Ontario Public Service Employees Union (Moore) v. The Crown in Right of Ontario (Liquor Control Board of Ontario), 2011 CanLII 60317

GSB#2009-2047

UNION#2009-0376-0018

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Moore)

Union

• and -

The Crown in Right of Ontario (Liquor Control Board of Ontario)

Employer

BEFORE

Randi H. Abramsky Vice-Chair

FOR THE UNION

Tim Hannigan Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Justin Diggle Liquor Control Board of Ontario Counsel

HEARING

November 16 & 17, December 16, 2010, January 12, 13 & 19, May 9 & 20, June 16 & 22, July 13, 2011.

Decision

1On August 27, 2009, the grievor, Ms. Lynda Moore, was discharged by the LCBO for intentionally allowing customers to leave the store with product that had not been paid for on four occasions. She timely grieved her dismissal and also alleged that she had been harassed and discriminated against in violation of the collective agreement and the Ontario Human Rights Code. Consequently, at issue is whether the grievor was discharged for just cause and whether she has been harassed and discriminated against in violation of the collective agreement and the Code.

Facts

2Ms. Moore was hired as a casual Customer Service Representative (CSR) in Barrie, Ontario on October 2002. She started at Store 59, worked at various other locations in Barrie, and returned to Store 59 on September 4, 2007. At the time she returned to Store 59, Ms. Annette Aloussis was the store manager.

A. The Alleged Harassment

3It should be noted that in the grievor’s particulars concerning alleged harassment and discrimination, she raised a number of matters that had been the subject of earlier grievances and which had been resolved by the parties – events allegedly occurring in 2006 and in December 2007 and January 2008. The Board, in a preliminary decision, determined that because those matters had previously been resolved they could not be relied on in this case.

4The issues Ms. Moore experienced in 2006 led her to transfer, voluntarily, to Store 59 in September 2007. Ms. Moore testified, however, that from the start she did not have a good relationship with Ms. Aloussis because she had a “do as I say” rather than a “team work” approach. She stated that they “got off on the wrong foot right off the bat.” A few days after she started, she testified that she was alone on the retail level of the store (another employee was in the basement handling licensee orders) when two “shifty” customers came in and she heard them saying “she’s all alone.” She then called the District Manager’s secretary, Ms. Lynn Crickard, because her manager was meeting with the District Manager. She stated that she explained what was happening and requested that Ms. Crickard stay on the line while she processed the customers. When the two suspicious customers left, she thanked her and ended the call. She testified that “ten minutes later”, Ms. Aloussis returned to the store and “tore a strip off me” for calling the District Manager’s office.

5Ms. Aloussis recalled the grievor telling her about the incident, but denied yelling at her about it. Ms. Dora Robbins, the Union Steward, recalled the grievor mentioning it “a long time ago.” But Ms. Crickard testified that she had no recollection of this happening and stated that it did not happen, since she was certain she would recall such an unusual call from a CSR. The District Manager, Loreen Corras, also testified that she was not aware that such a call had been made to her office.

6The grievor also alleged that Ms. Aloussis would constantly find fault with her and criticize her – her work as Acting Manager, her dress, her communication with customers and co-workers. She regularly felt chastised unfairly and that it was a “fight all the time” and that she constantly had to “stand up for myself.”

7The grievor’s allegations can be grouped into several categories:

Work as Acting Manager

8Ms. Moore testified that as the most senior casual who wanted to work extra hours she was often scheduled to work as Acting Manager on Friday nights and Sundays. She initially stated that “every Monday” there would be a “tear down” by Ms. Aloussis about it. On cross-examination, however, she acknowledged that it was not “every” Monday that she was criticized, but “frequently” and that there were times when Ms. Aloussis would not find anything wrong but “she looked”. Ms. Aloussis testified that she would routinely ask questions about the Sunday shift, as part of her job as manager. She raised concerns, from time to time, if matters were brought to her attention. She also made positive comments – that the store was in “good shape” or that sales were good. She did the same with anyone serving as Acting Manager.

9Significantly, there was no corroboration from other employees, or any Assistant Manager, concerning Ms. Aloussis singling out the grievor, or treating her differently than anyone else in this manner.

Harassment Regarding Dress

10The grievor testified that Ms. Aloussis found fault with her shoes – leather sketchers – saying that they were improper athletic shoes. She also found fault with her wearing a black leather vest. The grievor acknowledged that the LCBO has a dress code policy, but insisted that her clothes were within the policy. She stated that Ms. Aloussis told her she could not wear them until she could check it out. Ms. Aloussis testified that she did not “criticize” Ms. Moore’s shoes or vest, but they did have a “discussion” about whether they complied with the dress code. The sketchers, she thought, were an athletic “skater”shoe which is prohibited by the policy. She also thought the vest might not comply because it did not have an LCBO logo on it. She consequently checked these issues out with District Manager Corras and was advised they were okay, and that was the end of it. Ms. Moore acknowledged that she continued to wear the vest and shoes. On her October 2008-09 performance appraisal, the grievor is marked “acceptable” in terms of “appearance” – meaning that she fully met corporate attire and grooming standards, and always appeared neat, clean and presentable.

11The grievor also acknowledged that she was not the only employee questioned about attire by Ms. Aloussis – that other employees were questioned about their attire. Ms. Aloussis confirmed that she has spoken to other employees about wearing clogs, boots, dockers, and athletic shoes, as well as not wearing ties or not tucking in their shirt.

12In terms of jeans, Ms. Moore stated that she would wear jeans, especially on weekends and on Tuesdays and Thursday when deliveries were unloaded. She testified that Ms. Aloussis did not like employees wearing jeans, and that one time, she got upset with her about it, and told her that if the problem was a lack of money, she could use her credit card, go to Mark’s Work Warehouse and buy a pair of navy work pants. Ms. Moore stated that this was said in a sarcastic, degrading manner. Ms. Aloussis flatly denied making this statement. She testified that she told employees she preferred that they not wear jeans, but realized that they were allowed to do so under the policy. Ms. Moore, on occasion, wore jeans to work, as did other employees.

Scheduling Shifts

13Ms. Moore testified that Ms. Aloussis would continually schedule her improperly, resulting in her having to work, at times, seven days a week. It was the grievor’s understanding that scheduling for casuals was done by seniority, with the senior casual employee getting the longest shift each day. At times, this did not occur – a junior employee would get a longer shift, or the shifts would be split into two shifts instead of one longer one. The grievor testified that she complained about the scheduling to Ms. Aloussis, who first said she would inquire about it and fix it. At times, she did but at times it continued, and Ms. Aloussis told her “that’s the way it is.” They had a number of conversations, she stated, but it happened more frequently in July and August 2008. Ms. Moore also spoke to a union steward and a District Manager –though not Ms. Corras - but again it was not straightened out. Her concern was that she was losing money and shifts, and that she had to work seven days a week to get sufficient hours. She did not file a grievance on this issue. She “trusted” the employer to look into it. On cross-examination, the grievor acknowledged that she received the highest number of available casual hours per week.

14Ms. Aloussis testified that it had been her understanding that the most senior casual should get the bulk of the available hours, if available, up to 40 hours per week. If a shift was available, even though it meant no days off, the senior employee was to receive it, up to a maximum of 40. She testified that’s how she was scheduling Ms. Moore. At one point, however, she was advised by management that her scheduling practice was incorrect. She and Acting District Manager John Creighton reviewed her scheduling practice, and he coached her on how to do it – that there had to be a day off, and the most senior employee would get the longest shift per day, up to 40 hours. The day off would come on the shortest shift in the week. Her practice changed after that, although exactly when this changed occurred is not clear in the record. Ms. Aloussis also explained that she would schedule two casual employees, one for a shift from 10:00 a.m. to 2:00 p.m. and one for 1:00 p.m. to 6:00 p.m, rather than one employee from 10:00 a.m. to 6:00 p.m. in order to have a second person cover off for the full-time employees’ lunch breaks.

Performance Appraisals

15In November 2008, covering the period October 2007 to October 2008, the grievor was given a draft of a Performance Appraisal by Ms. Aloussis to which she strongly objected. Her overall rating was a “4” for “Improvement Required and/or Inconsistent Performance.” Although she agreed with all of the categories rated a “solid performance” (inventory management, merchandising, knowledge of operations and work area, retail point of sale systems and appearance), she disagreed with every rating marked “improvement needed” (customer service, social responsibility, communication/relationships, health and safety/security, cost efficiency/productivity). Ms. Moore testified that she had received seven prior Performance Appraisals, from four different managers, and all of them were “very, very good.” There had been “one negative comment in seven years.”

16Her 2006-2007 Performance Appraisal, by a different manager, however, also rated her at level “4”, “Improvement required and/or Inconsistent Performance.” It noted a number of concerns that parallel some of the issues raised in her 2008 appraisal. There is certainly more than one negative comment in it, although Ms. Moore was insistent, on cross-examination, that it was about “one problem” that was “straightened out” and that it was a “very good” appraisal.

17In response to the November 2008 appraisal, Ms. Moore made numerous telephone calls to Human Resources, asking about what is proper to include in a Performance Appraisal. One area of concern to her was a reference to a comment made in her 2007 appraisal – and whether it was proper to include what a former manager had said in an earlier performance appraisal. Ms. Moore was not clear about what other matters were inappropriately included, but stated that 85% of the appraisal “did not belong there.” She made a number of comments on the draft of the appraisal, some of which were considered by Ms. Aloussis.

18No formal grievance was filed (although Ms. Moore thought one had been filed), but there was a meeting concerning the appraisal with the grievor, Union Steward Dora Robbins, Ms. Aloussis and District Manager Corras in February 2009. It was the grievor’s understanding that Ms. Aloussis would rewrite the 2008 appraisal, which she did not do. It was Ms. Aloussis’ and Ms. Corras’ understanding that the grievor would be re-evaluated in six months, which is what occurred.

19Ms. Moore also testified that Ms. Aloussis was upset about having to rewrite the appraisal. She stated that she heard Ms. Aloussis complain about it to the Assistant Manager, Susan Bellstedt, that she would rewrite the appraisal “over my dead body.” Ms. Aloussis denied making this statement. Significantly, Ms. Bellstedt was not called to corroborate Ms. Moore’s testimony on this point.

20On May 4, 2009, a “Review of Previous PA” was done, for the period October 2008 to April 2009. In this appraisal, the grievor was rated “3” for “Solid Performance.” Significant improvement was noted in key areas. It was the grievor’s testimony that she evidently had “miraculously improved.” She also believed that she would now be evaluated every six months, instead of yearly. The Employer’s evidence was that she would be reviewed annually thereafter.

$15.00 Shortage

21The LCBO has elaborate procedures for ensuring the accuracy of its cash tills. At the start of a shift, the employee is assigned to a till and does a count, which is then verified, and it is that amount that is recorded for the till. At the end of the day, the till is again counted, and verified. What the till should contain, based on the sales for the day (in terms of cash, debit, credit, checks, etc.), is provided. If the till contains more money than the records show it should have, it is called an “overage”. If the amount is less, it is called a “shortage.” The Employer keeps daily records of all overages and shortages, which includes the till assigned to each employee. The Employer absorbs the first $5.00 of any shortage, and the remainder is split between the employee and the employer.

22Just before Canada Day 2009, the grievor’s till had a shortage of $15.00. Under the procedure outlined above, the Employer would absorb the first $5.00, and the remaining $10.00 would be split between the Employer and the grievor, with $5.00 to be deducted from her pay. A few days later, the grievor’s till had an overage of $14.35. The grievor, in her examination-in-chief, testified that it was the same till, and that the overage demonstrated that the shortage a few days before had been in error. She advised Ms. Aloussis of this and wanted it all to be corrected – the records of the shortage and the money owed. It was not corrected.

23The Employer’s documentary evidence, however, clearly shows that Ms. Moore did not have the same till on the two days in question. She used till 108 on June 29 and was short $15.00. She used tray 106 on June 30 and was short $11.94. Another employee used till 108 on June 30, and she was 1 cent over. The LCBO was closed on July 1 for Canada Day, and on July 2, the grievor used tray 105 and had an overage of $14.35. When asked on cross-examination if she might be “mistaken” that she used the same till on the two days, she responded “no.” She would not agree that it was not the same till until she reviewed her own notes. No such notes were ever produced.

Security Guards

24The LCBO contracts with a security firm to supply guards for security purposes and to minimize customer theft. Two guards work at Store 59, on a rotating basis, one in uniform and one in plain clothes. Their job is to monitor customers, not staff.

25The uniformed guard is stationed at the front of the store, near front windows, the cash registers and the manager’s office. The uniformed guard has a notebook, keeps notes and regularly checks the surveillance cameras and monitors in the manager’s office. According to Ms. Moore, at the end of June, early July 2009, it became “obvious” that one of the guards stood closer to her register whenever she was on cash. She was often assigned to Cash Register 1, which is the closest register to the manager’s office. She believed that the guard was monitoring her. She testified that the Assistant Manager, Susan Bellstedt, noted it, and they even did a test (switching who was on Cash 1) and that Ms. Bellstedt would speak to Ms. Aloussis about it. Three days later, she was called to Ms. Aloussis’ office and told that the issue with the security guard had been taken care of. Ms. Moore testified, however, that it continued but she did not complain again. She believed that the guard was annoyed with her because when a customer had asked him where the wine section was located, he directed him rather than refer the customer to a CSR. She told him that was not what he should be doing. She believed that he must have still been mad about it. Ms. Bellstedt was not called to testify to corroborate the grievor’s testimony.

26Ms. Aloussis testified that Ms. Bellstedt did come to her about the grievor’s concern that one of the guard’s was standing near and watching her and that she was uncomfortable about it. Ms. Aloussis said she would address it and she did. She spoke to the guard and raised Ms. Moore’s concern. He denied watching her, but she told him not to stand so close to Cash 1 since it made Ms. Moore feel uncomfortable. She then advised Ms. Moore that she had spoken with the guard and to let her know if she had any additional concerns. She testified that she never asked him to monitor Ms. Moore. There was no evidence that anyone in management asked one of the guards to monitor Ms. Moore.

June 1, 2009 Counselling Meeting

27On June 1, 2009, the grievor was called to meet with Ms. Aloussis and Ms. Corras about a complaint that had been received about the grievor from the Security guards. The meeting was held in the back corner area of the warehouse in the basement, where three chairs had been set up. Ms. Moore testified that that the letter of counsel was read to her. The letter refers to concerns raised by the security guards regarding interference with their work – by alerting potential shoplifters while under surveillance of cameras and security, by discussing arrests with customers, including the names of suspects and details of the arrest. The letter also explains the LCBO’s expectation that CSRs not interfere in any manner with security operations. Ms. Moore testified that she refused to sign the counselling letter because it was “untrue.” She stated that she had no chance to say what had occurred or to provide an explanation.

28Ms. Moore stated that she felt bad about the accusation that she was hindering security. She testified that “85% of catching thieves” at the store was because of her efforts, and that she had even been teased by Ihor Salij, the Manager of Resource Protection, that she had a “good eye” and “should be an investigator.” This was denied by Mr. Salij. He stated that before the investigation that led to the grievor’s discharge, he spoke to her one time about an alleged theft by a customer.

29Ms. Moore testified that she felt “railroaded” and “ambushed” by the meeting in the basement because she had not been given any warning about her actions, and because she believed the location was designed to intimidate her. In her view the counselling letter was discipline – and she felt it “wasn’t right” and felt “harassed” by the meeting –because that is “not how it’s done”. She stated that meeting in the basement was not a “normal meeting place.” On cross-examination, however, she acknowledged that “words were exchanged,” and that she decided to leave the meeting, refusing to sign the counselling letter. She did not recall what was said exactly, but in her view it was not “a conversation.”

30Ms. Aloussis testified that the warehouse area was used for meetings with employees because it was more private. The store manager’s office, in contrast, was a busy place with security guards and CSRs often coming in. She testified that she regularly met with employees there – for performance appraisals and other meetings because it was more private. No evidence was introduced to support Ms. Moore’s view to the contrary.

Modified Work Plans

31The grievor’s contention that she was discriminated against because of her age is based on her claim that Ms. Aloussis wanted to put her on a modified work plan, against her wishes and made “constant requests” for doctor’s forms to be completed. Her age, she believed, was the “only thing it could be.” She was about ten years older than any of the other employees, and she had discussed retiring and buying back pension credits with staff at the store as well as Ms. Aloussis. She provided no other examples of discrimination based on her age.

32On cross-examination, Ms. Moore testified that she had no need for modified duties for the last 2 ½ years of her employment – though perhaps earlier she did, in 2005-2006 because of arthritis in her hand. She did not recall ever having to be put on modified duties by her doctor while at store 59.

33The evidence shows that in late 2005 and early 2006, while she worked at another location, Ms. Moore presented health care provider reports regarding the need for temporary limitations, which resulted in a Temporary Modified Work Plan for one month, January 17, 2006 to February 17, 2006, with “no lifting or carrying over 10 lbs.” A March 2006 Health Care Provider’s Report stated that she had restrictions due to “arthritis in her hands.” A May 10, 2006 report set out a number of limitations and required “light duties only sitting ok.”

34The issue of the grievor’s arthritis appeared again in October 2008. On October 7, 2008, Ms. Aloussis sent an email to Human Resources requesting a non-occupational form for Ms. Moore to take to her doctor because she was “claiming it hurts to be on cash.” Ms. Moore testified that she never claimed it hurt to be on cash. She mentioned having arthritis and wearing a wrist band, but she never said she could not work. Ms. Aloussis agreed that Ms. Moore did not want to be on modified duties, but stated that the employer required medical documentation to ensure that her regular duties would not injure her. In her view, it was a health and safety issue. She also needed to know if the grievor needed limitations in terms of scheduling employees appropriately.

35On November 6, 2008, Ms. Moore’s doctor completed a Health Care Provider’s Report indicating “moderate to severe osteoarthritis both hands” and recommending “job rotation appropriate to inflamed hand.”

36Approximately a week later, on November 14, 2008, Ms. Moore reported a work-related injury to her hand as she was taking off a load in the warehouse. At first, on cross-examination, she did not recall this, but she did remember after being shown the accident report, and acknowledged that she did raise a concern about her hand. Her concern, she said, was more about unloading product rather than being on cash.

37On November 28, 2008, a Temporary Modified Work Plan was issued, with a review date of 3 months, for “frequent rotation of jobs.” It was signed by Ms. Moore and Ms. Aloussis on December 2, 2008.

38On March 5, 2009, Human Resources sent an email to Ms. Aloussis, inquiring whether Ms. Moore still needed modified work duties, and if so, to “please ask her to provide updated medical.” North Region Human Resources Manager Camille Clemons Pitcher testified that updated medicals are required by the LCBO to ensure that the modified duties reflect the employee’s current medical conditions, as things change both for the better and worse. She confirmed that the employer has an obligation to ensure the health and safety of its employees, and ensure that work does not aggravate the employee’s condition or injury. Restrictions are based on the medical information received and physician reports are required both to start and end a modified work plan. A three-month review was selected because a quarterly review was thought to be reasonable, and is a “common review date” at the LCBO.

39Ms. Moore, however, objected to the review period, and Ms. Clemons Pitcher agreed to extend it to a six-month review. The modified work plan from December 2, 2008 was consequently extended to June 28, 2009, and the date on the document was changed by Human Resources. No new signatures were obtained as there was an agreement with Ms. Moore to extend it to June 28, 2009. On cross-examination, Ms. Moore appeared quite angry that the document had been extended without a new signature from her, even though she acknowledged that she and Ms. Clemons Pitcher “had a discussion around then.”

40It was Ms. Moore’s evidence that the employer was asking for medical forms to be completed “two and three times per month” and that her doctor was “very annoyed.” She felt that the employer was making “constant requests” and putting a lot of pressure on her to obtain medical documentation. Aside from three medical provider forms for the period November 6, 2008 to July 15, 2009, there is no documentary evidence to support that assertion, nor was any evidence presented from the grievor’s doctor.

41On June 30, 2009, Human Resources sent an email to Ms. Aloussis asking whether she had received any medical update from Ms. Moore since her modified work plan had expired on June 28, 2009. Thereafter, on July 15, 2009, Ms. Moore’s doctor completed a Health Care Provider’s Report continuing her restriction to rotate her duties and added “left hand cash.” On July 21, 2009, a final Temporary Modified Work Plan was issued, with those restrictions and a review date of six months. This was signed by Ms. Moore.

42Ms. Moore, in her testimony, was adamant that she never wanted modified work duties. It was her view that this was forced upon her. She acknowledged, however, that her doctor placed restrictions on her work which resulted in modified work plans. Ms. Clemons Pitcher testified that Store Managers do not write modified work plans, although they have input. Modified Work Plans are strictly done by Human Resources.

Assignment to Cash Register 1

43Ms. Moore testified that she spent the majority of her work time on cash, and the majority of her time on cash assigned to cash register 1. That register was the closest one to the store manager’s office, which had a half glass window in it. It was her view that she was assigned to that cash register in order for Ms. Aloussis to monitor her. She stated that it “made it convenient for her to criticize me.” But other than that, it did not matter to her.

44Cash register 1 was also the only ergonomically designed cash register at the store and the only left-handed cash register. Ms. Aloussis testified that a number of employees, including the grievor, preferred it. Ms. Moore acknowledged on cross-examination that she “might have” requested cash register 1 at times because it was a left-handed cash and she had a sore hand.

45The evidence also showed that the glass window in the store manager was not made of clear glass and not easy to see out of. Ms. Aloussis testified that Ms. Moore was assigned to cash 1 because she preferred it and not to monitor her.

Value-Add Mask Incident

46The grievor alleges that in January 2009, when she was serving as acting manager, she had advised a co-worker, Linda Miller, who had wanted a mask that was part of a value-add promotion to purchase the item with the mask and then return the product, but keep the mask. She stated that when Ms. Aloussis learned of this she brought her into her office and said, “I got you. I finally got you.” She then asked her to explain what happened. She did and she stated that Ms. Aloussis told her that she was in “deep trouble”, and then made a number of phone calls. In the middle of the third call, she stated that Ms. Aloussis told her to go back to work and that she’d speak to her later, which she never did. She believes that Ms. Aloussis learned that what she did was okay.

47Ms. Aloussis testified that Ms. Miller came to her concerned if she had done the right thing. She stated that she then met with both Ms. Miller and Ms. Moore together to go over what had happened, and she explained that it was not the right thing to benefit from a store promotion in that manner. She denied that she said to Ms. Moore “I got you; I finally got you.” She did contact Ms. Corras who agreed that the perception of it was not appropriate.

United Way Prizes

48The grievor asserted that in April 2009 Ms. Aloussis gave out prizes for CSRs who encouraged donations to Unicef, and everyone was given a prize except for her – grocery coupons, gas coupons, bottles of wine, Tim Horton cards and so forth. Prizes, she said, were given to everyone in the backroom, except her, when Ms. Aloussis said, in front of the others, “sorry Lynda – haven’t gotten yours yet. You’ll get it in a few days.” She never did receive a prize and felt singled out by this action. It was her testimony that Ms. Aloussis was very involved in Unicef – she pushed the cashiers regarding donations, ran a contest among the cashiers and ran a banquet for Unicef.

49Ms. Aloussis testified that she has had no involvement with Unicef, but did support raising funds for United Way on behalf of the LCBO. For many years she has been the United Way Campaign Representative for the northern district. In October, the cashiers were asked to prompt customers if they wanted to make a donation to United Way, and she ran a contest to encourage this. She personally purchased prizes for the top three cashiers who generated the most donations. She stated that she never gave prizes to more than three employees – she could not afford to do that. She never gave prizes to everyone except Ms. Moore, nor did she state that she had not yet purchased a gift for her.

50On cross-examination, Ms. Moore acknowledged that she may have gotten mixed up between United Way and Unicef, but insisted that everyone received a prize from Ms. Aloussis, except her. There was no corroboration of this, however, from any other store employee.

Dealing with a Rude Customer

51Ms. Moore testified that in early 2009 a particular customer was often “rude and crude” to her and that she complained about it to Ms. Aloussis, and did not want to serve him. Ms. Aloussis, however, told her that she had to serve him anyway.

52Ms. Aloussis confirmed that Ms. Moore did complain about this customer and did not want to serve him, as did another employee, Tony Malone. She advised both of them, when they saw him, to close their cash and walk away and let her know so she could speak to him. She could not recall if she spoke to them individually or together, but recalled telling each of them that. She stated that she inquired of Customer Service if staff could refuse to serve a customer, and was told that as the LCBO was a government organization, it could not refuse to serve someone, but that cashiers do not have to put up with abuse. Ultimately, she talked to the customer and explained that he was speaking inappropriately to the two cashiers and to go to other cashiers when in the store.

Criticisms Regarding Voids/ Court Lady

53The grievor testified that in January and February 2008 she became “frustrated” because she was constantly being criticized about her mistakes. So she decided to write it all down – all of her voids – line voids (where a single item is voided) and purchase voids (where an entire transaction is voided), so that when her manager criticized her she would have a note about it to remind her what occurred. Purchase voids must be signed by the cashier and require a second signature from the manager or assistant manager as well as an explanation for the void. She wrote down these voids on any scrap of paper available. At one point, she stated, she had a “book full of them.” Most of them, however, she discarded as matters temporarily improved with Ms. Aloussis, but resumed when the criticisms reoccurred.

54One of the voids listed by the grievor was dated Feb. 12, 2008 and referred to a “court lady.” She stated that this involved a multiple scan – the customer purchased one bottle, but the scanner picked it up ten times because the scanner was “very sensitive.” She voided out the purchase, and it was signed by Ms. Aloussis.

55On cross-examination, the employer produced the purchase receipt from that date and the void of it. It shows no multiple scans, but a void because the customer had wanted cash back on the transaction. The grievor would not agree that this was the same transaction.

Marijuana Use

56In November 2007, the grievor asserts that Ms. Aloussis told her that someone had reported that the grievor smoked marijuana – that employees had smelled it, but she would not say who had reported it. Although the Union’s particulars state that Ms. Moore responded by saying that she did smoke marijuana in her life, but not at work, she denied that at the hearing.

Communication Criticisms

57The grievor alleged that Ms. Aloussis regularly criticized her about the way she spoke to customers and that she spent too much time talking and was too friendly. Ms. Aloussis testified that she did not “criticize” her but had coaching conversations with her when matters were brought to her attention – both in regard to customers and co-workers. She had similar conversations with other employees and about productivity due to too much “chit chat.” She testified that communication is a common issue since messages are not always heard the same way.

B. The Grievor’s Discharge

58The investigation that led to the grievor’s discharge began in June 2009, when the Assistant Manager reported that she had heard that Ms. Moore was “sweethearting” – not charging or undercharging products – for a customer she had hired to do some renovations on her home. Ms. Aloussis inquired who had made this assertion, but was not provided the name and did not press the matter further. Ms. Aloussis then noted some voids which she thought were usual. One, on June 17, 2009 involved the grievor’s claim that when she would press the register key for bypassing air miles, the cash register would open prematurely and require her to void the purchase. This led to a large number of voids, yet no other cashier was reporting a similar problem on that cash register or any other. The other, on June 5, 2009, involved a cash purchase of two products, another cash purchase of the same product, followed by a void of the second purchase. The void was signed only by Ms. Moore; there was no second signature and there was no explanation for the void. She found it to be “strange.”

59She passed on her concern to Ms. Corras who contacted Ihor Salij, Manager of the Resource Protection Unit of the LCBO, which investigates alleged criminal, fraudulent and conflict of interest matters. Mr. Salij then contacted Ms. Aloussis and she sent him the documents that had raised her concern. It turns out that one additional document that Ms. Aloussis apparently did not notice, or send on, was a subsequent debit transaction for the same product by the same customer.

60Ms. Aloussis also testified that a call was made to the Point of Sales help desk concerning the air miles issue, but since she went on vacation she was not aware of any follow-up. Based on my inquiry whether there were any records concerning this issue, the Employer checked with Senior Manager, Retail Point of Sales Systems, Rad Kuzeljevic, who had no documentation from that period. He also checked with their service provider, IBM, but their records did not go back that far. Mr. Kuzeljevic was not aware of any such complaints about bypassing air miles opening the register. He testified that the LCBO processes approximately 10 million transactions a week, from 2100 cash registers. He would expect that if this kind of problem existed, it would have occurred elsewhere and he would have heard about it.

61Based on the information provided to Mr. Salij, Resource Protection decided it warranted further investigation and decided to install covert video surveillance of the grievor’s cash register, which was installed late in the evening of June 18, 2009. Prior to this, however, Mr. Salij had asked Ms. Aloussis to review the store’s digital video recorder for the June 5 transaction. She did so and testified that she saw the customer purchase three products but leave the store with four. She was not asked, however, to record it. Mr. Salij personally reviewed the DVR for June 5 on the evening of June 18 and testified that he also saw four products leave the store while only three had been paid for. The next morning, he tried to have the June 5th DVR copied, but the system had already overridden it, which is does automatically every 14 days.

62The covert video surveillance lasted for three days. It is Resource Protection’s view that three day is a reasonable period to conduct such surveillance. The decision to have covert surveillance is made solely by Resource Protection. Neither the store manager nor the District Manager have input into that decision. During that three-day period, the Employer determined that two transactions were improper – one on June 20, 2009 where it is alleged that the customer presented the grievor with two six packs of beer, but she only rang in one six pack, allowing the customer to leave with two six packs; and one on June 21, 2009 where it is alleged that she gave a value-add product to a customer despite the fact that the customer had not purchased the promotion product required to receive the value-add product.

63In addition, two other incidents were relied upon by the Employer. One on June 26, 2009, when the customer presented four cans of beer and the grievor only charged for three cans; and a similar incident on July 17, 2009.

June 20, 2009

64Both the covert video surveillance and regular store video surveillance were presented at the hearing. The video evidence clearly demonstrates that two six packs of beer were placed by the customer on the check out line, but the grievor only charged the customer for one. She picked up the first six pack, scanned it, put it down, then picked up the second but did not scan it, and instead, placed them together. She had not put in a quantity before scanning the six pack, which is another way (other than individually scanning each item) to record multiple purchases of the same item. The value of each six pack was $8.95. The customer then paid the grievor, initially providing cash funds to pay for two six packs – including a ten dollar and five dollar bill. When the customer pointed out, however, that he was paying too much, she returned the ten dollar bill to him, keeping the $5.00 bill. He then added change to cover the balance due. He left with two six packs, but had only paid for one. The grievor tried to give him his change, but he declined it and she placed the change in the charity box.

65The grievor testified that she believes she “made a human error.” Her standard procedure is to lift the case and scan it twice. But it was only scanned once, and she did not catch it though she acknowledged that she “should have picked it up.” She believes she may have been distracted since there was so much going on. Nor did it “register” with her as to why the customer was giving her extra money. She stated that she did not know the individual, though he was a regular. She had no interactions with him outside of the store.

66The video reveals that the store was quite slow at the time of this transaction. There were no customers waiting in line, and no one at cash register 2.

June 21, 2009

67Sunday, June 21, 2009 was Father’s Day, and the grievor was acting manager of the store. The video shows a young man trying to select items for a period of time. He had two items in his hands as the grievor came to talk to him. After she left, he continues to search around then joins the line-up to pay at cash register 3. The grievor then is seen getting a mini-bottle, the value-add item, and signalling to the young man and his girlfriend to come with her on cash register 1. She signs on to the cash register and then processes his transactions and she includes the value-add mini bottle. It is undisputed that the customer did not purchase the product in the size that the value-add item was attached (a 750 ml bottle); he purchased a smaller size of it (200 ml.).

68The grievor stated that she “clearly remembered” this incident after she saw video of it. She stated that a young couple came in, trying to find some rum and tequila for the man’s father. He had wanted to purchase a higher grade rum but the store did not have it in a 200 ml size. She stated that he was ready to put it all back and leave when she went to the display to find him something else to purchase, but she could not find anything. So she asked him if he would buy the rum and tequila if she gave him a sample of the higher grade rum. He said yes, so she pulled the value-add item off the intended product, and processed the purchase. The approximate value of the mini-bottle is $2.95.

69The grievor testified that she believed that she had the authority to do this as the acting manager, and felt that she had been correct to offer this customer service. She knew that June 21 was the last day of the promotion; it was a few hours from closing and by closing, all of the add-ons had to be removed and would be returned to the representative. She also considered that all of the products purchased were from the same representative, and that the mini-bottle had a sticker on it “not for resale.” At the time, the store did not sell mini-bottles. She testified that she did not know the couple.

70Ms. Moore testified that, in the past, she had seen Ms. Aloussis offer barbecue sauce that was part of an add-on promotion to the staff as well as pens and chocolates –things a representative would leave for the manager to distribute. She also had seen her take a corkscrew, which was an add-on for wine, and give it to a couple when there were no corkscrews in stock for sale. In addition, there was a time that she saw Ms. Aloussis adjust the price of a bottle of rye without a label to assist a customer.

71Ms. Aloussis initially testified that she did not remember an incident with a value-add corkscrew, but later recalled that a customer had purchased the product with the value-add corkscrew during the promotion but at a time when the store had run out of them. He had a receipt to show that he had purchased the product and the promotion was still on, so she gave him a corkscrew. She testified that store managers, but not acting managers, have the authority to do a price adjustment if the label is poor or a product has been discontinued. She testified that neither store managers, nor acting managers, have discretion to give a customer a value-add product when the specific item it was designed to promote is not purchased –even to promote a sale. The manufacturer or supplier chooses the promotion – to encourage sales of a specific item. She stated that in regard to the barbecue sauce, that was the supplier’s decision that it could be distributed to staff – not hers.

72On June15, 2006, the grievor was given a counselling letter concerning value-add products and reviewed the Employer’s value-add policy. The policy, dated May 3, 2004 defines a “value-added product” as follows:

A value-added product is a liquor or non-liquor item that has been attached to a liquor product at the supplier’s expense as an inducement to customers to purchase that product. Taking or removing any value-added product is considered theft, [except for a value-added product attached to an item purchased by an employee] which is a contravention of LCBO policy and a criminal offence.

The policy states, in relevant part states: “Employees are prohibited from removing any value-added product for their personal use, except for a value-added product attached to an item that they have purchased. Employees who violate this policy may face disciplinary action, up to and including dismissal.”

73The counselling letter dealt with a number of issues, including the grievor’s belief that it was acceptable, at the request of a customer, to remove a value added product from the designated brand for that promotional period and to move it to another larger format of the same brand. The letter advised that her understanding was “incorrect on all counts.” It states, in relevant part: “[Employees] are not to allow customers to move the value added promotional item to the product of their choice even if it is the same brand but a different volume size.” The letter of counsel was signed by the grievor.

June 26, 2009

74The video shows that four cans of beer are presented by a female customer on the counter, but the electronic journal, which records every scanned item, shows that only three cans were scanned and paid for. The grievor appears to have placed four cans of beer in a bag, although due to a time delay in the video that is not 100% clear. The grievor suggested that she may have removed one of the cans from the counter, as she would normally do if the customer did not have enough money to pay for all of the items, but the video did not show that happened here. Consequently, I find it more likely than not that she placed four cans of beer in the bag. The value of the can of beer is $1.90.

75Ms. Moore testified that she was not disputing that “I possibly made a mistake.” She did not know the woman, or recall her as a customer.

July 17, 2009

76The video shows that four cans of beer were presented on the counter by the male customer. Initially, the beer was rung up as a six-pack though they were individual cans, so the grievor line voided that, and entered three cans of beer instead according to the electronic journal. The customer then placed the cans into a bag he carried and left the store.

77Ms. Moore testified that she did not know the customer personally, although he was a regular.

78The grievor testified emphatically that she did not “knowingly” “allow” these individuals (except in the case of the value-add one) to leave the store with products for which they had not paid. If she did, it was a mistake and was not deliberate.

79Mr. Salij testified that based on the information from the covert surveillance he determined that criminal activity – theft - had taken place. He decided that it was theft rather than poor cashiering based on the fact that there was more than one incident and the fact that Ms. Moore was an experienced cashier. In his opinion there were too many “mistakes” for it to be a “mistake.” Based on LCBO policy, he presented the information to the police. The policy states: “In every case in which there is sufficient evidence to prove a violation of the Criminal Code of Canada or a Provincial statute, the Resource Protection Department will notify the police so that criminal prosecution can proceed.” (emphasis in original). He did so on July 14, 2009, and advised District Manager Corras of that either the same day or the next.

80Mr. Salij testified that in the past the LCBO has also presented cases to the police where the retail value of the products involved was very small. He stated that it was not the amount that was important because the LCBO has a “zero tolerance” approach to theft. Theft, regardless of the amount, is a serious breach of trust.

81Mr. Salij further testified that Resource Protection does not interview an employee before turning the investigation over to the police in order not to compromise the police investigation. He stated that the practice is to go to the police first. Once they receive notice that the police investigation is complete, Resource Protection advises Human Resources and the retail group and a Notice of Intended Discipline (NOID) is issued. He stated that the Human Resources end is separate from the Resource Protection investigation end, which deals strictly with the criminal side.

82Mr. Salij testified that he was advised by the police that they would be laying criminal charges against the grievor on July 28, 2009. Ms. Moore testified that on that date, she was arrested. She had worked late the previous day and when she arrived home there was a phone message from a constable who asked her to come to the police station the following morning. She had “no idea” why he had asked her to attend, but thought it had to do with something involving a friend. She was “in shock” when he advised her that she was being arrested for three counts of theft under $5,000. She was finger printed and a mug shot was taken. As a condition of her release, she was told to have no contact with the LCBO – not attend its stores or contact employees in Barrie, plus she was not to travel. In hindsight, she suspected that she was asked to work late by Ms. Aloussis on July 27 so that she could be arrested at the store. There is no evidence, however, that Ms. Aloussis was aware at that time that criminal charges were going to be laid against Ms. Moore.

83The August 6, 2009 NOID, signed by District Manager Loreen Corras, sets out the four incidents of June 20, June 21, June 26 and July 17, 2009 which allegedly “resulted in the loss of product and/or funds to the LCBO.” It noted that it was the employer’s “understanding that you were criminally charged with theft under five thousand dollars ($5000.00) in relation to your conduct…” The NOID states that “I am currently reviewing/investigating this matter and will be making a determination as to whether disciplinary action will be taken against you as a result of the above” and asked Ms. Moore “to submit a written statement…explaining the matter mentioned above.” It further stated that if she chose not to respond as requested, “management may act on information that is available to it.”

84Ms. Moore chose not to respond, based on the advice of her legal counsel and the conditions set out for her release. Ms. Corras testified that she made the decision to terminate the grievor, in consultation with senior management, Human Resources and the legal department. Based on the video and documentary evidence and the information from Resource Protection she determined that the grievor had intentionally allowed product to leave the store without payment, and that she could no longer trust the grievor to protect the assets and property of the LCBO. The grievor, she stated, had been given a position of trust, especially when she served as acting manager. In her view, the grievor’s actions were intentional, as opposed to poor cashiering, because she was an experienced and knowledgeable cashier and it happened a number of times. She explained that if it had happened once, she would not have been terminated since “we all make mistakes,” but this was not one incident. She also considered that there had been no explanation and Ms. Moore had shown no remorse nor accepted responsibility for her conduct.

85On August 27, 2009, the grievor was terminated. The letter of termination states, in relevant part, as follows:

[W]e have based our decision in this matter on the information available to us and have concluded that you engaged in the conduct, as alleged.

In determining the appropriate disciplinary response, we note that you failed to ring in products presented to you by customers on multiple occasions, and you further gave a customer a value add product that the customer was not entitled to. All this conduct resulted in the loss of product and/or funds to the LCBO. We further note that you received a letter of counsel, dated June 15, 2006, with respect to the proper processing of value-add products and, as such, were well aware of the expectations of you in this regard. In the absence of an explanation for your conduct, and having regard to the repetitive nature of your conduct over a short period of time, we have no choice but to conclude that the conduct discussed above was intentional.

Your actions, as set out above, constitute a serious breach of the fundamental trust placed in you to the ongoing employment relationship in a retail setting. As such, your actions have irreparably damaged this employment relationship. Therefore, your employment is terminated effective immediately for just cause.

Reasons for Decision

86The Union asserts that the grievor’s discharge was without just cause. It contends that the grievor’s termination was the culminating result of her store manager’s harassment and discrimination. I will address the alleged discrimination and harassment first.

1. Alleged Age Discrimination

87The grievor’s claim that the Employer discriminated against her on the basis of her age in violation of the collective agreement and the Ontario Human Rights Code, centres on her assertion that the Employer required her, against her wishes, to submit medical reports and to go on modified duties. It is true that the Employer required her to submit medical reports from her doctor and when the medical reports set out physical limitations and restrictions, she was placed on modified duties – even though she did not want them. But there is no evidence to support the conclusion that the Employer did this because of her age.

88The Employer, under the collective agreement and provincial legislation, has a duty to ensure that it provides a healthy and safe work environment. Part of that obligation is to ensure that an employee can perform his or her required tasks without being injured, or without exacerbating an existing injury. When an employee complains of pain or has an injury (as occurred here), the employer has an obligation to determine if the employee has any physical restrictions in relation to performing her job. That is what occurred here. Even if the grievor did not complain about her arthritis in October, she had an injury while at work on November 14, 2008. The Employer, at that point if not earlier, had a clear right to require a medical report from the grievor’s doctor.

89The medical report supplied by the grievor’s doctor in November 2008 indicated “moderate to severe osteoarthritis both hands” and recommended “job rotation appropriate to inflamed hand.” This led to the November 28, 2008 Temporary Modified Work Plan, which required “frequent rotation of jobs.” It was signed by Ms. Moore on December 2, 2008, with a three-month review date. Having received the November 2008 physician’s report which recommended a “job rotation appropriate to an inflamed hand”, the Employer was required to make this accommodation. It is not a matter of choice – for either the grievor or the Employer, provided it may be done without “undue hardship.” It is a legal obligation. Clearly, the LCBO’s decision to place Ms. Moore on modified duties was the result of her physician’s report, and not her age.

90There is also no evidence that the Employer’s requests for medical information were excessive. The Employer’s initial decision to review the temporary modified work plan quarterly appears reasonable in all the circumstances, but significantly, when the grievor complained about it, the Employer agreed to change it to a six-month review. There is no evidence to support the grievor’s contention that the Employer was “constantly” making demands for medical information. Nor is there any corroborative evidence that the grievor’s doctor was “annoyed” by the number of requests.

91Consequently, the evidence does not establish that the Employer’s requests for medical information and placement of the grievor on modified duties had anything to do with her age. On the contrary, the Employer did what it was legally required to do.

2. Allegations of Harassment

92Having carefully reviewed the evidence presented, I cannot conclude that the grievor was harassed by her store manager, Ms. Annette Aloussis. To be sure, they did not see “eye to eye” on a variety of things and Ms. Aloussis may have been more critical of the grievor than her previous managers, but the evidence falls significantly short of establishing harassment.

93In Re OPSEU (Blanchette Grievance) and Ministry of Natural Resources, GSB No. 2005-0798 (Dissanayake), the Union had asserted that the grievor, a probationary employee, was terminated in bad faith. The Board found evidence that the grievor’s supervisor was critical of his job performance and attitude on several occasions and that the grievor did not in most cases agree with those criticisms. Nevertheless, the Board stated at par. 35 that it would “be an unreasonable leap to infer bad faith from such work-related disagreements … particularly in the absence of any other evidence of animosity or conflict.”

94In my view, that is the situation here – predominantly work-related disagreements and criticisms with which the grievor did not agree. Most of the grievor’s allegations fall into this category. For example, the grievor’s assertion that Ms. Aloussis was critical of her attire - specifically her sketchers and her vest. The evidence establishes that Ms. Aloussis questioned her shoes and the vest and asked her not to wear them while she checked out whether or not they complied with the LCBO’s dress code policy. She did so and learned that they were acceptable and that was the end of it. This occurred relatively soon after Ms. Moore returned to store 59. It did not continue after Ms. Aloussis had an opportunity to check the two items out. In my view, this was a work-related disagreement. It is not harassment.

95In terms of the grievor’s assertion that Ms. Aloussis sarcastically offered her use of her credit card if she could not afford to buy a pair of pants, I credit Ms. Aloussis’ denial over the grievor’s testimony that she said this. Although Ms. Aloussis did not like employees to wear jeans, jeans were permitted and regularly worn by employees, including the grievor. I find it unlikely, in those circumstances, that Ms. Aloussis became so frustrated about Ms. Moore’s wearing jeans that she would make such a comment. But even if she did say it, though it might be insensitive and inappropriate, it does not constitute harassment.

96In Re Toronto Transit Commission and Amalgamated Transit Union (Vito Stina) unreported decision of Owen Shime, Oct. 6, 2004), “harassment” was defined as follows:

Harassment includes words, gestures and actions which tend to annoy, harm, abuse, torment, pester, persecute, bother and embarrass another person, as well as subjecting someone to vexatious attacks, questions, demands or other unpleasantness. A single act, which has a harmful effect, may also constitute harassment.

In my view, the comment, assuming that it was said, does not constitute “harassment.”

97Nor do the shift schedules done by Ms. Aloussis constitute harassment. The evidence establishes that Ms. Aloussis made mistakes in regard to scheduling – not only in regard to the grievor but other employees as well, but they were made because she did not understand how to schedule correctly. The scheduling was not done to force the grievor to work seven days a week to receive her hours though sometimes that was the result. It was done that way because Ms. Aloussis was under a mistaken understanding in regard to scheduling. Once she was properly instructed, the scheduling practice changed. In addition, some of the scheduling to which Ms. Moore objected was properly within the rights of the Employer – for example, to have two employees work shifts instead of one employee having a long shift in order to cover off lunch time for the full-time employees.

98The November 2008 performance appraisal is also a work-related disagreement. In that appraisal, Ms. Aloussis is quite complementary of the grievor in some areas and dissatisfied with her performance in other areas. The grievor, as she wrote in the comments section of the appraisal, “fully disagrees with this PA.” She“disagreed with 90% of the statements & 100% how this PA was filled out.” Having reviewed the document in detail, however, I cannot concur with the grievor’s testimony that “85%” of the content is inappropriate to include in an appraisal. Even the one specific item she mentioned – a reference to her past appraisal – is appropriate given the manager’s view that the issue identified was continuing. Further, Ms. Aloussis listened to what the grievor had to say about the appraisal, both in written form and in the meeting with Union representation that followed, and made some changes as well as agreed to review the grievor again in six months.

99In that regard, I prefer the evidence of Ms. Aloussis and Ms. Corras that the agreement was to review the grievor’s performance in six months, not rewrite the November 2008 appraisal. I note that although Union Steward Dora Robbins, who attended that meeting, was called to testify in this hearing, she was not asked about the agreement reached at that meeting. Having attended the meeting, she was in a position to corroborate the grievor’s understanding. She did not. Further, the November 2008 appraisal was amended to state that her performance would be reviewed in six months, and the evidence shows that Ms. Aloussis prepared a new six-month evaluation, not a rewrite of the former one. Consequently, the actions undertaken by management were consistent with a six-month review, not a rewrite.

100I have little doubt that the November 2008 performance appraisal was more critical of the grievor’s performance than she expected or had experienced in the past. But contrary to her assertion that all of her prior appraisals were excellent, the one from 2006-2007, by another manager, also noted a number of areas in need of improvement, and rated her, overall, as a “4” as well. He noted that she had difficulty and conflict in her dealings with co-workers – as did Ms. Aloussis. He noted that at times she would “get off track” and that time management, setting priorities and productivity were areas of concern – as did Ms. Aloussis. He also had concerns about Ms. Moore being “overly protective of Company assets” in regard to shoplifters – a similar concern to one raised by Ms. Aloussis. Therefore, although the November 2008 appraisal may have been more critical of the grievor than others had been, it raised a number of issues that had been previously identified by management. Overall it was balanced, and it was not such a radical departure from her prior appraisal as to raise questions about Ms. Aloussis’ motives.

101In regard to Ms. Moore’s allegation that she heard Ms. Aloussis tell Assistant Manager Susan Bellstedt that she would rewrite Ms. Moore’s appraisal “over my dead body”, I find that I cannot credit that assertion. Ms. Bellstedt could have been called to testify about this. She was not called to testify and no explanation for the failure to call her was provided. In the absence of any corroboration, I find I cannot credit the grievor’s assertion.

102The grievor’s concerns about the security guards is also a work-related disagreement. There is no evidence that the guards, or any specific guard, were instructed by management to monitor the grievor. Their job is to monitor customers and ensure security generally, not monitor staff. Further, when the Assistant Manager raised Ms. Moore’s concern that one of the guards was standing close to cash register 1 and watching her and taking notes was brought to Ms. Aloussis attention, she spoke with the guard and instructed him to not stand so close to cash register 1 because it made the grievor feel uncomfortable. Thus, the evidence establishes that Ms. Aloussis sought to address the problem; there is no evidence that she caused the problem, assuming that it did, in fact, exist. In this regard, I note that the Assistant Manager who, according to the grievor, noticed the guard’s behaviour and even arranged a test to check it out, was not called to testify to corroborate Ms. Moore’s testimony. Finally, although Ms. Moore testified that the problem continued, she never raised it again because she thought the guard was simply mad at her because she had chastised him for directing a customer to the wine section rather than referring the customer to a CSR. Consequently, the grievor herself did not believe that the guard was monitoring her at Ms. Aloussis’ or management’s direction.

103The grievor’s claim that Ms. Aloussis did not properly correct the situation regarding the $15.00 shortage also falls under the category of a work-related dispute. Contrary to the grievor’s belief that she used the same till on the days that she was short $15.00 and over $14.35, the evidence presented at the hearing clearly establishes that she used different tills on the dates involved. The Employer’s records show that she did not use the same till on both days – plus another employee used the till she had used the day following the shortage. The Employer was therefore correct when it did not refund her the money deducted for the shortage; she was not entitled to a refund. The Employer did not improperly disregard her assertions – they simply were not correct.

104The June 1, 2009 counselling meeting in the back of the warehouse is also a work-related dispute, not harassment. The evidence of Ms. Aloussis and Ms. Corras was that meetings with employees took place there because it offered relative privacy – more so than the store manager’s office or the lunch room. Given that the work location is a retail store, areas offering some privacy are limited. There is no corroborative evidence that the meeting with Ms. Moore was the only meeting to be held there, or that it was held in that location to intimidate her.

105Ms. Moore clearly did not agree with the counselling letter given to her that day. She asserts that she was not given a chance to explain, but on cross-examination acknowledged that “words were exchanged.” Further, it was her decision to leave the meeting when she did. She left; the meeting was not ended by management.

106It is also clear from her testimony that she misunderstood the nature of the letter. It was a counselling letter, which is non-disciplinary. It sets out concerns and the employer’s expectations, but its purpose is to not to punish or correct. It is to put an employee on notice of the employer’s expectations for the future. In her view, it “wasn’t right” and she felt “ambushed” and “railroaded” because she had no prior warning that there were concerns about her conduct. The counselling letter and meeting, however, were how management decided to advise her of the employer’s concerns. Certainly, there were other ways the employer could have chosen to advise her – such as simply meeting with her to discuss these matters first – but that does not mean that the method it chose was harassment.

107One area that might constitute a form of harassment, if established, is the assertion that Ms. Aloussis awarded prizes to everyone but the grievor for encouraging customer donations. That kind of singling her out and, in effect, belittling her in front of her co-workers could be viewed as harassment. I conclude, however, that the evidence does not support a determination that this occurred. First, I find it implausible that Ms. Aloussis would, out of her own personal funds, provide a prize to every employee except the grievor. Second, the prizes were for a competition among the CSRs, and I find it much more reasonable that prizes would be awarded to the top one, two or three CSRs who encouraged the most donations – rather than everyone. Third, although this was supposedly done in front of other employees – no one was called to testify to corroborate the grievor’s recollection. It seems reasonable that if the grievor, alone, had not been given a prize that day it would have been noticed.

108Similarly, the grievor’s assertion that Ms. Aloussis told her “I got you; I finally got you” could be viewed as evidence that Ms. Aloussis had the goal of terminating the grievor’s employment. Once again, however, I conclude that the evidence falls short. In Ms. Moore’s testimony, she stated that Ms. Aloussis first made this statement and then asked her to explain what happened. Frankly, that makes little sense. If Ms. Aloussis already knew what had happened – sufficient to say “I got you” - why ask for her explanation. Then, according to the grievor, Ms. Aloussis started making phone calls and then sent her back to work. Again, if she knew she had “finally got[ten] her”, why would she need to check it out further. As stated in Faryna v. Chorney (1951), 1951 CanLII 252 (BC CA), 4 W.W.R. 171 at page 174:

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of a 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.

109Here, the grievor’s version of what occurred is not in harmony with the preponderance of the probabilities that would be reasonable in that place and in those conditions. It is significant that all that Ms. Moore did was give advice to another employee. Ms. Moore did not purchase the product with the value add mask, return the product and keep the mask. Another employee did that. So how this could lead to a “got you; I finally got you” comment is unclear. Giving questionable advice like this is not usually a dischargeable offense.

110The grievor’s other assertions of harassment - concerning Ms. Aloussis decision that she had to serve a rude customer, her criticizing her communications with co-workers, the marijuana comment, her criticisms of her voids and her questions about the store while she was acting manager – all fall under the category of work-related disagreements and are not harassment. As the store manager, Ms. Aloussis had a responsibility to check on operations while she was away. Asking questions and raising concerns about things that occurred is part of her job. So is ensuring proper communication between staff and ensuring proper procedures are followed. There is no evidence that Ms. Aloussis singled out the grievor in these areas in any way. In terms of having to serve a rude customer, the evidence shows that Ms. Moore was not the only employee that complained about this customer. Based on their complaints, Ms. Aloussis inquired whether CSRs had to serve such a customer to Customer Relations who advised her that the LCBO, as a government entity, had to serve all members of the public but that CSRs did not have to accept rude behaviour. Consequently, she advised both employees that they could close their cash and walk away and to let her know when the customer came into the store so she could talk to him, which she did.

111There is no question that Ms. Moore truly believes that Ms. Aloussis was harassing her and attempting to eventually get her fired, but the evidence, for the reasons expressed above, falls short of establishing that.

112I also cannot conclude that Ms. Aloussis’ decision to contact Ms. Corras about the incidents that led to the investigation reveals an improper motive. The evidence establishes that in early June 2009, the Assistant Manager reported to Ms. Aloussis that she had heard that Ms. Moore had hired a regular customer to do renovations on her home and she was “sweethearting” him with products from the LCBO. In light of that claim, when Ms. Aloussis was reviewing what she thought was an unusual transaction and saw a void that did not have a second signature or an explanation, she noted it. Shortly thereafter there were a large number of voids due to the grievor’s assertion that the register would prematurely open when she tried to bypass the airmiles prompt – something that had not happened with other cashiers. These led her to call District Manager Corras who, in turn, contacted Resource Protection. Significantly, it was Resource Protection that decided to investigate further – not Ms. Aloussis or the District Manager.

113For all of the reasons set forth above, I cannot conclude, on the balance of probabilities that the grievor was discriminated against by the Employer on the basis of age or that she was harassed by her store manager. The facts here contrast sharply from the situation found in Toronto Transit Commission and Amalgamated Transit Union (Vito Stina), supra, where the grievor’s evidence – which was fully corroborated by other witnesses – established a significant pattern of abuse by the grievor’s supervisor.

3. The Grievor’s Discharge

114Ms. Moore was terminated by the Employer for intentionally engaging in conduct which resulted in the loss of product and/or funds to the LCBO. Specifically, it is alleged that on three occasions between June 20 and July 17, 2009, she intentionally failed to charge customers for the full number of products presented, and on one occasion gave a customer a value add item to which he was not entitled. Based on the video and documentary evidence provided at the hearing, I conclude that Ms. Moore failed to scan a six-pack of beer on June 20, and failed to scan a can of beer on both June 26 and July 17, 2009. The real question is whether she did so intentionally, as alleged. In terms of the value add mini-bottle, the evidence establishes that she gave a customer a value add item on June 21 to which he was not entitled. For that incident, the real issue is whether or not she reasonably thought that she had the right to do so.

115The case law is clear that in cases of theft, the onus is on the employer to establish, on the balance of probabilities, that the grievor engaged in the misconduct alleged. Because the allegation in this case is theft – and the potential that such a finding has on the reputation of the grievor – a “higher quality of evidence is called for…” Re Great Atlantic & Pacific Co. of Canada and United Food & Commercial Workers International Union (Duhaime Grievance) [2001] O.L.A.A. No. 18 (Stephens). As set forth in Brown and Beatty, Canadian Labour Arbitration at 7:3310 Theft: “Unless the collective agreement provides otherwise, to justify disciplining an employee for theft an employer must prove, on clear, cogent and compelling evidence, both that the person misappropriated property or money that did not belong to her, and that she did so with the requisite intent.” To the same effect is Re Agora Food Merchants, Ontario Division and United Food & Commercial Workers International Union, Local 175 (Stephenson Grievance) [2002] O.L.A.A. No. 501 (Solomatenko), at par. 27. What this means, as a practical matter, is set out in Re Great Atlantic & Pacific Co. of Canada, supra at 47 citing George v. George and Logie 1950 CanLII 88 (ON CA), [1951] 1 D.L.R. 278 (Ont. C.A.):

The judicial mind must be “satisfied” that the alleged act…was in fact committed, but it need not be satisfied to the extent of moral certainty as in a criminal case. Evidence that creates only suspicion, surmise or conjecture is, of course, insufficient. It is necessary that the quality and quantity of evidence must be such as lead the tribunal … acting with care and caution, to the fair and reasonable conclusion that the act was committed.

The case law also establishes that there must be a “dishonest intention” to establish theft. As stated in Re Berto’s Restaurant and Hotel, Motel & Restaurant Employees Union, Local 442 (1989), 1989 CanLII 9303 (ON LA), 8 L.A.C. (4th) 87(Dissanayake), the arbitrator reviewed the meaning of “theft” and stated, at p. 94:

The best test is: What is understood to be “theft” in common usage? In my view, there can be no question that the dishonest intention or the intention to unlawfully benefit from another’s property, is the crux of the meaning attached to “theft”. Whichever way the term is defined, there simply cannot be a theft without a dishonest intention. When one talks of a “thief”, therefore, one must necessarily be talking of a dishonest person. Dishonesty is the sine qua non for the commission of a theft.

Similarly in Re Bombardier Aerospace and Canadian Auto Workers, Local 112 (2004), 2004 CanLII 94664 (ON LA), 130 L.A.C. (4th) 116 (H.D. Brown), the grievor who suffered from a disability which led to forgetfulness took food from the cafeteria on a number of occasions without paying for it and was discharged for theft. The arbitrator determined at p. 124 that there was “no substantive evidence on which to find that the Grievor had formed the intention at any time to deliberately take food from the cafeteria for his own use without payment.” Accord, Re Toronto Transit Commission and Amalgamated Transit Union, Local 113 (Olejko) (2010), 193 L.A.C. (4th) 272 (Harris), at pp. 292-293.

116It is significant, in my view, that there is no evidence that Ms. Moore knew the customers involved in these four transactions. This fact distinguishes a number of the “sweethearting” cases cited by the Employer. In Re Great Atlantic & Pacific Company of Canada, supra, the grievor arranged the sale of a roast to his wife below that offered to other customers. He was found to have mislabelled the price of the roast in order to gain for himself the advantage of a price not available to regular customers. In Re Agora Food Merchants, Ontario Division, supra, one cashier failed to charge products purchased by a co-worker. The same is true in Re Real Canadian Superstore and United Food & Commercial Workers, Local 401 (Lopez Grievance) [2003] A.G.A.A. No. 55 (Warren), at par. 142. There the arbitrator concluded that the grievor “intended to benefit [her co-worker] by failing to scan product as she moved it from the front belt to the back belt.” In Re United Food & Commercial Workers, Local 401 and Canada Safeway Ltd. (Ouellette Grievance) [2001] A.G.A.A. No. 14 (Hornung), the grievor was found to have repeatedly undercharged the owner of a coffee shop next door to the store. In contrast, here there was no evidence that the grievor knew any of the people involved in these transactions. Each of the transactions involved different people. None were identified as the contractor for the renovations of her house. Without some connection to the customers involved, there is no basis to conclude that she intentionally failed to scan products to benefit them.

117In Re Berto’s Restaurant and Hotel, Motel & Restaurant Employees Union, Local 442, supra, the grievor failed to charge a co-worker, who she “hardly knew” because they worked together for just one day, for two coffees and a glass of soda. The arbitrator determined that there was no “dishonest intention” by that action and stated that the Employer’s assertion that there was “is completely illogical in light of the fact that Ms. Hastings [the co-worker] was a stranger to the grievor and therefore she could not have any motive to do Ms. Hastings any favour.” (8 L.A.C. (4th) at pp. 95-96). The arbitrator recognized that “[i]f a server knowingly provides free meals of drinks to an acquaintance that may well be theft. It may be said that the server had a dishonest intention because he or she indirectly benefits by her conduct.” But that was not the case there.

118Nor was any motive for her to do so suggested by the Employer. At one point in her testimony, the grievor stated that she understood that the LCBO believed that she was “sweethearting” because she was mad at the Employer. That is plausible given her belief that she was being harassed by her manager, but this motive was never alleged or suggested by the LCBO.

119The Employer instead relied on the number of times this type of action occurred. It concluded that Ms. Moore’s actions were intentional based on the number of times she failed to scan an item and the fact that she was an experienced CSR – it occurred three times in approximately a one-month period. As Mr. Salij concluded – so many mistakes led the employer to conclude that it was not a “mistake.” That view has some resonance; it seems to be a reasonable conclusion. But what is not clear in the record is the basis of that conclusion. There was testimony from Ms. Aloussis that it was not “normal” for four cans to leave the store when only three were scanned. Well – what is normal for an experienced CSR? No scanning errors in a month? One such mistake? Two? There is nothing in the record which provides an answer to that fundamental issue.

120The record also reveals that overages and shortages are relatively common. Indeed, in her 2006-2007 appraisal, the grievor’s manager noted that “Lynda has had numerous cash shortages” and that it was “an area she needs to work at to correct.” All of this suggests that what occurred may have been careless cashiering rather than intentional sweethearting. All of the incidents involved multiple purchases of the same product, rather than different products – again suggesting possible error rather than intentional acts to deprive the LCBO of revenue.

121Consequently, I cannot conclude that the number of times this occurred, standing alone, leads to the conclusion that Ms. Moore intentionally failed to scan products. Further, in the absence of any connection between the grievor and the customers involved, and the absence of any motive for her to intentionally fail to scan products, I am compelled to conclude that the employer has not provided clear and cogent evidence that, on the balance of probabilities, the grievor had a dishonest intention when she failed to scan the items involved. The evidence creates suspicion. It does not establish the “fair and reasonable conclusion that the act was committed.”

122In terms of the value add item on July 21, 2009, the issue is whether or not she gave the customer the item under a “colour of right” to do so. In Re Toronto Transit Commission and Amalgamated Transit Union, Local 113 (Olejko), supra, the Union argued that because the grievor took tokens at the direction of his supervisor, he was acting under the “colour of right” and did not, therefore, have the requisite intent for theft. The arbitrator cited to Re Zehrs Markets and U.F.C.W. (C.B. Grievance) (2006), 85 C.L.A.S. 56 (Haefling) and Re Canadian Niagara Hotels and U.N.I.T.E. H.E.R.E. (Spasic)(2008), 93 C.L.A.S. 46 (Herman), and stated at pp. 294-295:

What may be gleaned from the case law… is that an honestly held, subjective belief that the owner would allow a person to take something, if correct, relieves one from criminal liability for taking it, even though it was taken without the owner’s permission.

He also determined that “[e]ven if mistaken, such an honestly held, reasonable belief” gives the employee a “colour of right to take the product and negated any inference that there was an intention to commit the theft.”

123In this case, the grievor believed that, as acting manager, she had the right to give the value add mini-bottle to the customer for customer service reasons. The question is whether that belief was honestly held and reasonable. She had this right, she believed, because it was within the last hours of the promotion and the customer was purchasing items from the same manufacturer. She testified that the customer was going to leave without purchasing any products when she offered him the mini-bottle of the product he wanted. She had seen Ms. Aloussis give a value add corkscrew to a customer who had not purchased the required product for the value add item. She also saw Ms. Aloussis distribute to staff value-add barbecue sauce and other items. She had also seen Ms. Aloussis adjust the price of a bottle of rye that had no label.

124The value add policy of the Employer was known to the grievor. It states: “Employees are prohibited from removing any value-added product for their personal use, except for a value-added product attached to an item that they have purchased. Employees who violate this policy may face disciplinary action, up to and including dismissal.” The grievor had reviewed this policy in June 2006 when she received a counselling letter about value-add items. In that letter, she was specifically advised that employees are not to allow customers to move the value added promotional item to the product of their choice even if it is the same brand but a different volume size.” The grievor, however, did not believe that this applied to acting managers. She thought she had some discretion as acting manager.

125Ms. Aloussis, in her testimony, was familiar with the incidents cited by the grievor, but explained that they were not as the grievor believed. For example, the customer had a receipt for purchasing the product connected with the corkscrew value add when the store had run out of them, and it was for that reason that she gave him the corkscrew. In terms of the barbecue sauce, the manager had received the representative’s permission to offer it to staff.

126In my view, Ms. Moore was mistaken in her belief concerning the authority she had as acting manager. Although the LCBO’s policy – and counselling letter – use the term “employees”, the same restrictions apply to managers and acting managers (who are employees). But the evidence establishes that the grievor honestly believed, mistakenly, that she had the authority as acting manager to give the customer the value add product under the specific facts that arose that day. This is evident from her cross-examination when she stated that she took the customers off the line they were in to go to cash register 1 with her, because a CSR could not process the value add, but she could as acting manager. As acting manager, she was responsible. In my view, this testimony does not establish that she knew what she was doing was prohibited. On the contrary, it establishes that she, mistakenly, believed that she had the authority to do so as acting manager.

127I conclude that, as she understood things, her belief was not unreasonable. Her misunderstanding of the time Ms. Aloussis gave out the corkscrew and barbecue sauce led her to believe that she had the authority, as acting manager, to give the customer the mini-bottle. Consequently, I conclude that she acted under a mistaken “colour of right” in so doing.

128The situation here is far different than in Toronto Transit Commission and A.T.U. (Olejko), supra at pp. 295-96, where the arbitrator determined that it was “completely unorthodox for the grievor and [his supervisor] to handle the tokens as they did” and “completely unorthodox and unreasonable for the grievor to have spent the work time he did without documenting it as he was required to do.” He determined that the grievor should “have known how irregular all of these activities were” and it was “unreasonable to have accepted these orders as legitimate.” He determined at p. 296 that “[t]he taking of the tokens was, in context, so far outside accepted practice that any honestly held, mistaken belief was unreasonable. He took the tokens without colour of right.”

129Under the facts here, and in light of the wording of the policy and her misunderstanding about what Ms. Aloussis had, on occasion done, I cannot conclude that she “should have known” that she did not have this authority. Although I do not credit all of her testimony about what occurred - specifically, the evidence does not support the grievor’s assertion that the customer would have left the store unless she offered him the value add item - I do credit her testimony that she thought she had the right, as acting manager, to give him the value add mini-bottle for customer service reasons.

130Consequently, I conclude that as the grievor was under the mistaken, but honestly held belief, that she had the authority to give the customer the value add item, it was not “theft”, and does not justify her termination of employment.

131In reaching my conclusions, I find that the LCBO had no obligation to interview Ms. Moore before it acted. There is no such requirement in the collective agreement. In Re Winpak Ltd. and Communications, Energy and Paperworkers Union of Canada, Local 840 (Cook Grievance) (2010), 194 L.A.C.(4th) 154 (Robinson), citing a number of earlier cases, concluded that there is no general requirement in discipline cases for an employee to be interviewed prior to the imposition of discipline.

132In this case, the Employer issued the NOID after the grievor had been criminally charged, and as a consequence, Ms. Moore chose not to respond to the allegations either in writing or at a meeting. That was her choice, and the Employer was still free to act on the information it possessed.

133What I do find somewhat troubling, however, is that the LCBO relied on the fact that Ms. Moore provided no explanation, demonstrated no remorse and failed to accept responsibility for her actions in making the decision to discharge her. This strikes me as somewhat unfair given that a condition of her release from custody was that she was to have no contact with the LCBO, nor attend any of its facilities. There is case law that an employee has no “right to remain silent” and being criminally charged does not relieve an employee who is charged with a serious employment offence from providing an adequate explanation for his actions, even when advised not to by counsel. Re Toronto Transit Commission and Amalgamated Transit Union, supra at p. 299 and cases cited therein. But to me it seems unfair to use her silence against her in this manner where a condition of her release from jail was to have no contact with the LCBO.

134The parties, at the outset of closing arguments, agreed to limit this decision to the merits, leaving the parties to address remedy, if required. Accordingly, I will leave the question of remedy to the parties and remain seized.

Conclusion

For all of the reasons set forth above, I conclude as follows:

1. The Union failed to establish that the grievor was discriminated against on the basis of her age in violation of the collective agreement or the Ontario Human Rights Code.

2. The Union has failed to establish that the grievor was harassed by her manager or the Employer.

3. The Employer failed to establish, on the balance of probabilities, on the basis of clear and cogent evidence that the grievor intentionally failed to scan products which resulted in the loss of product and/or funds to the LCBO.

4. I also conclude that the grievor acted under a mistaken, but reasonably held honest belief that she had the “colour of right” to give the customer a value-add item on July 21, 2009.

5. Accordingly, the Employer did not sustain its onus of establishing just cause for the termination of Ms. Moore.

6. I leave the issue of remedy to the parties, and I will remain seized.