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HomeMy WebLinkAbout1989-1908.Creighton.92-05-07 ONTA,~{O EMP~. 0 Yl!:S DE .LA COURONNE CROWN EMPLOYEES DE L'ONTARtO GRIEVANCE C.OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS ~l~O DUNDAS STREET WESTj SUITE2100, TOt~ONTO, ONTARIO. MSG 7fZ8 TEI..Efmi"tONE /T~-L I~PHONE.' (416) 32f'6-1388 180, RUE DUt4DA$ OUEST, BUREAU2100, TOROt,,Fi'O ~ONTARIO). M5G IZ8 FACSIMrLE/T~L~COPIE : {416) 326-_'~396 '- 1908/89 IN THE MATTER OF AN AI~BITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OLBEU (Creighton) Grievor · The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEFORE: B. Keller Vice-Chairperson J. C. Laniel Member D. Daugharty Member FOR THE G. Caroline GRIEVOR .Counsel Koskie & Minsky (Ottawa) Barristers & Solicitors FOR'THE ' L. Harnden EMPLOYER Counsel Emond Harnden Barristers & Solicitors HEARING December 13, 1990 March 5, 1991 June 5, 1991 September 10, 1991 January 9, 1992 DECISION The grievor's employment was terminated on January 19, 1990 for misappropriation of LCBO funds as well as issuing NSF cheques. That termination was grieved, reinstatement being the requested remedy. At the outset of the hearing the employer sought leave to' raise three additional grounds for termination of which it only became aware subsequent to the grievor's termination. The request was objected to by the union. After hearing the submissions of the parties the Board permitted the employer to address evidence about one of the events indicating that the other two were too remote in time to be relevant. The grievor was employed by the LCBO commencing in March 1972. He became Manager of the Almonte store in 1985. In 1983 the grievor was suspended for 20 days for concealing and lying about NSF cheques he had passed. In investigating the incident the employer became aware that the grievor was an alcoholic and a gambler and his difficulties seemed to stem from the first condition. When confronted, at the time with the situation, the grievor acknowledged his problems and enrolled in Alcoholics Anonymous. The 20 day suspension, rather than something more severe, was imposed based on the g~ievor's condition, his acknowledgement of the problem and his enrollment in A.A. At the same time the griegor was banned from applying for a promotion for two years. Subsequent to the suspension the grievor performed well and apparently had no further difficulties in the work place. This led to his seeking, and being awarded, the position of Manager at the Atmonte store. It was not contested that the grievor continues to attend A.A. and has controlled his alcohol addiction since that incident. Late in 1988 a higher than normal inventory shortage was noticed at the grievor's store who, when confronted gave a variety'of excuses. Another inventory count was done at the end of March 1989, with the same results. As a result Quality Assurance Analysts were called into the store to do a complete audit. On January 18, 1990 as part of the audit, a cash count was done. It was found to be $500 short. When again confronted with that fact, the grievor gave an excuse which when checked by the employer, was found to be false. When again confronted the grievor said that he took the $500 to pay his rent but was going to pay it back the next day as he had made arrangements with his father to get the money but couldn't do so until that evening° He repaid the money the next morning. In his testimony he admitted to being behind in some bills as well as owing the L.C.B.O. Credit Union about $25,000. The grievor was subsequently charged with theft under one thousand dollars. He was found guilty and was put on two year's probation with the condition that he continue to attend A.A. and report to his probation officer once a month. In addition to the above incident, two other matters arose just prior. First, the grievor was negligent in not covering a pay advance of $500. in November according to normal procedures. As a result he received a one day suspension. Second, on December 15 and 18 the grievor issued personal cheques that were returned as N.S.F. On January 3, 1990 he was permanently denied the opportunity to cash personal cheques at an L.C.B.O. outlet. The incident that the employer was allowed to adduce evidence on concerns an incident where the grievor was alleged to have under-charged a customer for a purchase. The principle witness for the employer was Barry Parkman who, at the time Of the incident in the summer of 1989 was a part-time clerk. He testified that he was in the office about seven to nine feet from the cash register read-out which measures approximately 1/2 inch and saw the grievor ring up and ask for 121 dollars for a sale that should have been over 200 dollars. He mentioned the incident later that day to a co-worker and restated the incident a considerable time later to the employer. The grievor and the customer both testified and both denied the incident. On the basis of the evidence we find that the employer has not' met the burden of proof regarding this matter. Mr. Parkman was some distance from the cash register looking through a glass window at a very small display. There is the possibility he mis-read the figures. As well, it is not logical for the grievo~ to have spoken the amount out loud if he was in the midst of perpetrating a fraud. The grievor testified that there were no problems at work resulting from his gambling until January 1990. He stated that he did not gamble to any significant extent until 1985 and from then on it was erratic. During his testimony in March 1991 he admitted he had a gambling problem but was still, to some extent, minimizing its seriousness. He admitted that he had done some gambling following his discharge but none since October 1990. In June 1990 the grievor attended a 26 day program at St. Joseph's Treatment Centre in North Bay. He had been referred to the Centre, which is basically an alcohol treatment centre by Mr. Bill Routliffe a Certified Addictions Counsellor. Mr. Routliffe is, and was, the grievor's A.A. sponsor. The purpose of. attending the Centre was to see if the alcohol treatment program could apply to the gambling problem. At its conclusion the grievor with the assistance and support of his counsellor realized that he had to treat the gambling problem seriously and as a separate problem. ~rrangements were made by Mr. Routliffe to have the grievor, on his advice and guidance, attend Pegasus Recovery Centre in Kansas City Missouri from January 2 to February 5, 1991 where he was enrolled in the Relapse Prevention Program. The grievor testified that while there he learned he was an addictive personality and that if he did not change his every day behaviour he would not get better. He stated that he was made to realize that his addiction could be controlled one day at a time by doing what he was taught at Pegasus. He has a workbook that he works on continuously, has an after-care program that was approved by the facility and attends Gamblers Anonymous now as well as A.A. Mr. Routliffe testified that gambling is an obsessive - compulsive disorder and that its manifestations, ·treatment and recovery are not dissimilar to alcoholism. He indicated that the key to controlling the addiction was accepting and addressing it. Self-motivation, he said, is the only way it will work. If the person is not totally ready to help himself there can be no recovery. According to Mr. Routliffe recovery is not possible until the addict reaches rock bottom and recognizes the state he is in. In the grievor's case this stage was not reached until October 1990 when his wife through him out and his father was on the point of disowning him. At that point the grievor took stock of his situation and made a decision to enroll at Pegasus. Mr. Routliffe testified that the Pegasus program is two years, including after-care, that the grievor has a G.A. sponsor and is attending G.A. and A.A. meetings. In June 1991 the Board suggested to the parties that the grievor be seen by a psychologist to assess his condition and provide, if possible, a prognosis for recovery. The parties agreed and the grievor was seen by Dr. Douglas L. Tate, Ph. Do, C.Psych. The assessment is reproduced in part below. At the time of interview Mr. Creightoh expressed no denial at all that he had a gambling problem. He stated that he saw his gambling as the same as his alcoholism, "...eventually it wi'll kill me". He currently has outstanding debts of approximately $25,000 to a credit union. He reports that he has friends in AA and GA and that he attends three to four AA meetings a week and one GA meeting a week. He reports that he has remained abstinent from alcohol since 1982 and has not gambled in any way since approximately December 1990. Mr. Creighton was administered the South Oaks Gambling Screen which is a questionnaire designed to discriminate between groups of 'people with clear gambling disorder and other people who do not have a gambling disorder. The maximum score on this questionnaire is 20 points and individuals who pathologically.gamble and who are willing to answer the questions with some degree of honesty can berreliably detected if they score more than 5 points on the questionnaire. Mr. Creighton scored 16 points out of 20, suggesting that he has had a severe gambling problem. Similarly, the psychiatric diagnostic manual lists a hi. ne maladaptive gambling behaviours as indicative of pathological gambling. Individuals who have a history of four or more of these behaviours qualify for a diagnosis of "Pathological Gambling". Mr. Creighton, according to his self-report meets all nine of the criteria. It is clear then, that Mr. creighton has a definite history of extreme alcohol abuse and extreme pathological gambling. Like his alcohol abuse, his pathological gambling continued for many years after he first began to think that he might have a problem. He continued to gamble for approximately seven (7) years after he first thought he might have a problem and also experienced a number of extremely adverse consequences for himself and those around him before he stopped gambling and participated in a recovery program. Like his alcoholism, Mr. Creighton was faced with severe consequences (the loss of his job and the breakup of his marriage), before he took the necessary steps to recover from his problem. Mr. Creighton states, "for years I couldn't come to grips with it". Both alcohol abuse and pathological gambling are very similar habit disorders. They fall along a continuum and are not black or white phenomena. In other words, individuals may abuse alcohol to a mild, moderate or severe degree. For both alcohol abuse and gambling, Mr. Creighton progressed to extreme behaviour and severe adverse consequences before he had sought help. Both alcoholism and ~athological gambling are thought to be life-long disorders which can be recovered from. However, individuals remain at risk to relapse. In general however, the longer they abstain from alcohol use or gambling, the better their prognosis. Mr. Creighton's history of.~ nine years of sobriety suggest that while he is not risk free from returning to drinking, the prognosis for him is quite good. Similarly, since he now shows relatively low levels of denial about his gambling problem and is actively involved in his own recovery through AA and GA meetings, the prognosis for his recovery from his gambling disorder is also relatively good. Normally in breach of trust or theft cases where the incident has been proven by the employer the penalty or'discharge will follow unless the arbitrator or Board of arbitration finds reasons to mitigate the penalty. Those reasons have been often expressed and seem to flow from the checklist outlined in Re Canadian Broadcastinq Corporation and Canadian Union of Public EmDlovees, 23 L.A.C. (2d), 227 (Arthurs). 'There has developed, however, a line of arbitral jurisprudence that distinguishes the matters arising from alcohol addiction from what might be described as the "normal cases". In general terms, arbitrators have stated that alcohol addiction is an illness and there are certain other considerations that must be borne in mind in ascertaining the appropriate action. These considerations tend to focus on whether the problem can, or has been, successfully dealt with and whether the job can be performed satisfactorily in the future. In taking this approach arbitrators have cautioned that they must balance the interests of the employer with those of the employees. Employers have a legitimat, e right to protect their interests, of course, but the prognosis for successful rehabilitation and reintegration into the work force is also considered. The right to modify the decision of an employer to terminate the employment of an employee and take into account the likelihood of rehabilitation was dealt with in Cook, March 1979 (Swinton) subsequently affirmed by the Divisional Court (Re The Oueen in right of Ontario and Grievance Settlement Board et al, 27 QR. (2d) 735)) where the Court, in dealing'with the issue of substitution of penalty said, in part: "As is well- known, in exceptional cases when a convicted person has made significant progress towards reformation or rehabilitation While awaiting the hearing bfL~an appeal, the Court of Appeal will take such mat'~ers into account and modify a sentence accordingly. I can see nothing wrong or beyond its ~power whe~ the grievance settlement board acts upon. similar principles". The union referred this Board to Re City of Moncton and Canadian Union of Public Employee, Local 51, 10 L.A.C. (4d) 226 (Collier) where an employee had committed theft of City property and it was subsequently determined that the theft was directly related to a gambling problem. The grievor was discharged and the penalty was later reduced to a six month suspension. The arbitrator, in assessing whether the discharge should be modified wrote: In my opinion this case is similar to situations where employees are dismissed for alcohol abuse. The employer is required to make a decision at the moment. An arbitrator has the opportunity of reviewing the conduct of an employee and incorporating into that conduct the rehabilitation of the employee since the time of kis dismissal. This can, ~on occasion, provide a different perspective and in the appropriate circumstances, a different result. It is my intention to order the reinstatement of this grievor and I intend to state as clearly as possible my reasons for orde.ring reinstatement, ~thus providing to the employer the opportunity of challenging this decision in the event that it is felt that the reinstatement is based on inappropriate considerations. In ~he first place, an employee who seeks reinstatement after theft must be able to establish that prior to the theft there was a good employment relationship. This 'grievor has been employed for 23 years with the City of Moncton, and during that period of time has had no disciplinary problems, and certainly in his private or in his working life has not demonstrated dishonesty. His work has always been satisfactory, and as a result he has established a good employment base which should stand with him and be considered at the time when his punishment for theft is being considered. Secondly, it would seem that the theft committed by this grievor is totally out of character for the grievor. There is absolutely no evidence that this theft is at all typical of the grievor or consistent of his previous conduct in his 23 years of employment. Thirdly, the grievor was extremely repentant and remorseful for what he had done and is terribly embarrassed by the situation which he has created for himself. In my opinion, the remorse of this grievor is extremely genuine, however, this aspect ofb my consideration is not a major one. It is a standard part of presentations in these circumstances that if a grievor 'is immediately forthcoming with respect to his theft he should necessarily be considered repentant and therefore reinstated. This is not sufficient in my opinion, nor does it decide the issue. It is also essential that the nature of the theft involved be considered. There is a distinct difference between theft that is deliberate and intended for personal gain, and theft by an employee which is driven by some other motive. It is my opinion that this grievor's theft was uncharacteristic of the grievor and driven by a ~gambling habit which was out of control. The evidence establishes tha~ the grievor has overcome his gambling habit, and as a result has cured the deficiency which ted him to commit the acts of theft. It is this aspect of these situations which gives to an arbitrator an opportunity which the employer did not havg~t the time it made the decision to dismiss. A board of arbitration is,. in my opinion, obligated to take into consideration a grievor's rehabilitation subsequent tO his dismissal in assessing whether or not it ought to reinstate the grievor...Dismissal by the employer may not have been an unreasonable response at the time of the dismissal, however, this grievor has obviously undergone rehabilitation and has removed from his personality that aspect which led him to commit the acts of theft-. It is the fact of the grievor's rehabilitation, coupled with his previous record of employment, which leads me to the conclusion that he ought to be reinstated even though I am taking into consideration facts which were not available to the employer at the time of dismissal. In the instant case the union proposes that the grievor be reinstated without compensation since the date of his discharge but without loss of seniority to a position at his previous salary. The grievor, as a condition of his reinstatement should be required to complete the after-care program and that the counsellor provide the employer with regular reports of his progress. The Employer urges the Board to maintain the discharge of the grievor stating that there has been a permanent breach of trust and that his past record coupled with his current problem does not provide adequate assurance about the future chances for the grievor to be successfully reintegrated into the workforce. The employer points out that there are few, if any positions Where the grievor could be reinstated that do not involve access either to cash or alcohol which can be converted to cash. Evidence was led regarding the employer's warehouse on Bank Street following a union proposal that the grievor could be found a position there. The essence of the employer's evidence was that employees are often working without direct supervision and it would be exceedingly difficult to prevent someone from stealing.if they wished. the grievor until a point significantly following his discharge° At the time of his discharge he was remorseful but not yet at the point of realizing the full consequence of his actions. This is demonstrated by the fact that he continued some gambling after and was still in a denial phase. The evidence shows, however, that when thrown out by his wife and on the point of being disowned by his father, the grievor.stopped denying and began facing up to his situation. His acceptance and steps towards improvement are shown by'~-his completion of the in- house Pegasus program, the testimony of Mr. Routliffe, the medical opinion of Dr. Tate and his continuing attendance at G.A. meetings'. The grievors' actions were serious. Under most circumstances it is possible, if not likely that a Board ~would not modify the penalty. The. circumstances here, however, are different. The grievor's actions resulted from his addiction. He has demonstrated since then that he has faced up to his addiction and has taken the necessary and appropriate steps to control it. We say control because we have been told that he can not be "cured" in the traditional sense. The instant case is a very troublesome one for the Board, as there are difficult issues to balance. The history of the grievor's problems are not disputed. It is the past that, on the one hand is damaging to the grievor, and on the other hand is most insightful to the Board in permitting us to assess his chances of rehabilitation° The grievor's problems in the early 1980's stemmed principally from his alcohol addiction. When he was finally able to confront that problem he took steps to successfully control that addiction. There have been no alcohol-related problems since. His later difficulties all stem from his further addiction - gambling wkich was not dealt with by the grievor nor fully appreciated by the employer. That addiction, we must conclude, led to whatever discipline the employer has imposed over the last number of years, and ultimately his discharge. This case has been a learning experience for the Board Members. One particularly important matter we learned is that persons who have addictive personalities, like the grievor, will continue to deny their addiction until they hit rock bottom. The importance of that in the instant case is that rock bottom was not reached by What is the prognosis? Mr. Routliffe says they are good. Dr. ~ Tare says they are relatively good. Also to be considered is that once the grievor faced up to his alcohol addiction he took the necessary steps and has controlled it since then. On balance it would seem that the prognosis is favourable. This, however, is only one side of the equation. On the other side we have to look at the interests of the employer. The LCBO's operations are centered around alcohol and cash, both the nemesis of the grievor. The grievor was in a position of trust and abused it even when given a second chance, by the employer. To reinstate him to a position of trust at this time would seem to be tempting faith unnecessarily. Can we balance the interests of the employer with the favourable prognosis? We believe we can. The concern expressed by the employer to the reinstatement of the grievor at the Bank Straet Warehouse centered around what we will call "security" concerns. This is not an insurmountable problem and one that can be dealt with by instituting certain precautions. Thus, we are satisfied that reinstatement, with certain very specific conditions will both encourage the rehabilitative efforts of the grievor and safecluard the interests of the employer. The grievor is to be reinstated within two weeks of receipt of this decision by the parties to a position at the Bank Street warehouse without compensation, seniority or other benefits from the date of his discharge. The employer'shall determine the position to which the grievor will be reinstated taking into account his skills, experience and seniority. The reinstatement is subject to the following conditions: 1. The grievor will complete his current after-care program. 2. The grievor will continue to attend A.A. and G.A. meetings on a weekly'basis for the next 24 months. 3. The grievor will continue under the supervision of Mr. Routliffe or another person with the same qualifications as he. If Mr. Routliffe transfers the supervision of the grievor, he is to inform the employer of the name of that person. · ; -' - 19 4. Mr. Routliffe or the person to whom the supervision of the grievor is transferred will provide regular reports to the employer regarding the condition of the grievor. It will be the responsibility of the grievor to ensure that regular reports are made. 5. The employer is ~ntitled, on a random basis, to inspect the locker of the grievor at the warehouse as well as to perform random checks of any bags, briefcases he might be carrying when leaving work. 6. The grievor is not entitled to apply for a transfer for a 24 month period following his reinstatement. 7. Failure on the part of the grievor to comply with any of the above conditions for the 24 month period following his reinstatement will result in the immediate abrogation of this conditional reinstatement. The Board remains seized for the full 24 month period to determine any and all issues that might arise from the issuance of this decision. Nepean this 7th day of May, 1992 M. Brian Keller, Vice-Chair ~ean-¢laude Ban~el, ~n~on ~Ber "I ~issc~t" (w~rhQl,~ writtem reason) David Daugharty, Employer Member