. These boxes had to be broken dowrt to fit on the truck and the contents of a 45 gallon barrel had to be emptied. In addition, he cleaned up the yard of papers and cigarette butts. In the low season the number of boxes to pick up was around 15-20. It took him 30-45 minutes to dean up the LCBO location, in addition, the evidence before us was that the distance to the dump from the LCBO and PetroCan station location was approximately 6 miles. So, in addition to the 30-45 minutes per pick-up that Mr. Nadon spent at the LCBO location, it is not unrealistic to conclude that he spent at least another 15 rain, ares driving to the dump and unloading - perhaps even longer. Therefore, each time Mr, Nadon picked up garbage at the LCBO store, he put in at least 45-60 minutes. At 3 times a week, this equates to between 2 1/2 hours to 3 hours each week. On a 4 week period basis ti'ds time spent is between I0 hours and I2 hours. In addition there is the cost of truck operation and purchasing gas. So it appears that Mr. Nadon was putting in anywhere from 10 to 12 hours a month in addition to his truck expenses. Even if we leave out any consideration for the truck expense, at $10 per month payment by the LCBO he would be working for $1.00 per hour or less! Surely it defies.logic to believe that Mr. Nadon was doing all this work for such minimal compensation. Even if he was an extremely public spirited dtizen, it is doubtful he would carry on doing such work for little or no pay for all these years, particularly when one considers the extreme weather in this area in the winter. In their derision, the majority makes reference to the rationale quoted by Mr. Justice O'Halloran in assessing credibility of witnesses. I quote: "The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions." 4 Nowhere in their decisiOn do the majority apply"thi.s test to'ascertain the credibility of Mr. Nadon's claim that.he did all this work for $10 per month. It is obvious that if such a test had been applied Mr. Nadon's claim would have been shown tO be ludicrous and unacceptable. ' The evidence of Mr. Rivard is at odds with that of' Mr. Nadon regardiiag the amount Mr. Rivard paid for garbage collection when he ran the PetroCan business. Mr. Rivard was a completely credible witness who had nothing to gain or lose from' any testimony he would give to our heating and appeared as a result of a subpoena. He testified that he had a very .active business. In addition to l~he' gas bar he ran a full ~offee shop, an empty bottle pick-up for beer bottles iand Cans, sold live bait, did vehicle repairs, sold tires and did tire repairs including heavy tire repairs and wheel balan,.cing. His business employed 16 people on two shifts and generated a lot of garbage, particularly the empty boxes from the empty bottle returns, the 45. gallon and 15 gallon drums he had on the property for garbage and the coffee shop. Mr. Nadon picked up his garbage three times a week in-"the summer, sometimes four times, and twice a week.'m the winter. He paid Mr. Nadon usually $40 per month based .. on $5 per load. If more loads per week we.r.e required, he had to pay more. He testified that he paid part by cheque to 19Ir. Nadon's .daughter or son-in-law and part in cash to Mr. Nadon - about 1/2 and 1/2. In addition he did minor truck repairs for Mr. Nadon on his truck and repaired tires for him without charge. Mr. Rivard did not have doCUmentary proof of the actual payments made to Mr. Nadon. There is a notation in Diane Gauthier's records that in April 1988 she received a cheque for $240 from Mr, Rivard as annual payment. But even Nadon testified that he received cash from Rivard in addition to the annual cheques ai~d Rivard testified that he believed he paid about' half by cheque and half in cash to Nadon. So Nadon's daim that all he even got from Rivard was $20 per month does not fit {he evidence before us. In addition, the testimony of Mr.'Boulard must be considered in assessing the amount charged for garbage pick-up. Mr. Boulard took over the PetroCan station business from Mr. Tak in November 1990. Mr. Tak had run the business for about two years after taking it over from Mr. Rivard. The amount of business activity had been reduced significantly from that run by Mr. Rivard and consequently a lot less garbage was produced. Mr.' Boulard testified that he burned most of the boxes himself. Also, he did not dispose of any tires in the garbage as had Mr. Rivard. He did not put any car parts or mufflers in the garbage but took them to the dump himself. His garbage for pick-up consisted of about 8 or 9 garbage bags per week. He only had one pick-up per week and Friday was his pick-up day. He testified that the arrangement was that if more than one pick-up per week was required, he would pay extra but he never paid more than $20 per month because no extra pick-ups were ever required. 5 In reviewing this evidence it is apparent that since the LCBO store and the PetroCan station are on the same property, it is logical to conclude that the rate charged for garbage pick-up would be close to the same for the same number of pick-ups and amount of garbage. Why would Mr. Nadon charge LCBO only $10 a month for 3 pick-ups a week and a large amount of garbage and time spent while he charged the operators of the PetroCan business $5 per pick-up? The only rational conclusion is that the rate charged to the LCBO was not $10 per month. Therefore, the charges of fraud against the grievor are dearly not substantiated on this evidence alone without any necessity to analyse .all the other evidence. Signatures on the Xll Expense Vouchers Considerable evidence was led regarding the Xll expense vouchers for the period from April 2, 1987 to July 12, 1991. Much of the evidence was contradictory. Before us, Mr. Nadon testified in direct examination that he only signed the April 2,1987 voucher with his own name and the July 12, 1991 voucher with the name of Hector Gauthier. In cross examination he was taken through several vouchers about which he had been questioned in the Court proceedings and other parts of his testimony in Court Regarding the Xll dated September 21, 1987 signed Dianne Gauthier, at Court in January 1992 he said he thought it's his signature. Before us he said he did not remember. Mr. Nadon told the Court he signed his daughter's name on Xll vouchers twice. At our hearing he said he could not remember first and later that it was impossible he signed her name. Regarding the Xll dated April 8, 1988 signed Dianne Gauthier, at the Court in January 1993 he said it was his handwriting. Before us he said it was not his handwriting. Regarding Xll voucher dated May 19, 1989, signed Dianne Gautheir, at the Court hearing in January 1993 he said it was his handwriting. Before us he said it was not. Regarding the Xll voucher dated December 22, 1989 signed Dianne Gauthier, at the Court hearing in January 1993 he said it looked like his handwriting. Before us he said it was not. Regarding the Xll voucher dated January 25, 1990 signed D. Gauthier, at the Court hearing in January 1993 he said he signed this one. Before us he said this was not true. 6 This evidence' from Mr. Nadon is so contradictory and confusing.that it is impossible to accept his claim before us that he only signed the Xll dated April 2, 1987 and the Xll 'dated July 12,~ 1991 and no others. Mr. Nadon also testified that he signed about 30 blank X11 type of receipts for the grievor. When questioned about being paid directly by Ms. Viau, he said this happened a couple of times, but he did not sign any Xll receipts for her. Paulette Viau testified that'she paid Mr. Nadon herself for the months from October 1988 to March 1989. She also testified that she saw Mr. Nadon sign his~name to the Xll vouchers dated December 21, 1988, January 1989 and February 24, 1989. Ms. Viau testified before us that she saw the grievor sign the name A. Nadon in the received payment column on the Xll vouchers dated June 25,1988, August 11, 1988 and September 1, 1988. In cross-examination it was pointed out to her that this was entirely inconsistent with her' testimony in Court in January 1993 where she said she saw the grievor sign Mr. Nadon's name on one occasion but she could not say which Xll was '. involved. - · · Certainly Mr. Nadon and Ms. Viau can't both be correct. In addition, as we shah see :. later, Ms. Viau's evidence regarding her seeing Mr. Nadon sign the three Xlls dated December 21, 1988, January 1989 and February 24, I989 is dramatically at odds with the evidence of Mary Duncan regarding these three signatures which were samples Q16,17 & 18 in her study. One of them can't be right. If we accept Ms. Duncan's report regarding these three signatures, We Would certainly have to question MS. Viau's entire .. evidence and recollection regarding signatures on Xll vouchers. Mary Duncan gave evidence regarding her expert opinion regarding whether Mr. Nadon was the person who signed A. Nadon in the received payment section of eighteen Xll vouchers from April 2, 1987 to February 24, 1989. I note that in this period, there are six Xll vouchers where the signed name is Dianne Gauthier or D. Gauthier. Ms. Duncan did' not express any opinion regarding these signatures and it does not appear she was specifically asked to do so. Ms. Dunca'n was given two alleged known samples of Mr. Nadon's handwriting. K1 was a 31 page receipt book for 1991 and 1992 alleged to have been used by Mr. Nadon. This book was never identified as an exhibit in our proceedings as belonging to Mr. Nadon and stipulating that the handwriting therein was Mr. Nadon's. Therefore, technically this book is hearsay evidence and the K1 designation to this handwriting is not legally established. 7 K2 was a receipt for garbage pick-up dated May 5, 1992 allegedly signed by Mr. Nadon. This receipt was Exhibit "A"-I1 from the January 1993 Court proceedings. I note that this receipt was not properly identified at the Court and that Mr. Justice Murphy expressed concern and displeasure that it was not properly identified and so allowed it to be marked as Exhibit "A". So legally, even this receipt and the alleged signature is hearsay and the K2 designation is not properly established. These K! and K2 samples were the "known" standard to which Ms. Duncan compared the questionable signatures Q1 to Q18. It was not up to Ms. Duncan to prove any known signatures. Nor was she authorized to use any "questioned" signature from Q1 to Q18 as a known standard to which she could make comparisons. Section 57 of the Ontario Evidence Act provides that comparison of a disputed writing with a writing proved to the satisfaction of the Court to be genuine shall be permitted to be made by a witness and such writings and the evidence of witnesses respecting them may be submitted to the Court or jury as evidence of the genuineness of the writing in dispute. Admittedly, an arbitration board is not a Court. However, I believe it unwise for us to stray from this principle when a person's livelihood is at stake and say that a signature which is submitted in the "questioned" category should be transformed into the "known" category and then used as a basis of comparison. By not providing Ms. Duncan with genuinely identified known signatures as a starting point, the employer has placed her at a disadvantage to make a "firm" opinion and I believe her opinions should not be considered as "firm". She herself said in cross- examination that without proper known documents she could have expressed an opinion' · - but it would not be a firm opinion. Regarding these "known" signatures K1 and K2 provided to Ms. Duncan, one must wonder why they gave her these documents that were not properly identified and thus hearsay, when properly identified signatures by Mr. Nadon were readily available. Counsel for the employer had Mr. Nadon sign his signature three times before us at the hearing. These signatures are in Exhibit 19. Also Mr. Nadon signed his signature before the Court on January 6, I993 and it is properly identified as Exhibit 7 before the Court. One is left to wonder why these undisputed and identified signatures were not provided to Ms. Duncan but instead two hearsay documents were provided. It is logical for the Board to draw a negative Lrfference from this behaviour by experienced counsel for the employer. I note that the majority has stated that they consider the Xll voucher dated April 2, 1987 should be considered as a "known" signature. But this is not the basis from which Ms. 8 Duncan Worked.' The above signature was a "questioned" signature before her (Q1). It was not the known basis from .which her opinions sprung. The majority is working backwards. Ms. Duncan did not state that her report was based on using Q1 as a known signature. Indeed her report states she compared each of Q2 to Q18 with K1 and K2 and not with Q1. Ms. Duncan's report states that she made a preliminary examination of the known writing of the grievor, Mr. Lafreniere and of the questioned signatures on 51 Form Xlls of A. Nadon, D. Gauthier and H. Gauthier. Interestingly, she makes no further comments in her report (nor does it appear that she' was asked) regarding the handwriting of the signature D. ~Gauthier, Dianne Gauthier or Hector Gauthier. Her opinion is limited to the 18 Xll vouchers that were signed A. Nadon. '~ Also she did not express an opinion, nor was she asked to do so, regarding whether Q2 to Q18 signatures are in the handwriting of Mr. Lafreniere although she had known samples of his handwriting before her. Nor does she express any. opinion regarding whose handwriting is involved in signing-D. Gauthier, Dianne Gauthier or Hector Gauthier on the other 33 Xll vouchers provided to her. Her report does state that, in her opinion, Mr. Nadon did not sign Q2 to Q18. If her opinion is reliable, then this obviously disproves Ms. Viau's testimony regarding her seeing Mr. Nadon sign Q16,17 & 18. The grievor testified in direct examination that he did not sign any of these 51 Xll vouchers in the received payment section. Interestingly, he was not cross-examined at all on this point. Also, the following should be noted: Xll ~rouchers d~ted December 21, 1988, January 1989 and February 24, 1989 are typed out saying garbage collection by D. Gauthier and are signed A. Nadon. Xll vouchers dated February 1, 1988, April 8, 1988, December 22, 1989 are typed out saying garbage collection by D. Gauthier are signed Dianne Gauthier. All other vouchers made out to garbage collection by D. Gauthier are signed D. Gauthier. It is highly questionable that a person running a scam would not be consistent and neglect to sign the same name as that to whom the voucher referred if they were fabricating signatures. In view of all this conflicting and contradictory evidence, ! would find that there is no clear and cogent evidence for us to draw the inference that counsel for the employer asks us to make - that the grievor in fact signed ail of these questioned signatures. Paulette Viau's Evidence Regarding The $cam Ms. Viau said that, when she was not given the Acing Manager job in May 1988 when th~ grievor went off sick, she was extremely upset and was ready to quit. At this point, she said that, to placate her, the grievor offered to ¢~t her in on the scare and let her keep the $30 per month. Again, putting this into context of what is probably from a reasonably informed and practical person's perspective, one is botmd to ask - is it logical that he would do this and does it make sense in the circumstances? Why would the grievor risk exposing such a scheme to a person in an extremely agitated state, threatening to quit on the spot and extremely angry at him because she felt he had not done enough to influence the District Manager to give her the Acting Manager job? When he was off sick the previous year, there was no problem with his carrying on paying Mr. Nadon monthly. Surely he could have carried on doing the same this year and in fact he did so until October. When one considers Ms. Viau's lack of credibility in various other instances, it is difficult to conclude that she is telling the ~ruth here. · - Ms. Viau also gave confusing testimony about how she carried on this scam during the months she paid Mr. Nadon directly. During cross-examination she contradicted herself when taken through the alleged routine she followed to process the Xll vouchers, get the $40 out of the till and get Mr. Nadon to sign the voucher. She contradicted herself as to whether she put a completely blank Xll through the cash register to get the $40 or whether it was an XII already signed by Mr. Nadon. She contradicted herself regarding which Xll was sigfied by Mr. Nadon - a completely blank Xll or the Xll that had been put through the cash register procedure and had the details imprinted on it from the cash register. She also told us that she had Mr. Nadon sign a completely blank Xll which she kept to use next time. However, she neglected to tell us where she kept such a signed Xll voucher for a month before putting it through the cash register. When pressed as to when she first had Mr. Nadon sign a blank Xll and when she got him to sign the Xl 1 for the first time she paid him directly (Xl 1 dated October 29, 1988) she was extremly confused. 10 It is a reasonable' expectation that, if someone was invOlved in this type of scheme, they would have been well aware of the details of how they ran the scheme. Ms. Viau's evidence in this regard is so confusing that it is impossible to give it any definitive weight and it certainly is not up to a clear and cogent standard. If there truly was a scheme to defraud the employer, one would expect that a willing participant, who allegedly volunteered to disclose the scheme, would at least be able to supply clear details as to how the scheme worked. 'The Credibility of the Grievo~' The' majority questions the grievor's credibility essentially on the basis of one issue - he could not readily explain why the manager's log for the period between October 1983 and October 1985 (Exhibit 47) showed that payments in excess of $40 per pay period were made for garbage collection. After October 1985, the log indicates payments of $40 for each LCBO period for garbage collection. The log has an authorization to pay Mr. Nadon $10 a trip for garbage collection, signed by R. Mayer who was the District Manager when the store first opened. The grievor had not been presented with this log during any of the proceedings from the time he was suspended until his cross-examination before us. The investigation and explanations had centered on the period commencing with April 1987. He could not remember the exact details of the transactions with Mr. Nadon in 1983, but believed the original arrangements were to pay as authorized by Mr. Mayer and that in the fall of 1985 Mr. Duhamei replaced Mr. Mayer as District Manager. He speculated that Mr. Duhamel may have required a change but could not recall. . Bearing in mind that these payments are for periods back to 1983, some 11 years prior to when the grievor testified at our hearings, in my opinion it is not surprising that the grievor could not remember exact details of payments made in those years. But, to conclude that these log book entries from 1983 to 1985 indicate the grievor was involved in fraud from that time would require us to accept the testimony of Mr. Nadon that he was only charging $7.00 per month back then. As stated earlier, Mr. Nadon's testimony is completely unreliable. In addition, we would have to conclude that the grievor was involved in a fraudulent scheme from the first month of his assignment as store manager in October 1983. Is it logical that on his first assignment as store manager, where he is not yet completely familiar with all LCBO checks on managers and auditing proccedures, he would immediately launch into a scam to steal money? 11 Also would he immediately put into jeopardy a well paying job with excellent job security, close to his home for $30 a month or $360 a year? On balance it is my opinion that the grievor's credibility withstands challenge. Conclusion On the basis of the above analysis of the evidence, I find it impossible to conclude that the evidence shows that the grievor is guilty of the fraudulent acts charged. Certainly the clear and cogent evidence standard has not been met even remotely. I would allow both grievances and order that the grievor be reinstated in his former position with full back pay with interest and benefits and seniority credits. Peter