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HomeMy WebLinkAbout1993-1834.DePratto.96-01-08EMPLOY& DE IA COlJRONNi DE L’0Nr..l0 ONTAI710 CROWN EMPLOYEES GRIEVANCE SElTLEMENT BOARD CPMMISSION DE REGLEMENT DES GRIEFS / : 180 DUNDAS STREET WES’I; SUFE 2100. TORONTO ON t&G 128 .. TELEPHONEtiiLPHONE : (416) 326- 1388 180, RUE DUNDAS OUEST; BUREAU 2100. TORONTO (ON) M5G 128 . FACSlMlLEltiLkOPIE : 326-1396 (416) GSB # 1834793 OLBEU # OLB144/93 : IN THE MATTER OF AN ARBITRATION '. : Under TEE CROWN EMPLOYEES,COLLECTIVE7-BARGAINING‘ ACT . Before BETWEEN " TEE GRIEVANCE SETTLEMENT' BOAkD OLBEU (DePratto)\ Grievor - and - " . _- The Crown in Right of Ontario. .' . .(Liquor Control Board of Ontario) '. I L Employer ~ BEFORE: R. J. Rpberts Vice-Chairpe&on. 'FOR TEE GRIEVOR M. McFadden Counsel Koskie & Minsky Barristers br, Solicitors FOR TfiE D. 6arbini EMPLOYER Counsel Hicks, Morley, Hamilton, Stewart, Storie Barristers & Solicitors HEARING September 22, 1995 December 13, 21, 1995 , ,’ &WARD ‘1 .,. : . + \ . . . . 6. I : ,,’ - .’ .; .’ -_ :. ^. ._ . . ‘.. In the present case; the grievor &as discharged for theft. kis termination was effected by letter ._. “. -- L .. : from the L-C B.0 dated July 19, 1993: Prior‘to this, on July 6, 1993, the grievor had been :-. _ _ ‘. arrested by officers’of the Metropolitan Toronto Police Department and charged &h theft under .‘. _‘. -. ::. ,:- one thousand dollars: This arrest w-asmade upon the basis of information provided by the.L C.“b .+,, ‘: : I . . : -. _’ :. 0. At the outset of the hearing, ,both parties agreed that the acts of theft for which the grievor was ‘,; .:, : .‘_ c ’ .. _ i terminated and arrested had occurred. They also agreed that such.acts of theft constituted grounds > :’ ;. ‘r for impositionof severe discipline, including discharge. ‘The case’proceeded.upon the . .- _ -,,... t -1 ‘_ . . i’ understanding that the grievor had,the burden of producing evidence to show that he deserved a -. “‘. -. i : second chance. It was also understood that the bulk of this evidence.would relate to’the . :. : ‘. rehabilitation of the grievor after his termination. : : .‘ : :. . . : ,. ,‘.. . i ,. -’ .a :. . : After the-parties completed making, their submissions on the last.day of hearing, Qecember,21., : 1995, a conference tias held between this Vice-Chair and both counsel. In this conference, it was , i I.. _.- .. indicated to cot&e1 that, considering the evidence in light of their. submissions, it appeared’that .,- . . the grievor deserved to. have a second chance. An order tiasissued directing that the-grievor be .. ’ . . c conditionally reinstated to his former position as of the first Monday in..Eebruary, 1996, tith no . _‘. 1 ., . . compensation and no accumulation ofseniority for the’period oftime betweenhis discharge’ and ‘.? ,, his reinstatement. The conditions of reinstatement were to be agreed’between the parties and ‘. . : L i 2 were only to be established by the Vice-Chair in the event that agreement could not be reached in a timely manner. It was indicated that this-award would follow. The evidence in this case svas‘entered by way of an agreed statement of facts and testimony from Mr. R. Mitchell, the District. Manager for District 17 of the LCBO; the grievor; and, the .grievor’s physician, Dr. Kevin Lutes. The agreed statement of facts read as follows: ’ ._ .. ,_ ‘. AGREED STATEMEL% OF FACTS 1. 2. 3. 4. The grievor’s date of birth.is February 26, f96II He was hired as a.casual clerk in September 1986 and subsequently as a permanent full-time clerk effective August 2, 198s. His duties and responsibilities included operating the cash register, tendering and recording sales and accepting payment. for product ,J The grievor was transferred by the LCBO from its Bowmanville store #263 to the Pickering store #368 located at 1809 Liverpool Road, Ontario, .effective May 31, 1993. -While working at the Bowmanville store,‘the grievor had come under suspicion for thefts, however, due to the structure and layout of that store, video .&nera sutieillance could not be conducted. The grievor was accordingly .,- transferred to the Pickering store where video cameras could be‘ installed for the : purposes of surveillance. ’ ,, ; : The LCBO has standard cash procedures which each cashier is required to follow (Exhibit $1). It is also standard LCBQ procedure: to keep a record of all cashier shortages and overages.on a daily basis. Videotape surveillance was conducted with respect to the grievois cashiering functionsduring the period June.22 through June 27, 1993. This period covered two of the grievor’s working days, June 23 and June 24, 1993. This surveillance ,. .^- disclosed that on both of these days, the grievor committed approximately 19” ‘, “open drawer” transactions. An “open drawer” transaction. is one in which the ‘cashier does not quite close his tihfrom the previous customer. this allows hiti .;. to accept cash from the next customer and provide change without having io Ying .- i.n” the transaction on the “display” portion ,of the register .o; having fhe sale- : recorded on the “detail tape” (the paper roll which records all transactions). The ‘,. ‘. .I.’ , grievor was also observed t&in, 0 money from the drawer of.his &h register and ’ .’ ; .-. The grievor, through these-irregular : ‘, . . putting same into his apron pocket. procedures, stole approximately 6437.00. This was achieved in such a way as to’ _ ‘. -1 j . - . . . . ‘-. .: .;. : ensure that his cash balanced at the end of hisshift. But for .the video . ; ,. - i ; _, surveillance, these actions would have gone undetected. ,. ;. , : : _., ‘, ‘_ : 6’ 5. The foregoing was brought ‘to the attention of the Metropolitan Toronto .PoIice . . : Force. The grievor was arrested by officers of that Force on-July 6, ,I993 and’ _. . charged with theft under %l,OOO.Ob. : _ . ‘.. ’ .~). ‘; ‘. .. I 6 _i ! * :‘ _. : . . Shortly after his ‘arrest, the .grievor received-a Ietter from,the ,LCBO dated J&J S, 6. -. . - 1993 (Exhibit #2) wherein he was advised that he’& relieved. from.&@ with ’ ‘: ‘_ . pay pendinglinvestigation’and .required to respond to the allegations withixithree.’ .. : calendar days of his re’ceipt of ihe lettei: No response was received-by the LCBO. *thin thre,k calendar days. The District Manager, Ron Mitchell, accordingly’ _ ..: contacted the union steward in an attempt to receive a response from the geevor. . -: _, No response wi provided.. The grievor’s .employment was tern&ted by letter ., datedJulyl9, 1993(@hibit#3). ,’ .” .- .I : _’ /. .’ ‘_ ,‘. . . ,_ -‘.,. ..I; ;, .: :, ., *. ._. 7. 6 unsigned- letter dated July-g, r993 was thereafter received by. the LCBO from ‘. . . ,. : . the grievor (E.&bit #4). - . ‘. ._ -. .’ -:.>, .: i . . . I. ._ : I ? . 8. The g$evor’s criminal charge was heard on September 27, &f- .The grievor : ’ .:. . plead guilty to theft ,under Si.OOO.00. He was sentenckd~to five-days.&jail, jlO6 ., . . hours of community service ‘and 18’ months probation. He.was’also ordered: to ‘. :. . : make restitution to the LCBO in the’amount of $437.00 by Januaryl27, 1994 and ‘. - : .’ . . . .‘c’ - . ., in fact restitution ‘-was made: \ .,: _. ‘... . . . ..:. . . . . ~ 9, The griever’s absenteeism record is as follows: . . : _ : 2 days, sick leave .. .I . _.. 19s9 - : 1990 - 30.5 i992-20 ‘. ._’ : 1991 - ,gz 1993 - 14 . ,_ f : .‘. ‘. . .. .‘_ t / . . -. : _’ 4 . Mr. Mitchell testified that both the Bowmanville and Pickering stores were in his District. -He said that the Pickering store was the.largest in the District, with at least 11 ‘to. 12 full-time employees and ten casual employees. Included in the full time employees were a manager, an assistant manager and several customer service representatives. The position of the grievor was in the latter category. - ,. _( : According to Mr. Mitchell, the custcmer service representatives performed a variety of tasks, including unloading trucks, verifying invoices, shelving product, and responding to telephone and customer inquiries. They also rotated through the cashier positions and were responsible for. making returns to stock from customers with, e.g.,-special occasion permits. It was also possible, Mr. Mitchell said, for the most senior customer service representative in the store to act as manager in the event that both the manager and assistant manager were away.‘duk to illness; ; vacation or educational seminars. He left little,doubt.that the position of customer service , representative was a responsible one-that was subject to a minimum of supervision and involved a great deal of trust. Turning to his letter of July 8, 1993 (exhibit no. 2 to the agreed statement of facts), in which he > . relieved the grievor from duty with pay effective July 6, 1993 pending investigation, Mr. Mitchell testified that he directed the grievor to submit a written statement within three days of 5 5 . - “. 5:, .: receipt in order to give the grievor an opportunity to respond. As far as he knew, however, the - .‘. grievor did,not respond within the allotted three days and so he decided to terminate the grievor. ..’ I on the basis of the information at hand. It was only after the termination that he received from the’ : / - Human Rights Office of the L C,‘B 0 the unsigned letter, from .theI.grievcr date,d July 9, -1993 :- .’ ..‘- _ .’ (exhibit no. 4 to the agreed statement of facts). : .. ,! ‘ ._ _ . ‘,_ ..‘_ *: .,. ‘. , .T’ _ ” , : I.’ Upon cross-examination, Mr. I&hell agreed with a suggestion ,from counsel’ for-the union that -- i :. if he .had received the grievor’s letter of July 9, 1993 ‘tithin the three-day .period, he might not ..., .- -- : . ‘, ‘have recommended discharge. He said that he certainly~ would have looked at .the grievor’s : ;. ” .: .._ .: situation before recomniendmg discharge because, obviously, the man had a problem. It may, ._, . . . . have made. a difference, he said. ‘He added that he was prepared to see.if something could-be done : r ., ;.._ -. -- m ‘. to help an employee &h problems if he or :she’cameto him. This was &-he said, even after ..’ ‘. I; li ,.. . . here -- reviewing tapes showing the employee committing acts of~theft. -, 5 . ., ,~. : _ : .’ < : ‘, According to Dr. Lutes, the grievor came from a family with a history of.depression and -_ x ” . . . A. : alcoholism. Dr. Lutes testified that the grievor’s moth&and sister suffered from depressi.on His : I. ,. father was an alcoholic.’ The ‘grievorwas diagnos,ed by Dr. Lutes as suffering, from an addictive .’ ” r. _ . . .’ : personality, depression and.panic disorder. It appeared -from the evidence that Dr. Lutes was the ._ ; -. - > family physician for the grievor, ,his mother and his, sister: Dr. Lutes testified that while he was’ .’ * not a psychiatrist, he.had a particular interest in psychological problems and his first ‘degree was ~’ . . : \ ,_ in this area. He indicated that about ,60 percent o.f his practice involved on-going psychiatric: care. : 6 Dr. Lutes saidthat as early as 198.1, when the grievor was 20 years old; he sought psychiatric help for psychoneurosis and anxiety reactions with features of depression. These were related to feelings of ambivalence and fear of assuming independence. The psychiatrist who treated him at the time prescribed an antidepressant, called Surmontil. I / Both Dr. Lutes and the grievor testified that the- grievor experienced further problems with depression -- this time combined with alcoholism -- in June and July of 1990. h-r, July of that year, Dr. Lutes diagnosed the grievor as moderately to severely depressed. This diagnosis was I i based upon certain criteria for analyzing depression called the D. S. M. 3 criteria. According to Dr. Lutes, if a patient scored greater than four on eight basic types of clinical indicators in these criteria, such as crying spells, inability to experience pleasure, feelings ,of helplessness -or 1 hopelessness, there was a significant depression. The grievorscored greater than four and also exhibited psychosomatic symptomsof throat and head.distress. Dr. Lutes prescribed an ‘antidepressant called Prozac. however, ,.was not a cooperative patient. He skipped his August appointment with Dr. Lutes and in September, was admitted to a rehabilitation facility called the Renascent Center, where he exhibited persistentsymptoms of depression compounded by panic disorder. The ., .- grievor continued to m&s appointments with doctors to whom he was referred despite worsening panic attacks, agitation and depression. This pattern continued into 1992. The grievor testified that in the period 1990-92, he was consistently abusing alcohol. His abuse ‘. -_ I . 5 c <. ,. ., _ ,..I. ,. ‘, ; peaked in June or July of lq92, when his average consumption of beer per week amounted to 3. \ 1 to 4 cases of 24 bottles&h: After a particularly severe nightof drinking in July, 1992; he ’ j .. decided that things had to change. He went to a- dry-out centre in Cshawa, cal1e.d Parkwood. :One 1 -I or two days later, he was admitted to the Renascent,Center’s-‘28 day program; which he . : y ‘~ . . . . completed on August 16, 1992. Since then, he testified, he.has only had one ,beer and that was‘on. I._ the.day that his-mother-in-law died, ‘April 10; 1995. : :‘r I 1’ _ : : __ *‘I -. ‘, : . . ._ : ._. : 1. <- : , . : .: ‘. Miraculously, or so it seems, the grievor did‘not lose his employment with the LC B 0 during ; :. .* _; :’ . . ’ .-. the period 1990 to mid-19921 nor did he lose his wife oi family.‘His problems: however, were far; .* . .I ,‘, : ;. ,. ., fi-om.over. His downward. spiral ‘was, to continue., ._. I a :.’ “ :. : ’ ,: 2 .- . . . . : ; .- __ ..‘.’ .:. ‘,.‘... .:.. * : ; . . . . . : : . . .., 3 : :. In September, 1992, the grievor met a woman (hereinafter referred to as “X”)‘who, like himself, ; . . suffered. from,depression. &the time, X was on welfare. ‘She.had.a young daughter and the . _’ . . . . - . , : :. ;_ .I daughters of two fi-ien,ds.living with her. The’.grievor became interested in Xand in November,- I _- .’ > -_ - ._ 1992, left his wife and ‘family to live with her. ~ . . :’ : : : i. .‘. .. . . ; -. -. 1 ._ j. .I. ‘; _. : ,’ : By all accounts, this was,.a disastrous move. Apparently ,at the insistence of X,‘the grievor 1” 1 ~ . . severed virtually ,@I. tieswith his mother, his wife and his two children. Worse;,through X the :, ; : . . . _’ .- grievor gained seemingly unlimited access to two prescription drugs for depression and.&ixiety;~ ‘,e ’ : -- - Prozac and Rivitrol. He began to take daily unprescribed doses of either or both of these drugs.. L ’ . : ;. _. According tc the grievor, thisturned him into a different-.perscn. He lived each day in.a, : ..*_ . . : : ( perceptual fog, not really caring for anyone but himself. I- .‘. : ’ . : - :. .. -, - I. * _. . . I 8 Dr. Lutes testified that the condition that the grievor described was consistent with a depressive state combined with abuse of the two .drugs involved. He said that even when such drugs were initiated by a-physician there could be cloudiness of thought and consciousness.’ Also, he said, if a person is profoundly depressed there is a clouding of consciousness and the thought processes. As to the role played by the woman with, whom the grievor had formed a relationship, Dr. Lutes ,said that the grievor,, as an adult, wasresponsible for his own actions; however, !she may have been a catalyst, a convenient substrate to act upon, act out, as he did, which was quite atypical.” .. Thingswent from bad to worse. On or about February 10,1993, the grievor-had a fight with X in which she gave him a black eye, although he claimed that he did not touch -her. Both parties to the relationship wound up in Oshawa General Hospital after this fight, primarily due to their agitated mental states. According to Dr. Lutes, the crisis intervention team atthe hospital advised him that the grievor was in a crisis. He had many symptoms of significant depression and had lost 46 pounds since the summer of 1992. Dr. Lutes saw the grievor on February 11, 1993. He had the grievor moved to a different floor from X-because their relationship had gone quite sour and-he thought that encountering X would aggravate the grievor’s situation. The grievor remained hospitalized for nine days. From talking with the grievor in the hospital, Dr. Lutes understood that the grievor had terminated his relationship with X. Soon after leaving the hospital, however, the grievor resumed the relationship against the advice of Dr. Lutes. Then, in April, 1993, the grievor sold the four i 9 bedroom house in which he had lived with his family and bought a townhouse for himself, X, her daughter, and the two young girls who lived with her. I ~ .: ; : 2 .’ The grievor testified that by this -time, X was not working and was not receiving welfare: The .’ :; grievor’s monthly’take-home pay was roughly $lsOO. Out of this he had to pay $600 per month : . . .., to his ex-wife a&$870 per month for the’townhouse. That left about $330 per month for :- ’ ” ‘, . ,, ., groceries and other expenses for the five people living in the toivnhouse. Apparently, some relief .: ‘ _. . : came at one point intirne,when X received an emergency cheque for about -$7bO from.social : -. ..- . .-’ : *’ assistance. .’ :. ., I ,: ‘-1 . : . . :. .._ : .’ . . : Then, on June 23. and 24,. 1993, .the final disaster struck. The grievor was caught on videot,ape ‘* - ‘. ‘- stealing a total of approximately $437. from the drawer of his cash register. He was arrested, ‘. ,.’ ‘. criminally charged and terminated. He pleaded guilty to the criminal charge and on ‘September . . . -. I :. 24, 1993 he was sentenced to five days in jail, one hundred hours of community service,’ and : _ eighteen months probation. He also was ordered’ to make restitution’to the I,CSC and ‘promptly’ ‘. _ i c- : -..’ . . .: . did so. .’ . : ‘. _ ” ,., .’ : i ., . .I It was all over. At about the same time as the grievor was arrested, X. left him. ‘The grievor- . . . -_. ,.’ telephoned his mother and father and asked to. live with them; They.agreed. He then went-to the ’ . c ’ bank that held the mortgage on the townhouse and gave them the key. &hen all was said and ’ : ‘. . . * done, the grievor did not recover any equity out of the townhouse. IIe filed for bankruptcy-in ’ ,- September, 1993 and.was declared a bankrupt in June, 1994. -. ..I : - -1 : ‘1 : --; . . ‘, .‘ . I . Some might say that the grievor had struck bottom. They might also say that it would have been easy for him to give up. He did not. In August, 1993, he sought treatment from Dr. Lutes. He continued tosee Dr. Lutes from 3 to.5 times per month until April, 1994. In November, 1993, he began attempting to reconcile with his ex-wife, and around Christmas, 1993, they resumed living together. The grievor testified that now they have a very good relationship, better than they had before everything happened. He said that this resulted from a better appreciationthat he had developed for his wife andhis children. Finally, in August, -1994, the grievor began working for Kelly Services and later, Manpower Services, i.e., temporary services paying-minimum wage. They have given him relatively steady work since he began. According to the evidence, this was due in no small part to: the grievor’s own efforts. In a reference.letter from Manpower dated May 10, 1995, the grievor was described as receiving ” excellent feedback ” from the supervisors on each assignment. He also was - . i described as “always on-time if not a bit early; completes all his assignments, and is wonderful with the staff members in this office.” In. a reference letter from Kelly dated May 9, 1995, the grievor was described as having “proven himself to be reliable, trustworthy, punctual, and hard / : . working. He has received very good comments from our clients... and.they tiould all definitely request him back if the need arose.” There seems to have been quite a transformation. Dr. Lutes testified that this transformation was not easily accomplished. When he initially saw the grievor in August, 1993, the grievor was in a profound depression. He was difficult to treat I , i --- : i _ u _. ,’ -*:, ,ll ..’ ^ because he had panic disorder, depression, and addictive personality all combined. This made the T choice of treatment difficult. On January 1, 1994, after the grievor had reconciled with his wife, he referred them to a psychological counsellor in his building, Mr. Lloyd Scott, for an _. 1 assessment. Mr. Scott reported back that he’ did not really hold out much hope.for the grievor. - . ;. .., ., .- . i In the opinion of Dr. Lutes,’ what,.helped turn thingsaround for the grievor was ‘the,participation : ‘. .j. I. of his wife in his.therapy. He described the grievor’s’wife,as very und,erstanding and very.. I . : , supportive. (It might be.noted at this point that the ,Renascent‘Center,“where the grievor-was _. : I .. ._ .I’ . _ y. : assisted in overcoming his addiction to alcohol, was managed by his wife’s ,father.) The grievojs. : .. . : I -.._..,. . mother .a.nd father-were also very supportive, and this.aIso. contributed to the beneficial outcome.-: : : . . . : : .: : . .:*- . . . .:. -. : When asked to describe the grievor as of September, 1995, Dr. “Lutes stated that.the grievor : , . -. seemed-quite well adjusted and,devoid of stress. He added thatthe grievor now has come to ,” . - terms with his past, his wife, ‘his parents, all the significant people in l&life. Moreqver, he- .-. : :. : ‘- . ‘, . . ‘. considered that the grievor’s support system -v&s sufficient to allow him to get the necessary ‘care’- .: ,I _‘. should the need arise. For,‘this reason, he said, it was not necessary to have the grievor participate. : . . . in anon-going &ogram. ‘The grievor and -his wife had received sufficient education intheir _,, j ” .’ .- counseling sessions to knoti what to look out for: ti. ., .: ’ 1 .. :: ’ .. :-I i ., :’ :\ * 1 . . : *’ _ ._. . . . .‘, 4 .. ,’ , . ‘. . : .z..- . ._ .- In well prepared,and extensive submissions at the end of the. evidence, counsel for the employer. I’. , .’ : argued-mat the grievor should not be given a second chance; The following factors, ,iriteY alia, : , : were cited in support of this submission: during the two-day .period in.&ich he was observed . . ._ :, .” \ : ,“, i ‘,, ! ‘12 committing acts of theft, the grievor did so on 19 separate occasions; the. acts of theft were “open drawer transactions” requiring a degree of premeditation; the acts of theft were not momentary _ aberrations in conduct committed under the influence of an intoxicant such as alcohol or a narcotic drug; there was no remorse presented by the grievor; the grievor’s evidence was not , credible; in any event, the grievor’s evidence failed to demonstrate any connection between the acts of theft and his abuse of prescription drugs; and, the evidence failed to demonstrate anything close to a guarantee that the grievor would not once again succomb to the same temptation. In ‘short, counsel claimed, nothing had changed. Counsel brought the following authorities to my attention: Re DeLaurentis and Liquor Control Board of Ontario (1995), G ,S B No. 1016193; Re Szunejka and Ministry of the Solicitor’ General (1993), G S B No; 1947192; Re Linton and Liquor Control Board of Ontario (1995), G S B No. 1429192; Re Reed and Liquor Control Board of Ontario (1992), G S B No. 1165/g 1; Re Mahmeti and Liquor Controt Board of Ontario (X989), G S B No. 2197187; Re Elliott and Liquor Control Board of Ontario (1984), GSB No. 10/84; Re Blackmore and Liqubr Cantiol Board of Ontario (1984), GSB go. 3 15 8184; and, Re Wells and Liquor Control Board of Qntafio (1982), GSB No. 2182. i . . i In equally impressive submissions, counsel for the union submitted that the grievor deserved a second chance because, contrary to the submission of counsel for the employer, everything had. changed. He cmphasized the transformation that had taken place in the grievor sinc,e the time of his arrest and termination. He disputed the assertion of counsel for the employer that the grievor had not shown any remorse for his actions and also disputed the assertion that there was no guarantee that the grievor would not commit further similar acts in the future. Finally, counsel .13’ .. claimed that contrary to the assertion of counsel for the employer, the-grievor had been honest in his testimony, which was corroborated at significant points by the testimony of Dr. I+es. He. .* .* .:, reviewed- several of the. cases cited’by counsel for the employer and, brought to my .attention one’ ,.. ‘. I_ additional cake, ke Menz& and Ministry of Transportation, (1991), GSB No. ,;,5 l/91 :’ I, .“I,_. ‘. ’ . I : . . ._ :. .: : I will begin my consideration of these submissions with the issue of credibility. From my ‘own ” ,. ,_ .’ observation-of the ,responses and demeanor of the grievor during direct and cross- examination, I _ . ” _’ reached theconclusion that he was attempting to be painfully honest. He accepted full - : ; responsibility for his actions to.the point of self-embarrassment and refused~nurnerous invitations . . ’ : ‘_ : .- :: : -_ in cross- examination to blame other persons,or causes for his.acts of theft. Instead, he repeatedly’ : ., 1 . :: confirmed that at the time.of the thefts he knew that his ,acts.were Gong and,& this day he did ’ : ‘. . I I ‘. not understand why he committed them. He also refused to take,any refuge in’the reasons cited in . ; ‘. , - 1 I his unsigned response to Mr. Mitchell dated July -9, ,1993. He indicated that he wrote, this letter I. : .’ : I with the assistance of a union steward while he was still in the perceptual fog that Dr., Lutes -. ‘. : ; confirmed was caused by his severe depression and abuse of prescri$ion drugs. At that time, he : : + said,‘he was not fully aware of his condition. He candidly asserted that theealcoholism mentioned : in this letter could not have had any impact upon his behavior because it had been conqu-ered.a ,. . . : z year before the thefts took place. In all, the’evidenceof the grievor appeared to‘be that of a . I. . mature person who had come to terms with himself and was not about to evade any of the blame :. .- .’ _ . for his own mistakes: The‘ grievor impressed me as a forthright, honest and completely credible witness. ’ _’ I. . ; I_.. . . . : ” , I ,’ ._ : i I Furthermore, the evidence of the grievor was, as counsel for the union asserted, ‘corroborated at significant points by the evidence of Dr. Lutes. In this regard, it is noteworthy that the grievor. testified before Dr. Lutes was called to testify and While Dr. Lutes was not present in the hearing room. The extent of the corroboration need not be-detailed here. It is indicated ,in the recitation of facts set forth in this award. The evidence of Dr:Luces and the grievor corresponded so closely in terms of chronology and events that it seemed most convenient in reciting the facts to ., refer to their evidence in a combined fashion. The next issue to be addressed is whether’a causal connection has been established between the grievor’s acts oftheft and his condition at the time of the thefts. On this issue, counsel for the . . . employer placed substantial reliance upon Re DeLaurentis, supra. In that case, the grievor : claimed that his premeditated thefts from a cash register were caused by a serious drinking problem that he.had since overcome. The Board;however, refused to exercise its discretion to reinstate him. It said, “the onus must be upon the grievor to establish that his thefts were prompted by his alcoholism. In this case, there was no medical, psychiatric or other expert testimony produced to establish a connection between.the grievor’s alcoholism and his thefts. Therefore, our evaluation of the grievor’scredibility .rests primarily upon our. evaluation of his own evidence.” Id. at 15. Finding that the grievor’s evidence -- in which he sought to transfer responsibility for the thefts from himself to his alcohol dependency -- was not credible, the Board concluded that the termination for theft should stand. Id. at 16. .. / In the present case, however, there seems to be little doubt that but for the grievor’s condition at the time-of the thefts, they .would not have been committed. The evidence shows that at the time, : the grievor was in a perceptual fog induced by severe depression and abuse of jprescription drugs. : The grievor testified that.when he was in this state he didnot care.for anyone but himself..Dr. . I’ : Lices essentially testified‘that.this condition was consistent with.& effectsto: be expected from,. : the depression and drugs that were influencing the grievor.. It is also to be noted Ithat at the time ,- the grievor was nearing the bottom of his downward spiral, with its accomp&ying financial and. ‘. : _’ ! emotional &essures. While the grievor gamely refused to evade’ accepting responsibility for his . . thefts,it seems much mo&robable than not that the thefts would not have beencommitted if he ‘Z _ : : had not been in a depression and drug-induced fog. . . .’ . .. ‘. ; ,. ‘.:; .’ . : ‘. ; ._ . I . . . ‘_ ; :_ -* , .“. _ . : . . The final issue to be addressed is whether the condition of the grievor has changed su&‘ici.ently~to : ‘: ._ .’ : 1 .., permit a conclusion to be reached ‘that he is’highly unlikely to engage in acts of theft in ‘the..’ - ,’ .~ foreseeable future. On’ this issue, counsel for the employer stressed the, evidence ,of Mr. Mitchell, . . ..-, ,’ that customer service representatives like the grievor occu&ed a po&on of trust in which they ‘,.. . were left, to a great extent, to operate on their own. It also was stressed that it was unavoidable X , ,’ / . that such employees would be required to rotate throughthe cashier position and, as such;,the :.’ -. ,’ temptation to which the grievor succombed would always be thereCounsel alsO pointed outthat ‘_ i’ : - _. Dr. Lutes testified on cross&&ination that’because the-grievor .had an’addictive personality his ‘. addictions were-more likely to resurface than in a person~.\?Jithout’this ,trait. : : ..’ ‘1 ..I . ._ .’ , ,’ : .: , .*; ~ ‘. ._ . . ‘_ -, .: _ In light of these considerations, counsel submitted, it would-be unreasonable to require the, .- :-. LCBO to subject itself to the risk of a relapse in.thegiievo;‘s condition. This risk seemed.high I .: ‘. I. . . / . i6 -. ~ : ., ,* because the grievor was not now. in any on-going treatment program. In fact, counsel submitted, : the circumstances of the grievor, i. e.,‘living with his wife and children and &th a good. relationship with his parents, and.siblings, were no different than they :were, when he began the ‘. ’ . . . downward spiral leading to ‘the acts of theft that precipitated histermination In this -sense, it was : : :, .’ . . ~ -. -. submitted, nothing had changed. :.’ .- i I.. ; : . ;- ,_ . . ;: . ,_ ^ : . ..:: <! . . ,_ I .- : . I do not agree. In this respect, I find myself aligned with the submission of counsel for.the union’; ., ._‘.. that everything has changed. The evidence raises a strong inference.‘that from his experience in : ” ,: ? spiralling ‘downward, striking ‘bottom and striving to recover, the grievor gained matu&y, 1 . _. __ I substantial insight into his psychological .problems and how to handle them, and for the first .: : . . I i . ‘. ‘, : .:: ‘_ 1’ / .’ time, a deep appreciation of the importance &him-of a loving -and sufipo&ve family. with the _ : . .,- dedicated assist&&of his wife and. family combined with regular therapy ‘from Dr. Lutes, the -... - . . t.. i grievor managed to -turn himself around-and embark upon a productive’life. If the letters from _ i. _, . Kelly Services and I&&power are any indication, he has been very successful. ‘Dr. Lutes also ; testified to the success of the grievor.This success should.be recognized and encouraged.. ‘. :, _. : . . ‘. j’ : . . .- So long as the current stability ofthe grievorpersists, 1,at-n convinced thatif reinstated he would I.. ‘. _ ..- i be highly unlikely to commit ‘any acts of theft in the foreseeable future. Dr:Luces testified that ‘: , . ” he was confident-‘that the grievor could maintain his stability ,becau&oth he and. his vjife _ I .’ . . . . . learned in therapy the danger signs to look out&r and would seekthe necessary help before . .~ .,, . .’ : ’ ( matters got out of control. As Iindicatedto counsel~in our conference after the hearing, however; -. I .._’ I feel the force of the concerns of the L C B 0 regarding the risk to,%hich the employer might be .,,’ . .’ subjected if required solely to rely upon self-initiation by the grievor ofcorrective action. For ‘this reason, it was agreed that any reinstatement of the grievor would be subject .to conditions and one of those conditions would be regular attendance in counseling sessions with Dr.’ Lutes for a significant period of time, giving the LCBO on-going.Bnd-unimpeded access to all notes, reports or other findings..Details regarding other conditions of reinstatement were set,forth earlier in this award. Given the foregoing.conclusion, -it was decided that the grievor deserved a sec,ond chance and, accordingly, I exercised my- discretion to conditionally. reinstate the grievor as of the first Monday in February, 1996; Dated at Toronto,-Ontario, this 8. day of January, 1996. ~