Canadian Employment Law Today

6 | March 1, 2017 Canadian HR Reporter, a Thomson Reuters business 2017 have paid. After the first day, teachers collect outstanding money, fill out deposit enve- lopes and return them to the head secretary, who double checks that the amount indicat- ed on the envelope matches the amount in it. She then creates e-receipts within an e-fund to deposit the money in the bank. Dwyer was not supposed to collect money from parents, but rather direct them to the appropriate teachers to make their pay- ments. Nor was she supposed to rewrite de- posit amounts on the envelopes — this had been made clear in her training. Dwyer had no prior experience in handling money. e school had no safe, so Dwyer kept the envelopes with money in a locked drawer, for which she kept a ring of keys to lock it when she left. On her lunch breaks, student help- ers would stay at the office desk. In fall 2012, Dwyer asked the principal to lend her $400 to cover a daycare payment. e principal wrote her a cheque and Dwyer repaid her in cash the following week. It was the only time Dwyer asked to borrow money. Missing money In September 2012, one of the teachers re- ceived a printout of her accounts and saw that her class was credited with $475 paid. is didn't seem right to her, so she went back and calculated what had actually been raised. She believed the amount should have been $586. e teacher reported the discrepancy to the principal and was told the school would cover any supplies she needed to buy. e missing money was never found. e district business administrator and an auditor were brought in to assess the situa- tion, and they found undated and unsigned deposit envelopes that had been filled out by Dwyer and didn't correspond to the e- receipts. However, they couldn't determine whether Dwyer had taken any money, since different teachers had initially collected it and gave their envelopes separately to her. e school division's HR officer conduct- ed a review and interviewed Dwyer. Class lists, e-receipts, and deposit slips were re- viewed and the HR officer found a total of $2,268 was unaccounted for, including $610 which Dwyer had handled and issued manu- al receipts for or wrote on deposit envelopes herself. Dwyer couldn't explain the discrep- ancy between monies recorded as received and the actual amounts deposited, but said she didn't know what she received and she "just wrote what she was told to write." Dwyer also said she didn't fully under- stand what she was doing and things were a mess, but didn't admit to taking the money. e school division didn't go to the police as it didn't think it could get the money back. It also believed Dwyer stole all the money, but could only tie her directly to the $610 she handled and apparently didn't deposit. Some time passed and Dwyer was in- formed on Jan. 22, 2015, that she was be- ing suspended without pay for six months. When she returned to work, she would be demoted to a lesser clerk position and placed at a location where she wouldn't handle cash, and she wouldn't be considered for a promo- tion for five years. In addition, she would have to complete a basic accounting course before being considered for a promotion. e school division also required Dwyer to pay back the missing $610 linked to her. Dwyer challenged the discipline issued to her, arguing there was no proof she was responsible for any of the money shortages and the system for keeping track of pay- ments was flawed. e arbitrator found that the school divi- sion's case against Dwyer was based entirely on circumstantial evidence from school re- cords, requiring a consistency between the circumstances and the alleged misconduct to effectively rule out any other conclusion. e arbitrator pointed out that the school division issued a six-month suspension rath- er than termination despite the fact Dwyer denied stealing the money from the begin- ning. is was somewhat odd, since "a de- nial is usually taken as a strong indication of a lack of viability of a future ongoing employ- ment relationship," the arbitrator said. In addition, the arbitrator called into ques- tion the strength of the school division's con- victions on the alleged misconduct since it only sought restitution of less than one-third of the money that it claimed Dwyer stole. e arbitrator also noted that it took near- ly two years for the school division to inves- tigate and determine the discipline, which also raised questions about the school divi- sion's certainty on Dwyer's culpability. Unreliable system e arbitrator found that the process for submitting money to Dwyer with deposit slips and envelopes was not always followed and different people used different pro- cedures. Given the number of incomplete deposit envelopes, multiple receipt books, and missing documents, it was difficult for the arbitrator to see how the school division arrived at the sum of $2,268 as the amount missing from the accounts, and also how it could be pegged on Dwyer. In fact, the school division really only pegged $610 of it on Dwyer, and that wasn't definite due to the same documentation issues. e arbitrator found Dwyer was straight- forward with her answers, and although she couldn't explain the discrepancies, she offered her best guess regarding inaccurate lists and receipts. In addition, she was over- whelmed with the financial aspects of her position, which could lead to mistakes. For example, she was given cheques covering students in multiple classes without instruc- tions on how to break them down for the class lists and envelopes. "I agree with the union that the system was broken from the beginning and it is hard to draw conclusions from evidence presented from this type of broken system," the arbitra- tor said. e fact Dwyer borrowed money shortly before the missing money was discovered didn't mean much, as she paid it back the fol- lowing week, the arbitrator found. e Winnipeg School Division was or- dered to rescind the suspension, remove it from Dwyer's employment record, and re- imburse her for loss of benefits and salary. For more information see: • Winnipeg School Division and WANTE (Dwyer), Re, 2016 CarswellMan 539 (Man. Arb.). WEBINARS Interested in learning about employment law issues directly from the experts? Check out the Carswell Professional Development Centre's live and on-demand webinars discussing topics such as Ontario's new sexual violence and harassment legislation, compliance with the Temporary Foreign Worker Program, managing hidden disabilities in the workplace, and workplace harassment. To view the webinar catalogue, visit cpdcentre.ca/hrreporter. « from EMPLOYEE on page 1 Money passed through many hands

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