Terminated following a finding by the employer that she had funneled stolen funds into her personal bank account, a social services worker grieved her termination. The union said the worker was unjustly terminated and sought her reinstatement.
Employed by a municipal corporation, L.L. was a social services caseworker. On April 4, 2005, L.L. was issued an Employee Infraction Form informing her that she was being terminated for breach of trust and for stealing from the Corporation.
Criminal charges were laid and a trial returned a verdict of not guilty in 2008.
Nevertheless, the employer maintained that L.L. had created and used a fictitious client account to direct payments into her own bank account.
Evidence established that four electronic deposits in the amounts of $487.80, $1,500.00, $957.00 and $987.00 from the city’s consolidated municipal services account had been made in the name of Johnsonville into L.L.’s bank account. The payments were listed as “sole support” payments for social assistance.
Circumstantial evidence
The employer’s case — based on circumstantial evidence — alleged that L.L. had the motive, the means and the opportunity to direct the funds into her own account.
When computer generated letters to the fictional client Robin Johnsonville were returned to the social services office on March 17, 2005, the supervisor turned the matter over to L.L. to investigate. While she could produce no paper file, computer records uncovered a skeleton Johnsonville file that referenced her bank account number. L.L. reported that fact to her supervisor.
At the time the first payment was made in November 2003, it was before Christmas and L.L.’s account was approaching the maximum overdraft, the employer observed. The next two deposits followed within 10 days. In the employer’s view, L.L. had the know-how and the necessary passwords to create the fake “Johnsonville” account through which the funds were funneled into her own bank account.
Framed
L.L. had been framed, the union maintained. Obviously L.L. had access to her caseworker number and city passwords, but so would someone who sneaked into her workstation while she was out.
In a practice not sanctioned by the employer, L.L kept her current passwords on sticky notes in her office and in her daytimer. She also stored her personal effects, including banking information, in an unlocked cubby in her workstation.
While access to the computer network was set to “time out” after 20 minutes, the records showed that the Johnsonville file was created in 12 minutes on November 19, 2003. It was theoretically possible to create such a file at L.L.'s workplace, but generally it took 30 minutes to one hour to set up such a file and normally they were created in another location via a direct telephone hook-up.
Elements of the fraud that pointed to premeditation and a degree of sophistication with respect to the network software made L.L. an unlikely culprit, the Arbitrator said. Subtle manipulations of the file to suppress notifications and keep it underground were beyond L.L., the Arbitrator said.
“I have ultimately, considerable difficulty in finding that [L.L.], as revealed to me by her testimony and her actions in working for the Employer, is capable of operating the computer system with such sophistication or even possessed such knowledge.”
Meanwhile, there were opportunities for someone else to gain access to L.L.’s passwords and create such a file, either at her work site or remotely, the Arbitrator said. There was also evidence of post-incident, non-specific threats directed at L.L. — in one case a stenciled note (“UR GON NOW THE OTHERS”) was left at her residence.
Earnest and believable
The Arbitrator accepted L.L.’s denials that she was not the author of the notes. She was credible, the Arbitrator said and her testimony did not reveal any glaring inconsistencies. She gave her testimony in an earnest and believable way.
Against the Arbitrator’s estimation of L.L.’s credibility, the employer sought to make a case on the balance of probabilities based on circumstantial evidence. However, network security was not infallible. “I also cannot rule out, to a satisfactory degree, the proposition that someone did operate the system either within [L.L.’s worksite] or from [somewhere] outside that facility.”
“For all of the foregoing reasons, I do not find that on the balance of probabilities and particularly given the gravity of the allegations here, the Employer has established there was just cause for discharge in that the Grievor stole funds from the corporation.”
The grievance upheld and L.L. was ordered reinstated without loss of pay, seniority or benefits.
