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HomeMy WebLinkAbout2004-2746.Di Pronio.05-10-28 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1 Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2004-2746 UNION# OLB649/04 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano LIqUor Boards Employees' Umon (DI Prom 0 ) Union - and - The Crown In RIght of Ontano (LIqUor Control Board of Ontano) Employer BEFORE Reva DevIns Vice-Chair FOR THE UNION Larry SteInberg Koskie Minsky LLP BarrIsters and SOlICItorS FOR THE EMPLOYER Gordon FItzgerald Counsel LIqUor Control Board of Ontano HEARING January 1 May 5 and June 22,2005 2 DeCISIon Mr DI Promo IS a long servIce employee who was dIscharged for alleged theft. ThIS was the gnevor's second dIscharge for honesty related mIsconduct and hIS prevIOus reInstatement was subject to a last chance agreement. The partIes agreed that If! found that the current allegatIOn of theft was substantIated, the gnevance should be dIsmIssed In accordance wIth the terms of the pnor agreement. The sole Issue before me therefore IS a factual questIOn can the employer demonstrate on a balance of probabIlItIes by clear cogent and compellIng eVIdence that the gnevor stole $20 00 as alleged. Background Mr DIPromo IS 50 years old, marned and has three adult chIldren, two who stIll lIve at home and one who IS also employed at the LCBO Mr DI Promo began hIS employment wIth the LCBO In 1978 workIng as an assIstant manager untIl hIS dIscharge In 2003 In accordance wIth Minutes of Settlement dated July 7 2003 the gnevor returned to work under the folloWIng condItIOn The Umon and the Gnevor understand and agree that the Gnevor wIll be dIscharged by the Employer If the Gnevor commIts any future act of theft IncludIng "sweetheartIng" wIthout the abIlIty to gneve, except for gneVIng the facts upon whIch the termInatIOn IS based. As provIded In the MOS Mr DI Promo was demoted and reInstated as a Customer ServIce RepresentatIve ("CSR") He returned to work as a CSR In mId July 2003 at Store 416 where KImberley Marshall was also employed as a casual CSR. Ms Marshall was subsequently successful In attaInIng a permanent posItIOn and transferred to another store for a penod of roughly ten months CommencIng the week of September 27 2004 Ms Marshall returned to Store 416 and resumed her professIOnal relatIOnshIp wIth Mr DI Promo Mr DI Promo testIfied that hIS relatIOnshIp wIth Ms Marshall was ImtIally 'OK' however theIr relatIOnshIp soured after Ms Marshall returned to Store 416 In September 2004 The gnevor testIfied that when she returned he made unprofessIOnal comments to other staff members regardIng Ms Marshall's appearance The gnevor dId not know how or when Ms Marshall 3 heard about hIS remarks, however sometIme around October 1 2004 she confronted hIm wIth what she had been told and he apologIzed and reassured her that It would not happen agaIn. Ms Marshall claimed that she and the gnevor got along well She demed havIng any dIspute wIth the gnevor pnor to October 2,2004 She was never told that Mr DI Promo had made InsultIng comments about her appearance and she specIfically demed confrontIng the gnevor or reCeIVIng an apology from hIm Don Darch, the store manager and LUI AquIno another CSR, were the only other staff members from Store 416 called to testIfy NeIther was aware of any Interpersonal dIfficultIes between KIm Marshall and the gnevor neIther was aware that Mr DI Promo had made any negatIve or InsultIng remarks about Ms Marshall, nor dId they know of any reason why the gnevor would have cause to apologIze to Ms Marshall CSR duties CSR dutIes generally Include customer servIce, cash and stockIng shelves Dunng the course of the day employees are also responsIble for theIr own deposIts, transferrIng money from theIr tIll Into a safe In the central office The LCBO procedure reqUIres each CSR to count theIr own deposIt and record the totals on the deposIt envelope, along wIth the date and theIr name and employee number Before the deposIt IS totaled, another employee counts the funds to venfy the entry When the second count IS completed, both employees sIgn the envelope and the amounts are entered Into the computer The relevant totals are recorded on the top flap of the deposIt envelope and a carbon copy of the entry IS transferred onto the envelope Itself The top flap IS detached from the envelope and placed In a box on top of the safe and the envelope, contaInIng the cash and duplIcate record of the totals, IS put dIrectly Into the safe Once In the safe, two keys are reqUIred to retneve the deposIt envelope one key IS kept at the store, the other IS provIded by secunty upon pIck up Events of October 2, 2004 - the alleged theft On Saturday October 2, 2004 Mr DI Promo was responsIble for mornIng office dutIes, IncludIng settIng up the cashIers wIth theIr float for the day and balancIng the precedIng day's sales and safe deposIts The gnevor testIfied that Barb Cook, a fellow staff member asked hIm If he had any InformatIOn about the $80 00 overage that she had dIscovered when she balanced her deposIts on October 1 2004 The gnevor belIeved that Ms Cook approached hIm about her 4 deposIt because he was responsIble for office dutIes that day and staff generally prefers to aVOId the manager on Saturdays when managers tend to be nervous In response to her InqUIry Mr DI Promo told Ms Cook that they wouldn't be able to tell what happened untIl secunty arnved later that day Ms Marshall was also workIng on October 2,2004 At approxImately 200 p.m she went Into the office to make a deposIt. She counted the money from her regIster and recorded the number of bIlls, by denOmInatIOn, on the cash envelope along wIth the date, her employee number and name Mr DI Promo was In the office at the tIme and she asked hIm to double count her deposIt. Ms Marshall testIfied that she watched Mr DI Promo count her cash and that he subsequently confirmed that her totals were accurate Once the gnevor venfied her denOmInatIOn totals, Ms Marshall began to tally the total amount of her deposIt. She was seated at the counter besIde the safe and was surpnsed to see Mr DI Promo walk away wIth her cash stIll In hIS left hand. She approached hIm from behInd to gIve hIm her deposIt envelope when she clearly saw hIm pocket $20 00 wIth hIS nght hand. The gnevor turned around, took the deposIt envelope from her sIgned the envelope confirmIng that he had counted the cash and told her that he couldn't log the deposIt Into the computer nght away but would enter It when the computer was free When she handed hIm the deposIt envelope he reacted In a manner that caused her to belIeve that "he probably knew that I saw somethIng" Two other employees, LUI AquIno and BIll Hope were also In the office, facIng the other dIrectIOn, throughout thIS exchange Ms Marshall testIfied that she was shocked by what she saw and she ImmedIately left the office Ms Marshall dId not say anythIng to the gnevor or confront hIm before leavIng; she was too upset and hurt. After she left the office, she ImmedIately approached Don Darch, the store manager to report what she had wItnessed. They went Into the backroom and Ms Marshall advIsed Mr Darch that she had just completed her deposIt and that she saw Nick DI Promo put $2000 from her deposIt Into hIS pocket. Ms Marshall wanted Mr Darch to count her deposIt when secunty arnved. Mr Darch testIfied that he was approached by Ms Marshall and advIsed that she had wItnessed the gnevor steal funds from her deposIt. He descnbed Ms Marshall as VISIbly upset when she 5 first approached hIm she was shakIng, nervous, had a tWItch In her VOIce and was on the verge of tears Mr Darch dId not, however offer her an opportumty to leave, nor dId he gIve her any other extraordInary consIderatIOn at thIS tIme Mr Darch subsequently went to the office and told Mr AquIno and Mr DI Promo that there were a couple of deposIts he wanted to check and that they should notIfy hIm when secunty arnved. He dId not IdentIfy whIch deposIts were of Interest. After speakIng to Mr Darch, Ms Marshall went out back for a cIgarette to regaIn her composure She testIfied that whIle takIng her break, the gnevor approached her and asked If everythIng was all nght. He mentIOned that he had seen her speakIng to Don Darch and he asked If her deposIt was okay or was It too bIg. Ms Marshall dId not want to talk to the gnevor and so she told hIm that everythIng was fine Before fimshIng her shIft, Ms Marshall balanced the day's transactIOns and proceeds from her cash regIster and calculated that she was over by ten cents Ms Marshall completed her regular ShIft and left the store at 5 00 p.m She dId not report her further contact wIth Mr DI Promo before leavIng for the day On cross eXamInatIOn, Ms Marshall was steadfast In her eVIdence that she wItnessed the gnevor put money from her cash deposIt Into hIS nght, front pocket. Ms Marshall was aware that the employer had prevIOusly dIscIplIned Mr DI Promo Although she dId not know the preCIse detaIls, she thought that he had been In trouble and was now at the store on probatIOn. Mr DI Promo demed takIng any money from KIm Marshall's deposIt. He also demed approachIng Ms Marshall that afternoon or enqumng about her conversatIOn wIth the store manager He recalls gOIng Into the office and seeIng Ms Marshall prepanng her deposIt. Other staff were In the office at the tIme but no one was double countIng to venfy her totals It was a very busy day wIth customers lIned-up and the gnevor testIfied that he wanted to ensure that Ms Marshall got back on the retaIl floor as qUIckly as possIble to serve the customers Consequently he dId not actually count Ms Marshall's deposIt but just went through the motIOns before tellIng Ms Marshall that she could put the cash In the safe and return to the floor Mr DI Promo also demed approachIng Ms Marshall whIle she was on break. He testIfied that he dId not have any contact wIth Ms Marshall after she completed her deposIt. On cross- 6 eXamInatIOn he was InSIstent that he dId not have any commumcatIOn wIth Ms Marshall after she made her deposIt and that her testImony to the contrary was untrue October 2, 2004 - events after Di Pronio and Marshall complete their shift Once Ms Marshall completed her ShIft, Mr Darch checked the consolIdated deposIt report and her balance sheet and confirmed that she had accurately recorded the amount of cash she receIved that day Mr Darch was satIsfied that the entnes recorded In Ms Marshall's deposIt envelopes substantIally corresponded to the amount of cash she claimed to have receIved and then tendered In the same penod. The gnevor testIfied that dunng the day he had asked Don Darch Ifhe could help count Barb Cook's deposIt. He told Mr Darch that Barb Cook had "confronted hIm" about her deposIt from the day before and he asked Ifhe could help count the funds when secunty arnved later In the day He was unaware at the tIme that Mr Darch also wanted to count KIm Marshall's deposIt. Mr Darch dId not recall thIS dIscussIOn nor dId he remember any occaSIOn when Mr DI Promo told hIm that he wanted to be around when Barb Cook's deposIt was checked. When secunty arnved to pIck up the day's deposIts, Don Darch retneved KIm Marshall's deposIt envelope as well as Barb Cook's He counted Ms Cook's deposIt first and found that It was accurate He then proceeded to count the contents ofMs Marshall's envelope, he counted It first In front of LUI AquIno and Mr AquIno then recounted It. The results of both counts confirmed that the envelope contaIned one $20 00 bIll less than was IndIcated In the recorded total Mr Darch ImmedIately notIfied Jeff Misener the DIstnct Manager adVISIng hIm of what he had been told by Ms Marshall and the results of hIS recount whIch confirmed that the deposIt was $20 short. Mr Darch also spoke to Ms Marshall and asked her to wnte out an IncIdent report. She prepared the folloWIng report and submItted It on October 4 2004 On Saturday Oct. 2/04 I went Into the office to make a deposIt I counted my deposIt, I had 56 x $20 00 3 x $50 00 1 x $100 00 I asked Nick to double check my deposIt Nick said to me It was okay and walked away wIth my depoSIt. I turned to gIve hIm my envelope and saw $2000 In hIS nght hand gOIng In hIS pocket, whIch I thought was strange I left the office saw Don explaIned what happened and asked hIm to check my deposIt. 7 That evemng Mr AquIno was workIng as the ShIft leader He recalled reCeIVIng two phone calls FIrst, Mr DI Promo phoned and asked whether they had found Barb Cook's money Mr AquIno told hIm that he was too busy to talk and he would speak to hIm the next day when they were both at work. The call was very bnef and accordIng to Mr AquIno nothIng else was raised by the gnevor dunng theIr conversatIOn. Mr AquIno noted that Mr DI Promo also asked about Barb Cook's deposIt the next day at the store Don Darch also called the store to check on Mr AquIno They had recently Installed a new computenzed cash regIster system and thIS was the first occaSIOn that It was beIng used wIthout traIners avaIlable to provIde assIstance Mr Darch called the store to ensure that the system was operatIng properly Mr AquIno told hIm that the new system was fine and he mentIOned that Mr DI Promo had called to see IfMr Darch had found what he was lookIng for In the deposIt envelopes Don Darch and LUI AquIno both testIfied that they thought It somewhat unusual that the gnevor would call as he was not runmng the ShIft and he dId not have any managenal responsIbIlItIes Mr DI Promo admItted callIng the store that evemng but said that hIS pnmary purpose was to see how Mr AquIno was makIng out wIth the new computer system SInce he already had hIm on the phone, Mr DI Promo also asked about Barb Cook's deposIt as he promIsed her he would. In describIng the phone call, the gnevor explaIned that he was "just shoWIng concern for another employee" and tryIng to demonstrate ImtIatIve He was very eager to return to hIS former posItIOn and had recently met wIth the RegIOnal DIrector to see If he could reapply for a posItIOn as an assIstant manager The gnevor belIeved that It had been a productIve meetIng and that there mIght be opemngs the folloWIng spnng. He was very keen to conVInce management that he was capable of returnIng to hIS former posItIOn and was tryIng to demonstrate hIS value Investigation and discharge By letter dated October 5 2004 Mr DI Promo was relIeved from duty wIth pay pendIng an InVestIgatIOn of the alleged theft. Mr DI Promo responded by letter dated October 8 2004 and demed any knowledge of an Improper deposIt or theft ofLCBO funds He advIsed that he was prepared to meet wIth management and that he wIshed Steve Saysell, of OLBEU to partIcIpate and represent hIm In any meetIng that mIght take place as a consequence of the LCBO' s InVestIgatIOn. 8 Lou RecchI was assIgned as actIng DIstnct Manager whIle Jeff Misener the DIstnct Manager was away Mr RecchI conducted the InVestIgatIOn Into the gnevor's alleged theft and IntervIewed the gnevor KIm Marshall, Don Darch and LUI AquIno He had not met the gnevor before and was unaware that he had been prevIOusly dIscIplIned or that he was subject to a last chance agreement. Pnor to commenCIng hIS actIng assIgnment he was advIsed that $20 00 was mISSIng from a cashIer's deposIt at Store 416 and that KIm Marshall and Nick DI Promo were the two employees Involved. He belIeves he also receIved the wntten statement prepared by KIm Marshall and a copy of the NotIce ofIntended DIscIplIne Dunng the IntervIews, he took notes and generally asked each person for theIr verSIOn of events, askIng a few questIOns for cl anfi catIOn. He dId not have a set scnpt and the IntervIew was not conducted as a formal questIOn and answer seSSIOn. A pre-dIscIplInary meetIng was held on October 13 2004 wIth Shelly McIntyre, an HR advIsor Nick DI Promo Steve Saysell and Lou RecchI At the meetIng, the gnevor was asked to respond to the allegatIOn that he stole $20 He said that he knew nothIng about It and felt that Ms Marshall accused hIm of stealIng because she was offended by the negatIve comments he made about her appearance Although he had apologIzed, he belIeved that she was now tryIng to get back at hIm Dunng hIS IntervIew Mr DI Promo ImtIally Said that he had counted Ms Marshall's deposIt and that the totals were accurate when the envelope was placed In the safe Dunng the course of the IntervIew the deposIt procedure was explaIned In some detaIl to Steve Saysell The gnevor subsequently admItted that he was not sure Ifhe had In fact counted KIm Marshall's deposIt. Mr DI Promo was also unsure Ifhe had called the store that evemng, however he belIeved that Ifhe had called It was to InqUIre about Barb Cook's deposIt. At ArbItratIOn, the gnevor testIfied that he was worned at hIS pre-dIscIplInary meetIng about admIttIng that he had not performed hIS dutIes as reqUIred. He had been counseled In the past for faIlIng to follow the proper procedures and he dId not want to admIt that he contInued to Ignore the reqUIrement of properly double countIng all deposIts When he fully apprecIated the seventy of hIS sItuatIOn, he realIzed that he had to tell the truth and so he confessed to not countIng Ms Marshall's deposIt before he sIgned off Mr DI Promo InsIsted that Ms Marshall was mIstaken 9 when she said that she saw hIm perform the count; It mIght have appeared to her that he was countIng, however he was really only gOIng through the motIOns Mr DI Promo dId not know why Ms Marshall would say that she saw hIm pocket $20 00 The only explanatIOn that occurred to hIm IS that It was to get back at hIm for the comments he made about her appearance Mr RecchI also IntervIewed KIm Marshall, LUI AquIno and Don Darch. It was at thIS meetIng that Ms Marshall first mentIOned that Mr DI Promo had approached her whIle she was havIng a cIgarette Ms Marshall dId not Include thIS IncIdent In her ImtIal wntten report and she had not reported It to Mr Darch at the tIme that It occurred. At ArbItratIOn, Ms Marshall was asked to compare the detaIls set out In her ImtIal wntten statement wIth the InfOrmatIOn provIded at her IntervIew WIth Mr RecchI She explaIned that she had prepared the first document at home on her own and that she had Just Included the basIc detaIls of what she had wItnessed. It was only In response to more extensIve questIOmng at her IntervIew that she provIded greater detaIls of the events of that day Mr RecchI turned over the results of hIS InVestIgatIOn and hIS IntervIew notes to Jeff Misener On October 25 2004 Mr Misener sent Mr DI Promo a dIscharge letter adVISIng that "After InVestIgatIng thIS matter I have concluded that you faIled to correctly follow the LCBO's polIcIes pertaInIng to deposIts, faIled to provIde a satIsfactory explanatIOn In response to the allegatIOns, provIded InCOnsIstent statements, and were responsIble for the theft ofLCBO funds on October 2,2004" In accordance wIth the Last Chance Agreement entered as a term of Minutes of Settlement, Mr DI Promo's employment wIth the LCBO was termInated effectIve ImmedIately In the alternatIve, Mr Misener also concluded that Mr DI Promo was termInated for Just cause Submissions On behalf of the LCBO It was submItted that thIS matter was to be determIned In accordance wIth the ordInary cIvIl standard of balance of probabIlItIesI The Employer acknowledged that In cases where senous mIsconduct IS alleged It must be proven by clear and cogent eVIdence, however It was submItted that a credIble eyewItness account can provIde a sufficIent basIs for 1 Re lndusmin Ltd. 4nd [Tnited Cement, Lime and G"psum Workers (1978),20 L.A.C (2d) 87 Re 'lteel Co of Canada and [ 'l. W 4. Loc.l005 (1991), 21 L.A.C (4th) 242 Re McMaster [Tniversin and 'l.E.I [ Lac 532 (2000), 86 LAC (4th) 129 10 such a findIng2 FInally In assessIng the credIbIlIty of the wItnesses before me, I must consIder theIr eVIdence In lIght of all of the facts and CIrcumstances dIsclosed In thIS partIcular case and determIne whether It IS In 'harmony wIth the preponderance of probabIlItIes,3 Counsel submItted that the Employer has met ItS burden of proof and that there was clear and compellIng eVIdence to support a findIng that Mr DI Promo stole $20 00 from KIm Marshall's deposIt on October 2, 2004 Ms Marshall was adamant In her testImony that she wItnessed the gnevor pocket $20 00 she was not shaken on cross eXamInatIOn and her eVIdence had the nng of truth to It. Moreover there was absolutely no reason why Ms Marshall would lIe to IncnmInate the gnevor She demed that she had expenenced any dIfficultIes wIth Mr DI Promo and none of the other wItnesses were aware of any conflIct between them The gnevor's suggestIOn that she was gettIng back at hIm for negatIve comments that he made about her appearance was a total fabncatIOn. NothIng specIfic was put to Ms Marshall and no other wItnesses were called to support the gnevor's verSIOn of events Ms Marshall ImmedIately reported the alleged theft and was VISIbly upset when she spoke to the store manager Her deposIt was kept In a secure sIte the safe where deposIts are kept was InaccessIble and a subsequent count by the store manager and another employee confirmed that $2000 was mISSIng from her deposIt. In the Employer's submIssIOn, all of the gnevor' s conduct was consIstent WIth hIS gUIlt he approached Ms Marshall when he was worned that she mIght have reported hIm to the store manager he called the store that evemng wIthout any credIble JustIficatIOn, he changed hIS verSIOn of events both wIth regard to whether he actually counted Ms Marshall's deposIt and In recountIng why he called the store that evemng. Moreover the gnevor faIled to call any eVIdence to corroborate hIS verSIOn of events He dId not call Barb Cook to support hIS explanatIOn that he promIsed her he would check on her deposIt nor dId he call any wItnesses to establIsh that he had made dIsparagIng comments about Ms Marshall In the Employer's submIssIOn, the gnevor's faIlure to corroborate hIS verSIOn of events IS sIgmficant and a negatIve Inference should be drawn from hIS faIlure to do so 2 Re Lohlaws 'lupermarket Ltd. 4nd [.F C TV Loc 175 (1994), 45 L.A.C (4th) 120' Cara Operations Ltd. 4nd H.E.RE Loc 75 (1992), 31 L.A. C (4th) 1 Re Treasun Board ('lolicitor General Canada - Correctional 'lervice) and Renaud (2002),106 LAC (4th) 371 3 Re Treasun Board, supra' Farvna v Chornn (1952) 2 D.L.R. 354 (B C c.A.) 11 FInally It was submItted that although It IS surpnsIng that the gnevor would JeopardIze hIS Job for a relatIvely small sum of money all of the eVIdence supports that conclusIOn. An eyewItness offered credIble testImony that he took $20 00 and her eyewItness account was venfied by a subsequent count of her deposIt. In contrast, the gnevor' s behavIOr was consIstent WIth hIS gUIlt and he faIled to adduce any Independent corroboratIOn that supports hIS demal of the allegatIOns agaInst hIm In the Employer's submIssIOn, there IS clear and cogent eVIdence to establIsh on a balance of probabIlItIes that Mr DI Promo stole $20 00 The Umon dId not dIspute the Employer's statement of the legal basIs upon whIch thIS matter was to be determIned the applIcable standard of proof was a cIvIl standard, however clear and cogent eVIdence was reqUIred to support a findIng of theft. In the Umon's VIew the eVIdence In thIS case was neIther clear nor cogent. Enough questIOns were raised to undermIne the Employer's eVIdence that It dId not afford a sufficIent eVIdentIary foundatIOn to determIne that the gnevor stole LCBO funds as alleged. In counsel's submIssIOn, one must ask why a 50 year old employee on a last chance agreement, would nsk hIS career for a mere $20 00 The office In questIOn was small and there were at least three other staff members reported to be In the office when the gnevor allegedly pocketed the funds If the gnevor was Intent on stealIng, he had a much more secure opportumty to do so earlIer In the day when he was prepanng the cash floats In the absence of any wItnesses Mr DI Promo's efforts to regaIn hIS former posItIOn of assIstant manager must also be consIdered In assessIng the eVIdence In partIcular hIS phone call to LUI AquIno should be understood as part of an ongOIng effort to demonstrate hIS value and ImtIatIve Mr AquIno confirmed Mr DI Promo's explanatIOn that he only asked about Barb Cook's deposIt and there was no eVIdence that he referred In any way to KIm Marshall's deposIt. It would be Improper to Infer an Impure motIve In these CIrcumstances KIm Marshall was the only wItness of substance and her testImony raises real concerns The IncIdent report that she prepared on the mght of the alleged theft dId not Include the allegatIOn that Mr DI Promo approached her after she reported hIm to the store manager Her ImtIal statement was also sIlent about whether the gnevor actually counted her deposIt and whIch 12 pocket, nght or left, the gnevor used to conceal the cash. These omISSIOns are sIgmficant and, In the Umon's submIssIOn, gIve reason to senously questIOn the truthfulness ofMs Marshall's statements Ms Marshall's eVIdence IS also Internally InCOnsIstent. Although she claimed that she was very upset and ImmedIately reported her allegatIOns to Mr Darch, she dId not mentIOn that the gnevor approached her later that day The first tIme that Ms Marshall recounted thIS IncIdent was several days later when she was IntervIewed as part of management's InVestIgatIOn Into her allegatIOns Her delay In reportIng thIS epIsode IS InCOnsIstent WIth her prevIOUS reactIOn of ImmedIately contactIng the store manager to appnse hIm of her concerns It was further submItted that In gIVIng her VIve voce eVIdence, Ms Marshall often overplayed her reactIOn, for example saYIng that she was "shocked" and "couldn't get anythIng out" after she saw the gnevor steal part of her deposIt. In the Umon' s submIssIOn a close eXamInatIOn of her testImony supports the conclusIOn that she tended to exaggerate what she saw and how she felt. FInally wIth respect to the key portIOn ofMs Marshall's eVIdence she acknowledged that Mr DI Promo's back was to her when she claims that she observed hIm place her funds In hIS pocket. By her own admIssIOn, Ms Marshall would have had a lImIted VIew of the gnevor's actIOns and, In lIght of her tendency to exaggerate, the relIabIlIty of her observatIOns must be vIewed wIth skeptIcIsm UltImately when Ms Marshall's eVIdence IS vIewed as a whole, her credIbIlIty IS suspect she tended to exaggerate her eVIdence her capacIty to observe the alleged theft was by her own admIssIOn obstructed and her report of events changed over tIme By contrast, the gnevor's eVIdence was gIven In a clear and straightforward manner He acknowledged that he made a ternble mIstake when he ongInally said that he had counted Ms Marshall's deposIt and he subsequently admItted that he had not. He had been an assIstant store manager for 17 years, had been demoted to CSR and was desperate to reclaim hIS former posItIOn. When placed In context, the gnevor's conduct IS not consIstent WIth theft as suggested by the Employer but IS reflectIve of a long servIce employee who was eager to demonstrate that he was keen, responsIble and ready to go above and beyond what was reqUIred. 13 In the Umon's submIssIOn, the employer has not demonstrated by clear and conVInCIng eVIdence that the gnevor stole $20 00 The Umon therefore seeks hIS reInstatement wIth full compensatIOn for hIS losses Analysis There IS no doubt that there IS much about thIS case that IS perplexIng. The gnevor IS a mature man WIth sIgmficant responsIbIlItIes He has worked for the LCBO for many years and he has already been dIscIplIned for honesty related mIsconduct. The gnevor was reInstated and demoted on the express understandIng that he would be dIscharged wIthout recourse Ifhe engaged In any further acts of dIshonesty Mr DI Promo has now been dIscharged for takIng $20 00 In CIrcumstances that were clearly hIgh nsk. he IS accused of stealIng from another employee's cash deposIt whIle she and two other employees were In the room It appears IncomprehensIble that an employee mIght end a lengthy career for such a relatIvely small sum and In such a careless manner Nonetheless, another employee claims she wItnessed the theft and management relIed upon her report and the surroundIng CIrcumstances to dIscharge the gnevor As accepted by the partIes, the Issue before me IS not whether the conduct If proven warrants termInatIOn. Rather the questIOn IS purely factual has the Employer establIshed that the gnevor engaged In theft? The partIes have agreed on the applIcable legal pnncIples The Employer bears the burden of establIshIng the alleged mIsconduct on a cIvIl standard of a balance of probabIlItIes GIven the gravIty and nature of the allegatIOns, the eVIdence must be 'clear cogent and compellIng' In order to sustaIn a findIng that the gnevor stole from the LCBO as alleged. FInally the partIes accept that "the real test of the truth of the story of a wItness must be ItS harmony wIth the preponderance of the probabIlItIes whIch a practIcal and Informed person would readIly accept as reasonable In that place and In those condItIOns,,4 In thIS case, I am satIsfied, based on a balance of probabIlItIes, that the gnevor took $20 00 from KIm Marshall's deposIt on October 2,2004 I accept the testImony ofMs Marshall as a credIble eyewItness account of the theft and find It IS 'In harmony wIth the preponderance of probabIlItIes' Ms Marshall descnbed how she prepared her deposIt In accordance wIth the standard procedure She dId the first count and then asked the gnevor to venfy her entry by performIng a double count. She saw hIm count her money and then walk away wIth her cash. 4Farvna v Chornn supra at 356 14 Although Mr DI Promo had hIS back to Ms Marshall, I accept that she approached hIm from behInd, was In close proxImIty and could stIll see what he was dOIng. Ms Marshall had no doubt that she saw the gnevor put $20 00 Into hIS pant pocket. She ImmedIately reported the theft to her supervIsor and provIded a consIstent report of what she wItnessed as she retold her verSIOn of events to her supervIsor to the actIng DIstnct Manager and at thIS arbItratIOn. All of the eVIdence, wIth the exceptIOn of the gnevor's testImony supported her account. Don Darch, the store manager confirmed that Ms Marshall was very upset when she told hIm what she wItnessed and he venfied that $20 00 was mISSIng from her deposIt. He compared her balance sheets, deposIt record and the consolIdated report and was satIsfied that the amount that she entered on her deposIt envelope was substantIally the same as the amount tendered to her by customers The deposIt In questIOn was placed In a secure safe wIthout access untIl secunty arrIved later In the day When the deposIt was retneved, Mr Darch venfied the contents wIth the assIstance of another employee and determIned that $20 00 was mISSIng. I am satIsfied on the basIs of all the eVIdence that the shortage was not due to a countIng error or other Innocent cause I accept the eVIdence of Don Darch and LUI AquIno that a $20 00 bIll was mISSIng from Ms Marshall's deposIt envelope ThIS conclusIOn IS supported by theIr Independent venficatIOn and by the consolIdated report, the relevant balance sheet and deposIt entnes Indeed, no other explanatIOn was advanced and It appeared to be accepted by all the partIes that there was a $20 00 shortfall In the funds deposIted by Ms Marshall on October 2, 2004 Counsel for the Umon suggested that Ms Marshall's testImony was suspect because her ImtIal report was not as detaIled as her later descnptIOn of events, that she tended to exaggerate and that she dId not respond consIstently on the day In questIOn. I am not persuaded by these submIssIOns Although Ms Marshall's ImtIal wntten report was abbrevIated, I do not consIder that surpnSIng In lIght of the CIrcumstances In whIch her statements were made Ms Marshall prepared her wntten statement by herself, at home wIth vIrtually no dIrectIOn beyond a request from her manager that she wntes out an IncIdent report. She subsequently provIded a more fulsome account when she was questIOned, In person as part of an InVestIgatIOn Into her allegatIOns She was not shaken on cross-eXamInatIOn and she was adamant that she had both the capacIty and 15 opportumty to observe the gnevor's actIOns There IS no doubt, as was conceded by the wItness, that her recollectIOn of events would have been fresher on the day In questIOn. She dId not, however provIde dIfferent or InCOnsIstent versIOns of what transpIred, she merely expanded on her ImtIal account In response to dIrect questIOns I apprecIate that It would have been helpful If she were asked to provIde a more detaIled account when she wrote out her ongInal IncIdent report, however the two accounts are not In conflIct and the comparatIve level of detaIl IS consIstent WIth the CIrcumstances In whIch they were produced. As to the suggestIOn that Ms Marshall tended to exaggerate, I do not accept thIS charactenzatIOn of her eVIdence nor do I questIOn the appropnateness of her response Employees In the retaIl Industry fully understand the sIgmficance and ImplIcatIOns of dIshonesty In the workplace To wItness a fellow employee steal from the employer and In a very real sense, be potentIally at nsk for beIng ImplIcated In that theft, would undoubtedly unnerve any employee Ms Marshall would have been put In a very dIfficult posItIOn and It IS not surpnSIng that she was shocked and dumb founded by what she saw I do accept that, gIven her ongInal reactIOn and approach to Don Darch, one mIght have expected that she would sImIlarly let hIm know that the gnevor approached her whIle she was out back. However she dId not suggest that the gnevor threatened her or made any dIrect reference to what she mIght have seen. Although dIstreSSIng to her thIS IncIdent does not compare to what she wItnessed In the office and It was perfectly reasonable for her to complete her ShIft wIthout further reportIng to her manager The gnevor suggested that Ms Marshall was motIvated to lIe by dIsparagIng comments that he made about her appearance I do not accept hIS explanatIOn. The gnevor's account was vague and unsubstantIated. He faIled to provIde any detaIls whatsoever he dId not provIde partIculars of the comments he made, to whom he made them, when he made them or the CIrcumstances In whIch they were made Ms Marshall demed beIng told about any negatIve comments and demed that she confronted the gnevor The other wItnesses, who worked at the same retaIl sIte, IncludIng the store manager were unaware of any InsultIng comments or that Ms Marshall and Mr DI Promo were feudIng. Although theIr lack of knowledge does not prove that Mr DI Promo dId not Insult Ms Marshall, I would have expected that eIther hIS manager or hIS co-worker mIght have heard rumors of a conflIct IfMs Marshall had confronted the gnevor In the manner that he descnbed. 16 In any event, despIte hIS own assertIOn that he made hIS comments about Ms Marshall to other employees, no other wItnesses were called to support the gnevor's verSIOn of events The deficIencIes In Mr DI Promo's eVIdence, the absence of any eVIdence to corroborate hIS claim and the contrary eVIdence offered by Ms Marshall all support my reJectIOn ofMr DI Promo's testImony on thIS pOInt. Much ofMr DI Promo's eVIdence was fraught wIth dIfficulty He appeared to change hIS account of events whenever It best served hIS needs For example, he ongInally told hIS employer that he counted Ms Marshall's deposIt and that It was accurate He subsequently changed hIS story and claimed that he dIdn't actually count her cash because he was In a hurry to get her back onto the floor The gnevor' S explanatIOn for hIS ongInal statement was that he dId not want hIS employer to know that he had once agaIn faIled to perform the reqUIrements of hIS Job He had already been warned about not double countIng deposIts and he dId not want to admIt that he contInued to Ignore thIS dIrectIve It was only when he realIzed that the consequences were worse Ifhe dId not 'confess' that he told hIS employer the truth. Taken at face value, whether or not Mr DI Promo counted the deposIt before he sIgned off on the envelope, he was, by hIS own admISSIOn, prepared to tell hIS employer whatever verSIOn was most lIkely to gaIn theIr confidence SImIlarly dunng hIS ImtIal IntervIew he said that he wasn't sure Ifhe phoned the store the evemng of the alleged theft, however Ifhe dId, he was certaIn that It was only to check on Barb Cook's deposIt. Mr AquIno confirmed thIS account when he recalled a very bnef phone call dunng whIch the gnevor asked about Barb Cook's deposIt. At arbItratIOn, the gnevor provIded a new explanatIOn, he testIfied that the pnmary reason for hIS call was to see how the staff was makIng out wIth the new computer system It was only as an aSIde that he InqUIred about Ms Cook's deposIt. The phone call Itself was rather strange and I find It hIghly unusual that an employee wIthout managenal responsIbIlItIes would take the tIme on a Saturday mght when he was not workIng to call and check on another employee's deposIt. I do not, however rely on the call to support a findIng that Mr DI Promo engaged In mIsconduct. The change In the explanatIOn that he provIded to clanfy why he made the callIs, however another example of the gnevor changIng hIS account of events 17 Nor am I persuaded by counsel's suggestIOn that Mr DI Promo's conduct IS entIrely Innocent and sImply explaIned by hIS desIre to reclaim a management posItIOn. That explanatIOn IS InCOnsIstent WIth hIS claim that he dId not double count Ms Marshall's funds even though he had been counseled about thIS faIlure In the past and does not adequately explaIn the flUId nature of hIS explanatIOn of events I do not doubt that the gnevor wanted to return to hIS former posItIOn or that he was In some Instances motIvated by that obJectIve I have already concluded that I would not rely on Mr DI Promo's phone call to the store to ask about the result of the recount as eVIdence of hIS gUIlt. His career obJectIves mIght account for makIng a call to the store on hIS off hours, however It does not affect my conclusIOn that the explanatIOns for the call offered by the gnevor changed over tIme and was IndIcatIve of a pattern ofunrelIabIlIty UltImately It IS Impossible to know why the gnevor would JeopardIze hIS employment gIven the sum of money Involved. The apparent IncomprehensIbIlIty of hIS conduct, however does not provIde a sufficIent basIs to undermIne the cogency or the force of the eVIdence tendered by the employer I accept Ms Marshall's eyewItness account as a credIble and compellIng account of the gnevor's mIsconduct and I do not find hIS eVIdence that she had a motIve to lIe to be credIble All of the surroundIng CIrcumstances support Ms Marshall's verSIOn of events and are InCOnsIstent WIth the eVIdence offered by the gnevor On the basIs of my reVIew of the eVIdence as a whole, I am satIsfied on a balance of probabIlItIes that there IS clear and compellIng eVIdence to find that the gnevor stole LCBO funds on October 2, 2004 The gnevance IS dIsmIssed and the dIscharge ofMr DI Promo IS upheld. Dated at Toronto thIS 28th day of October 2005 ~"~ ~ -. __ _ :.:....~ I"'Z.. - ,:-n_ .:':; 'J' ~ 'r~., , - ,. ; ~ ' ',:" · ", _ ",', " '.J' Reva DeVInS Vice-Chair