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Home My WebLink About1992-2980.LeBrun.95-01-192. I i. EMPlOYCiS DE LA COURONNE CROWN EMPLOYEES DE L’ONTARIO I DE 180 OUNOAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. MSG 128 TELEP~~~NEIT~+L~+~~NE: (4 16~ 326- 1388 180. RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO). MSG 128 FACSIMILE/Tf?LtiCOP/E : (4 16) 326- 1396 GSB# 2980/92 OPSEU# OLB439/92 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before BETWEEN THE GRIEVANCE SETTLEMENT BOARD OLBEU (LeBrun) - and - Grievor The Crown in Right of Ontario (Liquor Control Board of Ontario) EmpPsyer BEFORE B. Keller Vice-Chairperson FOR THE GRIEVOR M. Gottheil Counsel Caroline Engelmann Gottheil Barristers &I Solicitors FOR TEE EMPLOYER G. Rontiris Counsel Emond Harnden Barristers & Solicitors BEARING October 21, 1993 September 8, 1994 November 11, 28, 1994 2 DECPSION At the conclusion of the hearing on November 28, 1994 the Board issued an oral decision. These brief reasons confirm that oral decision. \ The grievor, Mr. Gerald LeBrun was discharged from his employment for theft. At the time of his discharge he was a clerk with approximately 21 years! seniority with the employer. Mr. LeBrun was subsequently charged by the police with theft under $l,OOO.OO, pleaded guilty, made restitution in the amount of $328.00 and was sentenced to one year probation subject to his continued abstinence from alcohol. He was also ordered to seek a psychological assessment. The facts of this case are, briefly, as follows. Mr. LeBrun was passed over for promotion twice at his store. He filed a grievance the second time and at the second step of the grievance process it was agreed he would be appointed as Acting Manager at his store in order that he be given the opportunity to demonstrate he was able to do the job. This period was supposed to last three months. During that time he was given specific objectives by his supervisor, Mr. Pierre Trudeau. The two met regularly and, to all outward appearances, Mr. LeBrun seemed to be doing well. He was not confirmed in this position because there was a question as to whether the store was to close. Mr. Trudeau testified that had the ‘. . 3 position been posted he was satisfied that Mr. LeBrun@s performance would have warranted him getting the position. All was not rosy, however, for Mr. LeBrun despite outward appearances. As a result of some difficulties at work, including a new computer system, difficulty with an employee, a perception that he was never going to be confirmed in the position as problems continued, he felt, to be highlighted by Mr. Trudeau, the grievor, as a result of the stress he said he was experiencing resigned the position of Acting Manager on December 10, 1991. He was he said, depressed, bleeding.from the nose and not sleeping. He continued working at the store until November 1992'. In January 1992 Mr. LeBrun started stealing from his employer. He indicated that it was planned and resulted from the anger in him. The anger, he said, was directed against Mr. Trudeau for twice passing him over for promotion and then, when he was the Acting Manager, for not confirming him in the position. His initial plan was to steal what he was frowedtl, but once he started didn't stop because, he said "1 wasnst myself any more". By the time he was caught, Mr. LeBrun had stolen thousands of dollars. During this period Mr. LeBrun was also experiencing stress in his home life. Since the theft, Mr. LeBrun has been attending AA regularly. He has received counselling as has his wife to allow him to better manage stress. Mrs. LeBrun attends Al Anon and testified she is in a better position to support her husband. He has a very supportive sponsor who testified that he has seen a significant change in Mr. LeBrun over the last two years. From my observation, Mr. LeBrun has changed since the first day of hearing. * Mr. LeBrun was assessed by Dr. Allan Wilson, M.D., Ph.D., Director Addiction Services, Royal Ottawa Hospital and Professor of Psychiatry at the University of Ottawa. Dr. Wilson's evidence was pivotal in determining this matter. He stated that Mr. LeBrunDs prognosis was good but that the future is dependent on Mr. LeBrunls continued ability to cope with the stressors that might present themselves in the future. Although there are no guarantees, Dr. Wilson was of the view that Mr. LeBrun is now in control of the problems that caused him to steal and has the support mechanisms in place to avoid recidivism. Situations such as this are not easy to decide. An employer clearly has the right to expect honesty of its employees. It is for that reason that most discharges are upheld. There are situations, however, where a penalty other than discharge is the more appropriate reaction. The instant case is one such situation. By all accounts Mr. LeBrun, throughout his 22 years of service was a fine employee with no disciplinary record. What he did was totally out of character for him. On the evidence it is clear that . ( 5 there were particular and extenuating circumstances that gave rise to his actions. He .has since been able to identify those circumstances and has taken the necessary and appropriate steps to deal with them. His wife,‘AA sponsor and counsellor all say he has changed since his dismissal. Dr. Wilson testified that he has apparently taken control of his life and the prognosis is good. On that basis I am satisfied that the penalty of discharge shall be modified and that Mr. LeBrun should be conditionally reinstated. I do not do this lightly. The grievor has to understand that what he did was wrong. This is not a game of baseball where a batter is entitled to three strikes. In this game, Mr. LeBrun is given one chance. It is up to him to ensure that he does not let the one chance he is being given go for naught. In establishing the conditions under which Mr, LeBrun is to be reinstated I took the unusual step of consulting the parties. I did so to try to balance the interests of both parties. I am indebted to the parties and their counsel for their assistance. The grievance is allowed conditionally. Mr. LeBrun is to be re- employed effective December 19, 1994 in the Chesterville store as a CSR. The discharge letter is to be rescinded and replaced with a letter of suspension. Mr. LeBrun is not to be credited with seniority or other benefits for the period of suspension but is not to lose any accrued or accumulated benefits or seniority. 6 The reinstatement of,Mr. LeBrun is subject to him fulfilling the following conditions over the two year period from December 19, 1994. a) b) cl d) e) f) 9) h) He is to continue to attend AA. He is to remain abstinent. His sponsor is to file monthly reports, through Mr. LeBrun, with the employer, attesting to Mr. LeBrun's continued attendance at AA and such related programs as are deemed appropriate by the sponsor. Mr. LeBrun is responsible for bringing any work-related stressors to the attention of his employer so that appropriate remedial action can be taken. Mr. LeBrun is to see his family physician every three months, It will be the responsibility of the family physician to bring to the attention of the employer any matter that could in his/her view affect the continued employment of Mr. LeBrun. Mr. LeBrun is to ensure his family physician is aware of the above and is to provide the employer with proof of having seen his doctor. Mr. LeBrun must maintain satisfactory work performance. Mr. LeBrun is to repay the employer the sum of $2,700.00. The amount is to be repaid in equal bi-weekly instalments over a three year period, A breach of the above conditions will result in the immediate 7 discharge of Mr. LeBrun, subject to his right to contest the employer's actions. I remain seized to deal with anything arising from this decision. At the request of the parties I also remain seized to deal with any employment-related issue that might arise during the period the above conditions are to be in effect. Nepean this 19th day of January, 1995. M.B. Keller, Vice-Chair