Canadian HR Reporter

CANADIAN HR REPORTER March 20, 2017 EMPLOYMENT LAW 5 RECRUITING FINANCIAL PROFESSIONALS? O er positions to over 200,000 Members Highly targeted advertising Immediate matching resume database access FOR MORE INFORMATION, cpacanada.ca/CPASource TELEPHONE•416 204 3284•EMAIL•TGardiner@cpacanada.ca 14-126a_EN_CPAsource_fullpagead_9.625x7.indd 1 1/5/2016 3:24:31 PM Alleged theft not provable in Manitoba Missing funds pinned on employee despite inconsistent school system: Arbitrator A Manitoba employer didn't have suffi- cient proof to justify firing an employee for theft of money that went missing un- der her care, an arbitrator has ruled. Christine Dwyer was head secre- tary at a small Winnipeg school under the administration of the Winnipeg School Division. She had some difficulties in her po- sition at first, but she kept me- ticulous notes and worked with her boss, the district business administrator, to improve. Dwyer received a positive performance assessment in March 2011. At the beginning of the school year, the school normally collected student fees for field trips and sup- plies. An educational assistant and a teacher collected the money and took it to the office, where the head secretary checked the names off of a list and counted the money. Dwyer was not supposed to collect money from parents, but rather direct them to the appro- priate teachers to make their pay- ments. Nor was she supposed to rewrite deposit amounts on the envelopes. Dwyer had no prior experience in handling money. The school had no safe, so Dwyer kept the envelopes with money in a locked drawer. On her lunch breaks, student helpers would stay at the office desk. In the fall of 2012, Dwyer asked the principal to lend her $400 to cover a daycare payment. The principal wrote her a cheque and Dwyer repaid her in cash the fol- lowing week. It was the only time Dwyer asked to borrow money. Missing money In September 2012, one of the teachers received a printout of her accounts and saw that her class was credited with $475 paid. She believed the amount should have been $586. e teacher reported the discrepancy to the principal. e district business admin- istrator 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 e-receipts. However, they couldn't deter- mine whether Dwyer had taken any money, since different teach- ers had initially collected it and gave their envelopes separately to her. e school division's HR offi- cer conducted a review and inter- viewed Dwyer. A total of $2,268 was unaccounted for, including $610 that Dwyer had handled and issued manual receipts for or wrote on deposit envelopes herself. Dwyer couldn't explain the discrepancy between monies recorded as received and the ac- tual 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 understand 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 be- lieved Dwyer stole all the money, but could only tie her directly to the $610 she handled and appar- ently didn't deposit. Some time passed and Dwyer was informed on Jan. 22, 2015, that she was being suspended without pay for six months. When she returned to work, she would be demoted to a lesser clerk po- sition where she wouldn't handle cash, and wouldn't be considered for a promotion for five years, and only after completion of a basic accounting course. The school division also re- quired Dwyer to pay back the missing $610 linked to her. Dwyer challenged the disci- pline, arguing there was no proof she was responsible for the mon- ey shortages and the system was flawed. Unreliable system The arbitrator found that the school division's case was based entirely on circumstantial evi- dence from school records, re- quiring a consistency between the circumstances and alleged misconduct to effectively rule out any other conclusion. The school division issued a six-month suspension rather than termination, despite the fact Dwyer denied stealing the money. is was somewhat odd since "a denial is usually taken as a strong indication of a lack of viability of a future ongoing employment rela- tionship," said the arbitrator. It also took nearly two years for the school division to investigate and determine the discipline, which also raised questions about the school division's certainty on Dwyer's culpability, said the arbitrator. Plus, the process for submitting money to Dwyer with deposit slips and envelopes was not always fol- lowed, and different people used different procedures. Dwyer was straightforward with her answers, and although she couldn't explain the discrepancies, she offered her best guess regard- ing inaccurate lists and receipts, said the arbitrator. In addition, she was overwhelmed with the finan- cial aspects of her position. "I agree with the union that the system was broken from the be- ginning and it is hard to draw con- clusions from evidence presented from this type of broken system," said the arbitrator. e fact that Dwyer borrowed money shortly before the missing money was discovered didn't mean much, as she paid it back the fol- lowing week, found the arbitrator. e Winnipeg School Division was ordered to rescind the sus- pension, remove it from Dwyer's employment record, and reim- burse her for loss of benefits and salary. For more information see: •Winnipeg School Division and WANTE (Dwyer), Re, 2016 Car- swellMan 539 (Man. Arb.). Jeffrey R. Smith is the editor of Ca- nadian Employment Law Today. For more information, visit www. employmentlawtoday.com. Jeffrey Smith Legal View

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