HomeMy WebLinkAbout1992-1429.Linton.95-06-29ONTARIO
CROWN EMPLOYEES
GRIEVANCE
SETTLEMENT
BOAR0
EMPLOY& DE LA COIJRONNE
DE L ‘ON TAR10
CQMlViISSION DE
REGLEMENT
DESGRIEFS’ _
180 OUNOAS STREET WEST, SUITE 2100, TOiON;TO, \ONTARfO. MSG 128 TELEPkfONEITcLePHONE: (4 16) 326- 1388
180, Rtii DUNCJAS OUESTe BUREAU 2100, TORONTO (ONTARIO). A450 128 FACSIMILE/T~L~COP/E : (4 16) 326- 1396 ,
GSB # 1429/92
OLBEU # OLBli5/92
IN. THE'MATTER.0.F AN ARBITRATION
Befofe
THE GRIEVANCE SETTLEMENT BOARD ;
BETNEEN
FOR THE EMPLOYER
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HEARING
OLBEU (Linton) _ I
- and -.
Grievor.
'The Crown in Right of Ontario .(Liguor Contirol Board.of Ontario) : 1
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Employer ., I
0.. Gray T. Browes-Bugden .M. O'Toole t
/ * Vice-Chairperson ;, Me.mDer' Member
E'. Mitchell Counsel' Koskie & ,Minsky .Barristers t Solicitors
M. Hines Counsel Hicks, Morley, Hamilton, Stewart, Storie Barristers & Solicitors
May. 12,,1993 .
June 30, 1993 September 1, 2, 28, 1993 .
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Gin July ‘16, 1992. the Liquor ‘Control Board’ of Ontario ‘(“LCBO”) termi- .
r&ted, James Linton’s em&@nent’ as a permanent patitime liquor store clerk
-’ because. in June, .it alleged;:he-hadcommitted a series- of ihefts from. the LCBO _’ _. r.:
store at which he’ had been working.’ He denied that] ‘and promfitly filed a griev- ‘I.‘. ante claiming reinstatement with full’compensation.’ In October 1992, however, I
he pleaded guilty. in criminal court ,to’theft from,the employer. In late November .I he was -sentenced-to, sixty.days in jail .and two years! probation with conditions.
He was also required t&pay $iOOO.OO in restitution’to the emoloyer by January ,., i
2$,,.1993. .He’ was .in j&l from November 2’5‘.to December 24, i992. On February
,l9, 1993 he made restitution out of the Unemployment Insurance benefits he 1 had.j~t tiien begs re:dei~ng. ‘. :. ::.’ ’ ^ : : _ r ,’ _ : _
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The employ&‘s decision to terminate the grievor’s employment (and, pre- I’ 4 ..“.. _ -. ’ &.&ably; -the decision of the palice to prosecute him) was made ‘on the basis. of a , ,. . ..: video tape which showed’-the grievor engaging’in the irregular cashiering trans- ’ ; . . . : 7 . actions by means ,of’which he’ had stolen money from the ‘employ& h earlier , s - i f scheduled hearing of this~&evance was adjourned because (among’ other rea- ’ L ._
;:‘sons) the grievor wished% sek’that tape; He’saw it in mid-March 1993. Thereaf- . :.., ,_ , .-. . 1 ; ter, he’. and the union agreed-with the employer on’ the, following *statement of L f,chs: ~ ,*.,’ _‘, T’,, : ” : : ; . . . . . :: ‘.. _,__ ; ,- I -’ .i _ . - 11.. ., . . .
.::. 1. The grievor’s date of birth is’oecember 1, .1966: He’ was hi&as a casual ’
clerk in-September,. 1986 and.subsequently as: a permanent :part-time. clerk.by
/. :. the LCBO effective ‘September 19, 1988. At, that, time he received a. letter
co&.rming.his employment. In June’, 1992 he was working in&ore #242 located
at Brimley Road and Eglinton Avenue in Scarborough, Ontario.
2. Videotape surveillance was conducted pith respect to the grievor’s cashiering
. : I;. functions during the period .;Tune 10 through 36, ‘1992. ‘&is.‘surveilIance
, disclosed that on four different sbifts he performed forty (40) fopen drawer’!
L transactions as weIl as’ four (4)‘other’irregular transactions. An “open ‘drawer”
,,z. ’ transaction is one in which the cashier does not quite close his till. .from the
previous customer. This allows him to accept’ cash .from the next customer -and i ” 2 make change without having to “ring in” the transaction.on the “display” portion
: ,. of the register or having the sale recorded on the “detail, tap.e” (the paper roll .., .: ;
which records all transactions). The grievor, through these irregul’ar procedures, ’ I. .I. stole approximately $1,092.75; This was achievedin such a way.as to ensure, that -
his cash balanced at the end of his shift. But for the video surveillance, these
.’ actions would have gone ‘undetected.
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3. The foregoing was brought to the attention of the Metropolitan Toronto Police
Force. The grievor was’arrested by officers of that Force on July 3, 1992 and
charged with theft under $l,OOO.OO;
4. Shortly after ,tis arrest, the grievor received a letter from the LCBO dated
July 3, 1992. He replied by letter dated July 6, 1992. His employment was then
termi?@ed-by letter dated July 16, 1,?92.,* : :. , -’ :, :
. .5. The,griovor’s. charge we? heqd.on Octqber 14, 1992.. we vie&r pled guilty
to ,theft‘ under ‘$i;qOO.OO. He wiis .sent&ckd t6 &&y ‘days in j&l; two $ars ./ ‘. probatiori, and was ordered, to, make restitution to the L,$?BQ in. .&he. amount of
$l,OOO.?O on or befor?Ja?uary 25, 1993. He ,w!s also ordered ; ,( l’.-,.
F . $ to abstain from-the purch?se, p&session-or consumption of‘nbn-medically ’ .I. br&cribed&ugs; ..-,’ .: 1. ~ .‘.-I ._ i- .“?’ ‘; . t ‘.
b) to abstain ab‘soltitely from‘ tlk u&,tif alcoholid beverages, add : .: : , :.
. . . . c), to’ garticipate in or be amenable to the ixnditidns of a -medical or so&al
therapy.progr?y, under the supervision Of the probation officer. , ., .: - 3
6. The &kor paid $l,OOO.OO restitutio? to th&.LCB& on Febr.uary +?!, 1993.’
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The employer’s case in chief consisted if t$e agreed stati&ent of facts and I, _. 1 , a shbwing of a portion of the video tape. . _‘.. ,... . . . f ,..’
- , . ‘.: ._ The c&se for the grievor, ,as described in’ &on ‘counsei’~ op+ng,‘,is that
I- .. .- ., the,..grievor,, a iood .kmployee for 7, years,+ be&xxpF. a coc+e &eT : as: v result‘ of
” tr?tia .Eused.by the death of his grqdeother in.Fe+uary 1993. Immediately _’ . .
upon b&g.arrested in early &ly;‘he re&ed he htld i’drug pool&& that had to 1
: be dealt with. H$ promptly contactfd’the enipliyqr’s Employee ‘Ilssistance Plan , ‘_ Ii .. .(“EAP”) representative. &a result of that contact, h?‘sought the-assistance of an ; .; _\_..
age&y called Just For Today. With its h&lp and the he$ of others, she’said, the
grievor had been rehabilitated. In her opening, co&e1 for the u&on said that .;:. . , the grievor was .not seeking cbmp&satign for ‘the:.p&iod ,before the first. dtiy of
‘hearing, at which’ the’ employer:would first hear thti”&id&ce of the grievor’s re- ..’ : _ _ .-:‘. _ .+
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5 Y When he testified, Mr; Linton was 26 years old., He is a grade 12 graduate
’ whb -4orked ai a. variety of jog? b&f@b&oming .em$oye& by’ the LCBO in Sep-
‘I,.: tember 198.6; fir+,eq.a casual. part-tiine,basi+ and then, starting some time in
1988, as a Permanent Part Time employee. For r&t ‘of ihat time he worked, at
t,& store at wN@ he ultimately committed tee thefts. He, was informally disci-
plined in -1991 for smoking’ q cigarette in the uiorkplace. He had no .other disci-
pline in the l&t three year period’ for which,the colrective agreement permits the
employer to retain disciplinary records. His performance appraisals between
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1988. and J991 were all .&sitive. They described t,he grievor as a good employee t ‘.
_’ who+required minimal supervision and always met. and. freqSuently:exceeded job
. - -requirements. : : : :,,r : ,: . ,?. _.
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Mr. Linton’.lived’ v@th his parents before and .during the period in ques- . ,./ . . y c ;
ti~~.,‘Althougli.s~e’was’li.~n~ elsewhere in the nine ‘month period. immediately
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‘.’ preceding her death, Mr. ‘Lint&s, grandmother had livkd’&ith ‘him andhis par-. . . .__’ . . :.. _-
ents before’then, and.continued to visit-twice -a ‘&eek.thereafter. I-Ie‘felt close to ’ .I .,‘;I ,, 2 . ,
her.’ Her death on February ‘10 -or 12, 1992.‘&as the,‘& ‘death he had experi- . . . . _ (. L ,- <
enced. ‘He had difficulty cocing with ‘his .otin’ grief and -his” re&tion to his
’ mother’s grief. ,I&;-say-s this led h&to purchase: a. gram of cocaine,at a party he
.‘. - attended about-a week after. his grandmother’s death. He. bought, another gram _,.. .
:, the following :day’a@was soon consuming. one to 1% grams.perlday at $110.00 ..-
-per gram: I : -, *L ;: L i _ r’ -.
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,_ I During examinationYin-chief,. tion counsel ‘.asked the grievor “if he. had . + .
-had previous,, problems ‘with Idrugs. He’ re&ied~ that he had ‘ex$r&ented with
*. marijuana occasionally --after leaving high school, perha@ twice a year.’ He also . . . . ,., .
s&that when his co&ne.use began it had.been-7 or 8 years since he had tried
marijuana. During his cross-examination he repeated ‘that it had been 7. or 8
) years ~since he-h&.used ,marijuana.;It ‘was.p.ut to, him that he,.h&d told the staff ! J ! ’
i __ , :at Just For.Today that.+ ,had:u~@marijuana. as ‘recently as two years prior to
c .- . -.the time he ,says his cocaine ,use commenced, .,The.grievor .answered;, that he be-. .- - .
-..’ -lieved.he:had told- them it was right after high school, .and that if their. report.to
the’ court said two years:they must have been.mistaken. :During re-exabmination, .
: : union’ counsel showed the; grievor thz+ agency’s ,report to’ the -court. and asked if
he had told the:~agency that it had been about 2% years since he ‘had~ used mari-
-juana (as the repsrt says he ,did). The grievor. then said, .that- his marijuana use
began after he got out of high school and continued on an occasional basis until ;
‘about 2% years. “before *my ~&caine prdbkh became afiparent.” Asked ‘further . . . :
whether he’ had “abWed” marijuana, -he said “no,‘not at; the work place.“. . . , , ‘. I
:. The grievortestified that he financed hiscocaine habit out, of :his employ-
ment income and existing savings in. accounts at the.credit union right up to and ,’
including the week during. which he’ committed the thefts. Those existing savings ,_I
were -the remainder of moneys he received in December, i992 in settlement of a
-’ legal.,claim he had arising out of an automobile a.cci.dent. $Ie stated that by the
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--beginning of the week’qf,June lo‘, ‘1992, a week before his plinned vacation, he,
had .depleted’ his ‘savings down’ to $1000.00’. He said he decided .he ‘would keep
that $1000.00 to pay for his vacation, ,and steal- $1000.00 from. his-,employer to
-pay for his drug habit during the week of his vacation. He achieved that I $ @O;qO goal through the 44.improper trz$is&ions to which he’has since admit- .’ -’ ted. He-claimed that the thefts recorded on video tape that week were the only
thefts he committed at’the~employer’s store. When asked by his counsel ‘how the : .- , :, .:..
.. cocaine had affected him, he ‘stated that it madehim feel “stronger’, “a superior .. .- ,being”, “indestructible” and, mthe’last stages, “paranoid.” . * _ ’ ‘.. _ ..! ‘.. __. ‘\ :
on -July-3, 1992 Mr.-Linton wtis ‘arrested, charged, .fmgerprinted and re-
leased pending trial. He testifiedthat on the w&y home from-the police station he ’ ‘*
realized ‘that his drug habit had become unmanageable. -When he got home that
day he telephoned the LCBO to get the telephone ‘number of its RAP program.
He then telephoned that number and made an appointment to meet with Clive. . ” :_ ,. Bennett, the LCBO employee who runs the program on a confidential basis. He
’ also told his-parents ‘about his arrest &id ibout his
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On July 4th he re- : r. .r. .: r
tained a- lawyer. ,On ,July 5th he met with Mr. Bennett, who set up an appoint-
&ent fo<‘h& at Just Par Today.
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’ The’employer’s letter’to ‘him-of July 3, 1992 (referred to in p,aragraph 4 of * ’ ’
the agreed statement of facts)-informed the, grievor that he was,being suspended
with pay “pending Bninvestigation for ftiiling to follow proper. cashiering proce-
dures while operating a cash register . . . which had .resulted in -his -arrest. that
‘day. The letter directed him-to submit a’ written’statement -“to. explain the cir-
i. cumstances’giving rise to this situation.” In his written reply-of:July 6,, 1992, the
> grievor .Btifed that “I am unaware of any improper, ‘cashiering procedures of’
which I’am accused during.June 10th through Jme 16th.” t : ., ‘!. .i___ ,. ‘,
1 I .’ _ Just For Today (‘rJFT”) ,describes itself as, a non-profit Alcohol and Drug .
Awareness- Centre’which provides an Adult Treatment Program for addicts on an
outpatient basis. It had been in existence for about a year when the grievor first
attended at its premises’on July 9, 1992. He ,was assigned to a counsellor named
Rod Stacey, with whom he met ‘thereafter on a’ (roughly) weekly basis until he
was’ imprisoned’ in November 1992. .Ai the outset, Mr. Stacey. recommended that k_
the grievor .&tend meetings of Alcoholics Anonymous and/or Narcotics Anony-
mous (“NA”) and become involved in their 12 ‘step program. .-The grievor tried
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’ .both right away: He-testified that he-found INA- more relevant rdhis problem, :and ._ . titte’nded MA meetings regularly thereafter;’ eicept during the time he- spent in
jail.~‘..-‘: ” _/I * . ” -1;‘. ,, _‘i i ‘-’ ” -i-,, .’ .’ _/, li. ~‘~ I :. I 1 i
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:, .: . . Inearly- November .1992, JFT sent 2 documents, described in a cover letter
I * as a “nursing ,ove&iew!’ .and a, .“p sychological prof&‘,~~to Mr.. Linton’s lawyer and.
_.. to a parole officer ‘(presumably the one assigned to Rrepare his pre-sentence re- .- . . ‘-. .port). The nursing overview was prepared by Karen Trotter,. a .Registered Nurse i .,
I who then worked for JFT, on the basis of an interview in August 1992. The
“psychological profile” was prepared by V&n Langley, -a certified’addiction coun-
sellor who supe~rvise~d Mr. Staceys .work. Under “Sources of- Information”,: Mr.
Langley’s report states that he had meet with Mr: ..Linton in tiiro sessions totaling ..: -4 hours. Curiously, Mr.. Stacey is not identified’& a source of inform&ion or re-
ferred to by. name in the report. These: reports asserted- .&at Mr: Linton had -
_ maintained sobriety for an extended’ Qeriod (then- 4. months) following a ‘rela- ‘.
tively short period of cocaine use’, ‘and that he Gas- strongly motivated to continue -. .’ ~tom&&in’ sobriety*and likely to succeed in doing&. : s ‘I. .. ._ ._I’. . : - .t.. f. _ 1. ..- .h
L The grievor’s attendance at ,Just For Today and .NA sessions was inter- _ rupted by his imprisonment, but continued thereafter as the terms of his proba- ‘_ . ~ tion’ required; Mr: Stacey 1eftJFT and joined&iother- agency in January 1993.
‘_ ‘There seems to h&e been a. gap:’ in’ the grievor’s attendance at JRT .around that ‘, time; ~The grievor began, seeing another counsellor there, ‘-Bryan Smith, in early Mdf~&9iy‘ ’ -.. 1. .,i . :: _. .,’
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-.. The grievor testified- that -he had. not used .cocaine since his arrest,. and
,/ had made a>new.,set of friends, including a girlfriend, unconnected with his for- / - ‘,. --mer drug use. He also:said that his parents havesupported and-continue to. sup-
. I. port .h.is efforts to become and) remain, rehabilitated. He said:he was ..quite sure
.that he will.be‘ able to remain clean and-sober.. When he testified.+ May i993,~
his girlfriend was pregnant with his child, he had just s&-ted-to perform volun- ,. teer work at a hospital and he was looking for paid employment. He had been ~ accepted into an-RNA. course at a community college for which he had applied
‘because he.wanted to help people. He said he wished to.be restored to his pax+
time employment with the LCRO so that he could finance his education in that
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Jeffrey, Stein is the: Program Director of Just ,. For Today., I&., de&bes _ ‘,
himself as a~recqvered alcoholic cocaine addict and former lawyer:- he was dis-
barred and sent to jail,. from which he was released in J990. Between then and -
August 1991 he was employed by an organization which rhferred addicts to din- (
its in the UnitedStates. As Program.Director of ;TFT,, he said, he reviews. all tiles
weekly; discusses client ‘progress with counsellors and has contact with clients l
directly.. With, his legal background, he also assists. in the drafting of reports like
the ones submitted over the signatures of Mr. Langley and Ms. Trotter ,with’ re-
spect to Mr. Linton. “. -, _’ .’ .I. ! .’ . .
Nlr. Stein testified- that 80% of the addicts who attend: at. JPT have been -_
charged with a criminal offence. He acknowledged in cross?examination that it is ;, .- , :
helpful :for criminal deferise counsel to have ,the rep.ort of a treatment’ agency
when ‘speaking to’ sentence, that JPT provided that service and that other,
longer-established a,gencies- could not., be :as helpful in’ that regard, because of . . ‘, 2 .’
their long..waiting lists, He also testified that over an 18 month period 10% of
JET’s clients have died,, another -1615% have.returned to substance abuse, 50%
have gone through periods<of relapse and recovery and 25-30% h&e become and
remained clean-and sober. ” .: .
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Prior to March 1993, Mr., Stems only contacts with the grievor would have l ’ -
-been in the .waiting room, before, or after a coqselling session. After March .1993
he.sat in,on.some of the ,grievor’s sessions with Bryan Smith.rI$ased on his obser- : ~ .I
vations of. l&: Linton and on his prior experience, Mr. Stein, wrote a report to .‘,
union counsel in May 1993, in which he expressed the opinion that Mr. Linton
‘had become and remained clean and sober, and was,very likely to maintain sob& :: s
ety in the future, although there cduld be no guarantee. His reportexpressed the
opinion that the. grievor’s theft from the employer was “directly, linked to. his
prior addiction,’ and that “as, long as James maintains a program of progressive
action we are confident that there will be no return to criminal.behavior.” : :*. .i ,.
During cross-examination, Mr. Stein acknowledged that he could not be
definite that Mr. Linton wouldnever returnto cocaine use. He said “If he’s clean
and sober today, chances are he will be tomorrow. I can’t say, whether,he will be
a year from now.” He also acknowledged that since Mr. Linton has been a’ user,
the probability of his being a user a year hence is higher than it’ would be for a
member of the general population, although lower than for a currently active
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user. He agreed that :in formulating-,his opinion he ‘had accepted the; .truth. of.
_: ,. what Mr.- Linton .had fo!d. him about the origin and duration pf his, cocaine use
,and of his reports that. he - had. not used, cocaine since his. arrest.. .On C t-he latter
point, he said there were behavioral indications of cocaine use which had not . 1 . .been present in I’&. Linton’s, behaviour:‘He admitted, hoivever, that drug tests
;, .’ -are the&my &ay to be sure someone has not used’ cocaine. Drug. testing was .not * I -part of J$‘Ts’regime because of theexpense involved: :- - ‘- .. ‘.:. . . , \ : . . ‘_ , +- 1 /. : I. .;
I . . . _ It was put to Mr. Stein <n cross-examination that .access.‘tq. large. amounts
of cash, ti. feature of the job to which .Mr.. Linton seeks reinstatement, ..is a trigger
to relapse- for absta+ng.,cocaine. addicts, and, that it, was therefore not in Mr.
_. Linton’s interest that he be returned. to such a job. Mr. Stein acknowledged that . ‘access to large amounts of cash is s “cattilyst”, and’would increase the risk of an I
:. add&t’s relapse, but suggested that that should. not stand in the way of his re- .’ . g&&g his‘em&oyment. By Gay of analogy; -Mr.:Stein argued that & physician. .- . who is &’ rehabilitated addict should’ not .be deprived ,of.the’,opportunity to make : .’
.. .use’of h@ traming-merely be,cause he may then have access to drugs. ; .- . . . - . . _,.. . . . ..I : ..: _1 : :
The employer-called Lorna Sagorsky as a reply witness. Ms.,.Sagorsky is : employed by, the Addiction Research Foundation as a counsellor (although she
‘made it .clear she: was: not testifying as a representstive~. of that organization).
j. She:has been involved incounselling:add@s for several years, and counsels 70’to
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80addicts per year. insher opinion, itwould not be:possible for.a counsellor see-
. .’ irigasomeone for as long and as frequently as the grievor’s counsellors had seen
him to reliably-determine. from his behaviour that he was not using cocaine. That
could only be determined by ,drug testing, -she said. She also stated that the Ad-
- diction Research’Foundation does not give prognosdswith’respect to cocaine ad- ” dictsj a&d thi.t’ h a s e wouldnot give a prognosis about anyone shecounselled. She . .
&kn&v~edged that there.‘can be factors ‘iYhich are “encourtigmg”. with respect to : . . . _
: ‘tin addict’s ability to resist use of cocaine in the ‘future, but even when’such signs
are ‘present she would not-make ‘tiredictions about a cocaine addict’s future sobri- ety.’ .‘. ‘- .‘.,_ ._ :
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EMS: Sagorsky also testified that she would discourage placing an addict in
a cash. handling position,. because. handling cash is a trigger for anyone who may t 1 have the urge to use.cocCne. She said she would be even more concerned about
such a’position if the position was one which the. addict held while. using cocaine.
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Environment is an important factor in cocaine use, she said:. cocaine addicts are
I encouraged to:make major..environmental change,’ to avoid the setkings in which
they used cocaine, @order to achieve and sustain’abstinence; ‘_ a :
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.‘._ . The employer also. &led Dick’ DeMan, as a reply witness. ,Mr. DeMan is .L
the manager of the credit union at which Mr. Linton did, his~banking. He was -.
called to produce and explain records .of the .grievor’s financial, dealings during
and prior to the period about which the grievor testified. The picture painted by
those. records is at odds -with the ,grievor’s:evidence in at least two significant re-
: spects: the time when the grievor’s rapid spending began and the state of his fi-
‘. nances in the weeks immediately before he was caught .stealing. I ‘. ;-’ _. .
- :. The, grievor hadtestified that .he received $22,600.00, in December 199 1 ‘-
. and put it into his accounts,and an RRSP at the credit t&on..‘ke also established -. .
a second RRSP to.which contributions were made, by payroll deduction. He had . __
no accounts elsewhere, and no other source of income. IHe said that the records of. C
.his accounts at the credit union would show withdrawais’totaling.‘$i3,000.00 to
$15,000.00 in the period between the end’of February and the middle of June,
1992, including the, cashing of both RRSP’s. The -withdrawal-to pay for his vaca- 1
tion.would have been’one of the. last withdrawals, he said. With respect to with-
drawals-in the.period prior to.Februaiy,1992, he stated that about $5000.00 was - 1 ’
; paid on an existing loan There might also have been some.repairs to his car, he
.- ‘said, but apart from’that, the loan repayment and ,the RRSP purchase, there
would have been “nothing significant? in the withdrawals prior. to late February
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The records.! of the grievor’: ‘dealings with, the, credit union show that j
$20,000.00 was deposited in one of his accounts on December 24,. 19.91. $3,‘712.98
was immediately. applied,.to pay the balance of an’ outstanding loan. $4,300.00 ..~
was invested in an .RRSP on -January 6, 1992.. Other withdrawals made before . I
the ’ middle’ of. February 1992 reduced the rem&&g funds ‘.(approximately
$12,000.00) to less than $1300.00 by the middle of February 1992, when the _
grievor ways his cocaine use began. The total of the balances in his savings and
chequing accounts -on March 2, 1992. was less than -$lOO.OO. What remained of
the settlement proceeds was in the $43OOjOO RRSP. The grievor did not cash in
that RRSP in the period between then &nd.mid June; but he did borrow $5000.00
‘, , *’ from the.credit union’ (That RRSP was collapsed in September 1992, after the ,
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grievor’s termination, to satisfy the balance then .owing- on-,that; loan.) The pro-, . ‘. ceeds of that$5000.06 loan went into his’accounts in mid’hlaich-1992. Following
.. :fui-ther withdrawals; the-balances in his accounts again totaled less’that $100.00 *
&i the,,qd’of March: ‘1.992, ‘and never exceeded $500.00 at any ,time thereafter. A .,._. (. :
: ‘. second small RRSP to which $56.00.contributions were made ‘by .$50.00 payroll
deductions every two vGeeks was established-in January 1992 and cashed in April ;
1992.. During the, 16$&k period‘from the end of Februaryto‘June 19, 1992, total
deposits to the grievb?s accounts consisted of $3026.00 by .way of payroll deduc-. I ,:
t&n., $5600.00 in loan proceeds and $35 LOO. from‘the, small., RRSP: Out of that,
., .d&i.ng’ the same period the. grievor ‘p,aid~.$8’00.06 ‘in loan payments, $311.00 in
insurance payments and $‘i56.00 in contributions to the small RRSP which was . ,’ ~.
- collapsed in April. The balance, &ughly~$i100.06, was with.drawn for otherpur- _ <
poses* .I ‘.*. : .- .., ;
. !
. -. Although the employer% ‘reply, evidence would ordinarily be the last evi, .
.- de&e heard.(when, ashere,. the employer was required: to present its case first), ., _ , .’ $e ,offered union counsel the, opportunity to call Ifurther evidence in response to *. :
the, employer%, reply -evidence.’ She tendered a photocopy of a May 1991 auto- . . . : ..
: mobile repair bill,‘%hich‘counsel for, the. employer agreed could be received as .’
.’ ‘etidence .that he received such a bill, in order to”explain some transactions in. . _, ~
,. I, .that time frame,. Beyond that,. there &as no ftiher. evidence. In particular, the ’
“, grievoi was’notrecalled to.explain:the discrepancies betyeen the contents of the : -. ‘/ credit union recordi ,and his earlier testimony. about what. those records. would ._. : .a / * reveal. _; : .. ‘!‘i’ . .Y’ : . . . . . _- . ., ‘..\
. . 7 : -: i
Argument __ .’ ‘, .- ,. ,l f : -’ ,, . .. ,. ., .., _ :- r. : , ._ _ ,C’-_ ., I,-. . . ‘. .- . 1, Counsel for the ‘union acknowledged that theft a serious offence which
warrants severe discipline and can be the foundation for discharge. She submit- -,
, ‘, ted.(and counsel for the employer does not dispute). that recent arbitral jurispru- ,. \ dence says, that discharge is not- inevitably the proper response to theft. The . . . .
question, she said; is whether the employee has been rehabilitated to the point of
restoring trust. She. referred to the decision in Reed, 1165191 (Watters), which
reinstated a casual I$PC’clerk,with 3% years’ service who had been dismissed
for acts of theft committed to support a cocaine habit.over which he claimed to ,... ,_ ; - j.. . . s,i. .: :- . ._ ,’
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havebince gained control. The Board,made these general &,servatiop at p&es 9
: to 11 ..of that decision: ,: .. S ., :,
. ’ This Board starts f3ni-i the;premise.that.emplbyee theft is a serious matter as it
vndermines, the element of tr.ust w,hich is fundamental to a sound employer-
employee relationship. This principle has ‘been recognized in numerous awards
: of the Grievance-Settlement, Board. By way. of example, the Board in Wells
\
stated;
In assessing the evidence, the Board is aware that, the ,Grie&s offence-and
subsequent conviction is a serious matter which cannot iand should not be
cond0ne.d. Theft or- attempted theft in any form from an Employer by an--
.Employee, regardless of the value of the stolen goods, does constitute ‘just
cause for. the imposition of discipline -by the Employer. ~;Dishonestyz in any
form is completely .unacceptable to an Employer-Employee relationship.
Theft or attempted theft .of the Employer’s ‘property b&‘an Employee is’ a
fundamental breach of the trust relationship between -the,Employer and the
Employee. The Liquor-Control Board of-Ontario has the right to anticipate a
high degree of honesty’ from its. Employees, and a deviation horn’ that
standard must be dealt with in keeping with the gravity of the offence.
(page S-10) i ..
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This.panel of the Board fully accepts the approach reflected in.the. above excerpt.
It is apparent, from areading of the awards provided to us,. that each case is
somewhat .unique and that the ultimate’ result depends on the specific facts and
- circumstances as found therein. Nevertheless, given. the. seriousness of the
offence of, theft, we think. that the penalty of discharge i’s, prima facie, ..an
acceptable Employer response to such conduct.’ This is not to suggest, however,.
‘that it must be the,, automatic response in tovery case. ih determining the
_ appropriateness of the response the Employer, -and indeed this Board, must have
regard to any ‘mitigating circumstances of a persuasive nature. ‘Ibis includes any
: evidence existing which would suggest that the employee may be rehabilitated
through other forms of corrective discipline. less than discharge. This is
particularly imfiortint in cases. involving alcohol or drug addiction. .GeneraUy,
.we. agree with the Employer that addiction to alcohol or drugs does not ‘operate
as’ a complete excuse for the improper .or illegal, conduct complained of. The
addiction may, however, explain and set the context for aberrant behavior which.
departs from the employee’s normal standard. In this sense,/ the% addiction may
be a. mitigating factor to be considered in assessing the propriety of the
disciplinary response. We do not think that this consideration should be
restricted to those cases in which a grievor’s level of work performance suffers a9
a consequence of alcohol’or drug use. Rather, the Board is satisfied that these
forms of addiction may .be considered, along with other .,factors; in instances
, involving theft. ‘We have, accordingly, not been persuaded m;ch turns on the fact -‘, i that the grievor’s act of theft.was “once removed” 6om the.addiction‘as claimed
by the Employer. ; __ .. ‘, -! -
In Menzies (Waisglass), the Board listed the critical questions which must ,be
addressed on the issue of r,einstatement after a discharge for theft. These were
summarized as follows: I .:
Is the theft or breach of trust an aberration? Except for the aberration, except
for the unusual and ,exceptional behaviour in -an otherwise unblemished
record, is the grievor credible and trustworthy? Does she acknowledge and
accept full responsibility for her wrongdoing and for’the repair of the damage
done by her aberrant behaviour? Can she be reformed or rehabilitated by any
discipline less than discharge? What is the appropriate’ level of discipline
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that is required in order to send a sufticiently strong message. to all .’ :. ‘I, , :. ..’ employees on the ‘importance of trust and honesty-.in the employment
relationship? Gan thegrievor be expected, with a, high degree of.probability,
.I _’
to respond to corrective- discipline and rehabilitate and repair the damage
that was done (by :the aberration) .to the trust that .is required in the
employment relationship? e. .
.. .,: .bage sj : ’ 1 :t; ’ . _ _ ; . .,. \
Additionally, in Blackmore the pane! stated.that in this type of case,’ the Board , I must take “a judicia&as ,contrasted to a punitive, approach”. The Board there :
x’ continued as foll0w.s: ) : -t . ,,. ,.
‘. , We are required to strike i,balance between the interests of the Grievor and \ ‘.
those of the ‘Bmployer,‘ %which is to say, between the ,Grievor’s ‘interests in , .,- protecting his equity in his job -and his .continuing.- ,hvelihood, and the
Employerfs interests in maintaining. the confidence of the ‘public and the
integrity of its operations. - ..’
I.
I (Pag- 4-5) -, ‘, ‘ >‘. ._ I L _ .-
We accept the above excerpts as correct statements of the process toTbe applied
.
. . . in cases involving theft. . ..J’. - .
1. 1 . ._-. . . .( . . .” : _.
Counsel for. the union‘akoreferred to other decisions in which the Board. 1, . ,_
reinstate~d LCBO employees who,.+d stolen from their employer while suffering # ^
, from an’ untreated addiction or other .illneSs~ ‘Creighton, 19O’s&9 (Keller), Weks, ‘., -’
‘. 2/82 (Vkiiyj~ and. E.. HiZZ, ‘3.67/8 (Barton). In addition, she cited Canada Post
&&I. and &&ian’ Union oj PoSthi’ vridpkers (Dag&s~ (1992), 27 L.A.C. (4th) ’ ‘i
- 440 (Picher) and I& ‘City of.$foricio~ ‘q?d C&adiun Unioh of. ~bli~~Empl~yees, , -5
“L&al 51 (1990); i0 LIA.C (4th) 226, (Collier),
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. Union counsel argued that the mitigating factors ,which warrant a lesser
penalty thandischarge’in this case are these: .- - .\ ‘, .: -, .’ z I : ,,. ‘; ._. L,i _
1) The grievor had a good employment record andgood performance ..:I
.appraisals @ring the 6>years,p.rior to his’termination. .-.
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2) ‘. ,The grievor sought treatment immediately:after’being arrested. I.’ . _’ . . :
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The grievor admitted his misconduct &the first’ real opportunity, . . . . . sparing both the‘&& and this panel a trial on that issue. i.* 1 . . .
4 , : The grievor is’ contrite and remorseful, and has made full restitu-
tion. - ;,’ ,_. . . . ., _. _ -’
5) The grievor has already paid a heavy penalty &a- result of the sen- .’ ,I tence of the criminal t&.-t. ’ ‘. = iI a .
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‘6) .‘,; There :
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L‘ ii ‘a clear causal connection between the- grievor’s addiction- 1. , I. . . .‘,. . _’ and the theft!- <prior %o the, addiction there were-.no employment prob-,
:je$iif :.: .,’ ‘. , ‘. :: ,~, r ,,’ ‘(. ;. ,, -1
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7) The grievor has been clean and sober for a one year period d’uring ’
‘which he has cpped with stress. __. ,- -.. . . ., , ,- I (
8)‘ The grievor has made lifestyle chariges: broke off,with friends a& >. : sbciated’ with’ d*gs, mahe new. friends,, committed to a relationship ‘with
r his, girlfriend, ,attempted%o find-:work, engaged in ,volunteer work, and at- / tended NA, ‘_
.iO His addictioxi was short term when he sought treatment. He has ’ .
punctually and reliably kept l& appointments:. that and the improvement /
: in his appearance and,demeanour reported by Mr. Stein are all consistent
‘.., with and corroboraixhis reportsof continued.sobriety, ._
‘,I : . 1 ,.
Co&&e1 for, the ernpio$$ .i@eFe&, !o !&on&@ H$ :0054/84’ -(Draper),
which dealt with the claim for x.$n&at.ement of an alcoholic LCBO store man- 3, I
ager with 10 years’ seniority who had. bee? dismissed forhiultiple misapproprjai
tions totaliqg nearly $ lO,OOO.OO over ‘3 period of at least two &on& The grievvr
cla&ed that his alcohol ee hid played g part ‘in his thefts, and that he had ’ <.
since sought treatment and maintained sobriety. There, the Board mad& these{
observatidnx- ..: ..‘. : ..
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. . . we decided that.we .should adept ,the &pert testimony of Dr. Woodfine-to- the .-
effect that the theftswere alcohol related in that the Grievor’s moral values,were
“side-tracked” by Ms alcoholism. “. .
Nonetheless, .we ark of the opinion that the Grievor’s alcoholism, while it may
explain hi13 misctkluct, does not exeinpt &m from accountability. for it.
Alcoholism is now generally regarded as an incurable disease. But it is a
$onditionfor which the victim bears some measure of personal responsibility and
so will not necessarily ..be reheqed of ftiult for ‘misconduct regardless of its
nature. Put another way, not every kind of blameworthy behaviour by an
-alcoholic is excused by the fact of alcoholism. There is a limit to the obligation of
an employer to retain an alcoholik employee w$o,has committed an employment-
related offence, especially one of a -criminal ntiture, notwithstanding that it .is
attributable to alcoholism. The Grievor has abused the special trust reposed in
hiin as a stoie manager with responsibility for the store’s receipts by engaging in
a shrewd and systematic scheme of theft. On that account alone the limit of
employer tolerance has surely been reached.
Prima facie, dismissal is the appropriate employer response to. theft of its
‘property by an eniployee; The reason said to underlie this view is that the loss of
trust that inevitably.follows such an offence, particularly where there has bee? a
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special, ,reliance on the hon@y of .the employee,, irreparably.z damages .the
emplojrment relatidnship. SuspensioCiAd~r&i&ate&int .is an alternative t‘d be
zonsidered otiy if persuisive.mitigating-factors tie present. In the casi? at hand
that consider&ion is outweighed by- the nature -and: circumstal)ces qf ‘the (_ G;i~;b,s’ succession dfbff ence 8, ~- ’ . _’ ) ., -. -
,_-. .; . * i: A . . ,: . . L I : .
‘. Although he invited .& to’doubt the gri,evor’s testimony tibotit,.&hen ,he be-,
’ came a cocaine’ user and how he financed that habit,, counsel. for the employer did . .
not challenge. ‘the grievor’s claim that’ he Was a cocaine addict and ‘user at the ,- . .
tinie of his thefts. Counsel accepted tha%‘the grievor’srcocaine habit ;had this con-
^nection &ththe thefts: ‘it created a financial need which the ,thefts fulfilled. He ’ 2. . . ._ ,:.
‘-argued that while the ‘grievor’s cocaine Ihabit explains the thefts it does not ex-
cuse’them. He-.noted -Mr. Steins testimony that an addict, has to, get over saying _:. , “I -did”3-because I- was an. addict” and recognize that ‘he did it “because -he was a .’
.I thief?,. f _ -:. I ,P ‘_ .,_ .,
: Counsel -for the employer’disputed the ‘suggestion that the *grievor had. .
demonstrated remorse or ‘admitted his thefts at the. first available -op@tunity . . -.lL’ -.
He further argued that. even if we accept the ,evidence of the grievor and
,.. . . Mr; Stein at face value, we must conclude that the grievor is more likely to steal
. than a member of the adult population from -which the employer -would have :. hired -his replacement. Counsel noted .Mr. Stein’s testimony that ,any former co-
Caine user, even-,one whose circumstances are as encouraging as. the grievor’s
1’
j -‘might appear to be,: issignificantly more likely than a member of. the general
‘. population- to use .cocaine in <future. If his cocaine use ~“caused” the -grievor to
steal, as, the’-union argues,. then he is. significantly more, likely to’ steal than a
member ofthe general population,. Counsel submitted.that, the ,em&oyer should
not be obliged to assume that greater risk. .
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Counsel for the ,employer- also., argued that we should not accept .the evi-
.: .
~dence of the grievor and.Mr. Steinat face value. He pointed to. a number of.fea-
; turesof~the grievor’s testimony which he said suggested either that the grievor
wasbeing untruthful or; in.some.cases,. that he did ‘not understand the nature of
his addiction-and .was thus particularly susceptible ,to relapse. He noted that Mr.
.Stein’s belief in the grievor’s prospects ~for success ,depended to a great extent on
.’ ,’ his having believed what the grievor had told him. He also noted that Mr. Stein’s
qualifications for predicting. the future for addicts were rather limited, and that .
d
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gersons apparently ‘in ‘a better, position to’ offer either ‘a ‘prognosis or the factual ‘ ,‘,.,
basis for one I the counsellors who .dealt with the grievor ‘4 were not called to
testify. He also noted that others in a position to verify important elements of the I’
grievor’s testimony - his parents as to the degree of support they provide and
his NA sponsor .as to his attendance and..participation in, NA, for example - ..”
were not called, .He invited us to conclude that these other $itnesses were not _
Cal1e.d because their testimony would not be entirely supportive, and that, the
,. grievor. was not recalled to explain the financial records because ,her could not give
a helpful explanation. He argued that those records support the ‘inference that
the, grievor became a heavy .cocaine user before his grandmother’s death, earlier
than he claimed,- ran out of funds earlier than he claimed..and, therefore, proba-
bly, stole from. the: employer earlier than the week in Ghich he. was caught ,at it.
Union counsel said it would have been “self-serving” to have called the
grievor’s-parents. She ,desc,ribed, Mr. Stacey as “unsvailable”, and. noted that Mr. . . .
Smith had just begun seeing the grievor shortly when the hearings in this matter -
began. In response to a question from the panel, she said she was not-suggesting ,.
-. that Mr: Stacey .was beyond the reach of a summons, but only that his employ-
ment at JFT had ceased before the .hearing began, As regards- the financial rec-
ords and -the inferences which might be drawn from them, she noted that the ,
grievor’s account of, the origins of his.cocaine use is the’ same account he gave
- JFT, and argued that he had no reason to lie to ,them. She submitted that the
fact that the grievor’s accounts were. fully depleted .by thelend’ of March did not
: ‘mean he was out of money and Gould have begun stealing then; She said-the.last
‘large tiithdrawals might *have been sums he kept with him in the form of cash
thereafter,, living on that cash along with his employment earnings .until mid
June. :..
. . . Counsel for the union indicated that the grievor and the union were not
’ seeking any compensation, and would- accept any-~ conditions the Board consid-
ered it appropriate to attach to the grievor’s reinstatement; including a require- I
ment that he submit to random drug testing. Counsel said that the grievor had .‘I
instructed her that-he would be willing to pay for a regime of random drug test-
ing involving urinalysis for alcohol once a week and for metabolites of cocaine,
opiates ‘and cannabis once a month, ,wh.ich he understood-,would cost $37.00 and
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..’ ,‘Y $70:00 p‘er -test, :respectively (for a total of at.least $218.00 per-month, on the re-, 1. : - gime he suggested). I~.*. ‘. (, ” .-:.< t ; ‘-. ‘4
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Dewing- ’ : ’ : : .I ,._ _] .,_ (, ,_ ; .,: ., .y .,
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. ._--,. ” i : J The princ$es elaborated..in thepassage quoted earlier from the’decision
: _
in’ Reed .are”quite’ consistent with those’ stated in the passage quoted from the . . .
, decision in Thoti& Hik As the Board observed in Reed, the ‘results fir those and
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other ,decisions turned o:n the application of the-&-inciplei described~‘there~ to the -. i ‘. ‘. ‘. particular facts of eachcase.. f&bough discharge‘ is not ~invariably the. appropri- :
ate resp.onse to theft, it is prima ‘a~? appropriate.’ This is particularly so when
. there is something more than ,a single, : spontaneous taking,- where, as, here, .e . i. . . . ,’ :- ‘. i there are multiple planned tal@ngs over a period of time. . _. ‘,’ . . ,. .. I ‘-‘, ,- ~ The central question v&h which~ arbitrators grapple in casesof this sort is . . : t . -’ whether ‘and to what, extent the.gnkvor appears objectively worthy of the, em- : .: _ ..‘, I;
ployer’s future trust; nottiithstanding ‘the’ dishonest conduct to which his em- .
, i. iJoyer%as responded by discharging him. The Bnswer to thisquestion is weighed ,, I:.-‘- .:
1 in.the balance -with the grievor’s .mterests in protecting~his equity in his job- and ’ : ., ., . his continuing’ii~~i~~~~d, and the. em&yer’s’mterests ‘in maintaining ‘the confi- I ., .. ‘; de&e of the public and the integrity of its operation& to determine whether dis- ! ’ i .)... . - ..-,
.. charge k-an excessive reaction. When they considera grievor’s employment his- ; . . c L. i .I
toryj4hether his krongdoing~ wasi planned. or spontaneous, ‘whether there was -- :. .r - _ -‘. ‘. _: ., one’ dishonest incident‘or a ‘series,. whether and when he. admitted wrongdoing, ; ;._ 1.’ whether and when he. expressed remorse and so on, arbitrators are assessing the ‘_ .,,. I . grievor’s character, determining ‘whether or not ‘the dishonest conduct in ques-’ . ,.. 1. tiy was ‘ro~i of character.” .’ : ” i . .’ ’ _,: . , j < ; .., J._./. ‘. .;. : ;. :.. I. ~ .: .’ men ’ it is”suggested in: mitigation of - a grievor’stwrongdoing that he
i- : committed it .wh$e under some influence which he has since overcome or brought . _i< 1. _,.:
under ‘&trol, the i’m~lication is &a( the g&vor was’.only temporarily ~&rust- ‘.
worthy, and that the influence temporarily undermined an predisposition to ‘. ” honest conduct. which, once the grievor was free from that influence, would .be a
sufficient. foundation for ongoing trustworthiness, Three issues. are thus raised:
the nature and extent of the connection between the alleged influence and the
grievor’s wrongdoing,’ the strength of the grievor’s predisposition to honest, con-
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duct when free of the influence and,-the likelihood that the grievor can avoid suc-
cumbing to a similar influence in the future. 1. . . IS
Mr. Langley’s written report states that the grievor’s criminal. activities
“are the direct manifestation of his addiction.” This statement is not directly ex- ’
plained by the context in which it appears. Mr. Langley ‘did not testify. Mr.
Stein’s written report states that “it is clear,’ based: upon his history, that the 1. criminal behavior, breach of emiloyer trust, was ‘directly linked to his prior ad: ,‘.’ (._ ..,
diction.!, .That report does, not identify the nature of the link. %Ir. Stein did not
elaborate on this in his testimony” so we do not know what sort of link he had in ‘_ . -- I . ‘_ -, :. mind. ” .._ ” . .’ ‘_ . I ., .r
I ’ ,- Ixi Thomas Hill, there was:expert ‘medical evidence, which the‘Board ac-
cepted, to the effect that the grievor’s alcoholism: had -“side-tracked his moral
values..,, In Reed, the Board accepted the grievor’s testimony that at the time of
his thefts. he perceived fulfilling his need for drugs ‘to be’ a matter of survival., . :.., .
Here, when asked.about,the’effect cocaine had on him, the grievor said only that
it ,,made him feel “stronger,,, “a superior being,,, “indestructible,, and, later,
“paranoid.,, These observations ‘do .not themselves .explain the connection, with
the theft& unless the grievor .isl someone who is restrained from dishonest con-
duct only by the fear that. he will be caught and punished. It was clear from his
testimony that the grievor stole because he did not have enough money ‘of his
own to sustain cocaine co~nsumption at the rate to which he had become accus-
tomed. He -did not describe this .as having seemed to be a matter. of .necessity or. : i survival at the time. He did not suggest that desperation overcame any scruples ’ .:
he may have had concerning theft ,from his en$oyer: We would have thought : .. ‘:
that a’ grievor whose innate honesty’ was in issue would be anxious -to explain
how the drugs. had gone beyond merely creating a financial need- and had also
impaired-his moral judgment, if he sensed that that’was so., - -.
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The grievor did., make restitution; The criminal court @hered “him to do ’ ‘.. that, and to do other things, which he has apparently done. That is not without c , significance. What,is potentially- more significant, in assessing his character, is
what he did or did not do ,about the effects of the t,heft on his employer and the
employment relationship he wanted restored, ,beyond ,what may have been re- s’,
q’uired.by the criminal proceedings or the sentence of the criminal court. --‘I. .\
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_’ .j .., . . . . ’ .. In ‘&ed,‘the grievor admitted’his wrongdoing ‘as ,&&as he was accused of. ’ .- : if: Here,,. the grievor’s first reaction was to deny the.accusatiqns. ,He denied them \ : * .: ,.
again three days later, when he responded in writing to the employer’s written
:,:=lrequest for.an explanation. Some, time in August $92 he decided. to plead guilty . . ).. .
; .in; the- criminal, .proceedings; some ,months later, he. entered a guilty-plea. But ‘?‘.
,_*__ :,,+hen. did he .admit the theft to his employer? As .far as we can tell from the evi- :
dence before us, no admission, of the.grievor’s wrongdoing was.communicated to :,’
:. the employer on the grievor’s behalf until after the .grievor s,aw the videotape,
.
>, -. *- 3,.
.roughly .9 months after. the events recorded on it.. ’ . ;. ._ -. ,L
When asked’in cross-examination what steps he had- taken to advise the ::,
employer about his drug $roblem, the grievor’ testifie.d that he had .told his .,. .. .I
“union super&or”: that. he ~$s‘seeking. treatment, but did * not ‘-know ‘whether _ ‘. ‘%hat had been communicated to management. He does not say that he,asked the
‘. union representative to communicate it to management, and there is’& evidence . .
that he or she did. Neither the grievor nor anyone on his behalf told the employer
of ,his :drug addiction exp’“tion .for the thefts or of his efforts, to control that I
. . addiction until. the eve of the .hearing at which he sought- to have us, order the _ .’
. . -. employer- to take him, back: Furthermore, there. is no .evidence _ that the grievor
i . has ever .offered ,an ap,ology to hi&&ore manager or to anyone else re@resenting ,
8 the,employer, the victim of his .thefts. .I . . * :- _.
-_ .*
‘. While ‘he clearly regrets the impact his addiction and, his thefts have had. ..
on his own life, the grievor has’& expressed remorse for the’impact they had on . _ >. the -employer: He did nbt admit his n&conduct to the’em$loyer at the earliest
’ oppoi-tunity The alleged mitigating circumstances on w’hich he relied at hearing 1 . .
-were not communicated tot&employer at the earliest op&&iity, ‘nor were his . _’ .
.efforts~to rehabilitate himself. In’short, he,.failed to do what, he could have done .L. : , himself in an attempt to &habilitate his relationship with ihe employer, to dem-
onstratk’to it why it should trust him again despite his past wrongdoing. None of.
‘this .bodes well for .the restoration of that trust, and it is inconsistent with the .., claim that the‘ grievor was remorseful. ‘.
’ ‘. In Reed, the.’ Board made these- observations about the ‘desirability of
’ having the evidence of the treating professionals in a case of this sort:
Unfortunately, .&edical or other expkrt evidence of an indepbndent nature was
not presented to us on the extent of the addiction or the prognosis foi recovery. , \
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, In our view, such evidence should be advanced, if available. While we:recognize
that it map be diErAt to piecisely define the extent’ of a person’s addiction or
. ‘their futye progposis, such evidey?e would likely have been helpful. At the very ,
least, it would have’permitted us to compare the grievor’s perceptions against
- those of the treating professiqnals. z : ‘/ b _. ; ‘.,-
The grievor in Reed had received residential’ treatment at.a clinic in the State. of z
Pennsylvania, so difficulty .in securing the testimony..of the treating professionals
would have been understandable. Here, by contrast, those ‘directly involved in
Mr. Linton’ initial and ongoing treatment were- and are .lbcal. There is no sug-
gestion that any of them was beyond the reach of a’summoiis at’the time of the
hearing. The union did not close its ‘case until September 1;‘ 1993.’ By that time,
according to Mr. Stein, Mr. Smith’had been- seeing the grievor regularly for ‘. ,.
-. nearly 6 months. The failure to call the counsellors who saw the grievor regu- ;. ., ”
larly, particularly Mr. Smith, suggests.that their reports of the grievor’s progress
.’ and predictions for his future might not have been as positive as those of Mr.
*Steinandthegrievorhimself. ,. .’ ~ ,., : _, . . \
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The choice not”to call other apparently available. witnesses who could have
verified- aspects of his story-his NA sponsor, for example 1 added- significance ~
..’ to an issue which ‘is inevitably- sign&& in a case. like this: the reliability of , ‘grievois own testimony; We do not agree with union counsel that the grievor had
no reason to improve.on the truth’when he told his story to JPT. In the circum- c ’
‘5 stances, he could reasonably have expected that anything he said to JPT about ,I
his drrig problem might find its way into a report to the court. Moreover, he ,.. would, have been inclined, one- would think, to -make his story to JJ?T consistent
; ” with whatever story.he had by then told his parents, for whom the story that his I.. ;
grandmothers. death. in February 1992 had triggered his drug use would ,have
:I been more palatable than, -for example, one in which heavy use,, was triggered by
receipt of settlement proceeds in December 199 1. The grievor’s inclination to im-
prove on the truth (or, perhaps, on previous improvements on ,the truth) was
manifest ,when he testified before us about his prior’ use of marijuana. ~Further- . : .> more, his’ testimony about how he financed his habit out of his accounts at the 1
credit union was ,quite clearly inconsistent with the records for those .accounts.
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Union counsel’s speculation about possible innocent explanations for the discrep- :
ancies was no substitute for the grievor’s offering explanations in testimony. His
failure to do that when offered the opportunity warrants an inference that some-
’ thing more unfavourable would have emerged if he had testified again. \
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.., . I... .i... ._. We have identified,the-three’&& raised by the,‘union’s arguments that :
< the responsewhich is prima facie.ap@r.opriate”qhould not.al$ly -here: the. nature . . . .
and -extent. of ,the connection. between the alleged influence. and.‘the grievor’s .. ,. I .’ . . wrongdoing, the strength of ,the- grievor’.s .predisposition. to honest conduct when . ,: 1 .’
,.. free of the. influence,and the likelihood. that the ‘grievor can avoid, succumbing to ~
_ - ‘a- similar influence in the future. We are left in doubt on ‘all three-of these issues. ’ ‘ ‘. ’ .. ‘* 4
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The nature and extent of the connection between the grievor,s cocaine use and _
his rep,eated thefts- (beyond .involving, a .lifestyle which the ,grievor- could not oth- . . . .
I.. erwise afford) is unclear. The strength‘ofthe grievor’s predisposition to honest’ .‘..’
: conductwhen .free of the. influence of cocaine. is made unclear by his apparent _ . .,, .: I.
. . lack of candour during his testimony and by the-total absence of any effort on his . .
part, once he says he was free of that influence, .to ,apologi+or his- wrongdoing .* : ._ . . ..” _.. ,_ or to offer the employer any mitigating. explanation before these proceedings re- . . i ,:
quiredit:. The likelihood that the grievor can~resistsimilar~influence in the future _‘.
is left unclear by-the failure to call-:either of the counsellors who’ ‘worked with. . ; _ . :. .- : him, by Mr. Stein’s limited experience, modest credentials and dependence on
.., : the grievor’s own rep*orts and, most importantly,:.by the.apparent unreliability of
the grievor’s owntestimony. i :, 5 ’ ‘. ; : I. 0 .’ I ‘. ,.t- t 7 -- ., _.
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There is also the-fact that the.job to.whichthe grievor-seeks reinstatement I
‘involves handling cash,. something, w.hich ‘Ms. Sagorsky and Mr. Stein both say ’ , .’ -
would make it more difficult for the grievor to resist’& return to cocaine. use.
i There is no other part time job available withthe employer in which the risk of :
relapse -would be less for the grievor or the potential consequences ,of relapse less ’
grave for.the employer.
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-Does the prospect of imposing,drzlg testing as a term,of reinstatement tilt
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. the balance in favour of reinstatement? We think not. First, there is the direct
cost. Qn *that subject, we have only the grievor’s statements from the counsel ta-
ble dur&&ion co&rsel’$ argument.’ Even on the basis. of that information, the
.. cost is substa~ntial in relation to the net earnings of a part-time employee. -Al- i
though the grievor has undertaken to assume that cost, ,one wonders how long he :
7 /- could be capable of doing so. There is also the indirect cost to the employer of _
administering such a scheme; as well as the impact on the work environment of
doing so.-In Phillips Cables Ltd. (1974)’ 6 L.A.C. (2d) 35, arbitrator Adams (as he .
then was) made these observstions:
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. . . in a very general sense, honesty is a touchstone to viable employer-employee
relationships. l&employees must be, con.stantly watched to ‘insure that they
honestly report -their comings and goings, o,r. to insure that valuable tools, ” : material ‘a&d equipment are not stolen, the-industrial enterprise will soon be
operated on the model of a penal institution. In other words, employee good faith , , : and honesty 4s one important ingredient to, both industrial democracy and the
* fostering of a more cooperative labour relations climate. J . .* ’ :
.: , The board feels that these are the sentiments underlying the arbitral castigation
of dishonest conduct. Arbitrators are not equating the role of a plant to that of a
church. Rather, they are insuring that the role of the plant Will not evolve into a : role resembling that of k ienal’institution. .’ _I , .
‘We agree that it is not in the-interests of the ‘employer;5ts ‘em$oyees or the un- -,
ion ‘which represents those -employees to have the role of their workplace evolve -.
into one resembling that of a“pena1 institution. That would be. the tendency of
our imposing on the workplace an -employment relationship. in which ,drug test- _,. . _’ ing,is niade to substitute for trust. There may be a case in which the’ availability ’
1 of relevant tests ‘and the willingness of the grievor, to submit ‘to and pay for such . tests would make the difference between’ dismissing ‘a discharge grievance and ._
’ : r substituting reinstatement on terms. This does not seem.to us to be such.a case. .‘..,_ ‘. . _’
-. : -.
. While we accept that discharge will not ,always be’ the appropriate ‘re- ,
sponge, to theft, we are not persuaded that any lesser response is warranted in
. . this case. Accordingly, this grievance is dismissed,
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Dated at Toronto this’ 29th day of June, 1995. “. :.
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Owen V. &ray, Vice-Chair’ ,/
‘3.
(J-y77 I ” _ ‘_ .
M. O’l’oole, Member
0
VI Dissent” (‘d ‘- issent attached)
T.. Brow$s:Bugden, Member
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GSB #i429/92 " '. .'
. . . OLBEU (LINTOR) " a : '. AND
.,. . . . -.TtiE CROWN' IN'RIGRT-OF,ONTARIO . ', ., : ! ;I L 'b, . . ( ' (LIQUOR- CONTROL BOARD,OF oNTARI.0)' ': -< i
-. . . :: ; _ : ',. ._ ., '." '. . .*. .,: :- . _ DISSENT .' .-r .'
PIPIPI1OIP~il~PC =~=irnmrt=~ttr=====rmn= n=n==.=r==rlt====PE==t====t
. . . 67ith'respect; I find that I :mustAdiss,ent from the majority in this ,. .-. ". __. award; 'In zthis,‘case', I believe. the discharge .was.an excessive.- '
._ t .-_. - r'esponse'to'theft by'the employer,-:-and the grievor should have been : '"_._.. ' 'reinstated. . . . A- : . '. -.
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The mitigati~ng'facfors in this case-@ut.forward.by theUnion are.
-raproduced.at pdges 11 and 12,-of;the majority's decisioni, I found
them,.o.f a,'convincing-and persuasive..nature-; however, the majority
*‘...
Normally iri breach of trust or theft cases where the,sincident _: , . ""'has bee'riproven by the employer'the penalty of discharge will _/ ', follow-,unless ,the,-,arbitrator .or.;Board of .arbiti.ation finds .,
._~ ^. r*aiohis’ to-. mitlg&te the penalty.. .. Those -reasons have been -' ,_
' - and.seem to' flow from the checklist outlined > often: expressed I i
.
.I_ . developed,:however, "a line of arbitral jurisp7rudence that
,.I,*,~1 d3stingu~shes the titters arising from alcohol addiction from : / I . what might~'be described as.the "normal .casesw. In general
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terms; ,arbitrators have stated that alcohol addiction is an,.
illnessand there are certain other considerations that 'must
'be borne in'mind in ascertaining the appropriate. action.
These considerations tend to focus on whether-the probl!em can,
... .:' or ,has-been, successfully de'alt with and whether.the job can.
_ . be, performed. satisfactorily in the future. In tak'ing this :, ..:
'._ .,approach arbitrators have ciutioned that they.'must balance* '
.the' i<nterests. of.the -employer withVthose of the employees.
Emp.loyers have legitimate right-to protect their interests,.of.
course, but the' progn,osis foi successful rehabilitation.and
'- reintegration.into the work force is also considered. . -.
. ',Thesd‘ comments are consistent with the quotes from, c,' v * .) : ,. (,Wattersl'-found on:pages 10. and ,ll, o'f the,majority's.decision in.
this .case. L
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., .The majority-'concludes: on a number of ooncerns of whenthe.grievor ,_
.admittad. to.the 'thefts, and ,how that .:impacts on rehabilitation of
the trust in.the_employment relation+ip. In rtisponse, I submit
that the grievor did not admit to his- wrongdoing the first'day,
,which would have..beenthe,most appropriate time, because he.was at
this very time admitting to his cocaine addictlqn to,hlmself. &ice ,
he. realized the .addiction there, was .no.dela;, and:he sought help ,
. . from,.the Employee Assistance Program,, which. referred ,him tq the.
.? _.; "Just For Today" agency. Furthermorei' I believe it wrong to
conclude that the grievor only admitted Fongdoing after he had.
/ viewed the videotape. of the thefts. Rather, the admission had
, taken place at the criminal trial., which was' .well before the
viewing of the videotape or knowledge of the’ existence of the
videotapes. i i \
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In addition,” I believe the’.,grievor’:in his testimonyi while not one *
” ‘hundred percent dons,istent was honest .-and, ,therefore, do. not doubt
his predisposition~:tb honest .conduct when’ free of <the (cocaine
.” %nfluence; ‘:, I- ?further’ do’not- doubt the grievor%-ability ‘that, he
can. ‘avoid succ&bJng to- a similar influence in- the future, even if ., _...
he ,is placed in a cash handling position. However, the majority is ,,
.-left in doubt on these issues. .-. ._” i ._
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In these- kinds of. cases, the arbitrated result will ;-degend on ‘the
s’pecif iti. facts and I circumstances. /’ Again, in msishf;nn the board..
concludes at page 16: :_’ I
i’ .The grievers) actions were serious. Under most circumstances
it is possible, if not likely that a’..Bo&d would .not modify ’
’ the penalty. ! The circumstances here, however, are different.. I.*-
. : The grievor’s a&ions-resulted from his addiction.. He has ._ ..
. demonstrated since ,then that he has faced up to-‘.h‘is addiction
Iand has taken the necessary and appropriate steps to control
it. We. say control because we have been ‘told that he can .not
be -wcur.edw in the traditional sense. ‘. “. . .
The ,cir&umstances of’ ,this case show, the grievor was .a good
employee with a good work record prior to,his discharge, ‘he sought
treatment immediately upon .realizing, he .had an.,addiction, he has
‘remained clean &id sober since treatment’began, and he has made the
necessary steps and appropr.iate lifestyle changes. ’ Finally,. the
’ grievor has successfully dealt with his addiction as is. shown in
the,evidence’by his continued sobriety.
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1.n conclusion.; I am persuad~.ed_,in t@&F case 9 lesser. discipline : I
resp.onse was war,rantedC,; and this’ y+-s an apprdpriate .pituation to
reinstate ‘the gri,evor--,tqo .,his former -,,position with conditio-ns.
Therefore,..for,.all’of-. the stated reasons, I would have allowed the
. gr i’evance . . .- .,i :.I...
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I RespectfuJly,.
Un’ion Nomikke
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