The LAC decision was correct to overturn the arbitrator’s ruling.
The common cause facts in the case were that Mothlang –
• Obtained the employees’ passwords – not just once, but repeatedly each time they changed them monthly over a two-year period .
• Used the updated passwords to log in to the employer’s payroll and human resources system.
• Used the access to the system to appoint ghost employees on the system.
• Processed a signed form appointing a ghost employee which he got from one of the employees.
• Fraudulently paid the ghost employees on the employer’s system.
With all these facts stacked up against them…the two employees could not explain how Mothlang obtained their passwords. The facts overwhelmingly point to their complicity in Mothlang’s fraudulent scheme. The collective weight of the facts (all undisputed) shifted the evidentiary burden onto the employees to prove it was improbable that they had shared their passwords with Mothlang. A task too far…!!
The LAC criticised the arbitrator for taking an over technical approach by dealing with the hearing as if it were a criminal trial. He ignored the compelling conclusion of guilt on the probabilities…the test for guilt in an employment setting. He instead found the employees not guilty because the employer “…were never charged in relation to the condition of their [passwords] but were charged for actual theft” but had charged them with “actual theft”.
