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HomeMy WebLinkAbout1985-0764.Brown.87-08-25IN THE HATTER OF AN ARBITRATION 0764185 0770185 0771/85 .-~ UNDER TRF. CROWN EMPLOYEES COLLECTIVE BARGAINING ACT BEFORE THE GRIEVANCE SETTLEMENT BOARD BETWEEN: OPSEU (Richard Brown) Griever - and - THE CROWN IN RIGHT OF ONTARIO Employer (Ministry of Community and Social Services) G. J. Brandt ViceXhairman D. T. Traves Member F. T. Collict Member FOR THE GRIEVOR: R. Anand Counsel Cavalluzzo, Hayes and Lennon Barristers and Solicitors FOR THE EMPLOYER: R. J. McCully Senior Solicitor Ministry of Community and Social Services HEARINGS: I December 19, 1985 June 25, 1986 March 5, 1986 June 14, 1986 April 24, 1986 October 29, 1986 May 15, 1986 December 29, 1986 May 21, 1986 December 30, 1986 May 22, 1986 June 24, 1986 2 AWARD if. this marrer !here are j grievances befor: the 3oard~ The gr!ev:?r. &:.hard Hrmsn. u”fs e~mploye~.t bv Ihe L!~n!?rf;.~ I)! !.!‘:I? mfJn~!)- and 5:Ciai 5rrv1ces at the Orf’ord R~~MxII Cen!re i hereinafrrr referred to as the !JRC 1 In Woodstock iJnrario i\s a resuit CJf an invesrigatlon b!.’ the !Jnrarlo Provinctal Police into certain alirxattons of theft. Mr. Peter Anstead. the .+ssisranr Admunsrrator of the GRi. suspended the grtevor on Slay 22. 1485 for a period of 20 days pending iurther mv+garion oi’the matter by the ORC. Un June 12. 1985 the gr:ri’or was suspended for a further 20 days and on july If;. 1985 he was discharged. The two suspensions and ~rhe discharge were all grieved and are now heiore the Board. The decision IO discharge the griever was taken by Mr. Douglas Goodbun. the Administrator of the’fiRC. who had been absenr on vacation during the earher investigation. and who acred on the hasis of various reports which he received upon his return. The letter of discharge alleged :hat the griever had been strahng property of rho crntre on a number of ~ccasionz over a number of vears. In viva vote t l+dence befl>re the Board tlr. cjoodbun confirmed’rhat he c;Lme to his decision ;I\‘ a result oi a belief ~’ .. .. lhaL the gtievor had accumulated a substantial nu.mhet of items over a long period of time. We do not intend IV se1 out HI detail all oi Ihe evlaence which we heard over a period ot 12 days and on which there was no less than j days. of oral argumcnr. The employer has accusedrhe griever of stealing 67 items from the premises ol‘ the OK. Thlrtly t’ive ot’ these Items were also the subject of criminal proceedings taken against the grlevor. Those proceedings .: : . *., I i . , 3 resulted initially in a conviction, on September 26. 198% of “having in his possession, merchandise knowing il to be obtained by the commission of an indictable offence.” During the couw of the hearings More rhe BoArJ ihe conviciion TX oT:erturned on Jppeal. In addirion to these irems the gr:e:.$r i zxused of srealing 29 brxs fire csringuisherc. an cjdL !?:L 2nd Z chdirs. TiltI rijpcct 10 311 hi:1 21 of lk 57 irems in issue, there is. apart from .(. :,+; o~:l~<n:~ :.:I [he gr;ev;Jr h ‘.: ecxang?d v;ifi: no e:Ydence n3ich idenrifle: these kerns 2: being Ihe property of the ORC. VTith respect to rhese items rhe most Ihat ‘3RC officials. principally Mr. Cofton. the Purchasing Agent. end \lr. Con-ne:x’. :k Supply C!erk in the Trades and Engineers Department. NJUILI S3)' U2S that the)’ “looE;ed iike” the kind of items that u-ere used or which had at one time been u$?d JI the WC. However. notn.ithstandiG the absence of such evidence of positive Idenlification of these remaining 46 items. the employer persisted in its aliegation tha1 they h;ld come from the OKC. Evidently it was concluded that. in T.-ien. of ihe fact !hll positive identification did exist for 2 1 items. it could be reaSOnably inferred rhar rhe rest of them came from the ORC as a-ell. This r.$+ decision Lu pursue th? claim in respect of all the items %.ithoul e!.idence iif po:itiVe identificatio;! prorrxted !he proiec3iiings con:jderati!y. It beczm? ilKS%lQ' for. the employer 10 establish. by orher e~:idaxe. the nxessar!,..: hnk. It also became necessary for the grieyor to ansn-er Ihe charge %ith respect to each of the items in issue. fn view of the fact that much of the employer’s case: both with respect to the identified and unidentified lte‘ms. rests on the credibkF; rhat can be )-.. attached to~the eVidencr of rhe griever’s wife; it is necessary at the outset lo outline. in grrieral terms. the chronology of events uhlch led ultimately to. the disciphnr in questiun.~ In November of 1984 the griever and his wife, Cathy, and their 2 children were living in a house at 18 Front Street in Woodstock. Certain matrimonial problems led to their separation on or.about ?;ovember 9th .I !hat years The gries’or left the matrimonial home, lived %ith !lis parents for 1 weeks. and, on No:.e;:!ber 15. I SF.4 began to live with LJ4. b-!.bar;l C(ill’2ll ‘.Jnd her 2 children! at a house iocated at 250 Cartier Drive in Woodstock. C~t!?y Brown remanted withthe c!?!!,lren in the matrimonial home a-hlch was put ui? for sale. ~. Cathy Brown remained in the home until March 31. 198s when she left to take up a job in Stratford. The house remained vacant until it was sold in July of 1985. During that period the only people who had access to the house were Cathy Brow-n and a real estate agent. In May 1985 a dispute arose,between the grievor and Cathy Brown over the amount of support payments that were due to her. The grievor intended to reduce the payments in view of the fact that his wife was no% employed. When he told her of his intentions on !Jay 10th she threatened to report 10 Mr. Anstead and to the OPP the fact that he had stolen certain items’from the ORC. The grie\or carried out his intentions 2nd reduced the amount d the payments. Cat.hy Brown then contacted the OPP and made a statement. On May 12th ConstabkCooke and another officer attended at IS Front~Street where Cathy Brown pointed out a number of items that she claimed had been stolen by her husbanil from the ORC. One of thi items u’as i fire extinguisher and. as there hJd heen .;1’ 198 I reportfr;.lm the ORC concerning the theft of some SO fire extinguishers. Constable Cooke contacted Mr. Gofton at the ORC. ,. -,, :, < 1. I 5 On May 2 1st. Cooke. Aristead and Gofton attended at 18 Front street and were admitted to the house by Cathy Brown’s mother. Mrs. Bennett, who ‘had been given a key for this purpose. Neither .J,nsteLlJ nor &fton \:ere Lware that the house had been formerly occupied by the gie:or. C;lns!lb.ii; Goke pointed out the it?m:: that hhd. c:n Yay 12th. been ii.lc;ntified by Cath;, Brown as havmg been stolen b>’ the grlevor and Gofton and Anstead identified them as either coming from the CRC or as looking-like articles that had been or Vere in use at the ORC. Later that da)’ Cooke returned o’ith a search war&t;. aas admitted 0; Cathy Brown and her mother., and seized the following items. a box of 48 cupboard handles 3 $,pool of leather chord a box containing j light bulbs 6 sp001s of~thrcad.~ 1 brass name plates I j boxes containing assorted wood screws 7 boxes of staples brass door locks a box of dally plugs a plastic funnel ‘. a roll of burlap a toilet brush i a door knob set q-t electric cl~>ck I a scrub brush a dust mop head a pad holder and seven pads 6 a can of paint a can of plastic cement a curtain rod in a box 2 sexing machines a fire ertlnguisher a shovel a handle for J garden tool. and a mop. , Constable Cooke took the items to the,OPP detachment and returne,-! to’ the ORC with Constable Dobbs, informed Mr. Anstead that he had a warrant to se%rch 250 Cartier and said that her wanted to speak to the grievor. Cohen the griever arrived he was asked if he would accompany them to the house and let them in. The grievor agreed and went with Cooke and Dobbs in the police cruiser. Gofton and Instead followed in a different vehicle. .. They arrived at 250 Carlier Drive, u-ere let in atid went to the basement. Cooke asked Gofton and Anstead if they could idectify any articles as belonging to the ORC. Again they were able to identify some as positively coming from, the ORC and others as resembling articles used at the The following articles were identified: a spade staples and .a supler Eli: an empty screw box eight cans of spray paint , a box of stress a box containing 4 used castors. a box of steel strapping ti can of amtact cement an oak desk 2 swivel chairs. Ali of the items except for the oak desk and the 2 swivel chairzwere seixed by Constable Cooke and taken to the OPP detachment. However. Constable Cooke did unscrew the castors from’the 2 swivel chairs and included them among the items seized. These 2 lists represents the items which were the subject of the criminal proceedings and which are alleged by the employer to have been stolen by him. In addition to these there were added a further 29 fire extinguishers which were not found,at either of the houses that had been occupied by the griever. Apparently the employer regarded the discovery o-f the one fire extinguisher at 18 Front Stteet as providing an answer to the disappearance a number, of years earlier of some 30 fiie extinguishers. In the.early 1960s the ORC used a soda acid type of fire extinguisher. However, they were replaced in the mid 1960s by a different type and some 200 of the soda acid type were stored in an unlocked shed near the power house. In 1980 an inventory check revealed that this number had dwindled ,...~ to 60 and, in 198 1, when they were checked again. it was found that only.32 were left. The~disappearance of the fire extinguishers was reported at that time to Mr. Anstead who in turn reported it to the OPP. ,The one fire extinguisher at 18 Front Street resembled those which had been in use at the ORC and, acting on certain claims made by Cathy _ Brown to the effect that her husband had~ broughi home a number of fine extinguishers in 198 1. it was decided to include the missing fire extinguishers among the list of items alleged to have been stolen. As noted above not all of the items alleged to have been stolen were positively identified as coming from the ORC. The items which make up that !ist are the’following: the 4 chair castors. the box of 48 cupboard handles. :he sil ipools of thread. the seven boxes of staples. the brass door LoCkS. the roll of.hurlao, the toilet brush. the door knob Set. the scrub brush, the dust mop he?d. the pad holder and seven pads, the 2 sea-& machines, the fire e+gutsher.~the desk and ! chairs Jnd the 27 fire esritiguishers. In the absence of SlJ)ne other evidence which u’ould link the griever nith these unidentified items. the allegation that he stole them must fail for %~%I1 of proof. At a mintmum the employer must establish that the properly :~ alleged to be stolen belonged to the CRC. ‘Xith respect to the items identified that proof is provided and there arises an onus on the griever to explain how they came into his possessien. However, no such onus arises with respect to \ any items which cannot be saidto have come from the ORC. The evidence which establishes the link is that of Cathy Brown and members of her family. She identified all of the items put in evidence before the Board (except for the handle, the stapler. the contact cement and the 4 chair castorsl as having been in her basement a! IS Front Street. That included the items n-hich %ere seized from 250 Carrie~r Drive. .It“tias her evidence that the griever had brought them home rl~ vxious times and that he had admitted that they all came from the 0RC. She stated specifically that the de&and chairs were brought home in a “hospital” truck and that the griever had told her thAt he got them from the basement of one of-the buildings. She further sfa~ed that in the late spring or early summer of 1781 the griever began to’bring home, on it weekly basis, about 4 or 5 fire extinguishers (of a type Vhich resembled t.he one taken from I8 Front - ’ 9 ‘.. Street) and that he hold her he had “found” them on the grounds, that there were about 30 of them and that he had sold them. She stated that she had spoken to him on a few occasions about his conduct specifically in relation to the paint and the boxes of zcrewz, and that she had asked him if he thought it was worth losing his job over items such as this. He either appeared unconcerned or stated that the items were L ‘*compliments of Uncle Billy” (a reference to the then Premier of Ontario). Evidence as to certain admissions by the grievor was also provided by Mr. and Mrs. Wannop, the sister arMbrother-in-law of Cathy Brown. Mrs. Wannop testified as to “lots of times’ that the griever had made the “Uncle Billy” comment and that it was a standard joke within the family. Mr. ~. Wannop stated that he overheard the comment (made ia reference to garden tools and paint) in about 6-8 conversations over a period of 3-5 years. While neither of them approved of the amduct they did nothing about it as “it was none of our business” (Mr. Wannop) or “there wasn’t much we could do as my sister depended on him” (Mrs. Wannop). This evidence along with the undisputed fact that a number of the items in question were found in 2 houses each of which were occupied-by the grievor constitutes a prima facie case which calls for an answer from.the ~grievor. Thegrievor is under an onus to explain how theitems came to be in ‘the houses by. a manner~other than through theft or misappropriation. That proposition is. set out clearly in 3 Service (1975) 9 LAC (2d) 3 11 (Beatty) in the following language , Y,...an employee may not be disdplined for failing or refusing to provide his employe with an explanation to clarify any zet of circumstances which are inquired of by the employer. 10 .-the onus said to be borne by an employee to provide an explanation is in circumstances consistent with his having stolen the property, his being in possession of stolen property cr his having converted the property to his own use. In such serious and grave circumstances we shkld agree there is a sound basis for the employee being obliged, where he can, to offer some explanation for orelucidation of his being in possession of property which is manifestly not his. Although such a requirement may well run against what are properly considered basic and fundamental principles of our system of criminal jurisprudence, in the context in which arbitrators are adjudicating there are additional considerations which transcend such basic tenets. . . . ..we are here concerned with an employment relationship the continuation of which...is premised on the good faith, mutual trust and respect OT the parties to the relationship. Where in fact such extreme circumstances exist.....which, viewed reasonably, call into -. doubt or jeopardize one of the bases of that relationship, the employee is, we believe, required to offer as beat he can some explanation of those circumstanccs....Failure to do so strikes at one of the foundations cf this continuing and consensual relationship and will....justify disciplinary action being taken against that employee. ” ,-. The grievor attempted tc discharge the onus of explanation in a number of different ways. Fist, he claimed that, having regard io the circumstances surrounding the actions of his wife in reporting him to the OPP, her evidence (and that of the Wannops) should be seen as an extension of her wish to have her revenge against him and should, on that account, not be believed. Second, he claimed that a number of the articles which were positively identified as coming from the ORC were either taken from the garbage, or borrowed, in either case with the permission or tachapprovai of his .._- supervisors. .,- . . . -, >* ’ 11 Third, he ciaimed that a number of the articles which could not be positively identified were either purchased by him (or possibly by his wife) or were gifts from friends. Fourth, one article (the shovel) belonged to his wife’s parents and was ,~~ being stored at 18 Front Street. Fit4 it was argued that, having regard to certain habits of the griever as a wllector of junk and to the fact that he had no access to 18 Front .~ Street for a period of approximately 6 months following his separation from his wife, the adverse inference that might otherwise be drawn from the fact that the articles were found in premises occupied by him should not be drawn. Finally, it was argued that, having regard to the failure of Constable . Xooke to advise the grievor of his right, under the Charter of Rights; to r&.in and instruct counsel on the cc&on of the search of 250 &tier Drive, the evidence r&pecting the items seized therefrom should not be admitted into I evidence or considered by the Board. We shall deal with each of these hatters in order. The evidence of the grievor and his wife is in substantial and irreconcilable conflict over a, number of issues. An assessment of the creibility of the6 testimony must involve an examination of the evidence wncerning the matrimonial dispute. Can it be said the Cathy Brown was determined to have her revenge against the griever up to and including the giving of perjured testimony before the mm ., An important issue in this regard is that of the circumstances and reasons for the separation in November-bf 1984. C&y Brown stated in her evidence in chief that the griever told her on Friday, November 9, 1984 that he wanted her to leave with the children as he needed some time for himself. She further stated that on the following Monday the grievor told her that there was another woman in his life. However, in cross- examination, she admitted that it was she who first raised the subject of a separation. that she had been planning for some time to leave as the marriage was unsatisfactory. She further admitted that the first time she had ever accused her husband of an adulterous relationship was when she testified before the Board. For his part the grievor cwfitmed the evidence of hi4 wife, as given on cross-examination, as to who raised the subject of the separation. However. he denied the fact that there was another woman in his life at the time of the separation and denied telling his wife that such was the case. When this wnflicting testimony is assessed.in the light of certain oth& __ events occurri&g around this time no clear conclusions can be drawn as to who to believe. This is evidenct? ‘of a confrontation between the grievoz and :-.: his father-in-law on the Sunday following the separation where the latter threatened’to “III& the griever away”. It might be said that this kind of reaction indicates that Cathy Brown told her father that the griever had a relationship with another wom~$n and had told her (Cathy) to leave home. Kathy Brown was not asked any questions concerning any wnversations she may have had with her father. Her father was not called as a witness) This is. however, not consist&t with her own evidence as to who raised the subject of separation. Moreover, there is evidence to the effect that the relationship between the griever and his wife’s family, prior Jo -. these events, was not a friendly one. &v Wan& stated that she “tolerated” the griever. There was also an earlier incident in which Cathy’s mother had apparently threatened the griever with a baseball bat. Finally, on the question of any admitted adultery, Cathy Brown’s evidence was that this was ,I; 13 made on the Monday, the day after the confrontation between the grievor and her father. On the other hand, the conduct of the griever himself suggests the existence of a prior xiationship. Following the ??pXCltiiJn the first PSI-SI:U~ he 3ent to see xas Vs. %i~~eil xbom he skmed to be a friend that he had come to know through his l’ninn actr,.ities. He.visited her on the Sunday and left some of his personal be!ongings at her house after he cleared them tiut of 18 Front St. Two weeks< later he moved in wlth.her. In these circumstances it is difficult tc, believe the griever’s claim that there was no existing relationsip ulth !As. Coluell al the time of the separation. ..i:.,-.. We are unabkto recvlvo this conflict. It is perhaps sufficient to. observe that it rcllectc the natural tendencies of parties to a matrimonial dispute to esaygerate.the faults of the other and to put their own conduct in the most favourableOlight. However. even if u-e were to prefer the evidence of Cathy Brown over that of the griever on this question, it would not resolve the more fundamental issue concerning the evidence of theft. We would be “’ reluCtant to conclude that because the griever may have been less than ,.... candid over his relationship with Ms:Col~\rell a11 the rest of his evidence lacks an)’ credibility. ?Joreover. il it were the case that there was a prior relationship and that the griever had initiated the separation there nould be even greater reason to suspect that Cathy Brown’s subsequent conduct in rePOrtif@ the “theft” and tc’st!!‘j’ing before us was a product of her anger and desire to have revenge. As such. her own evidence concerning the ~events oI _ Yovemher 1984. insofar as it makes’her the innocent and wronged party, lends some support tr:: the griever’s claim that she was. by her subsequent .^ : conduct, getting evene’i’ih him. ’ Her later conduct indicates that she hatboured extremely bitter feelings towards the grievot. In all the circumstances that is not surprising Sor is it surprising that the issue between them would revolve arouhd the level of suppi1rL payments. Initially an agreement was worked out under 14 which the griever \L--aulcl ~1)’ ;I sum of $hhU per month of which $200 u’as to represent a mortgage payment to the bank. When she declined. on one ,occasion to make that paymerit. the griever was called on to make it. Thereafter. he made the mprtgage payments and paid her.S360 per monrh~ .as support for herself and lhc -7 children. She obtained a job in Stratford on April I. 1985 and neglected to inform the grievor of her change in circumstances and per,mitted him to -:~ continue paying support on the assumption, that she was no1 employed. When he learned of this he was advised by his lawyer that he, could now reduce the payments and he had a discussion with her concirning a revised payment schedule. In those discussions she increased rather then decreased her demand for paymenls. .A11 of this conduct suggests some determination on the part of Cathy Brown to: make the grievor pay for his conduct. Finally there are the events of May. 1985. When Cathy Brown was advised hy [he grievtlr trn Friday May 16th of this intention N-cut her back she threatened 10 expose him to the ORC and the OPP. He,@dicated to her to “go ahead” - that it “didn’t bother him” and he accused her of blackmailing’ _ him to which she responded that “she didn’t care”. When the griever returned on the Sunday with the children (who had spent the weekend with him, he gave one of his children a cheque for f 100 to give to their moth& ~- Cathy Brown apparentI;. regarded this as constituting iI1 that the grievot intended to pay for the full month and. without attempting to determine whether or not, for example. it may have been support for the week. she carried out her threat. It may be noted here that her actions in reporting the grievor to the OPP were not the product of some impulsive action. She had made the threat on the preceding Friday and had the week end to consider its implications. ?;one of the evidence KI!~ respect to what occurred on .\la;’ l-7. 1’135 is disputed. There is scime other evidence concerning her conduct %?hich hears on the issue of crrdibi!ity which ii disputed. For the sake of completeness we set that out here. The grievor stated that in July 198s. prior to his trial. she ul‘l’ered not to !estify against him in exchange for an undeitaking to pay back support which she claimed he owed her. The griever stated that he called his lawyer representing him in the criminal procceedings and,in&med him of the conversation and was advised by his lawyer not to participate in any such arrangement as it would constitute a serious offence. The, griever testified that he called his wife back th,$ next day. intending to record the conversation, and asked her to repeat what she had said to which she replied that she did not Itno-&’ what he was talking about. In her evidence Cathy Brown~ienied that any such conversation occurred. Mr. Lis. the grievor’s counsel on the criminal matter, was not called as a witness to.testify to the fact that the griever had cUed him to report on the conversation. On the basis of the evidence %:e have before us we make no findings on.thls issue. Having regard to ail of the evidence surrounding the. matrjmonial dispute there can be little doubt that in May of I985 when she ihormed the OPP an.3 assisted both the OPP and.the ORC in conducting the investigation into her husband’s alleged criminal activities, Cathy &~)a-n was acting vindictively. The question for us to determine is u-hether or not her attitude had changed at all by the time that she gave her evidence and whether she 16 remained determined, even at the risk of perjuring herself, to carry out her threat to its ultimate conclusion. At the hearing she gave her evidence in a straightforward manner and, on the central [ssue in the case. her evidence did not change under cr!:ss-enamination. Honever. it is clear that she was detcrmined to t’~s responsibility on the grieI%r for all of the articles seized even to the point of insisting repeatedly that simple unmarked household articles (such as 1 toilet brush!~that could hay? been purchased at any hardware store were the identical ones that her husband had brought home from the ORC many )-ears previgus. That persistence is some measure of her determ$ation. On the question as to how the articles came to be in thi’house it may be useful to state here that, except for the fire estinguishers and the desk and chairs (which the griever denies bringing home from the ORC). the evidence of Cathy Brown is not inconsistent with that of the grievor. Her evidence wss~to the effect thal he brought these items home. The grievor does not detiy that. However. at no time did Cathy Brown ever say that the grievor stole the items or admitted stealing them. All of the-“Uncle Billy’ ” comments as well as the griever’s apparent lack of concern, both while he., a-as living~a-ith his wife and on Slay 12th when she threatened tu reporl him. are quite consistent with the view that, as far as the grievor was concerned, he had done nothing wrong, that the articles came into his possession innocently either as a result of his having obtained them from .some place other than the ORC or that he had permission to have them. Thus, it may be that the difference between the evidence of Cathy ,, Brown and the griever (save for the matter of the fire extinguishers and the desk and chairs] is largely a matter of how one characterizes the grlevor’s ‘, ’ . 17 conduct. She may have seen it as “theft”: he may have regarded his conduct as innocent and blameless. We are reluctant to take al face value all of the evidence of Cathy Brown cith respect to this matter. The charge against the grievof is a serious one and should ix supported by clear and’cngent e!?dence. The circumstances surrounding the report@ of the “thefts” raise doubts in our minds as to the reliabihty of that evidence. In this regard it is not out of place to note that Cathy b[oa-n apparently tolerated the “thefts” for a number of years without doing anything about it other than raise it on a feu’ occassions as a “family joke”. That is some indication that she did not regard his conduct as “theft” until the marriage broke up. In these circumstances it would. in our respectful opinion. be. una-ise to put tob much weight on the allegations which she made follow-ing the break-up of the marriage. Nor do we regard the evidence of Mr. and Mrs.-Wannop as curing any defects .that may exist in the evidence of Cathy Broan. First, for the reasons indicated above, their evidence is not ail that prejudicial to the grrevor if it simply reflects a different opiruon as to ho%’ to characterize the grievor’s conduct. Nothing in their evidence points to,any admission by the griever that he came into possession of the items improperly, It may be observed here that they gave no evidence on the matter of the fire estin-guishcrs and lhc desk and chairs. . Secondly, the evidence indicates that the members of Cathy :Brown’s . . . family disliked the griever to the pornt that some members were prepared to threaten violence to his person. ‘4s such the evidence of her sister and brother-in-law does not possess that degree of independence which would’ be necessary for it to be’corroborative of the evidence of Cathy Brown. . . *,. 18 These conclusions serve to dispose of all of those articles which have not been positively identified as coming from the ORC. In the absence of such identification and in the absence of any other credible testimony which R’ould establish ihat rhese.articlrs came from the ORC through the hand’of the grte\‘or. the cm:&)% FLU n!X ?i:chargcd the I)IIUS of proof which rects upon 0 in relation to these articles. It is therefore unnecessary for us to so1 out the evidence of the griei-or as to how he came into possession of those items. tie IS under no obligation 11) explain ho% they came into his possesslon. However, u’ith respect to the items which were identified as coming from the OK there is an onus ul explmation a.hich is not discharged simply by impugning the credibility~ of the evidence of Cathy Brown. Independent of her evidellce there is Q$ simple fact that goods which were the property of the ORCuere found in the premises of an employee of the ORC. The.. natural Inference to he drawn is that the yrievor brought them home and he must offer an~‘csplanation a$ 11) the circum&ces under which they came to be in his possession. As indicated above the grievor claimed that a number of the articles were either borrowed Wtaken from the garbage either with the express provision or tacit approval of’ his supervisors. The follo%‘ing items Fere taken from the garbage: the 8 cans of spr,ay paint. the screw boxesl which he claimed were empty when he took rhem for the purpose of storing his ou’n hardware!, the box containing the 4 used castors, the spool of leather chord !which the grievor wanted as a drive.belt for one-of his sewing machines). the 2 brass name plates, the electric clock !which the griever wanted for Parts to repair another clock that he ownedl. and the box containing the 3 light bulbs (which he claimed was empty when he tooi it f& storage I -~ 19 purpose and whose contents, i.e. the light bulbs, were purchased by him). For some d these items, eg. the chord and the clock, he asked for and obtained permission to take them. For others he did not. Other items which he either borrowed IX took with the permission’of a supervisor were: 1. the can of grey paint. This-was to be thrown out (as it had been frozen and was tco lumpy for use) The grievor wanted it to paint his. basement floor which had suffered some water damage and the paint foreman told him he could have it. 2. the broken handle. This was part d a rake which the grievor had borrowed with permission and which broke while he was using it. The person from whom he had permission (whose name the grievor refused to reveal) told him not to worry about it as it had’already been welded once. 3. the spade. This was borrowed by signing lout a sign out sheet in the trades building. It is not clear from the evidence when this was borrowed. In chief the griever stated ,that he borrowed .it on the week-end prior to the search of the premises at 250 Cartier where it was found. He wanted it to put in patio stones. In cross-examination he stated that he,borrowed it ia November prior to the separation for the purpose of chopping ice and that it : was left in the shed at 18 Front St. after the separation. In May he went back to get it in order to lay the patio stones and after he fiished, with it he never had a chance to return it as it was seized. This account is somewhat at odds with the sign out sheet which indicates that the spade was borrowed & December. However. the griever stated that the date appearing on the sign , out sheet is not conclusive of when the items appearing thereon are borrowed since items which appear on an earlier page and which are not returned are copied over to a new page. 4. the mop. The grievor stated that he borrowed it some IO years ago from House Keeping from a supervisor Whose name he could not recall. He wanted it to clean up the water in his basement. He stated that he also borrowed a vet and dry vacuum cleaner at the same time for rhe same purpose. He did not sign for the vacuum but “presumed” that the supervisor did. ?.ltho’ugh he returned the ;‘Xuum he did not return the mop as he UIS told by the supervisor who hod y!ven him permission to have I( that, since it was old and rusty. he did not have to return it. 5. can of plastic cement. The grievor stated that he was given permission by his foreman. Xlr. Wilder, to take this item in order to fix the flashing on his chimney and to return what he didn’t use. He never did return it as he was never sure that his roof was fixed. This evidence. II credible. would constitute a sufficient explanation for ~.each of the items in question. The griever cannot be disciplined for theft if he had permission to remove items from the ORC which he is alleged to have stolen. The real issue here, however, is whether or not he had permission, either tacit,or express. Theresolution of that question requires a consideration of the policies and practicies of the ORC with respect to taking defective items from the garbage or borrowing equipment and materials. Mr. Goodbun. Mr. Amlead. >!r. Gofton and ?A-. Downey a.11 testified as to the policies of the ORC w.ith respect to items that were either surplus or defective. That policy was essentially one wherein an)’ such items were. if possible, to be either returned for credit or tendered from scrap. It u-as contrary to policy that defective items be thrown-in the garbage and also contrary to policy that employees be permitted to take defective item3 from the garbage except for items which clearly would have no value such as empty screw boxes. Mr. Gofton admitted that frequently defective items .* .* I 21 were discarded and that a foreman may give permission to take an item home but this was against the policy of the ORC for foremen to give such permission. That evidence was also confirmed by Mr. Doaney. ’ There xx a!so evidence from ORC witnesses concerning the borioa’ing poliq. Ur. .insread stared that equtpment bur not supplies~!e.g. such as paint, plastic cement etc. I could be borrowed with the permission of a manager of a department and that such pe’rmission was only given for a specific purpose or dura$on. ~The type of occasion frequently referred to as an example of this potiL7 in operation was the borrowing of power saws following the tornado. Under cross-examination Messrs. Goodbun. Anstead. Gofton and Downey all admitted that, they were unfamiliar with the actual practice that obtained at the shop floor level. Thus the evidence which they gave was evidence as to the policy and did not address the question as to whether or not that policy’ may. as a matter of practice, be administered differently by different supervisors and foremen in the various departments. Evidence of the actual practice in the departments came from the .’ grievor and Us Colwell. The grievor stated that while employees were not alloned to remove new or serviceable items they were permitted by their foremen to take home defective items from the garbage. Nothing a-as e!~f said by his fOremen. Wilder or Wellard, when he took items from the garbage with their knowledge. As for borrowing items he statedthat the policy in the trades department was that if an employee wanted to borrow ,- something they simply signed a loanout sheet in the shop from which it was borrowed. 3.ich.a loan out ‘sheet existed in the carpenrry shop a~nd the griever believed that one also existed in the tool crib. He stated that no one .:’ .~ was in charge of the sheet and that no permission of a foreman was needed . . . :, . 22 if there were a large number of the borrowed items.avaifable. If. however, there was only one item it would be necessary to let someone know that it had been taken. Ms. Colwell also testified as to her knowledge of the policies in effect in the infirmary where she.worked as a Nurse 3 with certain supervisory responsibilities. She stated that she was aware of frequent instances in which members of the staff either asked her as Nurse 3 or the Nursing Supervisor for permission to borrow items such as forceps, scissors, ointments, resident’s clothing, hospital beds and wheelchairs. She also stated that it is common practice for staff to take items such as silverware, dishes, tea towels, cl&b& and first aid su&lies from the ORC. She admitted that removing articles without permission was contrary to the standards cf conduct but stated that, in view Oc the fact that staff were regularly taking items, of being given permission to do so by lower level supervision, it had come to be regarded as a “perk” ol the job. It is clear from a comparison of the evidence of ORC witnesses with. that of the grievor and Ms. Colwell that, there is a marked difference between the policies in place and the practices followed thereunder. None of the witnesses called on behalf al the employer could testify as to the actual practices in the departments. Thus the evidence of the griever and Ms. ~. Colwell as to what the practice was stands uncontradicted. Counsel for the ORC chose not to call any of the griever’s supervisors to testify as to the practice. -We were sur&sed at that~decision. While it may have been difficult to identify some of the supervisors who could give. evidence with respect to, for example, a mop borrowed some 10 years ago. at best some of the supervisors were easily identifiable. Indeed the griever himself identified some of the supervisors who had expressly given him permission. : . . 23 E+idence to the contrary would have seriously~ called into question the credibility of the grievot’s evidence. We were not told that they were not available or that there was any reason why they could not have bein called. Considering rhe.fact that :\ne ;sf !he main defences of the gievor was that Gf permisslm. the failure of the emoloyef to call direct evidence to contradict the evi,?encc of the griever ju&ies an inference that such evidence. if called. would not have been he!pt’ui to the employer. Thus, we conclude that. with respect to the items identified earlier 2s being either borrowed or taken from the garbage. the griever has discharged the onus of explanation placed upon him. There remains to he considered the griever’s explanation for some of the other items which were positively identified as coming from the OK. These are the box of axI1 plugs. the staples and stapler. and,t,he shovel. The wall plugs had been used by the grievor on a job and were left in his car. When he discovered them some time later he removed them to his..,. basement and forgot to return [hem. Following the separatick. they remained in the hasement at. 18 Front St. until they were seized. The shovel belonged to~Cathy Brown’s parents and was stored at. 15 Front St. \vhen her parents moved to an apartment. The stapler and staples ‘k’ere amcj& some ikms in a toolbox full of - assorted hardware which the grieryor purchased at an auction of the pers&I effects of a Dr. Webber who had at one time worked at the-ORC. It was part of the personal effects removed from 18 Front St. at the time of thk zeparation. / This concludes the evidence with respect to all but 4 of the items \vhich wero positively identified. The.grievor has provided an explanation for each of these, and it remains to consider the extenf to which that I ., . 24 evidence is credible. As indicated above we accept the evidence’of the griever with respect to those items which he said he had permission to remove, That explanation could have been easily contradicted and wasn’t. It 1s unlikely that the grlevor would risk prejudicing his credibility b) testdying falseI>- as to a matter on a-hich he COW be so casQ’ shoa-n t;j by .’ perjuring himself. \Xrith respect to some of !he items taken from the garbage we have the ., foilowing observations to plake. I number of the items were boxes of screws. The employer conceded that there could be no objection to the taking of empty screw bnses from the garbage. However, its posttion was that when taken the boxes were full or partly full. The grievor states that the boxes were empty when taken for the purpose of organizing his own hardware. One of the holes in evidence before us was empty and there is no evidence that it was anything other than that when taken. The other. boxes did contain stews which rnughly corre,sponded to the IabeIs on the~boxes. However, a number of:screws were loose in the bag in which the boxes were kept following their seizure and there was evidence that at the criminal trial a Court officer collected loose screws and put them in various boxes. In some casts the contents of the boxes did not completely-correspond to the labels and co-ntainedassorted materials. Thus the state of the exhibits is such that a-e cannot be satisfied that the boxes contained the same sontents as when rh~ey a-ere taken. Rather u-e accept the evidence of the gricT:or that.the)’ were empty xhen taken and ’ that he filled them %?th screws etc: which generally corresponded to the labels on the boxes. . 25 Similarly we are satisfied on the evidence that the box containing light bulbs was empty when taken. It was not a “light bulb” box and the tight bulbs were of a type rhich the grievOf could ha\.e purchased.’ 1s for the other Items taken from the garbage. i.e. the spray pgint. the chord, :he name plXes. !he 1oor knob Set and the cfock. questions may arise as to whether or not these ttcms really u’erc garbage. First. it may be noted that all of these items X’ere~ essentially “junk” and might normally be founds in garbage. Secondly. 1her.e IS evidence that, contrary to the. policies at the CRC. tradesman engaged in the practice of throwing dcfective,items into the garbage rather than setttng them aside to be sold for scrap. Thirdly, th.e habits of the griever are such that it is reasonable to believe that he would collect such “junk” for the sorts of purposes that he claimed he~took them for. He was by habit the kind of man who would find some use for an item which others might discard. We are. therefore, satisfied that these item were defective when they were taken from the~garbage and were not new and unused. We are unable. however. to accept the griever’s account of how he came to be in possession of the box containing the 4 used castors and the other 4 chair castors. The 4 chair castors which were removed from the swivel chairs by Constable Cooke were Killian castors. The griever claimed.~ -. that he bought the chairs at a used furniture store in London in 1975 or 1976. Yet the castors removed Jppeared to be relatively new. The box containing the 4 used castors was a Killian box although the castors themselves were of a different brand: The griever stated that he observed someone at the ORC remove old castors from a chair and replace them a-ith new castors from a Killian bOx and place the removed castors in the now ~, ~empty box and throw that bos in the garbage. The difficulty with this account is that the ORC customarily uses Killian castors on its chairs and therefore one would expect that the castors found in the box would be Killian castors. But they were not. In our opir!ori the~more likely scenario is that the grtevor improperly tool; a box of new Killian castors. instalied them on the sw%‘eI chair and put the old castors in the Killian box. In reaching this conclusion we are itiluenced by the fact that the condition of tht castors taken f’rom the chair is moire consistent with them having been recently installed than with them having been on the chair since at least 1035. It appears to us that the griever’s attempt at explaining how he happened to be-‘inipossession ot’ both a Killian castor box and “new” Killian castors on an old chair involves too much “coincidence” to be credible. This concludes our review of the evidence with respect ib those Items which were positively identified and for which the griever offered some explanation. We turn now to the 4 items which were positively identified and for which the giievor had no explanation. Two of these. the steel strapping and the can of contact cement, were seized from 250 Cartier Drive. The other ta’o. a platic funnel and a curtain rod in a box were taken from IS Front St. ~.4s to all of these Items the griever simply stares that he has no idea how they came to be found in the premises from which they were taken. He had never seen the steel strapping until it was seized and he said-the had IX; r.~ use for it. .4s for the contact cement he recalled a conversation he had with Barb Colwell some two u-eeks befoie‘the search when it was noticed on a shelf in the basement at 250 Cartter.kive. At that time she had no idei where it had come from. .As for the funnel the grievor stated that he never ,. saw it before these proceedings and that it was not at 18 Front Street at the _. : I . 27 time of the separation. Nor did the grievor believe that there was a box containing a curtain rod at 18 Front Street at the time of the separation although he did say that there a’ere shorter curtain rods in the basement al the lime that he and his u3fe purchased the house. Clearly thrs evicience does atit suffice as an esp:Jnl!ion J: lo ho\ these articles came to be in ihe houses which had been occupied by the griever and -&ye would be justtfying in drawing an inference that they w.erc brought there by the griever. Honever,.counsel for the griever advanced J number of arguments which; IP accepted. would permit us to refuse to draa the ordinary inference. First. it was argued th3t the circumstances are such that there a number of reasonable alternative explanations for the presence of the items in each of the 2 houses other than that they were brought there by the grtevor. I. :hal they were once sold as surplus or scrap, or tiere thrown out. or were stolen by someone else and came to be in the houses either as a result of having been purchased by the griever (which purchase. he has forgotten! or- a’s having been in the houses before they were purchased. 2. that the griever either borrowed them or had permlssion to have them and has forgotten the event. 3. that .they were planted there by Cathy Brown as a par: of her strategy to have her revenge against the grievor~ The difficulty which we have with these,allernativd’expIan~tions. ” apart from the third one cited, is that there is very little evidenliary basis updn Which we can speculate as to their reasonableness as explanations. Admittedly the griever does not have to prove that the goods came to be. in the houses by these means, Hnaever. it is not enough to suggest various . . ,, . . .’ . 28 mere possibilities without providing some support in the evidence that these possibilities have some probability. The evidence does establish that goods from the ORC can co’me inthj the h;ln:.; of r,thers thr!:ugh the tendering of scrap. through borroning or : :’ ‘h.3 .::;::J p:Lnis:it.jn. ,:!r through theft by others . ..C.i’.O f-fon’cver. Ibat is iack!ng is anything nhich can reasonably lead us to the conclusion that such arttcles might. then find there n-2)- into the 2 houses occupied by the griever K’r cannot credit the claim that the griever may have forgotten that he purchased or borrowed some of the items. His memory with respect to all (-4 the other items was such ;IS to persuade us that he had no difficulty in. recalling the details as to how he acquired the items in issue. Voreover. the condition of the articles was su~ch that it is not likely that it was tendered for scrap or fhrown in the garbage. Khat is left then is the hypothesis that the articles were stolen by persons unkown and somehow came to be in the 2 ..il houses. While that IS of course a posstble explanation it is one of such breadth that, if accepted. anyone ever accused of the theft of articles of this kind, could easily discharge the onus of explanation by offering such a hypothesis. The !:ne hypothesis which does find some e~7idrnriary support is tha1 which suggests that the items were planted by Cathy+ Broa-n. There clearly is evidence of ill wil~towards the grievor and some evidence of opportunuy. She had exclusive (apart from the real estate agent) access to 18’ Front Street ” ._ for a oeriod of 6 months prior to the search and seizure of the items. Hou7ever. it was not until May 10th.‘ fcJSS that she first threatened the grieWr and not until \l?y 12th that she resolwed to c;lrry her threat out. by then she had very little !ime to first acquire and then plant the goods in the house prior to the search by Cons!able Cooke She also had some brief access to 2SO Cartier Drive on May 12 when she went to get her husband. She was there waiting for him for about 2 hours and the grievor testified that when he returned he found thit the door to the house n’as open. .It ma]‘ he recalled also that the grievor testified as to ;1 con!‘ersat!on that he had -&lrh Barb Colwell to the ?ffect that about 2 weeks before the seizure on Ifly II. 1985 !that is. around the time of 5lay 12thl with respect.to the can of contacl cement that had not been there before. However. we Cind.n highly unlikely that Cathy Broun would have gone to Barb Colwell’s house. in possesion Of a can of contact cement and some steep strapping, not knowing then that the house would be UnlOCked or. that it would be unoccupied for a time, in the off chance that she might be able to plant some incriminating evidence in the house Conseq’uently. we are unable to conclude that any of the alternative explanations suggested by the griever’s counsel are reasonable. On the contrary %-t’ find it more likely that lhe articles came to be in IS Front Street .‘~. ‘, and 250,Cartier Drive as a result of the actions of the~grievor. First, there is the fact that they were there in the company of a number of other items aIs0 from the ORC,and which are admitted as having been brought there by the griever. The nItural inference is that these items too u’ere brought there b} the griever. Secondly, there is the fact that articles from the CRC were found in 2 separate houses each of which were occupied at different times by the .grievor who was an employee of the ORC. It is simply mulitplying coincidence to an unreasonable extent to believe that the various altlernative explanations. which are speculative’in themselves even’as applied to~one premise, could occur wtlh respect to the two houses nhich hzippen to have been occupied by the grirvdr -, II . 30 Thus, it is our conclusion that the grievor has not discharged his onus of explanation with respect to these 4 items. We turn finally to the submission of the grlevor that. ha.vingregard to the procedures fokaed by Constables Cooke and fkbbs prior tn the seizure of the items from 2jC I.kriier Pri::e. , the e;:iJencc w’it!: r?cpect til those j:?m.; !;lnd particularly with respect to the unesplained presence of .the contact cement and the steel strapping! should not be ;Idmitted or considered Rasically the argument was that when the grrevor was asked to accompany the police officers lo 250 Cattier Drive he was “detained” within the meaning of S. 10 of the Charter ((Rights and that the failure of Consl-kk Ceol;e to advise him of his right to retain and instruct counsel violated his S, 10 right. It was further submitted that the effect of this violation was such as to render the evidence obtained from the search inadmissible under s 24!2J of the Charter. We cannot-accept this argument. We accepl’thal the grievor may have been ‘detaIned’ within the meaning of R v Therem t 1985) 18 DLR (4th) 655 !TCCJ in the sense that he was under a :‘psychological compulsion” brought on by. the fact that he~.was confronted with the charge in the presence of his employer 2nd felt that he had little choice but to hccompan:; the police. It is ni.lt disputed by Constable Cooke that the griever was not informed of his right to retain and instruct counsel as required., There was. therefore. prima facie a violation of his Charter. right under section I U. However, we do not agree.that the evide.nce IS inadmissible ‘under s. 24!21 of the Charter. There are 2 requirements which must be met under Ihat section. The evidence must be “obtained in a manner that infringed or denied any rights or freedoms guaranteed under the Charter”. Secondly the evidence must be excluded If’ it is established that, “having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.” As for the first requirement Le Dain 1. in &The.rmr !ahosc . c~)mmrnt~ YCW ge!?erall;’ endorsed b)’ the leading jutlgmenl of Este;: .I ! held that there must be some connection or relattonship bet-Seen the infringement or denial of the right and the obtaining of the evidence whose exclusion is sought. Ho&-ever. that connection need not be a causal one in the sense that it is necessary t,o establish that evidence could not have been obtained but for the violation of the Charter. Rather’it is “sufficient if the infringement or denial of the right or freedom has preceded, or occurred In the~course of, the obtaining of the evidence.” !p. 6841. Thus, in the case before us it is not an answer to this argume~nt to claim that the evidence was obtained as a result of the search warrant which would have been executed anflay a-hether or not the griever assisted the police officers. The denial of the Charter right occurred at.the time of the seizure and we are satisfied that it meets.the test set out in Therens Hoael:er, we are not satisfied that the second requirement has been established. Therens indicates that one.of the considerations bearing on the question !Jf a-hether the admission of the e’videncc improperly obtained would bring the administration of justice rnto disrepute is a,hether or not the conduct of the police officers %as “flagrant”. (See Estey J. p 662). The evidence in connection with this issue, and which we accept, is that Constable Cooke requested the griever to accompany him-and that he told hi’m thatit u-as not necessary for him to do so. ‘Further, at no time did either Constable Cooke or Dobbs question the griever as to the matter in issue. They simply, transported him to the house u:hich we& to be searche,d for the purpose of 31 securing access to the house without damaging it. In these circumstances we find it difficult to characterize the conduct of the police officers as “flagrant”. To summarize our conclusions on Ihe evidence XY find: . 1. that the employer has not proven theft of the articles Vhich could not be posirn‘ely identified a‘; !)K!: propert) 2. that there ~‘a’: 2 prxIice at the dCpartmen[ai iel’el wherein defective items xere routinel)- taken I’rom the garbage a-itl~out~Ob;ec~ion from supervisors I 3. that there was a practice at the departmental level according to which non defective items. both equipment and supplies, could be borrowed with the permission of the supervisors. and 4. that the grxvor has failed to establish to our satisfaction any explanation for his being in possession of the folIowing items: the funnel the curtain rod th’ steel strapping the contact cement the castors. in assessing whether or not, having regard IO these findings. the griever should have been discharged it is important 10 examine in greater detail ihe reasons why he x-as fired and the consideratilxx whch &If. Goodbun took into accounl in making his decision. _ The letter of discharge claimed’that the griever had stolen property on a number of nccasions over a number of years. Mr. Goodhun testified as to what he took into account in reaching his decision. He was not a party to lhe initial investigation that was undertaken in May and June as he was on j_ .’ : . . a 33 vacation. When he returned he was briefed by Mr. hnstead and Mr. Cofton and conducted an interview with the grievor. At that time Mr. Goodbun had in his possession a report from Mr. Gofton outlining the investigation that had been conducted and a cop)’ of two lists of articles that !Jr. Cotton had prcplred fc:jr the XJP. I!ne 1‘~ a iM of articles positi.;eiy identified and the other a list Ol’ those a-hich could not be so identified. .41 his meeting with the grtevor he %ent over the allegattons and brough~t the findings as set’otit in these reports to the attenti@n of the grievor. However, the.grievor. a,ho had by this time been charged under the Criminal Code, did not. on the advice of counse,l. offer any explanation as to how the articles may have come into his possession. Consequently, hk. Goodbun based his decision to ,discharge on the reports he had before him. Mr. Goodbun was cross-examined~extensively on the extent of his knowledge as lo the nature of the items seized and the circumstances surrounding the investigation. He stated that he took into account the cost of the items as recorded on the list which WGofton had prepared for the OPP. However. those costs wgre all “neR’” costs and would not, as such. reflect the .~, actual I:alue of the items on exhibit before us. Apparently Mr. Goodbun assumed that !hc Gems i,vere new when they xere t&en. It may be noted here that there is nothing in the reports prepared b; ilr. C;ol’ton and on shich Mr. Goodbun relied which Xould indicate that many oC the items seized were “jUnk”. Mr. Goodbun ako assumed that the boxes of screws were ful! when taken and was not toId t-hat their cqntents did not exactly match the labels on rhe hoses. Nor n’as he‘told that the.spade had been’signed out on a sign out sheet. i 1 7. I ,. .r, . .,’ - ’ 34 lie admitted that if what was taken was an empty box or an item that was defective that would affect his conclusion as to whether or not the conduct disclosed dishonesty or a breach of trust. He \x‘as also asked whether or not he took into xcount the articles that had not been positiveI;- identLfied and said that he could not recall whethe! he had but that if he had it Touid have influenced his conclusion in lavour of discharge. As to.the circumstances surrounding the original complaint he was aware of the fact that the griever’s wife had made the complaint but was unaware of the incident that had provoked it or of the possibility that she might have had an ulterior motive in making it. He stated that in any event this would not have affected his decision since the grievor had ORC property in the house at 250 Cartier Drive as well. Some general propositlonsof law with respect to discharge for theft can be stated at the outset. The burden of proof on an employer who seeks to’discharge an employee for theft is higher than that of the balance of probabilities. It must he established by clear and cogent evidence. Secondly, it is normally the case that where theft has been proven it does not matter that the items stolen are of Jittle value. ‘The reason for that is that an act of’ theft discloses an attitude of untrustworthiness and impairs. any ongoing employment .relationship. On the facts as we have fo.und them the employer has succeeded in establishing theft of 5 of the~h7 items which were alle!3ed to have’becn .:, stolen. That finding alone would ndr‘mally support the decision to discharge. However. there are a number of special circumstances in this case which persuade us that discharge is an inappropriate penalty. . . %_ ‘a ’ 1. l . 35 Fist, there is the fact that the offence which the griever a$ually committed was far less serious in its.extent than was thought to be the case by Mr. Goodbun when he discharged the grievor. Mr. C&dbun was motivated to act b)’ l?ts belief that the griever had been accumulating 3 iargc number of items oT.-er a substantial period oI time. It was that chlch made his conduct so serious in the mind of .‘/If. tioodbun to justify discharge. On our findings his conduct, vhiie serious, Ws not of the order as perceived by Mr. Goadbun. To some extent the employer appears to have overreacted and treated the justifiabls suspicions that it had over the identified articles as ~., warranting a broad range of accusations against the griever. The best example of this is with respect to the fire extinguishers. A number of fire extinguishers had gone missing and. on the strength of the presence of one such fire extinguisher in the griever’s former home and the questionable evidence of his wile. it a-as decided to lump all of the missing fire extinguishers in the accusation. In this regards.it appears that the employer was far too eager to accept the statements of Cathy Brown for it is on the strength of her statements that virtually all of the unidentified ite,ms were included in the list. Those statements were accepted without any investigation into or knowledge of the matrimonial circumstances of Cathy Brown and the grievor. Had greater care been taken it may well have been the case that.the list would have been-shortened. But the fact of the matter is that the employer _ acted on the basis of those statements and its case for discharge re?ts ~--, largely. though not esclusivcly. on the credibility of her claims. Thus. in view of the fact thai Mr. Goodbun acted on the basis of mformation which in large measure turned out to be false. and in view of the ~, ~~.. . . , I.. . _ ‘. I 36 fact that his reason for selecting discharge as opposed to some other penalty related to his perception of the severity of the griever’s conduct as reflected in that false information. it is our conclusion that the penalty of discharge :s not n-arrant& Secondly, there :s the Imatter of the practices in place at the ORC. This relates directly to the question of the untrustworthiness of the griever which .IS a material issue in so far as discharge is concerned. As noted earlier, the griever’s conduct when hi4 wile first raised the matter of his bringing iLems home, when she threatened to expose him wd when he was finally confronted by’the OPP was. such~as to suggest that he did not really belleve that he had done anything w&-g. We do not regard that kind of conduct as evidencing the attitude of a hardened criminal. Rather it indicates that the believed that he was entitled to bring items home from the ORC and the reason why he felt that was that it was the common practice to do so. As lar as he was concerned it was not “theft” to take junk frog the garbage. This is not to say that the grievor’s conduct is entirely free from criticism. In various respects he demonstrated a rather cavalier attitude Lo -,.it;ms a-hich he had in his possession and which u’ere clearly not junk. He had the spade for some 6 months and didn’t return it. He kept the plastic cement because he wasn’t sure whether or not his roof was fixed. He discovered the wall plugs in his car but didn’t return them right away and ultimately “forgot” about them. He had a shovel which belonged.to his Wire’s parents and which he knew belonged to the ORC but kept it anway. All of this reflects a somewhat irresponsible view aboui the importance of . returning property that doesntbelong to him. Yet that attitude is perhaps. not suprising if it is the case that everyone else is either walking off with property or ‘borrowing” it for their own use and returning it as and when it suits them. Given the uncontradicted evidence of the existence of these practices the employer cannot, in our opinion, discharge the griever for theft. He had every reason to believe that what he was doing was acceptable and would not be visited by discipline. If there was a general problem with theft at the ORC the administration of the facility should have reacted by instructing its supervisors to enforce the policy. Having failed to do so it cannot, In our judgment, single out the grievoc for discharge. Having said all this the clear fact which remains is that, on the facts as we have found them, there are some items which the grievor cannot explain and which must therefore be found to have come into his possession improperly. That of itself is serious conduct warranting a substantial Pt?nalty. However; for. the reasons set out above, we believe that discharge is too harsh in the circumstances. It is our conclusion that the most appropriate disposition of this case is the reinstatement of the griever to his former position and classification without compensation. It is not entirely clear what his classification was at the time of his in&M suspension on May, 22. 1985. There was evidence to indicate that, as a result of his having successfully completed his apprenticeship as a carpenter on April 16. 1985. the griever was’recommended’to be reclassified as a I Maintenance Mechanic III effective May 19, 1985,Z days prior to his suspension. However. the evidence does not indicate whether of not that recommendation was. approved. hit is the intent of this award that he be reinstated into the classification which he held at the time of his suspension on May 22, 1985. 37 38 In view af the lack of clear evidence on the matter we are in no position to :: determine what that classification was. Accordingly the 2 grievkxes against the 20 day susOensions are dismissed and the grievance against the discharge is allowed. The Board remains seised of jurisdiction to resolve any other matters ‘:,. that may be in dispute between the parties concerning the implementation of this award. Dated at LONDON. Ontario this Aday of Aueust 1987. G. J. Brand& Vice Chair T. Tr&s Member F. Collict Member : 0764/85, 077wa5, omla5 Jo * _ _ ADDENDUM This Member is in agreement with the award in this case. The follow- ing are comments relative to matters and issues in the case which were significant but which did not cause this Member to reach a conclusion different from the final award. It-is agreed that the burden of proof on an employer who wishes to discharge an employee for theft is greater than that of the balance of probabilities alone.~ Nevertheless, the credibility of witnesses is crucial and, in this case, the evidence advanced by grievor R. Brown was at times, quite different from that of his wife, C. Brown. In the evaluation of evidence, the frequently cited judgment of O'Halloran, J. A., of the British Columbia'Court of Appeal, in Farvna v. Chorny, (1952) 2 D.L.R. 354, is useful and is set out as follows: "The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be guaged solely by the test of whether the personal demeanour of the particular witness carried conviction of, the truth. The test must reasonably subject his story to an examination of.,its con- sistency 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." This jurist, in R. v. Pressley, (19490 1 W.W.R. 692, more succinctly expressed the view that "The most satisfactory judicial test of truth lies in its harmony or lack of harmony with the preponderance of probabilities disclosed by the facts and circumstances in the conditions of the particular case." The Chairman has dealt with the conflicting evidence advanced by grievor Brown and his wife and &ncluded in the award.that it .~ would "....... be unwise to put too much weight on the allegations '- which she (Mrs. -Brown) made following the break-up of the marriage." (p. 17) 2. This Member concurs that the evidence advanced by Mrs. Brown was not sufficiently "clear and cogent" to be relied upon, given the severity of the issue in this case. However, and without detail- ing some of the matters already reviewed in the award (desk and chairs, the marital separation , etc.) a number of instances in the testimony of 'R. Brown were not at all in harmony with the preponderance of probabilities disclosed by the facts. Never- theless, the discordance in itself, although trqublesome, was insufficient to cause acceptance of the allegations made by C. Brown. Similarly, however, and there is no need to go into detail on all of the various items "borrowed" or taken from the,ORC garbage, the grievor's testimony was "very thin" iusupport of his actions ad, indeed, struck very discordant notes. For example, R. Brown stated that he had borrowed an impact drill on two occasions from the ORC for use at "Connor Ignition" where he worked for two to three hours on most Saturdays doing odd jobs (largely maintenance and construction). Re denied that he was paid for any work performed. However, he did concede that his motorcycle was "worked over" on two occasions at Connor Ignition and that his "sister-in-law took a car there to see if it was worth buying". He also took in a leaking gas tank. He stated that he was not charged for any of this work. He stated further that his Foreman~Mr. Wilder,/did not know why he had borrowed the impact drills that he had used at Connor Ignition, and that he (Brown) had not.offered to tell him., , In view of the large amount of outside work performed by R. Brown for friends, acquaintinces and others, is it reasonable to believe that he was not compensated for both his labour and the use of ‘: 3. ORC toOls and equipment which he borrowed to perform ~various jobs; and particularly at Connor Ignition where he worked for approxi- mately 2 to 3 hours on most Saturdays? Certainly he conceded ,that he received indirect payment for services rendered to him by Connor Ignition at which location he used the ORC impact drill on at least two occasions. In ‘addition, was it credible.for R. Brown to go to the trouble of. borrowing a spade from ORC (signing it out, etc.) in November of '84 for the purpose of merely chipping ice; and then to go to the shed at 15 Front St. in May of '85 to obtain it for the purpose of laying patio stones at 250 Cartier St.? :R.~ Brown knew that the spade- should have been returned to ORC. He knew that he had signed for it on the "borrow sheet" the prior November. And more realistically surely a neighbour..had'a spade that could have been borrowed for the purpose of (a) chipping the ice or (b) laying patio stones, thus eliminating the need to borrow a spade from the ORC. Was it realistic to believe that empty boxes would be. retrieved from "garbage" by R. Brown to "organize" the screws, etc. in his basement? Is it realistic to believe that he would await the retrieval of, say, an empty box for two inch wood screws for storage purpose when, in fact, he could at any time,_place the screws in a small jar or organize them in a standard "drawer-type" organizer available from Canadian Tire at a relatively low price? Was it believable that R. Brown would take an empty box from the garbage with an ORC inventory number (it had contained an electrical coupling) for the purpose of storing light bulbs? A mop was borrowed by R. Brown which was- an ORC mop marked "basement ward 3". He stated that he had-borrowed it in 1978 with permission, because he had water coming into his basement. He said that he did not return it, on the authority of a super- 4. visor of the household staff, because it was rusty. He did not recall who was the supervisor. Supervisor Downey testified--th~at the mop had not been used too long. He said its "...... maybe a month old. The ink has not been-worn off. It looks fairly good yet." In the view of this Member the mop appeared to be quite serviceable and there was not more than a small amount of rust one the metal. In addition, L. Ross testified that he had had conversation with R. Brown concerning the removal of materials from ORC, "lots of times II. He testified that "as far as I know" some materials came to his home from ORC. Very clearly Mr. Ross was apprehensive about giving evidence in this case which resulted in his claim for ~"~protection under the Charter of Rights and Freedoms (Section 13). ~. . . . . . However, he did confirm.that materials were removed from ORC by R. Brown which,were used in the construction of his house (nails, screws ); and that he had had discussion with R. Brown on the matter. Other illustrations from R. Brown's testimony could be given. The point is that his explanation for his actions and the posses.sion of various .ORC equipment and material were 'not harmonious ” . . . . . . with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions." ~~ (O'Halloren, J.A., Faryna v Chorny, (1953) 2 D.L.R. 354) As stated by J. A. O'Halloran in the above judgment, this is I the real test of the truth of the story of a witness......." . . . . . . /' Subsequent to a review of all of the facts it was the finding of this Member that R. Brown removed equipment and supplies from the, ORC over the years and that termination was warranted. In this respect, R. Brown made no admission of guilt. On the contrary, he . . endeavoured to account for every item removed from the homes at 15 Front St. and 250 Cartier St. in Woodstock, Ontario. He denied i any misappropriation or theft. Accordingly, this Member would have seen no reason to modify the penalty in any way and would have dis- .~~ missed the grievance. In particular, had substantive evidence been advanced by the employer to establish "practice" vs "policy", as very clearly has been set out in the award at pages 22 and 23, the evidence as such might have been'sufficiently clear andcogent of itself to have supported dis- missal of the grievance. In the absence of such testimony however, the issue of "practice" vs "policy", was not clear. Finally, the matter of general practices in operation at the ORC as set out on pages 36 and 37 of the award are greatly disconcert- ing. Specifically, the following statement from the award (p. 37) is paramount in this case:. "Given the uncontradicted evidence of the existence of these practices,the employer cannot, in our opinion, dis- charge the grievor for theft. He had every reason to believe that what he was doing was acceptable and would not be visited by discipline " . . . . , . . In fact, this Member personally asked C: Brown, the wife of the grievor, under oath at the Board hearing, what she thought would be the outcome of her reporting to the O.P.P. and the ORC the possession by her husband of ORC supplies and equipment. Her response was something to the effect that she thought he might be suspended but not terminated. (Note further that C..Brown also had worked at the ORC while married to R. Brown.) _ / It is the position of this Member that the actions of the griever and the evidence presented.in this case normally would warrant discharge. In view of the specific circumstances of this case however, this Member fully concurs with the award. 7 . ,