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HomeMy WebLinkAbout1993-2232.Campanaro.95-01-13 DecisionONTARIO EMPLOYES DE LA COURONNE . CROWN EMPLOYEES DE L'ONTARIO GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TORONTO ON M5G 1Z8 180, RUE DUNDAS OUEST BUREAU 2100, TORONTO (ON) M5G 1z8 BETWEEN BEFORE : FOR THE GRIEVOR FOR THE EMPLOYER HEARING (416) 326- 1388 (416) 326- 1396 GSB# 2232/93 OLBEU# OLB007/94 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OLBEU (Campanaro) Grievor - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer M. Watters Vice-Chairperson T. Browes-Bugden Member M. O'Toole Member J. 1. Noble Counsel Ontario Liquor Boards Employees Union D. Mombourquette Counsel Liquor Control Board of Ontario December 6, 1994 At the commencement of the hearing, the parties provided the Board with the following Agreed Statement Of Facts: 1. 2. 3. 4. 5. 6. 7. a. The Grievor, Dano Campanaro, was born on December 20, 1956 and currently resides in Toronto, Ontario. The Grievor was appointed by the LCBO to a permanent full-time position as Liquor Store Clerk Grade 2, on February 27, 1978. This represents his seniority date with the LCBO. The Grievor held the position of Liquor Store Clerk Grade 4 at LCBO Store #16, 4841 Yonge St., Toronto, at the date that his employment was terminated in December 1993. In early November 1993, Daniel Walsh, an Inspector with the LCBO Loss Prevention and Security Department installed a hidden video surreveillance camera in Store #16. The video tape recordings reveal that the Grievor used improper cashiering procedures to commit theft on 9 occurrences on November 4, 1993; 7 occurrences on November 5, 1993; and 12 occurrences on November 6, 1993. The total amount of money taken by the Grievor in the 28 occurrences on November 4, 5, and 6, 1993 was $569.00. The video tape evidence was turned over to the Metropolitan Toronto Police and, on November 24, 1993, the Grievor was arrested at store #16 and charged with 3 counts of theft under $1,000.00. By Notice of Intended Discipline dated November 24, 1993, the LCBO suspended the Grievor with pay effective immediately pending further investigation of this matter. A copy of the November 24, 1993 Notice of Intended Discipline, is attached as Exhibit 2. The Grievor did not respond directly to the Notice of Intended Discipline, but his lawyer responded on his behalf by letter dated December 3, 1993. Enclosed with the December 3, 1993 letter was a handwritten note by the Grievor’s doctor, dated November 29, 1993. Copies of the December 3, 1993 letter and the November 29, 1993 note are attached as Exhibits 3 and 4, respectively. 1 9. By letter dated December 10, 1993, the LCBO terminated the Grievor's employment for the reasons set out therein. A copy of the LCBO's December 10, 1993 letter is attached as Exhibit 5. The LCBO has a consistent policy of discharging employees who are found to have committed theft. 10. On January 19, 1994, the Grievor tendered $500.00 to the LCBO as restitution for his theft, which he understood to be the full amount of money owing to the LCBO. 11. On January 25, 1994, the Grievor plead guilty in Provincial Court to three counts of theft under $1,000.00. The Grievor was sentenced to 100 hours of Community Service, 18 months probation and a Discharge after the conditions were met. 12. The Grievor has one disciplinary notation on his record, a written reprimand dated October 29, 1992. The Grievor did not grieve this written reprimand. 13. At the date of his dismissal, the Grievor's performance was rated as 3 on a scale of 5, "consistently meets job requirements". 14. The Grievor filed a Grievance on January 5, 1994, asserting that he had been dismissed without just cause. A copy of the Grievance is attached as Exhibit 6. The parties agree that either party may supplement the above facts with additional viva voce evidence at the hearing of this matter. The parties further agree that this statement of facts is without prejudice to the position of the parties in any other proceeding and that any admission or statement made by the Grievor herein or during the hearing is subject to the protection of section 5 of the Canada Evidence Act, R.S.C. 1985, c.C-5, as amended." At the outset, counsel for the Union supplemented the Agreed Statement of Facts in two (2) respects. Firstly, with respect to paragraph number 10 thereof, she advised that the grievor had made full restitution in the amount of $569.00. Secondly, 2 protection was also claimed under section 9 of the Ontario Evidence Act. Counsel for the Employer indicated that he wished to call Mr. 0. Walsh, the LCBO Investigator, as his sole witness. As noted in paragraph number 4 of the Agreed Statement of Facts, it was this individual who installed a hidden video surveillance camera in Store #16 in early November 1993. Counsel stated that he wanted Mr. Walsh to show us the video tape in respect of the first four (4) occurrences of November 4, 1993. It was his submission that a review of the video tape would demonstrate the type of behavior engaged in by this grievor. Further, counsel suggested that such evidence was relevant to the extent that it established the grievor’s conduct as “planned and deliberate” in contrast to a momentary aberration. In reply, he argued that, minimally, the video tape would reveal the nature of the efforts used by the grievor to conduct the thefts in question. Counsel for the Union objected to the introduction of the video tape evidence. She stressed that the grievor had admitted to the conduct complained of and that, as a consequence, there was nothing to be gained from a review of the tape. It was her submission that the Board would not be able to glean any insights as to the grievor’s psychological state from such a review. Ultimately, counsel maintained that the Employer merely wanted to show the video tape for purposes of its prejudicial effect on the grievor’s interests. 3 After considering the respective submissions, a majority of the Board (Ms. Browes-Bugden dissenting) decided that it was proper to receive the video tape evidence as part of the Employer's case in-chief. It was our Judgment that the evidence was arguably relevant to the issue as to whether the Board should exercise discretion to modify the penalty. Following the ruling, the Board reviewed the video tape relating to the initial four (4) occurrences of November 4, 1993. Mr. Walsh described the improper cashiering procedures then employed by the grievor. These included two (2) instances in which the grievor "under-rung" purchase transactions and one (1) instance where he improperly "line-voided" a sale. This limited review suggested to us that the grievor resorted to a variety of devices to perpetrate the thefts. It did not, however, provide much assistance with respect to the grievor's overall mental state at the time the conduct was engaged in. The grievor was married in 1982. He has two (2) children; a daughter age seven (7) and a son age four (4). The grievor, at the hearing, presented a considerable amount of evidence relating to marital problems which commenced in 1990, immediately following the birth of his son. He stated that his wife then started to go out in the evenings and would not return till between 3:00 a.m. and 5:00 a.m. He indicated that, on occasion, she would not return at all. The grievor further testified that 4 his wife was rarely at home during the weekends. As a consequence of these absences, the grievor had to assume most of the responsibility for the care of his young children. He stated that by 1992, the situation at home was "really bad." It was his recollection that, at that juncture, his wife was out "more often" and was neglecting her domestic responsibilities. The Board was advised that the grievor's spouse had to have an abortion in 1992 as a result of becoming pregnant by another man. At the time, she continued to reside with the grievor in the matr imon i al home. The grievor testified that in April 1992 he was called at home at about 2:00 a.m. one morning and was advised that his wife had been hospitalized as a result of an automobile accident. On arrival at the hospital, he discovered that the family vehicle, a Ford Bronco, had been completely destroyed in the accident. The grievor subsequently attended at the scrap yard to retrieve his personal belongings from the truck. While engaged in this task, he found a letter which his wife had written to another man. The grievor understood from a reading of same that his wife and this person had a "very close and intimate relationship" and that she was anxious to escape her existing family situation. The grievor confronted his wife with this letter upon her return home from the hospital. It was his evidence that she then acknowledged that she was "cheating" on him. He stated that she left the house again after making this admission. The wife returned on 5 the next day and, apparently, continued to reside in the family home until the grievor initiated divorce proceedings in February 1994. In May or June of 1992, the grievor consulted a family law lawyer for advice. He was then advised to document his wife’s activities. The grievor’s notes relating to such activities were ultimately given to the lawyer in late January 1994. It was the grievor’s evidence that in the period April 1992 to February 1994, his wife continued to go out at night until 4:00 a.m. or 5:00 a.m. and, in certain instances, would not return home at all. In his words, they did not share “the closeness of husband and wife.” On the very day that his wife received the divorce application, she removed the daughter from school. The grievor testified that he was required to obtain a Court Order, and to seek police intervention, in order to secure her return. He subsequently obtained custody of the children subject to their mother’s right to access. The grievor informed us that this right is exercised irregularly. The grievor stated that he experienced financial problems between 1990 and late 1993. He indicated that his wife refused to make any contribution to household expenses despite the fact she was working. The burden of paying the outstanding bills, therefore, fell exclusively on the grievor. The grievor testified that this situation was compounded by his decision to 6 purchase a new car to replace the vehicle destroyed in the April 1992 accident. The grievor testified that he sought assistance from numerous sources in an attempt to deal with the marital and emotional problems he was experiencing prior to November 1993. His efforts in this regard may be briefly summarized as follows: (i) In March 1992, the grievor contacted Dr. Clive Bennett by telephone to discuss his marital and emotional difficulties. Dr. Bennett, at the time, worked with this Employer's Employee Assistance Program. The grievor, in his evidence, stated he told Dr. Bennett that his "marriage was going down the rocks" and that he was "not feeling right." Dr. Bennett responded to the grievor's request for assistance by suggesting that he see his doctor or his priest. (ii) The grievor contacted Dr. Bennett a second time after the April 1992 accident. His earlier complaints were repeated. It was the grievor's evidence that Dr. Bennett offered the same advice as had been previously given. (iii) The grievor contacted Dr. Bennett by telephone on a third occasion in order to give him an opportunity to speak to his spouse. The grievor overheard his wife tell Dr. Bennett that she wasn't happy at home and did not know what to do. (iv) Pursuant to the advice received, the grievor met with his priest and described his marital and emotional concerns. The grievor stated that his priest advised him to work at it and 7 ”there would be light at the end of the tunnel.” (v) The grievor subsequently elected to see his personal physician, Dr. P. Rostas, on September 19, 1992. The grievor testified he informed his doctor that he was experiencing stress and was having trouble coping with his family problems. It was the grievor’s recollection that he was instructed to take time off from work in order to “clear his head.” A medical note, which was filed as exhibit 7, documented these instructions. The grievor, in fact, took two (2) weeks off work. He asserted that he told the Store Manager his absence was due to stress. (vi) At some point in either mid-1992 or mid-1993, the grievor and his wife went for marriage counselling through the Roman Catholic family Services Bureau. This attempt lasted through approximately five (5) appointments. His wife refused to engage in further counselling once the issue of her having an affair was raised. (vii) In October 1993, the grievor discussed his family problems with Mr. George Sheppard, his employer in respect of a seasonal part-time Job. It is apparent from all of the evidence that Mr. Sheppard was also the grievor’s friend. On hearing of the grievor’s problems, Mr. Sheppard enquired as to whether there was anything he could do. He subsequently met with both the grievor and the grievor’s wife in an effort to try to resolve the problem. This attempt proved futile. Mr. Sheppard, in his evidence, stated that he sensed the grievor was distressed, erratic and beside himself at the time. As a consequence of his 8 concern, he asked the grievor to contact him every single day. Mr. Sheppard maintained that he was worried the grievor "might do something to himself." He advised that the grievor complied with this request. The grievor at the hearing readily acknowledged that he committed the thefts documented in paragraph number five (5) of the Agreed Statement Of Facts. He was asked in-chief why he had engaged in that course of conduct. The grievor replied that he did not know why he stole from his Employer and expressed remorse for his actions. Indeed, the grievor candidly admitted in cross- examination that he had committed theft on an occasion or occasions not referenced in the Statement Of Facts. He stated that he could not recall when this occurred; whether it was a single incident or multiple incidents; or the amount involved. The grievor testified that he could simply not remember the details as he was under a great deal of stress at the time. The grievor testified that he started to gamble in October 1993. More particularly, he stated that he was playing Pro-Line "every day or every other day." He advised us that he spent between $20.00 and $25.00 each time he played the game. The grievor acknowledged that he could then not afford this level of gambling. He stated that he started to gamble because he was alone every night with little to do and that he turned to this form of recreation to fill his time. The grievor testified that 9 approximately one half 1/2 of the money taken from the L.C.B.O. was spent on Pro-Line. He informed the Board that he has not placed any bet or otherwise gambled since his arrest. As previously noted, the grievor was suspended on November 24, 1993. Almost immediately thereafter, he consulted with Dr. A. Beairsto, a Psychotherapist. The grievor testified that he discussed his state of emotional health, marital problems and gambling with this doctor. Initially, he saw Dr. Beairsto every third week. He now visits once per month. It was the thrust of the grievor’s evidence that the counselling received from Dr. Beairsto has helped him address his problems. Three (3) medical reports from Dr. Beairsto were filed in this proceeding. Counsel for the Union advised that the Employer was given notice of this intent in accordance with the Evidence Act. The reports are dated November 29, 1993 (exhibit 4); February 24, 1994 (exhibit 8); and November 12, 1994 (exhibit 9). The report of November 29, 1993 states, in part: Danny Campanaro is a patient of mine who has been under an incredible amount of stress in his personal and family life. The pressure that he has been under precipitated an acute reactive depression which in turn impaired his Judgment and triggered his theft on November 25th, 1993. Stealing is right out of character for this gentleman and he quite literally was not in his normal state of mind when this event occurred. His whole work record of 17 years at the LCBO and his impeccable record working with security (a second Job) argue against this incident being anything but an aberration in an almost flawless work record. 10 His grief and sorrow and repentance are sincere. He truly wants another chance and is prepared to make full financial restitution regarding the theft. Stealing is not part of this man's character or work record and I am therefore asking as his therapist that he be given another chance to make amends for his action. His mistake in judgment is obvious but was almost inevitable given the magnitude of the deep psychological crisis Danny was mired in The report of February 24, 1994 reads, in part: "Danny continues to do very well in his therapy and is completely compliant with his treatment program. Apart from therapy with me on a regular basis, he continues to go to Gamblers Anonymous on a weekly basis and is in constant contact with his sponsor in that program. He is on no drugs or medications of any kind and is completely "clean" and sober........................ Finally, Dr. Beairsto's report of November 12, 1994 states: "Danny has progressed very well in therapy. He no longer has any interest whatsoever in gambling and avoids every situation and circumstance that may have a gambling aspect to it. He studiously avoids lottery tickets i.e. Pro-Line and horse races and bets on football games, He is in touch with me on a regular basis (1.e. seeing me for counselling) and is in touch with his sponsor George in Gamblers Anonymous. his children and is actively seeking election as a ward 4 councillor. He is a very responsible and compassionate father to I am very pleased with the complete turn-around in this man's attitudes and actions. I have little or no reservation in saying that I feel he has made a good and strong recovery from his previous addiction and lifestyle. I am completely optimistic regarding his future." The grievor testified that he regularly attended sessions of Gamblers Anonymous from shortly after his arrest to April or May, 1994. He stated that he attended his last session in August of 1994. It would seem from the evidence that he maintains contact with his sponsor in that group. The grievor told the Board that he considered the counselling received from Dr. Beairsto to have been more helpful to him than that provided by Gamblers Anonymous. The grievor and his wife ceased cohabitation in February, 1994 with the commencement of the divorce proceedings. He has sold his house and moved into an apartment with his children. The grievor testified that his situation improved greatly once he and his wife stopped living together. It was his evidence that the counselling received has significantly reduced his stress level. The grievor repeatedly acknowledged that he had made a mistake and that, as a consequence thereof, he had lost a lot of credibility and friends. He stated that he was sorry for what he did and, if reinstated, would never steal again. We were informed that the grievor is presently in receipt of U.I.C. benefits. Theses benefits are due to expire in February 1995. Mr. George Sheppard was also called as a witness for the Union. Mr. Sheppard, a retired High School teacher, operates a security firm. He is personally retained each year to provide security services for major events held in the C.N.E. Stadium. In this regard, he regularly hires about two hundred (200) individuals to assist with this task. Additionally, Mr. Sheppard’s firm provides security for the Molson Indy event. 12 Mr. Sheppard testified that he has known the grievor, and indeed has employed him in a seasonal and part-time capacity, for ten (10) years. For the past five (5) years, the grievor has been responsible for supervising other employees, such as ticket- takers, at Stadium Gate A. He has also been responsible for the security of approximately ten (10) corporate boxes at the Molson Indy race. Mr. Sheppard asserted that the grievor has been a capable employee over this entire period of employment. He stated that the grievor never led him to believe he was doing anything improper. The grievor advised Mr. Sheppard of his arrest, and the reasons for same, on the day it occurred. Mr. Sheppard indicated that he will, nevertheless, continue to employ the grievor. It was his evidence that he still feels he can trust the grievor. Mr. Sheppard acknowledged that the grievor's part-time position does not entail the handling of funds. He further conceded that on one (1) occasion, he summarily fired an employee who had been caught improperly taking money from a fan trying to gain access to an event. As noted earlier, Mr. Sheppard has befriended the grievor and, in fact, attempted to assist him with his personal problems. Mr. Sheppard offered his assessment that the grievor has managed "to put his life back together" since his termination. He stated that the grievor has 'finally taken control of his life and is not as despondent as he was about a year ago. 13 The Employer asserted that the grievor, as a Clerk 4, occupied a position of trust as he regularly had unsupervised access to cash. Counsel submitted that the grievor abused this position by committing multiple thefts over the three (3) day period in question. He argued that such conduct could not be characterized as a momentary aberration or as '' a chance dipping into the till." Rather, the Board was asked to conclude that the grievor's actions were deliberate and done with some forethought. Ultimately, it was the Employer's position that the grievor's conduct provided just cause for the dismissal. Counsel for the Employer submitted that a lesser penalty should not be substituted for the discharge unless mitigating circumstances of a compelling nature were established by the Union. He argued, after a review of the facts, that the Union had failed to satisfy this burden. In this regard, counsel asserted that neither the acute reactive depression nor the gambling addiction had been established by the evidence. We were urged to draw an adverse inference from the Union's failure to personally call Dr. Beairsto as a witness. From the perspective of the Employer, the grievor committed the thefts simply because he needed a source of funds. It was argued that, as a consequence, the potential for rehabilitation was not as relevant a consideration as it might otherwise be. In the alternative, counsel suggested that there was little firm evidence as to the prognosis for the grievor. Counsel was critical of the content 14 of Dr. Beairsto’s reports. He argued that they seemed to be largely premised on information received directly from the grievor. Counsel claimed that a reading of the reports failed to disclose the extent of Dr. Beairsto’s knowledge of the grievor’s situation or conduct. Finally, it was submitted that little weight should be accorded to the evidence of Mr. Sheppard. It was noted that he was a friend of the grievor and that his evidence as to the grievor’s condition was speculative at best. Counsel further argued that his employment of the grievor was under circumstances materially different from the grievor’s former position with the L.C.B.O. More specifically, counsel referenced the fact that the grievor’s work for Mr. Sheppard did not involve access to cash. The Employer provided the Board with the following authorities in support of its position: Re P.C. Drop Forgings Ltd. and U.S.W.A.. Local 8190 (1990), 11 L.A.C. (4th) 279 (Verity); Menzies, 102, 126/83 (Weatherill); Elliott, 10/84 (Springate); Hill, 0054/86 (Draper). In response, counsel for the Union acknowledged that theft from the L.C.B.O. represents serious misconduct which merits discipline. She submitted, however, that the sanction of discharge was not the appropriate measure of discipline given all of the circumstances of this case. Simply put, it was the 15 position of the Union that sufficient mitigating factors were present to justify the imposition of a lesser penalty by this Board. In this regard, reference was made to the following factors: (i) the grievor made a frank acknowledgment of misconduct at this hearing and before the Court on the criminal charges; (ii) the grievor made full restitution vis a vis the thefts which led to his termination; (iii) the grievor was contrite and remorseful for his actions; (iv) the grievor’s behavior was ”out of character“ and was attributable to stress arising from his unfortunate marital circumstances. It was suggested that these circumstances led to severe emotional and psychological problems and that the grievor ”cracked under the strain.” His inability to cope with his problems led to both the thefts and the gambl i ng ; (v) the grievor himself took positive steps to rehabilitate himself as evidenced by his contacts with Dr. Beairsto, Gamblers Anonymous and Mr. Sheppard; (vi) the grievor is a long service employee with some fifteen (15) years of seniority; (vii) the grievor’s past work record is unblemished but for one (1) written reprimand. Overall, his performance appraisals are good and reflect “an average employee who tries hard;” (viii) the discharge will lead to a profound economic impact on the grievor and his family as he is the sole source of support; (ix) the prognosis for the grievor is good as reflected by Dr. Beairsto’s written reports and Mr. Sheppard’s oral evidence. In substance, it was the Union’s position that the presence of the above factors supported the exercise of discretion in the grievor’s favour. Counsel argued that as the grievor’s personal crisis is now over, it is unlikely that he will offend again. The Board, for all of these reasons, was asked to substitute a period of suspension without pay for the discharge. 16 The Union provided the Board with the following authorities in support of its position: Reed, 1165/91 (Watters); Creighton 1908/89 (Keller); Menzies, 751/91 (Waisglass); Re Canadian Broadcastinn Corporation And Canadian Union Of Public Employees (19791, 23 L.A.C. (2d) 227 (Arthurs). The Board accepts that the grievor as a Clerk 4 occupied a position of trust with this Employer. On the evidence, he balanced daily sales and was responsible for L.C.B.O. funds. More particularly, the grievor engaged in cashier duties from time to time, as needed. In the present case, he worked on cash for three (3) days in succession. The evidence also disclosed that the grievor, on occasion, was asked to serve as Acting Manager of the Store. It is material, in our judgment, that these responsibilities were exercised under very minimal supervision. The Employer has a legitimate expectation that all of its employees, and especially those occupying positions of trust, will conduct themselves in an honest and forthright fashion. This expectation was addressed in Blackmore, 315A/84 (Draper) wherein the Board stated as follows: “Certainly, the LCBO is especially vulnerable to theft and attempted theft of its property. Its employees are inevitably presented with tempting opportunities for dishonest behavior and there are practical limits to the security measures that can be taken to guard against the misappropriation of money or goods. We do not go so far as to say that employees, by reason merely of their employment by the LCBO, are any more to 17 be considered as occupying positions of trust than are other categories of public servants. We do. nonetheless. recognize that the nature of their employment requires that they conform to a high standard of personal conduct.” (emphasis ours) (page 5) The panel in Reed, which was chaired by this Vice- Chairperson, adopted the following approach in a case involving employee theft: ‘This Board starts from the premise that employee theft is a serious matter as it undermines the element of trust which 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 Grievor’s offence and subsequent conviction is a serious matter which cannot and should not be condoned. 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. Dishonesty in any form is completely unacceptable to an Employer- Employee relationship. Theft or attempted theft of the Employer’s property by 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 from that standard must be dealt with in keeping with the gravity of the offence . (page 9-10) This panel of the Board fully accepts the approach reflected in the above excerpt. It is apparent, from a reading 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 is, prima facie, an acceptable Employer response to such conduct. This is 18 not to suggest, however, that it must be the automatic response in every case. In determining the appropriateness of the response the Employer, and indeed this Board, must have regard to any mitigating circumstances of a persuasive nature. This includes any evidence existing which would suggest that the employee may be rehabilitated through other forms of corrective discipline less than discharge." (pages 9-10) The instant panel has not been persuaded to depart from this approach to cases of theft. It is clear from the facts agreed to that this grievor engaged in multiple thefts over the three (3) day period in question. Instead he resorted to var Employer. Ordinar would be difficult of honestly accounting for cash transactions, ous schemes for purposes of defrauding the ly, the type of subterfuges used in this case to detect. In this instance, the wrongful conduct was only established after the intervention of an investigator. Without doubt, the grievor's actions significantly impaired the trust which is fundamental to the employer-employee relationship. Indeed, he failed to conform to the high standard of conduct which this Employer has a right to expect. It is beyond debate that the grievor's conduct in this instance merited a substantial disciplinary response. The threshold issue here is whether sufficient mitigating factors exist to support a modification of the disciplinary response imposed by the Employer. As stated above, counsel for the Union asserted that this question should be answered in the 19 affirmative and that an unpaid suspension should be substituted for the discharge. In Menzies (Waisglass), the Board reviewed the considerations which must be addressed in disputes of this nature. These were summarized as follows: “Is the theft or breach of trust an aberration? Except for the aberration, except for the unusual and exceptional behavior in an otherwise unblemished record, is the grievor credible and trustworthy? Does she acknowledge and accept full responsibility for her wrong-doing and for the repair of the damage done by her aberrant behavior? Can she be reformed or rehabilitated by any discipline less than discharge? What is the appropriate level of discipline that is required in order to send a sufficiently strong message to all employees on the importance of trust and honesty in the employment relationship? Can the grievor be expected, with a high degree of probability, 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 rel at ionshi p?“ (page 9) A similar list of factors is set out in the re Canadian Broadcasting Core. award, cited previously. The relevant factors were there said to include: 1. bona fide confusion or mistake by the grievor as to whether he was entitled to do the act complained of; 2. the grievor’s inability, due to drunkenness or emotional problems, to appreciate the wrongfulness of his act; 3. the impulsive or non-premeditated nature of the act; 4. the relatively trivial nature of the harm done; 5. the frank acknowledgement of his misconduct by the gr i evor ; 6. the existence of a sympathetic, personal motive for dishonesty, such as family need, rather than hardened criminality; 20 7. the past record of the grievor; 8. the grievor’s future prospects for likely good behavior, and 9. the economic impact of discharge in view of the grievor’s age, personal circumstances, etc.” (page 230) The Board has considered all of the evidence presented by the parties. Having done so, we conclude that sufficient mitigating factors exist to support the grievor’s reinstatement subject to a lengthy period of unpaid suspension. The Board has been persuaded that the grievor’s conduct on November 4th, November 5th and November 6th, 1993 may be properly described as ‘out of character,’ or aberrant, behavior when viewed in the context of his entire period of employment with this Employer. After considerable thought, it is our ultimate judgment that this behavior, which can be neither condoned nor excused, may reasonably be attributed to the grievor’s experience of emotional and psychological stress arising from his desperate and unsettling marital situation. His marital difficulties have been described earlier in this award. To be clear, we are not in a position to say conclusively that the stress experienced directly caused the grievor to commit the actual thefts here in question. However, we think it more likely than not that such stress caused him to act differently than he normally would. It would appear that the grievor lost a certain degree of control over his behavior and became more susceptible to making errors in 21 Judgment. This is reflected by both the thefts and the gambling which he began to indulge in. The experience of stress is established by the oral evidence of the grievor and Mr. Sheppard and by the medical reports filed by the Union. The grievor testified that he felt stress, to a greater or lesser extent, from the onset of his marital problems to the time of the occurrences which led to this proceeding. It is clear that he took steps to address this problem. As stated in the evidence, he contacted the Employee Assistance Program, his priest, the Roman Catholic Family Services Bureau and his personal physician, Dr. Rostas. Indeed, Dr. Rostas authorized the grievor to take two (2) weeks away from work in the Fall of 1992 on account of stress. The Board considers it material that these contacts pre-dated the thefts. The contacts demonstrate a psychological and emotional disorder in the time period leading up to the incidents and provide some support for our conclusion that the misconduct was linked to such problem. We might have concluded otherwise, if the allegation or defence of stress was first made after the discharge. Mr. Sheppard, in his testimony, confirmed that the grievor appeared to be experiencing personal problems as late as October, 1993. His observations and concern, in this regard, led him to ask the grievor to call him every day. Dr. Beairsto, in his report of November 29, 1993, documented the existence of stress. He noted that the grievor had been 22 under "an incredible amount of stress in his personal and family life" and was "mired in a deep psychological crisis." In Dr. Beairsto's opinion, the stress precipitated an "acute reactive depression" which impaired the grievor's judgment and triggered the thefts. He also noted that stealing was "right out of character" for the grievor and that the grievor "quite literally was not in his normal state of mind'' at the time. Counsel for the Employer submitted that little weight should be accorded to Dr. Beairsto's reports. We accept that, in certain respects, the three (3) reports tendered seem to be premised on information provided to the doctor by the grievor. Additionally, Dr. Beairsto at times appears to be advocating on behalf of his patient. Nevertheless, we have not been given sufficient reason to disregard his observations, diagnosis and prognosis. The Employer did not Object to the admission of the reports nor did it seek to compel the attendance of the doctor for purposes of cross-examination. The Board, in the final analysis, is satisfied that it is appropriate to accept and rely on Dr. Beairsto's professional Judgment, as reflected in the reports. Counsel for the Employer also submitted that Mr. Sheppard's observations should not be received or relied on in this instance. Clearly, this gentleman is not medically trained and is not equipped to render a professional diagnosis or prognosis. 23 His evidence was accepted, however, over the objection of the Employer as we considered that the testimony of another employer, albeit one who was also a friend, might be of assistance in our overall assessment of the grievor and his claim for the exercise of a favourable discretion. The Board found Mr. Sheppard to be a forthright and objective witness. An inference can be drawn in the grievor’s favour from the fact that he took steps to rehabilitate himself subsequent to the incidents. He has regularly consulted with Dr. Beairsto for counselling and psychotherapy and attended meetings of Gamblers Anonymous for a three (3) to four (4) month period. These initiatives reflect an awareness on the grievor’s part that he needed help in order to confront and resolve his problems. It is apparent from a reading of Dr. Beairsto’s reports of February 24 and November 12, 1994, and particularly the latter, that the grievor has made significant strides in putting his life back together. Simply stated, the doctor presents a very favourable prognosis for this employee. In this respect, his opinion supports both the assertions of the grievor and the observations of Mr. Sheppard to the same effect. The Board has been convinced by the evidence, and also by the demeanor of the grievor, that he has learned a valuable and permanent lesson from this unfortunate incident and that it is highly unlikely he will be incfined to steal again from this Employer. 24 One matter merits mention with respect to the problem of gambling. This problem was referenced several times in Dr. Beairsto's reports and was touched on in the oral evidence of the grievor. From the evidence, the grievor's gambling was confined at the extreme to a period of two (2) months. The Board was left with the distinct impression that this gambling was merely a symptom of his emotional and psychological stress. In our Judgment, it would be hard to conclude that he suffered from an acute gambling addiction and stole in order to satisfy the addiction. Rather, we are inclined to accept the grievor's own assessment that he gambled in order to fill a void existing in his life. We note that the grievor described his gambling as not a real serious problem." Ultimately, the Board determines that the grievor's past gambling should not pose a future hazard to the Employer's interests. The grievor has a considerable period of service with this Employer. As stated in paragraph number two (2) of the Agreed Statement Of Facts, his seniority date is February 27, 1978. Over this lengthy period, he has maintained a good work record. The evidence, in its entirety, suggest that the grievor was an average employee who was able to meet his Job requirements at an acceptable level throughout his employment at the L.C.B.O. Further, the grievor's record is almost discipline free. The sole disciplinary notation on his file is a written reprimand which was issued in 1992. Counsel for the Employer stipulated 25 that this reprimand did not encompass conduct similar to that in issue in this case. This prior record provides some support for our conclusion that the incidents of November 1993 reflect aberrant behavior of a type not normally engaged in by this grievor. The grievor offered a frank acknowledgement of wrong doing both before this Board and the Criminal Court. He did not seek to advance an unmeritorious defence. Additionally, he has made full restitution and has completed his community service order in a diligent fashion. It is clear from his evidence, and the manner in which it was presented, that the grievor recognized his conduct was wrong and, indeed, intolerable in the workplace. We have been persuaded that his expression of remorse and contrition is genuine. The grievor’s willingness to accept full responsibility for the thefts reinforces our view that he is unlikely to commit similar acts in the future. The grievor, as noted earlier in our award, admitted to what seemed to be a prior theft or thefts. We were initially troubled by his inability to recall any of the details surrounding same. Ultimately, the Board accepts his statement that this inability reflected the extent of stress he was experiencing at the time. We doubt that he would have volunteered this information if he was truly attempting to withhold other evidence which might be prejudicial to his interests. The making of this additional 26 admission buttresses our belief in a favourable prognosis for both the grievor and the employer-employee relationship. The Board is inclined to accept the Union's assertion that the economic effect of the discharge will be particularly profound for the grievor and his family. The grievor is now a single father of two (2) young children. He is their sole means of support. At present the grievor is in receipt of U.I.C. benefits, however, this source of income is due to expire in February, 1995. Without other full-time employment, the grievor and his family will likely experience significant financial distress. Our award imposes what amounts to a thirteen (13) month suspension without pay. The grievor estimated his annual earnings at $40,000.00. His loss of earnings from December 10, 1993 to the date of reinstatement will, therefore, have been substantial. The extent of this loss should cause the grievor to reflect on the adverse consequences of engaging in improper and unlawful behavior. Hopefully, it will also serve as a deterrent to other employees who might otherwise be inclined towards similar misconduct. In summary, this grievor committed multiple acts of theft over a three (3) day period in November, 1993. Such misconduct would ordinarily justify the decision to discharge the offending employee. In this instance, the Board is satisfied that mitigating circumstances exist to support our modification of the 27 penalty. We find, on the basis of all of the evidence, that the grievor is unlikely to engage in this conduct again. For the reasons stated, we consider his acts of theft to amount to an aberration in the context of his overall work history. The grievor should be under no illusions, however. If such conduct is repeated in future, it is extremely unlikely that discretion would be exercised in his favour a second time. While we do not include this as part of our award, we urge the grievor to continue with counselling. The Board, therefore, allows the grievance in part and orders that the grievor be reinstated, without loss of earned seniority, as of the date of this award. The period from the date of dismissal to the date of reinstatement shall be treated as a suspension without pay and benefits. The Board retains Jurisdiction in order to deal with any matters arising from the implementation of the award. Dated at Windsor, Ontario this 13th day Of January ,199 5. M. V. Watters M.V. Watters, Vice-Chairperson M. O’Toole, Employer Member 28