Terminated for his alleged role in the theft of some 3,000 pallets from a food distribution terminal, a warehouse worker grieved his firing.
In view of the fact that the Crown withdrew criminal charges against the worker because there was little prospect of a conviction, the union argued that he should be reinstated. The evidence was circumstantial and there were a number of alternate and equally plausible scenarios to explain the theft, according to the union.
A general warehouseman with 25 years’ seniority, G.B. worked at a large food terminal/warehouse where he used battery-powered pallet jacks to unload trucks and transfer produce to the appropriate staging areas.
The terminal housed 60 shipping/receiving bays on three docks. With the knowledge of the workers, the terminal was under surveillance by 56 remote security cameras.
Anonymous tip
On April 30, 2007 the warehouse director received an anonymous telephone tip that a number of empty pallets had been improperly taken from the terminal and loaded onto a truck belonging to one of the company’s suppliers.
The pallets in question — worth about $20 a piece and managed by a co-operative — are usually exchanged between co-op members on a one-for-one basis. The numbers of pallets coming and going are logged on sheets by the warehousemen who then give the tallies to the shipper/receivers.
Following an investigation, which included a review of the security camera tapes, it was discovered that over the course of 15 deliveries, seven terminal employees — including G.B. — had loaded some 2,980 pallets onto the truck of one particular driver. The paperwork, however, showed that only 331 pallets had gone out.
Following an investigation, the truck driver was fired. So too were the seven warehouse workers.
That the pallets were stolen was not in doubt. The key question, the Arbitrator said, was whether or not G.B. was a willing participant in the theft or a dupe or merely negligent with respect to following proper procedures.
The Arbitrator dismissed the grievance, ruling it more likely than not that G.B. was a participant in the theft.
Too many anomalies
Testimony and the video evidence simply revealed too many anomalies and deviations from normal warehouse practice for G.B. to be able to credibly maintain that nothing was unusual.
The Arbitrator was troubled by G.B.’s inability to remember any of the events in question when he was interviewed only one month after the incidents. While the video evidence revealed that three, four and even five workers at one time — including G.B. — were involved in loading the one particular truck with pallets, G.B. maintained that he had no memory of such a rare event. Rare, the Arbitrator said, because testimony and the preponderance of the video evidence established that warehouse workers generally work by themselves and only occasionally with the assistance of one other worker. For three, four or five workers to work in concert on one truck was nearly unheard of. Consequently, for G.B. to maintain he had no memory of such an incident strained credulity, the Arbitrator said.
The Arbitrator also discounted G.B.’s assertion that it was the truck driver’s popularity that accounted for the haste and concerted effort organized to load his truck with pallets as recorded by the surveillance camera. “[I]t is very telling that in the video that I viewed, no one seems to be keeping track of how many pallets are being loaded … Whether it was a warehouseman or the driver, someone was supposed to report to the receiver how many pallets are being taken. The fact that no one seemed to care about counting the pallets indicates, in my view, that the object of the exercise [was] to get as many pallets onto the trailer as quickly as possible without bothering to count.”
It was very unlikely, the Arbitrator said, in rejecting the notion, that G.B. had been caught up in a conspiracy of which he was unaware.
“There is no evidence that [G.B.] derived any particular benefit, or any benefit at all, from the unauthorized removal of the pallets. However, it is not necessary for me to find that he received any cash or gifts or anything else … [I]t is only necessary to find it more likely than not, on clear and convincing evidence, that [G.B.] participated in the deliberate stealing of empty pallets that he knew belonged to his employer. [I] find, on the balance of probabilities, that [G.B.] was an active and knowing participant in the removal of the pallets.”
