HomeMy WebLinkAbout1983-0647.Lunardo.84-07-06IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between: OLBEU (Gina Lunardo) Griever
- And -
The Crown in Right of Ontario
(Liquor Control Board of
Ontario) Employer
Before: R.J. Roberts
J. Best
L. Turtle
Vice Chairman
Member
Member
For the Griever: A.M. Heisey, Counsel
Blake, Cassels 6. Graydon
Ba'rristers & Solicitors
For the Employer: R. Dunsmore, Counsel
Hicks Morley Hamilton Stewart StOrie
Barristers & Solicitors
Hearings: March 5, 1984
April 30, 1984
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I
2:
DECISION
In this case, the griever, who was a cashier at
one of the outlets of the L.C.B.O., was discharged
for theft of $79.00 in cash. At the hearing, the central
issue became whether there existed sufficient evidence
to support a finding of fact that the griever committed
thealleged theft. For reasons which follow, this issue
is resolved against the L.C.B.O. The grievance is
allowed.
A considerable amount of evidence, both in the
form of testimony and documents, was introduced at
.the hearing. Witnesses for the L.C.B.O. included Mr.
T. O'Neill, a Clerk III who was in charge of the shift,
..,.. /.. _ at the time and place of the incident; Mrs. Brenda
Larman, a temporary CaZhier at the time and place of
the incident: Mr. Brian Collens, who was the Acting
Manager of the store in question; Mr.
Bill Leslie,
the District Supervisor who was responsible, inter
u, for the store in question; and, Mr. ElacDougall,
a Staff Relations Officer with the Personnel Division
of the L.CiB.0. Testifying on behalf of the Union
were Mr. B. Dick, a Clerk III at the store in question,
and the qrievor. The documentary evidence included,
inter *, a transcript of the griever's trial for
“.
3.
the' theft in question and a photograph 'and schematic
diagram of the layout of the store.
The transcript showed that the Provincial Court
dismissed the criminal charge against the grievor at
the end of the case for the Crown. The Defence was
,. not called upon" to produce any evidence. Silverman,
J.~ orally granted a motion by the Defence to dismiss
the charge saying, "I've listened to' this case very
carefully. There is no question in my mind at all
that the circumstances are extremely suspicious.
Suspicion does not amount to proof beyond a reasonable
doubt. The onus remains on. the Crown from the beginning
of its case to .the end of its case. There has not
been that degree of proof required. There is no case
to meet at all: The charge is marked dismissed." Id. -
at 63.
At this point, it should be noted that the case for
the L.C.B.O. which was placed before this Board was
more extensive than that of the Crown in the criminal
proceeding. In the latter, only two witnesses
testified, Mr. O'Neill and Mrs. Larman. As indicated
above, counsel for the L.C.B.O. introduced evidence
from five witnesses. Although counsel for the Grievor
was the same in both this and the criminal proceeding,
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he did not make a~ similar motion to dismiss before
this Board. Evidence was called on behalf of the Y.
grievor. There seems to be little doubt that all of
this provided the Board with a' more detailed picture ,"
than existed in the criminal proceeding.
Before turning to consideration of the merits,
some mention should .be made regarding the weight to
be accorded to the testimony of the various witnesses.
Upon reviewing the record, it was decided that with
respect to critical events little. weight could be 1- '~
accorded to the testimony of Mr. O'Neill and the grievor.
Extensive -and expert cross-examination of both of these
witnesses revealed several 'discrepancies in their
versions of events. For example, at times, Mr. O'Neill
contradicted evidence that he gave in the criminal
proceeding. At several points in her cross-examination,
the grievor tended to make improbable assertions in
an attempt to explain away apparent contradictions
between her testimony on direct.l.~.examinati-on and an
extensive narrative of events that she prepared and
sent to the L.C.B.O. on October 11, 1983.
To the extent that the facts can be discerned
from reliable evidence,~ it seems that the circumstances
leading to the discharge and prosecution of the grievor
5.
were as follows: On October 6, 1983, the. qrievor was
working on the eveni.nq shift at Store #182 of the
.a.. L.C.B.O.) in Port Credit, Ontario. Working with her
0* .this shift were Mr. T. O'Neill and Mrs. Brenda
Larman. Although Mr. O'Neill was a Clerk III, he was
acting as the Supervisor. The qrievor was a permanent
Cashier, also .at the Clerk III level. Mrs. 'Larman
was a temporary Cashier who had worked at the Store
since July 15, 1983.
*Mrs. Larman's shift did not commence until 2:00 p.m.
The evening .shift lasted from 1:00 p.m. until
9:00 p.m.'* The day shift worked from 9:00 a.m. to 6:00
p.m. This meant that for a period of 5 hours, the
two shifts overlapped. For this period 'of time, there
were up to 7 employees in 'the store. In addition to
the qr~ievor and her two co-workers, there was Brian
Collens, the Acting Manager, ,two Clerk III's and a
Bookkeeper.
All of these people had access to the keys to
the cash registers. Contrary to the L.C.B.O. procedure,
which~ required these keys to be kept in the safe, the
keys wereleft in an unlocked drawer in the desk of
the Bookkeeper. The office in which this desk was
located also was unlocked. At any particular point
in time, it was possible for any employee --or for
that mstter, even a customer -- to obtain possession
of these keys.
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This was not the only example of an apparently ::~.
casual attitude in Store #182 regarding adherence to
L.C.B.O. procedure governing the ~handlinq of money.
According to L.C.B.O. procedure, the keys to the cash
registers were always'~ to be within. the control of
the Assistant Manager and Manager. These were the
persons who, every two hours during a shift, were
supposed to take an "X" reading from the cash registers
to determine how many transactions had been run through
each. Further, these were the persons who were 'supposed
to "ring off "' each cashier at the end of the shift.
These transactions required the use of the cash register
keys which, again, were supposed to.be out of the reach
of other employees.
At Store #182, however, this 'was not the case.
It was not unusual for a cashier to take the cash
register keys from the drawer of the desk and take '
an “X" reading out of the presence of the Manager or
Acting Manager. Likewise, it was not unusual for a
cashier to obtain the keys and "ring off" by himself
or herself.
Other breaches of L.C.B.O. procedure regarding
the handling of money also were not uncommon at Store
#182. It was common for cashiers to "make change"
among themselves without making any notation of the
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transaction. This would involve, e.g., one cashier
exchanging a $20 bill for two rolls of quarters. The
evidence also indicated that it was common for employees
.~ c.. . . *..:y in the sttire,to 40 into another cashier's cash register.
This usually took place during small emergencies, e.g.,
when a cashier had to go to the bathroom or' got sick
and no other cash was made up. ~.
There were three Cashiers' wickets in the store,
each with its own cash register. On the shift in
question, Mrs. Larman was the main Cashier, in the
sense that she was always on cash. Her wicket was
#3, which was nearest to the office. As was the case
with each.of the other cash registers, he:- cash register
had two cash drawers, one on top of the other. The :
uppermost cash drawer was designated as the A drawer,
the lower,' the B drawer. Therewas e further drawer
in the wicket. It was. directly below the B drawer
and formed part of the desk upon which the cash register
sat. At the commencement of her shift, Mrs. Larman
placed her cash tray, which contained a $50.00. "float",
into the A drawer.
The grievor was stationed at wicket #2 which was
d~irectly ~. to the left of Mrs. Larman's wicket.
Apparently, she was supposed to take over ai cashier
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at this station when Mrs. Larman went on break nor for
lunch. Presumably, the qri.evor also would op.en this
:,.
station if there were a considerable number of customers
to be checked through. .:...-..
Mr. O'Neill made up a cash tray for himself .and
placed it in the cash register at Wicket #l, which,
again, was immediately to the- left of Wicket #2. 'He
apparently did this because the qrievor had informed
himnearthe beqinningofthe shift that she was suffering
from .a headache and might have to leave earlier. Mr.
O'Neill anticipated that her would have to cover to
relieve the other cashier. Although the qrievor remained
on duty until about 9:05 p;m., which was after the
store closed, ~the evidence vindicated that Mr. O'Neill
did check out some customers through this particular
station. This might have been because of heavy customer
traffic due to the approaching Thanksgiving Holiday.
Until late in the evening shift, matters proceeded
routinely. Mrs. Larman testified that she took her
lunch hour from 4:30 p.m. to 5:30 p.m. She also was
away from her station for a 15 minute break. At around
7:20 ~p.m., Mrs. Larman apparently purchased two rolls
of quarters from Mr. O'Neill. Mrs. Larman testified,
"Terry [O'Neill] wanted to exchange two rolls of
9.
quarters. I immediately exchanged. I gave him $20
'and he gave me two rolls of quarters." Later, shortly
,after 8:00 p.m., Mr. O'Neill and Mrs. Larman co-operated
in giving a customer a‘refund for a return to stock
of some liquor that‘ previously had been purchased.
The sequence of events leading to the present
arbitration began to occur at about 8:30 p.m. It seems
that at around that time Mr. O'Neill went to the basement
of the Store to begin turning out the lights. (This
was part of the regular routine.) Seeing that there
were non customers in the store, Mrs. Larman left her
wicket to "face up" some bottlesof Rye. -'^,("Facing up"
simply means pulling the bottle forward to make neat
rows. It was expected that Mrs. Larman and other Clerks
in the store would do this when not otherwise occupied.)
The Rye bottles were located on- shelves along the wall
of the store directly opposite the side where the
Cashiers' wickets were located. The grievor then asked
Mrs. Larman "to face-up" some bottles of, white wine
as well. These were located along the same wall as
the .Rye bottles but were at the opposite end. After
she completed doinq'this, Mrs. Larman went to face-up
some Gin bottles on an'island which was located almost
directly across from her wicket. In so doing, she
.-,
was facing her wicket.
10.
Mrs. Larman testified that it was then that she
saw' the, grievor at her wicket. She said, "I had a .~.
good view. I could see the cash. Gina [the qrievor]
was at my cash. The till was open. She was close
to it.. My drawer was the "A" drawer. The top one.
.,TIL. I knew it was the "A" drawer that was open because
its the highest one. I could tell it was .the "A" drawer.
The "B" drawer is very low. My cash was in the "A"
drawer." At the -time, this. did not appear to be alarming
to Mrs. Larman...,. .~ She testified, "Earlier on, [the
qrievor] was asking me if I had some $2 bills. So
I just figured that she was seeing if I had some. When
I walked toward my cash, the till was closed. I heard
the drawer close. . . . No customers were in the store."
At about this time, Mr. O'Neill returned from
downstairs. He asked Mrs. Larman if she would sign
his deposit. They both went to the of'fice to do this.
When Mrs. Larman came out of the office, the qrievor
asked her if she had to make .a deposit. (Apparently,
Cashiers must make deposits when then amount of cash
in their cash registers exceeds $1,000.) Mrs. Larman
replied that she had to check. At thatch point, it- seems,
-
11.
the grievor said, "Here's the key,” and handed the
cash register keys to her.
,.
After checking, Mrs. Larman determined that she
did have to make a deposit. When she came lout of the
office after doing so, the qrievor engaged her in a -
conversation. According to Mrs. Larman, "She said
"Terry's going to ring us off tonight and._he's going
to screw up because he's been, borrowing money from
the safe and not returning it.' I did not know what
she was talking about.; [The qrievor] then added, 'And
if he rings me off and I am short, I'm not going to
pay and if you're short are you going to pay?' She
also said that Terry O'Neill was short $20. I said,
'All I know is I borrowed two rolls of quarters off
Terry and gave him $20, so if he's short $20,its not
that."' This conversation occurred at about 8:35-40
p.m.
About 10 minutes after this, the qrievor rang
off. Her receipts apparently balanced against the
tape from the cash register. Although it was aqains,t
the rules, Mr. O'Neill allowed the qrievor to leave
the store at about 9:0'5 p.m. This apparently was because
of her headache. Bef~ore she left, Mr. O'Neill advised her
12.
that if anyone asked she should say that she left the
store at 9:15 p.m.; along with Mr. O'Neill. It seems
that L.C.B.O. procedure requires two permanent employees
to be present when~"~a store is locked up for the night.
At about 9:lO p.m., Mrs. Larman "rang off". When
she and Mr. O'Neill attempted to balance her receipts
against her cash register tape, it was found that she .,.
was $79.00 short. Despite subsequent double checking
and searching around the store, the two of them could
not resolve the shortage. Mr. O'Neill. had to make
an entry in the log book showing her $79.00 short.
He then telephoned Mr. B. Collens, the Acting Manager,
to report the shortage to him. ~,
Meanwhile, Mrs. Larman began to reflect upon the
actions. of the qrievor. She testified, "I began
thinking. I recalled what [the qrievor] said. It
was such a coincidence after I saw her .in the till
and talking that way about Terry O'Neill. . . . Just
before I left [the store]~.I told Mr. O'Neill that if
I was still short after Brian Collens counts the cash
[the next day1 I would not be responsible because I
was not the only one at my till." (It was indicated
that it was L.C.B.O. procedure to require a cashier
to make up one-half of any shortage that could not be
reconciled.)
Before"9:OO on the next morning, October 7, the
Acting Manager, Mr. ti. Collens, reviewed all of the
relevant documents but could not.~~ find any explanation
for the $79Pshortaqe. He then reviewed the attendance
record and 'was told that the qrievor had left early
although she signed out at 9:15 p.m. At 8:50 a.m.,
the qrievor entered the office to empty the waste paper
basket. (This was one of her usuat jobs.) Mr. Collens
called her over and asked her what .time she left. As.
requested by Mr. O'Neill on the previous evening, the . .
qrievor replied that she left around 9:15 p.m. Finally,
sh&~ admitted that she had left earlier but that Mr.
O'Neill had asked her not to say so.
'..
The questions became more vigorous as Mr. Collens
approached the .subje& of possession of the keys to
the cash registers on the previous evening. He asked
the qrievor whether she had the register key in her
possession that evenjnq. She replied that. she had
not. Mr. Collens then asked the qrievor to write down
everything she had done. that night. He agreed in his
testimony on cross-examination that because of this
request the grievor would have been on notice that
something was up.
Mr. Brian Dick, who was a Bookkeeper at the store
at the time, was in the office while all of this was
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going on. He kneii that there was a shortage of $80.
He overhead some of the interrogation of the grievor.
Both he and the grievor left the office together.
According to the testimony, "Gina asked me what was
going on. I said, I don't know. There was a shortage,
I told her, of $80." ,.
The grievor went to the lunchroom, which was in
the basement of the store, to make out the report that
Mr. Collens had requested. At about 9:45 a.m., Mrs.
Larman reported for work. When she went downstairs
.to hang up her jacket, she passed the grievor. According
to Mrs. Larman, "She called me in. She was very upset.
She said she was. accused of .stealing some money. I
said I saw you in my drawer last night. What were
you doing in it?- She said, 'I was looking for the
rolls of quarters you bought off Terry O'Neill. I
was looking in the "B", not the "A" drawer'. I said,
'NO, I saw you in my "A" drawer.' She said, 'Oh!,
please don't tell anyone I was in your drawer. I'm,
being accused of taking money. You didn't see me,
did you?' I said, 'Yes, I did. I saw you. And I
am short money. And I don't ~feel that I am responsible
to pa,y it because I was not the only one on my cash."'
Shortly thereafter, and before she had a chance
to complete her report, the grievor was called upstairs
to work. Meanwhile Mr. Collens telephoned Mr. Bill
Leslie, the District Supervisor whose territory included
Store #182. Mr. Leslie arrived at the Store at between
lo:30 .a.m. and 11:OO a.m. He testified, "Mr. Collens
told me what happened. After, I spoke to Mrs. Larman.
1'got her side'of the story. I then contacted Head'Office.
They phoned later. They told me to call Peel Regional
~ Police for an investigation. Constable Greenhall showed
up around noon. . . . He spoke to me, Mr. Collens, Mrs. Larman
and the grievor. He asked the grievor to go with. him to
the station for further questioning."
Later on in the afternoon, the grievor phoned Mr.
Leslie from the police station. She told him that "the
police were laying ,a charge of theft against her. . . .
She said that if I'd have the police withdraw the charge
she would pay back the money. I said why would you want
to do that? She said she didn't want [the L.C.B.O.] to
know that she had previous convictions. She said, I think;
she had three charges and two convictions. . . . I said
that it was out of my hands, I couldn't do that." Later,
on cross-examination, Mr. ~Leslie added., "I don't recall
but it is possible that she [the grievorl denied taking
the money. She never admitted taking the money."
The evidence at the hearing indicated that, in the
period from October 9, 1974 to January 13, 1977, the grievor
was convicted on three separate. occasions for shoplifting.
On each occasion, the grievor pleaded guilty. On ~the first
occasion, she was fined $50. On the next two, she received
a suspended sentence and probation. There were no further
for a pardon and her application had not yet been processed.-
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convictions recorded against the grievor in the more than
6 l/2 years that had qlapsed from the date -of her last
conviction. The grievor indicated that she had applied
The grievor was not required to disclose this
information when she applied for a job with the L.C.B.O.
The application form that she filled out did not request
disclosure of this kind of information. In his testimony,
Mr. blacDougall,.,a Staff Relations Officer with the Personnel
Division of the L.C.B.O., indicated that in 1981 when the
grievor applied for employment, a question regarding previous
criminal convictions had been taken off the application
because of some apparent violation of the Human Rights'
Code. He added that the application form has since been
refined.
In accordance with its usual procedure with respect
to allegation~s of theft, the L.C.B.0; suspended the grievor
without pay pending its investigation. On October 18, . .
1983, the grievor grieved this suspension. Thereafter,
on October 31, 1983; Mr. F.B. Rankin, Director of Store
Operations for the L.C.B.O., advised the grievor that her
services were terminated effective October 8, 1983. The
grievor submitted a separate grievance grieving this action,
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and both grievances .proceeded through the grievance procedure
to the hearing before this Board.
There is littleedoubt that theft from an employer
generally warrants discharge, particularly, where, as here,
the grievor occupies a position such as cashier, which
involves a considerable degree of trustworthiness. In
this case, however, we are unable to conclude from the
facts that were proven that, on a balance of probabilities,
the grievor committed- the theft in question. Perhaps the
evidence would have been strong enough to. support such
a finding if L.C.B.O. procedures regarding the handling
of money were respected and f,ollowed in_ Store #182. Then,
there would .not' have .been any alternative explanation for
the grievor's presence. at Mrs. Larman's till, nor would
there have been an explanation for her possession of the
keys. Perhaps most significantly, there would not have
been an opportunity for a multitude of others to gain access,
either unnoticed or unnoted, to Mrs. Larman's till
But this was not the case. The casual way in which
the cash register keys and money were treated in Store
#182 reduced the circumstances upon which the L.C.B.O.
relied to the status of mere cause for suspicion. The
circumstances did not prove, on a balance of probabilities,
that the grievor took the $79.00 in question from Mrs.
Larman's till.
.18. .I
First, the evidence of Mrs. Larman that she saw the
grievor at her ..till cannot support any inference that no
one else was there during the course of her shift. As
Mr. Dick testified, it was not uncommon for employees to
use another's '-cash, particularly during breaks or small
emergencies. -. Mrs. Larman testified that she did not think ~
anything of the matter when she saw'the grievor. She said~..
that she thought the grievor might have been looking for
some $2 bills-~, Given the ready access that everyone had
to the cash register keys, this reaction would be expected.
From the evidence, it does not appear to the Board that
anything out of the ordinary was going on.
The circumstances also provided a not improbable
explanation for the grievor being at Mrs. Larman's till.
Mrs. Larman's evidence confirmed that during the period
of time when she was facing soup the bottles, Mr. O'Neill
found that his cash was $20 short. He told this to the
grievor and the .grievor subsequently related this to Mrs.
Larman when she engaged her in conversa.tion. Regardless
of whether we accept the grievor's assertion that 'she was
not in Mrs. Larman's "A" drawer when she was at her till,
this evidence tends to lend weight to the griever's assertion
that she was attempting to determine whether this shortage
grew out of the earlier $20 exchange between Mrs. Larman
and Mr. O'Neill.
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19. .
There does not appear to be anything odd in the fact
that the grievor left before Mrs. Larman counted her cash.
It was established that near the commencement of the shift
., the grievqr had complained to Mr. O'Neill of a migraine
headache. Mr. O'Neill even opened another cash register
for himself in case the griever found herself unable to
/ complete the shift.
Likewise, there appears to be nothing extraordinary
in the fact that prior to being expressly advised that
: she was being accused of theft,' the grievor reached that
conclusion. Directly after undergoing an interrogation
from Mr. Collens regarding leaving early and possession ..
of the keys ~to the cash registers on the previous evening,
the grievor was informed by Mr. Dick that there was a
shortage of. $80 on her shift. It would~ take little' fin
the way of deduction to conclude from this information
what Mr. Collens was thinking.
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No adverse inference can be .drawn from the fact that
after she was charged the grievor telephoned Mr. Leslie
to see whether the criminal charge of theft might be dropped
if she repaid the money. The grievor never .admitted taking
the money.. She stated to Mr. Leslie that she made the
offer to prevent her prior criminal convictions from coming
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_ 20 .
to the attention of the L.C.B.O. Given that this call
was “made from the police station shortly after she had
been interrogated and charged, it might be. regarded as
an indication ~of desperation. It cannot, however, be
regarded by this Board as the conduct of an obviously guilty
person.
In any event, the grievor's prior criminal record
seems to be of little .assistance to the case .for the
L.C.B.O. The convictions were so old as to be stale --
for example, the'first was almost 10 years old at the time
of the incident. Moreover, all the convictions~ were for
shoplifting. None involved theft of money. In ear&
instance, the grievor pleaded guilty. There was no such
plea in the ~criminal charge that was laid in the present
case. As previously indicated in this Award, this criminal
charge was dismissed at the conclusion of the 'case for
the Crown.
This leaves the mysterious conversation that the grievor
struck up with Mrs. Larman when she. kame out of the office
after making a deposit. The grievor impl,ied to Mrs. Larman.
that Mr. O'Neill might "screw up" and began talking about
the possibility of being short. There is little doubt that
the coincidence betweenthis conversation and Mrs. Larman's
.
21.
observation of the grievor at her till might support a
suspicion that the grievor somehow was responsible for
'the shortage of $79. It does not, however, support a finding
of fact based upon a balance of probabilities -- particularly
where something as serious as a charge of theft is involved.
More had to be shorn to connect the grievor with the
missing $79. In the absence of such evidence, the matter
must be resolved against the position of the L.C.B.O. The
grievor must be reinstated as of the dates of her, suspension
and must be compensated for all wages and benefits that
were lost by virtue of her suspension and subsequent
termination. We will retain jurisdiction pending
implementation by the parties of the terms of this Award.
The grievance is allowed.
DATED .AT London, Ontario this 6th day of
July, 1984.
hlember