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HomeMy WebLinkAbout1992-1429.Linton.95-06-29 -'- ~ ( ONTARIO EMPLOYI!S DE LA COURONNE CROWN EMPLOYEES DEL'ONTARIO 1111 GRIEVANCE COMMISSION DE ~ ~) , Jo.~\vV5'5~ SETILEMENT REGLEMENT , BOARD DES GRIEFS (bls \ IBO DUNDAS STREET WEST SUITE 2100, TORONTO,IONTARIO. M5G lZB TELEPHONEITtLtPHONE (416) 326-1388 lBO, RUE DUNDAS OUEST BUREAU 2100, TORONTO (ONTARIO) M5G lZ8 FACSIMILEITeLtCOPIf!: (416) 326-1396 ...' ,_>o",,,,,.,,,":,0'~ REce'VEO GSB # 1429/92 OLBEU # OLBl15/92 JUL 0 41995 IN THE MATTER OF AN ARBITRATION PUBL\C SERVICE - Under ,l APPEAL BOAR~~l:; ~ROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OLBEU (Linton) Grievor - and - The Crown in Right of ontario (Liquor Control Board of ontario) Employer , BEFORE: O. Gray Vice-Chairperson T. Browes-Bugden Melllber M. O'Toole M;ember FOR THE E. Mitchell GRIEVOR Counsel Koskie & Minsky Barristers & Solicitors FOR THE M. Hines EMPLOYER Counsel Hicks, Morley, Hamilton, stewart, storie f Barristers & Solicitors I I HEARING May 12, 1993 June 30, 1993 september 1, 2, 28, 1993 d - '';;;- ~1 , ) r \ Decision I ~ On July 16, 1992 the Liquor Control Board' of Ontario ("LCBO") termi- nated James Lmton's employment as a permanent part-time liquor store clerk beCause in June, it alleged, he had 'committed a series of thefts from the LCBO store at which he had been working. He denied that, and profuptly filed a griev- ance claiming reinstatement with full compensation. In October 1992, however, he pleaded guilty In crimmal court to theft fr9P1,the employer In late November he was sentenced to' sixty days in jail and two years~ prob;itlon with conditiorts. He was also reqUIred to pay $1000 00 in restitutiontb'the employer by January ~. 25, 1993 He was in jail> from November 25 to December 24, 1992 On February 19, 1993 he made restitution out of the Unemployment Insurance benefits he had just then begun receiving. The employer's decision to terminate the gnevor's employment (and, pre- -\ sumably, the decision of the polIce to prosecute him) was made, on the basis of a video tape which showed the grievor engaging in the irregular cashiering trans- ~ actions by means of which he had stolen money from the employer .An earlier scheduled hearing of this grievance was adjourned because (among other rea- sonS) the grievor wished to see that tape. He saw it in mId-March 1993 Thereaf- ter, he and the umon agreed with the employer on the following >statement of facts: 1. The grievor's date of birth is December 1, 1966. He was hired as a casual clerk in September, 1986 and subsequently as, a permanent 'part.time: clerk by the, LeBO. effective September 19, 1988. At that time h~ received a letter confirming his employment, In June, 1992 he was w!lrkingin St6re#242 located at Brimley Road and Eglinton Avenue in Scarborough, Ontario. 2. Videotape sUrveillance was conducted with respect to the grievor's cashiering functions during the period .June 10 through :16, 1992. This 7surveillance disclosec:l that on four different shifts he performed forty (40) "open drawer" . . transactions as' well as four (4) other'irregular transactions. An "open drawer" transaction is one in which the cashier does not quite close his till from the previous customer This allows him to accept cash from the next customer and make change without having to "ring in" the transaction on the "display" portion of the register or h~ving the sale ,recorded on the "detail t~pe" (the paper roll which records all transactions), The grievor, through these irregular proCfedures, stole approXimately $1,092.75. This was achieved-in such a way as to ensure that his cash balanced at the end of hi!;! shift. But for the video surveillance, these actions would have gone undetected, I> -, --Co" I - 2 - ( 3. The foregoing was brought to the attention of the Metropolitan Toronto Police Force. The grievor was arrested by officers of that Force on July 3, 1992 and charged with theft under $l,OOO.OO~ 4. Shortly after his arrest, the grievor received a letter from the LCBO dated July 3, 1992. He replied by letter dated July 6, 1992. His employment was then terminated by l~tterdated July ~6, 1992, 5. The grievor's charge W!iS heard on October 14, 1992..11te grievor pled guilty to theft under '$i,ooo.oo. He was sentenced to sixty days in jail, two years probation, and was ordered, to make restitution to the LCBQ in. the amount of $1,000,00 on or before January 25, 1993. He was also ordered a) to abstain from the pui'chllse, possession or .consumption of non-medically prescribed drugs; b) to abstain absolutely from the use of alcoholic beverages, and c) to participate in or be amenable to the Conditions of a medical or social therapy,prograD!- under the supervision of the probation officer 6. The grievor p!rid $1,000.00 restitution to the LQBO on February 19, 1993. v The employer's case in chief consisted of ~b~ agreed statement of facts and a showing of a portion of the video tape. The case for the gri~vor, as described in union counsel's opening, is that the grievor, a good employee for 7 year~) beca~e a cocaine user as a result of trauma caused by the death of his grandmother in February 1993 Immediately upon being, arrested in early July, he reali,~~d he had a d~g problem that had to r be dealt with. He promptly contacted the employer's Employee Assistance Plan ("EAl?") representative. A$ a result 9f that contact, h~ sought the assistance of an age~cy called Just For Today With its help and the help of others, she said, the grievor had been rehabihtated. In her opening, counsel for the union said that the gnevor was not seeking compensation for the period before the first day of hearing, at which the employer would first hear the 'evidence of the grievor's re- habilitation; When he testified, Mr Linton was 26 years old. He IS a grade 12 graduate who worked at a variety of jobs before becoming ,employed by the LeBO in Sep- t ' tember 1986, first on a casual part-time basis and then, starting some time in 1988) as a Permanent Part TIme employee. For most of that time he worked at the store at which he ultimately committed the thefts. He was Informally diSCI- plined in 1991 for smoking a cigarette in the workplace. He had no other dISci- pline.in the last three year period for whic4,the collective agreement permIts the employer to retain dIsciplinary records. His performance appraIsals between ~ I ~. "It:- fil - 3 - J988 and 1~91 wer~ all positive. They described th,e grjevor as a good em~loyee who-required minimal supervisIon and ~lways ~et and frequently ~xGe~ded job require~ents. ~, Mr Linton lived wIth his parents before and during the period in ques- tion. Although she was living elsewhere m the nine month period immediately ~receding h~r death, Mr Linton's grandmother had lived with him and his par- ents before then, and contmued to ViSIt twice a week thereafter He felt close to - .. '.,. . her Her death on February 10 or 12, 1992 was the 'first death he had expen- enced. He had difficulty copmg with his own grief and' -his reaction to his mother's grief. He~ays this led hiql to p1ircPa~e a gram of c09fline at a party he attendedabout~a week after ~s grandm9ther's,d,eath. He bought another gram ,~, the following d-ay an.d was ,~oon co~uming op.e tq 1% gra~s per'day at $11000 per gram. ,~ l During examination-in-chief, union counsel 'asked the grievor if he had had previous problems with drugs. He replied that he had experim.ented with marijuana occasionally after leaving high scnool, perhaps twiCe a year He also said that when his cocajne use began it had been 7 or 8 years since he had tried marijuana. During his cross-examination he repeated that it had been 7 or 8 y.ears since h~ hadus~d mariJuana. It w~sput to him that he .had told the staff r \ at Just For Today that h~ had ~ed D;1arijuana a~ rece~tly as two year$ prior to the time he says ,~ cocaine usecommenced~ The ,grievor a{lSweredi that he be- lieved he' had told them it was nght after hIgh school, a~d that if their report to the co.urt said two years they must have been mistaken. .During re-exammation, union couns~l sh9wed the grievor that agency's report to the ,court ,and asked if he had told the' agency that it had been about 2% yea,:rs since he had used mari- juana (as the repo.rt says he cUd) The gnevor th~n said that. his ma~ijuana use began after he got out of high school and continued on an occasIonal basis until about 2% years "before my cocaine problem became apparent." Asked further whether he had "abused" marijuana, he said "no, not' at the work place." The grievor testified that he financed his.cocaine habit out of his employ- ment income and existing savings in accounts at the .credit umon fIght up to and including the week during which he committed the th~fts Those ~xIsting savmgs were the remainder of moneys he received in Decem,ber 1992 in settlement of a legal claim he ha(i arisi~g out of an automobIle aCCIdent. JIe stated that by the , ",.... - 4 - i beginning of the week of June 10, 1992, a week before hIS planned vacation, hel had depleted' his savings d"own to $1000 00 He said he decided he would keep that $100000 to pay for his vacation, and steal $1000 00 from his employer to pay for his drug habit during the week of his vapatIOn. He achieved that $IQOO 00 goal through the 44 improper transactions to whIch he has since admit- ted. He claimed that the th~fts recorded on video tape that week were the only thefts he committed at the employer's store. When asked by his counsel how the cocaine had atfect~d hIm, he stated that It made him feel "stronger", "a superior beipg", "indestructible" and, in the last stages, "paranoid." I \ On Juli 3, 1992 Mr 'Linton was arrested, charged, fingerprin~ed and re- leased pending trial. He testified'that on the way home from the police station he realized that his drug habit had become unmanageable. When he got home that day he telephoned the LCBO to get the telephone number of its EAP program. He then telephoned that numbe.r and made an appomtment to meet with Clive Bennett, the LCBO empioyee who runs the program on a confidentIal basis. He also toId his parents about his arrest and about his addictIon. On July 4th he re- tained a lawyer On July 5th he met with Mr Bennett, who set up an appoint- ment for hIm at Just For Today The'employer's letter to him of July 3, 1992 (referred to in paragraph 4 of the agreed statement of facts) informed the grievor that he was being suspended with pay "pending an investigation for failing to follow proper cashiering proce- dures while operating a cash regIster " which had resulted in his arrest that day The letter directed him to submit a' written statement "to explain the cir- cumstances'giving rise to this situation." In his written reply of July 6, 1992, the grievor stated that "I am unaware of any improper cashiering procedures of which I am accused during June 10th through June 16th." Just For Today C'JFT') describes itself as anon-profit Alcohol and Drug Awareness Centre which provides an Adult Treatment Program for addicts on an outpatient baSIS. It had been in existence for about a year when the grievor first attended at its premises on July 9, 1992 He was assIgned to a counsellor named Rod Stacey, with whom he met thereafter on a (roughly) weekly basis until he was lIIiprisoned in November 1992 At the qutset, Mr Stacey recommended that the grievor attend meetings of AlcoholIcs Anonymous and/or Narcotics Anony- mous ("NA") and become involved in their 12 step 'program. The grievor tried ...""'" r.. - 5 - - both right away He testified that he' found NA more relevant to his problem, 'and attended NA meetmgs regularly thereafter, except during the 'time he spent in jaIl. In early November 199~,JFT sept 2 ~ocwnents, described in a cover letter as a "nursing ,overVIew" .and a "psychologiG3,1 p.rofile", to Mr Linton's lawyer and toa parole officer (presumably the one ~ssign~d to prepa,re his pre-sentence re- port) The nursing overvIew was prepared by Karen Trotter, a .~egistered Nurse \ who then worked for JFT, on the basIs of an interview in August 19.92 The "psychological profile" was prepared by Vern Langley, a certified addiction coun- sellor who supervised Mr Stacey's work. Under "Sources of InformatIon"" Mr Langley's report states that he had meet with MrLinton in two seSSIon~ totalmg ,~. 4 hours. Curiously, Mr Stacey is not Identified as a source of information or re- ferred to by name in the 'report. These reports asserted. that Mr LInton had maintained sobriety for an extended period (then 4 months) following a rela- tIvely short penod of cocaine use, and that he waS strongly motivated to continue to maintain sobriety and likely to succeed in doing so. The grievor's attendance at Just For Today and NA sessions was inter- rupted by his imprisonment, but continued thereafter as the terms of his proba- tion reqUIred. Mr Stacey left JFT and joined 'another agency in January 1993 r There seems to .have been a gap in the grievor's atte~dance at JFT around that time. The grievor began seeing another counsellor there, Bryan Smith, in early Match 1993 -, The grievo'r testified that .he had not used cocaine since his arrest, and I ~d made a new set of (riends, including a girlfriend, uncopnected with his for- mer drug use. He also,said that his parents have supported and continue to, sup- port his efforts to become and reIIlain rehabilitated. He sflid he was ,qUIte sure that he wIll be able to remain GI~an and sober When he testified m May 1993, his girlfrIend was pregnant WIth his child, he haq just started to perform volun- teer work at a hospital and he was looking for paid employment. He had been accepted into an RNA course at a community college for which he had applied becaUse he wanted to help people. He saId he wished to he restored to hIs part~' time employment with the LCI30 so that he could finance his education m that l field,. ,- ~ - 6 - Jeffrey Stein is the J;>rogram DIrector of Just For Today He describes himself as a recovered ~lcoholici cocaine addIct and former lawyer.,..... he was dis- barred and sent to jail, from which he was released in 1990 Between then and August 1991 he was employed by an orgamzation which referred addicts toclin- ics in the United .States. As Program Director of JFT, he said, he reviews all files weekly, dIscusses client 'progress with counsellors and has contact with clients directly With his legal background, he also assIsts in the drafting of reports like the ones submitted over the SIgnatures of Mr ;Langley and Ms. Trotter wIth re- spect to Mr Linton. Mr Stein testified that 80% of the addIcts who attend at JFT have been I charged. with a criminal offence. He acknowledged in cross~examinat~on that it is ,~ -- helpful for crim~nal defense counsel to have the report of a treatment agency when spealring to senten~, that JFT provided that service and that other, 10nger-estabUshed ag~ncies could not be as helpful in that regard because of ~. . their long w~iting lists~ He also testified that over an 18 month period 10% of JFT's clients have died, another 10-15% have returned to substance abuse, 50% have gone through periods of relapse and recovery and 25-30% have become and remained clean and sober Prior to March 1993, Mr Stein~sonly contacts with the gnevor would have been in the waiting roo~, before or after a counselling session. After March 1993 he sat in on some of the grievor's sessions with Bryan Smith. Based on his obser- vations of Mr Linton and on his prior experience, Mr StelQ" wrote a report to union counsel in May 1993, in which he expressed the opinion that Mr Linton 'had become and remained clean and sober and was very lIkely to maintain sobn- ety In the future, although there could be no guarantee. His report expressed the opinion that the grievor's theft from the employer was "directly linked to his prior addiction" and that "as long as James maintains a program of progressIve action we are confident that there will be no return to criminal behavior" During cross-examination, Mr Stein acknowledged that he could not be defimte that Mr Lmton would~never returnto cocame use. He said "If he's clean and sober today, chances are he will be tomorrow I can't say whether he WIll be a year from now" He also acknowledged that since Mr Linton has been a user, the probability of hIS being a user a year hence is higher than it woUld be for a member of the general population, although lower than for a currently active , -- '", r. - 7 - \ i \ user H~ agreed that in formulating ,hIS opImon he had accepted the truth of what Mr Linton ,had to~d him about the orIgmand duration of hIS cocame use and of hIS reports that he had not used cocaine smce hIs arrest. On the latter point, he saId there were behavioral indicatiop.s of cocaine use which had not been present in Mr Linton's behavIour 'He admItted; however, that drug tests are the only way td be sure someone has hot used cocame. Drug testmg was not part of JFTs regime because of the expense mvolved. r It was put to Mr Stein I~ cross-examinatiQn that access-to large amounts of cash, a feature of the Job to which Mr. Lmton seeks reInsta,tement, ,IS a trIgger to relapse for, abstajning. cocaine addicts, and. that it was therefore not in Mr Lmton's mterest that he be returned to such a job Mr Stein acknowledged that ,- access to large amounts of cash is a "catalyst", and would increase the risk of an addICt's relapse, but suggested that that should not stand in the way of his re- gaining his employment. By way of analogy, Mr Stein argued that a physician who is a rehabilitated addict should not be deprived of the 'opport~ty to make use of hIs training merely because he may then have access to drugs. -- The employer called Lorna Sagorsky as a reply WItness. Ms. Sagorsky IS employed by the Addiction Research Foundation as a counsellor (although she made It clear she was' not testIfying as a representative of that orgamzatlon) r She has been involved in- counselling addicts for several years, and counsels 70 to 80 addicts per year In her opinion, It would not be' pos~ible for a counse~lor see- ing someone for as lon~ and as frequently as the gnevor's counsellors had seen hIm to reliably determine, from his behaviour that he was not using cocaine. That could only be determmed by drug testing, she saId. She also stated that the Ad- diction Research Foundation does not give prognoses'with respect to coca me ad- dicts, and that she w6uld riot gIve a prognosIs about anyone she counselled She acknowledged that there can be factors which are "encouraging" with respect to an addict's ability to resist use of coca me in the future, but even when such signs are present she would not make predictions about a cocame addict's future sobri- ety Ms. Sagorsky also testified that she would dIscourage placmg an addict m ) a cashhandhng pOSItion, because, handling cash Is'a tngger for anyone who may ha ve the urge to use cocaine She said she wo\l1d be eVE3n more concerned about such a position if the position was one which the addict h~14 while us,ing cocame. ~ - 8 - I EnvIronment is an important factor in cocaine use, she said cocaine addicts are encouraged to 'make major environmental change, toavOld the settings in whIch they used cocaine, in order to achIeve and sustam abstmence. The employer also called Dick DeMan as a reply: witnes$. Mr DeMan is the manager of the credit union at which Mr Linton did hIs banking He was called to produce and explain records of the grievor's financial dealings during and prior to the period about which the grievor testIfied. The picture painted by those records is at odds with the grievor's. evidence in at least two significant re- spects. the time when the gi'Ievor's rapId spendmg began and the state of hIs fi- nances in the weeks immediately before he was caught .stealmg. I The grievor had testified that he received $22,000 00 in December 1991 and put it into his accounts and an RRSP at the credit union. He also established a secondRRSP to which contributions were made by payroll deductioIl. He had no accoun~ elsewhere, and no other source of income. He said that the records of ..) - .his accounts at the credit union would show WIthdrawals totaling $13,00000 to $15,00000 in the period between the end of February and the middle of June, 1992, including the cashing of both RRSP's. The withdrawal to pay for his vaca- tion 'would have been one of the last withdrawals, he said. With respect to with- drawals in the period prior to February 1992, he stated that about $5000 00 was paid on an existing loan. There might also have been some repairs to his car, he said, but apart from that, the loan repayment and the RRSP purchase, there would have been "nothing significant" in the withdrawals prior to late February 1992 The records of the grievor's qealings WIth the credit ~on show that $20,00000 was deposited in one of his accounts on D~cember 24,.19.91. $3,71298 was ImIIlediately applied to pay the balance of an outstanding loan. $4,30000 was invested in an ,RRSP on January 6, 1992 Other withdrawals made before the middle of February 1992 reduced the remaining funds (approximately $12,000 00) to less than $1300 00 by the middle of February 1992, when the grievor ways his cocaine use began. The total of the balances in his saVings and chequing accounts -on March 2, 1992 was less than $100 00 What remamed of the settlement proceeds was in the $430000 RRSP The gnevor did not cash in that RRSP m the period between'then and.mid June, but he did borrow $5000 00 from the credit union. (That RRSP was collapsed in, September 1992, after the ~~ " ri - 9 - grIevor's termination; to 'satisfy the balance then owmgon that. loan.) The pro- ceeds of that $5000 00 loan went into his accounts in mid March 1992 Followmg further withdrawals, the,balances m hIS accounts again total~d less that $100 00 at the end of M~rch 1992, and never exceeded $500 00 at any time thereafter A c' second small RRSP to whIch $50 00 contributions were made 'by $50 00 payroll deductions every two weeks was established in January 1992 and cashed in April 1992 During the 16 week penod from the end of February to June 19, 1992, total deposIts to the grievot's accoUnts consisted of $3026 00 by way of payroll deduc- tion, $5000 00 in loan proceeds and $35100, from'the sIllall RRSP Out of that, .during the same perIOd the grIevor paid- $800 00 in loan payments, $311.00 in IIisurailce payments and $150 00 in contributions to the small RRSP which was collapsed m April. The balan~e, roughly $7100 00, was with,drawn for other pur- ,.. poses. Although the employer's reply eVidence would ordinarily be the last eVI- I dence heard (when; as here, the employer was required ,to present its case first), I we offered umon couilsel the oppbrtumty ts>. call further ~vidence in response to the employer~s reply evidence. She tendered a photocopy of a May 1991 auto- mobile repair bIll, which counsel for the employer agreed could be received as evidence tha,t he receIved such a bill, in order toexplam some transactIOns in r that time frame. Beyond that, there was no further evidence. In partIcular, the grIevor was not recalled to explam the discrepancies b~tween the contents of the credit u:nj.on rec.ords and his earlier testimony about what, those records would reveal. \ Argument Counsel for the union acknowledged that theft a selnOUS offence which warrants severe discipline and qm Q~ the foundation for dIscharge. She submIt- ted (and counsel for the employer does not dIspute). that recent arbItral JurISpru- dence says that di~charge is not inevitably the proper response to theft. The , question, she said, is whether the employee has been rehabIlitated to the point of restoring trust. She'referred to the decision in Reed, 1165/91 (Watters); which reinstated a casual LCBO clerk with 3% y~ars' service who had been dIsmIssed for acts oftheft committed to support a coca me habit over which he claimed to ! -- I " ~' - 10 - havesmce gained control. The Board made these general dpservations at pages.9 to 11 ,of that decision. This Board starts from the premise that,employee theft is a serious matter as it undermines the element of tr,ust which is fundamental t,o ,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 Gfievor's offence and subsequent conviction is a serious niatter which cannot (and should not be condoned. Theft ~~ attempted theft in any form from ~* 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 I' . 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 antidpate a ,~ I high degree of honesty from its. Employees, and a dE(viation from that standard must be dealt with in keeping with the gravity o~ the offence. (page 9-10) This panel of the Board fully accepts the approach reflected i~ 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 th~ specific facts and circumstances as found therein. Nevertheless, given the ~eriousnessof the offence of theft, we think that the penalty of discharge ik prima facie, an acceptable Employer response to such conduct. This is not t6 suggest, however, that it must be the automatic response in .every case. In determining the appropriateness of the response the Employer, and indeed thi~ BOlU'd, must have regard to any mitigating circumstances of a persuasive nature. This includes any r I \ eviden-ce existing which would suggest that the employee m~ybe rehabilitated through oth~r forms of corrective discipline less than discharge. This is particularly important in cases involving alcohol or drug aqdictiOli. Generally, we agree w~th th~ Employer that addiction t2 alcohol or drugs does not operate as a complete excuse for the improver or illegai conduct qomplained of. The addiction may, however, explain and set the context for aberrant behavior which departs 'from the employee's normal standard. In this sense,! the, addicti~n may be a mitigating factor to be considered in assessing the propriety of the disciplinary response, We do not think that this consideration should be , restricted to those cases in which a grievor's level of work performance suffers as a consequence of alcohol or drug use. Rather, the Board is satisfied that these forms of addiction may be considered, along with other ,fl!lbtors, in instances involving theft. We have, accordingly, not been persuaded mu~h turns on the fact that the grievor's act of theft 'was "once removed" from the addiction as claimed by the Employer ; In Menzies (Waisglass), the Board listed the critical questions which must be addressed on the issue of reinstatement after a discharge for theft. These were summarized as follows: Is the theft or breach oftrust an aberration? Except for the aberration, except for the unusual and exceptional behaviour in an otherwise unblemished record, is the grievor credible and trustworthy? Does she acknowledge and accept full responsibility for her wrong-doing and for the repair of the damage done by her aberrant behaviour? Can she be reformed or rkhabilitated by any discipline less than discharge? What is the appropriate I level of discipline / ..r.. - 11 - 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 dis9ipline and rehabilitate and repair the damage that was done (by the aberration) .to the trust that is required in the employment relationship? (p age 9) j, Additionally, in Blackmore the panel stated that in this type of case, the Board must take "a judicial, as contrasted to a punitive, approach" The Board there continued as follows: ; 1 We are required to str~e ~bal~nce between the interests of thE1 Grievorand those of the Employer, which is to say, between the' Grievor's interests in protecting his equity in his job and his continuing livelihood, and the Employer's interests in maintaining the confidence of the public and the integrity of its operations. - (pages 4-5) We accept the above excerpts as correct statements of the process to be applied / in cases involving theft. Counsel for the UIilon also referred to other decisions.in whIch the Board reinstated LCBO employees who had stolen from their employer while suffering from an untreated add1ction or other Illness: Cre~ghton, 1908/89 (Keller), Wells, ~/82 (Verity), and E. Hill, 367181 (Barton) In addition, she cited Canada Post Corp and Canadw,n U~wn of Postal Workers (Dagnms)' (1992), 27 L.A.C (4th) 440 (PIcher) and Re C~ty of Moiictoii' and Canadw,n Unwn of Publ~c Employees, r\ Local 51 (1990), 10 L.A.C (4th) 226 (Collier) U:pion counsel argued that the mitigating factors which warrant a lesser penalty than discharge in this case are these' '\ 1) The gnevor had a good employment record and ~good performance appra1sals during the 6 years ,prior to his termination. 2) The grievor sdu~ht treatxnent ImmedIately afterheing arrested. 3) The griev.oradmitted' his misconduct at the first real opportunity, sparing both the ~ourt and this panel a trial on that Issue. 4) The grIevor 1S contnte and remorseful, and has made full restitu- tion. 5) The grievor has already paid a heavy penalty as a result of the sen- tence of the criminal court. 0.. ---- ---- ~ - 12 - l 6) There is a clear caus~l connectIOn between the grievor's addiction and the theft -"- prior to the addIction there were no employment prob- lems. r 7) The grIevor has been clean and sober for a one year period during whIch he has coped wIth stress. 8) The gnevor has made lIfestyle changes: broke off with frIends as- sOCIated with drugs, made new friends, committed to a relationship with his gIrlfriend, attempted to fiild''Work, engaged in volunteer work, and at- tended NA. - 9) HIS addIction was short term when he sought treatment. He has punctually and reliably kept his appointments: that and the improvement I in his appearance and demeanour reported by Mr Stem are all consistent with and corroborate his reports of continued sobriety Counsel for the employer referred to Thomas Hill, 0054/84 (Draper), which dealt with the clalln for reinstatement of an alcoholIc LCBO store man~ ager with 10 years' semority who had been dismIssed for multiple mIsappropria- tions totaling nearly $10,000 00 over a, period of at least two months. The grievor ( \ r claImed that his alcohol use had played a part in his thefts, and that he had since sought treatment and maintained sobriety There, the Board made theser t observations:- we decided that we ,should acrept the expert testimony of Dr. Woodfine to the effect that the (hefts'were alcoholrelatedin that the Grievor's moral values)were "side-tracked" by his alcoholism. Nonetheless, we are of the opinion that the Grievor's alcoholism, while it may explain his misconduct, does not exempt him from accountability for it. Alcoholism is now generally regarded as an incurable disease. But it is a ponditionfor which the victim l?ears some measure of personal responsibility and so will not necessarily be relieved of fault for misconduct regardless of its nature. Put another way, not every kind of blameworthy behaviour by an alcoholic is excused by the fact of alcoholism. There is a limit to the obligation of an employer to retain an alcoholic employee wh,,? has committed an employment related offence, especially one of a criminal nature, notwithstanding that it is attributable to alcoholism, The Grievor has abused the special trust reposed in him as a store manager with responsibility for the store's receipts by engaging in a shrewd and systematic scheme of theft. On that account alone the limit of employer tolerance has surely been reached. Prima facie, dismissal is the appropriate employer response to theft of its property by an employee, The reason said to underlie this view is that the loss of trust that inevitably follows such an offence, particularly where there has been =- ) ..' - 13 - special reliance on the honesty of the employee" irreparably damages the employment relationship Suspension and reinstatement .is, an alternative to be , 'considered only if persuasive mitigating factors are present. In the case at hand ~hatconsiderlition is out~eighed by the n~ture and circumst8:nces of the Grievor's succession of offences. Although he invited us to doubt the grlevor's testimony about when.he be- came a cocaine User and how he financed that habIt, counsel,for the employer (lId not challenge the grievor's claim that he was a cocaine addict' and user at the , time of his thefts. Counsel accepted that the grievor's ,cocaine habit had th~s con- nection with the thefts. it created a financial need which the thefts fU,lfilled. He argued that while the gnevor's cocaine 'habit explaIns the thefts it does not ex- cuse them. He noted Mr Stein's testimony that an addict has to' get over saying '~ III dId'It becaUse 1 was an addIct" and recognize that he did It "because he was a thief." "- CounSel for the employer dIsputed the suggestion that the grievor had demonstrated remorse or admitted his thefts at the' first available 'opportunity He further argued that even if we accept the evidence of the grievor and Mr Stein at face value, we must conclude that the grievor is more bkely to steal than a member of the adult population from which the employer would have hired his replacement. Counsel noted Mr Stein's testimony that any former co- r caine U&er, even one whose circumstances are as encouraging as the grievor's might appear to be, is.,significantly more likely than a member of the general population to use cocaine in future. If his cocaine use "caused" thegnevor to steal, as the _ union argues, then he IS SIgnificantly more likely to steal than a member of the general population. Counsel submitted that the employer should not be obliged to assume that greater risk. Counsel for the employer also argued that we should not accept the eVI- dence of the gnevor and Mr. Stein,at face value. I:I~ pointed to a number of fea- tures of the gnevor's testimony' which he saId suggested either that the grlevor wasbeing untruthful or, in,some cases, that he dId not underst~nd the nature of his addiction and was thus particularly suSceptible to relapse. He noted that Mr Stem's belIef in the gnevor's prospects for success ,(iepended to a great extent on his having belIeved what the grievor had told him. He also noted that Mr Stem's qualifications for predicting the future for addIcts were rather lImited, and that d 'r - 14 - persoilB apparently in abetter, position to offer either a prognosIs or the factual basis for one I" the counsellors who dealt with the grievor -.- were not Called to \ testify He also noted that others m a position to verify important elements of the grievor's testimony - his parents as to the degree of support they provide and his NA sponsor as to his atte~dan~e and partIcipatjon in NA, for example - were not called. He invited us to ~oncltide that these other witnesses were not called because their testimony would not be entirely supportive, and that the gri~vorwas not recalled to explain the fina,ncial records because he could, not give a helpful explanation. He al;"gued that those records support the inference that the grievorbecame a heavy cocaine user before hIs grandJ;llother's death, earlIer than he claimed, ran out of funds earlier than he c~aimed and, therefore, proba- bly stole from the employer earlIer than the week in which he was caught at it. ,- Union counsel said it would have been "self-serving" to have called the grievor'sparents. She describedMr Stacey as "unavailable", and noted that Mr Smith had just begun seeing ~he grievor shortly whe~ the he~rings in this matter , , began. In response to a question from the panel, she said she was not suggesting that Mr Stacey was beyond the reach of a summons, but only that his employ- ment at JFT had ceased before the hearing began. As regards the financial rec- ords and -the inferences which might be drawn from them, she no~ed that the grievor's account of the originS of his cocaine use is the same account he gave JFT, and argued that he had' no reason to lie to them. She submitted that the fact that the grievor's accounts were f~y depleted ,by the, end of March dId not mean he was out of money and would have begun stealing then. She said the last large withdrawals might 'have been sums he kept with hIm in the form of cash thereafter, living on that cash along with his employment earnings until mid June. Counsel for the union indicated that the grievor and the union were not seeking any compensation, and would accept any cqnditIOns the Board consid- ered It approprIate to attach to the grievor's reinstatement; including a reqUIre- ment that he submit to random drug testing. Counsel said that the grievor had instructed her that he would be willing to pay for a regIme of random drug test- ing involving urinalysis for alcohol once a week and for metabolItes of cocaine, opIates and cannabIs once a month, which he understood would cost $3700 and / '>0'- ~ - 15 - $70"00 per test, respectively (for a tot~l of at least $218 00 per'monthon the re- gime he suggested) Decision , The principles elaborated in the passage quoted earlier from the decision in Reed ar~ quite consistent with those stated in t~e passage quoted from the decision in Thomqs Hill. As the Board observed in Reed, the results in those and other decIsions turned o,n the application of the principles described there to the particular facts of each case. Although dIscharge is not invariably the appropn- ate response to theft, it is prtma fac~ appropriate This is particularly so when I there is something ,more than a sing:l~" spontaneous takiI1;gy- where, as here, ,- there are multiple, _planned takings over a period of time. i The central question with whicp arbitrators grapple in cases of thIs sort is whether and to what extent the grievor appears objectively worthy of the em- ployer's future trust, notwithst~ndin~ the dishonest conduct to which his em- pJoyerhas responded by dischargi~g :qim. The answer to thIs question is weighed in the ba]ance with the grievor's mterests in protecting his equity In his Job and , his continUIng lIvelihood, and the employer's interests in maintaining'the confl- r dence of the public and the integrity of its operations, to determine whether dIS- charge is an excessive reaction. When they consider a grievor's employment his- tory,~whether his wrongdoing was planned or spontaneous, whether there was one dIshonest inCIdent or a series, w~ether and when he admitted wrongdoing, l whether and when he expressed remorse and so on, arbitrators are assessing the I grievor's character, determining whether or not the dishonest conduct in ques- tion was" out of character" . , When It IS suggested in mitigation of a grievor's-'.wrongdoing that he committed it while under some influence which he has smce overcome or brought - I under cOntrol, the implication is that: the grievor was OItly temporarily untrust- worthy, and that the influence temporarIly undermmed an predIsposItion to honest conduct whIch, once the grievor was free from that influence, would be a sufficient foundation for ongomg trustworthiness. 'Three issues are thus raised. the nature and extent of the connec~ion between the alleged influence and the grievor's wrongdoing, the strength of the grievor's predispOSItion to honest con- '- \ ~ -------- ~ - 16 - duct when free of the influencea~d,the lIkelIhood that thegnevor can avoid suc- cumbing to a sImilar influence in the future. I Mr Langley's written report states that the grievor's criminal activities "are the dIrect manifestation of his addIction." This statement is not directly ex- plamed by the context in which it appears. Mr Langley did not testify Mr Stein's written report states that "It is clear, based upon his hIstory, that the cnminal behavior, breach of employer trust, was directly linked to his prior ad;. diction." That report does not identify the nature of the link. Mr Stem dId not elaborate on thIS in hIs testimony, so we do not know what sort of link he had in mmd. ,- In Thomas Hill, there was o-expert medical eVidence, which the Board ac- ,- ~cepted, to the effect that thegrievor's alcoholism had "side-tracked hIs moral values." In Rel!d, the Board accepted the grievor's testimony that at the time of his thefts he perceived fulfilling his need for drugs to be a matter of survival., Here, when asked ahout the effect cocaine had on him, the gnevor said only that it made him feel "stronger", "a superior being", "indestructible" and, later, "paranoId." These observations do not themselves explain the connection with the thefts, unless the grievor is someone who is restrained from dishonest con- duct only by the fear that he will be caught and punIshed. It was clear from his r testimony that the grievor stole because he did not have enough money of hIs oW11. to sus~am cocaine consumption at the rate to which he had become accus- tomed. He did not describe this as having seemed to be a matter of necessity or 4 survival at the time. He did not suggest that desperatIon overcame any scrupl~s he may hav~ had concermng theft from his employer We would have thought that a gnevor whose innate honesty was in issue would be anxIOUS to explain how the drugs had gone beyond merely creating a financial need and had also impaired~his moral judgment, if he sensed that that was so. The grievor dId make restitution. The criminal court ordered him to do r that, and to do other thIngs whIch he has apparently done. That is not WIthout sigmficance. What is potentially more sigmficant, in assessmg hIs character, IS what he did or did not do about the effects of the theft on his employer and the employm~nt relationshIp he wanted restored, beyond what may have been re- qwredby the crimmal proceedings or the sentence of the cnminal court. ~ ~ - -- -- - ------ I ~. / I - 17 - In Reed, the grievor admitted hIS wrongdoing as soon as l}.e was accused of it. Here, the grievor's first reaction was to deny the accusations He denied them again three days later, when he responded m WrIting to the employer's written request for an explanation. Some tune in August 1992 he decIded. to plead gUIlty in the crimmal proceedmgs, some months later he entered a gUIlty pJea. But when,did he admit the theft to his employer? As far as we calJ. tell from the eVI~ dence before us, llo admIssion of the grIevor's wrongdoing was commumcated to the employer on the grievor's l?ehalf until after the ,grIevor s3;w the videotape, roughly 9 months after the events recorded on, it. I When asked in cross-examination what steps he had taken to adVIse the employer about his drug probiem, the grievor testified that he had told his "union supervisor" that he was seekmg treatment, but did not know whether that had been commumcated to management. He does not say that he asked the union representative to communicate it to management, and there is no evide~ce that he or she did. Neither the gri~vor nor anyone on his behalf told the employer of his :drug addiqtion explanation for the thefts or of his efforts to ccmtrol that addictIon l,lntll the eve of the .hearmg at which he sought to have ~ order the employer to take hIm back. Furthermore, there is no eVidence tl1at the grievor ! has ever offered an apology to his .stbre manager or to anyone else :representing the employer, the victim of hIS thefts. While he clearly regrets the impact his addiction and his thefts hav.e had on his own hfe, the grIevor has not expressed remorse for the Impact they had on the employer He did not admIt 'his misconduct to the employer at the earliest opportunity The alleged mitigating circumstances on wluch he relied at hearmg were not commumcated to the employer at the earliest opportunity, nor were hIs efforts to rehabilitate himself. In short, he faIled ~o do what he could have done himself in an attempt to rehabilitate his relationShip WIth the employer, to dem- onstrate to it why It should tI'\lSt him again despite hIs past wrongdoing None of this bodes well for the restoration of that trust, and it IS mconsistent with the claim that the gnevor was remorseful. In Reed, the Board made these observations about the desirability of havmg the eVIdence of the treating profeSSIonals in a case of thIs sort. Unfortunately medical or other expert evidence of im independent nature was not presented to us on the extent of the addiction or the prognosis for recovery .- - 18 -, ( In our view, such evidence should be advanced, if available. While we recognize that it may" be difficult to precisely define the extenf of a person's addiction or their futl;ll'e prognosis, such evideq~e would likely have been belpful. At the very least, it wouldhavel permitted us to compare the grievor's perceptions against those of the treating professiqnals. The grievor in Reed had received residential treatment at a clinIc in the State of Pennsylvania, so difficulty in securing the testimony of the treatmg professIonals would have been understandable. Here, by contrast, those 'directly involved in Mr Linton's initial and ongoing "treatment were' and are local. There is no sug- gestion that any of them was beyond the reach of a sUmmons at the time of the - hearing. The union did not close its case until September 1, 1993 By that time, accordI;ng to Mr Stem, Mr Smith had been seeing the grievor regularly for nearly 6 months The failure to call the counsellors who sa,w the grievor r~gu- .- larly, partIcularly Mr SmIth, suggests that their reports of the grlevot's progress and prediCtions for his future xnight not have been as positive as tho~e of Mr I Stem and the grievor himself. \ I I - i The choice not to call other apparently available witnesses who could have verified aspects of hIs story -his NA spoIiSor, for example - added significance to an issue which is inevitably significant in a case like thIs: the reliability of grievor's own testimony We do not agree with union counsel that the grievor had no reason to improve on the truth when he told his story to JFT In the circum- r stances, he could reasonably have expected that anything he saId to JFT about - his drug problem might find its way into a report to the court. Moreover, he would, have been inclined, one would think, to make his story to JFT consIstent with what.ever story l.1e had by then told his parents, for whom the story that his ~randmother's death in February 1992 had triggered his drug use would have been more palatable than, for example, one in which heavy use was trIggered by receipt of settlement proceeds in December 1991 The grievor's inclination to im- prove on the truth (or, perhaps, on preVIOUS improvements on Ithe truth) was mamfest when he testIfied before us about his prior use of mariJuana. Further- more, hIs testimony about how he financed his habit out of hIs accounts at the credit union was quite clearly inconsistent WIth the records for those accounts. Umon counsel's speculation about possible Innocent explanatIOns for the discrep- anCies was no substitute for the grievor's offering explanations m testimony His failure to do that when offered the opportumty warrants an mference that some- thing more unfavourable would have emerged if he had testified agam. 01 - 19 - We have identified the three lssuesraIsed by the,unJon's arguments that the response wh~ch is prima facie appr,opriate s,hould not apply here. the nature and extent of the connectIOn between the alleged mfluence and the gnevor's wrongdomg, the strength of th~ grievor's .predlspositIOn tq honest co~duct when free of the influencerand the likelIhood that~he grievor cap avoid succumbing to a simIlar influence in the future. We are left m doubt on all three of these issues. 1. ' The nature and extent of the connection between the grIevor~s cocame use and his repeated thefts (beyond mvolving a lifestyle which thegnevo:rcould not oth- . erwise afford) is unclear The strength of the grievor's predIsposItiqn to honest conduct"when .free of the inf1u~nce of cocaine is made unclear by hIS apparent lack of candour d urmg hIs testimony and by the total absenc~ of any effort on his part, once he says he was free of that Influence, to apologi~e for his wrongdoing ,~ or to offer the employer any mItigating, explanation before these proceedings re- - quired it: The likelihood that the grievor can resist similar influence in the future IS left unclear by the failure to call either of the counsellprs who worked with him, by Mr Stein's lImIted experience, modest credentials and dependence on I the grievor's own rep'orts and, most importantly",by the apparent unrelIability of the grievor's owntestimony ~ There IS also the fact that the, Job to whIch the gnevor seeks reInstatement r involves handling cash, something; which Ms. Sagorsky and Mr Stein both say would make it more difficult for the grievor to resist a return to cocaine use. There is no other part time job available with the employer In which the risk of relapse would be less for the grievor or the potential consequences of relapse less grave for the emplo;rer Does the prospect of imposmg drug testmg as a term of reinstatement tilt the balance in favour of reinstatement? We think not. First, there is the dIrect cost. On that subJect, we have oruy the grIevor's statements from the counsel ta- ble during union counsel's argument. Even on the basis of that information, the cost IS substantial in relatIon to the net eatmngs of a part-time employee. Al- though the grievor has undertaken to assume that cost, one wonders how long he could be capable of domg so. There is also the indIrect cost to the employer of administenng such a scheme, as well as the impact on the work environment of doing so. In Ph~lhps Cables Ltd. (1974), 6 L.A.C (2d) 35, arbItrator Adams (as he then was) made these observations: c~ i? - 20- in a very general sense, honesty is a touchstone to viaple employer-employee relationships. If- employees must be con,stanily watched to insUre that they hQnest1y report their commgs a,nd goings, or to insure that valuable tools, material and equipment are not stolen, the industrial enterprise will soon be operated ort the model of a penal institution. In other wo~ds, employee good faith and honesty ~s one important ingredient to bo~h industrial democracy and the fostering of a more cooperative labour relations climate. The board feels that these are the sentiments underlying the arbitral castigation of dishones~ conduct. Arbitrators are not equating the r9le of a plan~ to that of a church. Rather, they are insuring that the role of the plant will not evolve into a role resembling that of a penal institution. We agree that it is not in the interests of the employer/its employees or the un- I ion which represents those employees to have the role of their workplace evolve into one resemblIng that of a penal mstitutIOn. That would be the tendency of our imposing on the workplace an employment relationship in which drug test- ing is made to substitute for trust. There may be a case'in which the availability of relevant tests and the willingness of the griev.or to submit to and pay for such tests would make the difference between dIsmIssing a discharge gflevance and substituting reinstatement on terms. This does not seem to us to be such a case. While we accept that discharge will not ,always be the appropriate re- , sponse to theft, we are not persuaded that any lesser response is warranted in this case. Accordingly, this grievance is dismissed. Dated at Toronto this 29th day of June, 1995 Owen V Gray, Vice-Chau' PI 7- cn7~ -/ M. O'Toole, Member ) "I Dissent" (dissent attached) --------------------------- T. Browes-Bugden, Member , ~1 [.. \ GSB 11429/92 OLBEU (LINTON) AND THE CROWN' IN RIGHT OF ONTARIO (LIQUOR CONTROL BOARD OF ONTARIO) DISSENT . . ~ ' ====.======m==================.==,========,====:====~==~============= With respect, I find that I mUst dissent from the majority in this ,.,., , award. In this case, I believe the discharge was an excess i ve response to theft by the employer" -and the gr ievor snould have been reinstated. The m1-tlgating factors in this case put forward by the Union are reproduced at pages 11 and 12 of the majority's decision. I found them of a convillclngand persuasive nature, however, the majority I did not. InCrelqhton. 190~/a9 (Keller) a~pages 10 and 11 of that decision .' ~ are the follo~inq comments: Normally in breach of trustor thef~ cases where the incident > has been proven by the employer ,the penalty of discharge will follow unless t-he ,arb! trator ,or, Board of arbitration finds reasons to mitigate the penalty. Thos~ reasons have been often expressed and seem to flow from the ,checklist outlined InRe Canadian Br'oadcastinq Cortioration a-nd Canadian Union of Public EmDlovee~, 23L.A.C. (2d), 227 (Arthurs) . There has developed, however, a line of a,rbi tral jurisprudence that I distinguishes the matters arising from alcohol addiction from I what might be des'cr ibed as the "normal .cases". In general \ ( (.... , I I r- - Page 2 - 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 consi~erations tend to focus on whether the probl~m 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 l,nterests of the employer with those of the employees. Employers have legitimate right to protect their interests, of course, but the prognosiS for successful rehabilitation and reintegration into the work force is also considered. These comments are consistent with the quotes from Reed. 1165/91 (Watters) found on 'pages 10 and 11 of the majority's decision in this case. , r The majority concludes on a number of concerns of when the grievor admitted to the thefts, and how that impacts on rehabilitation of the trust in the employment relationship. In response, 1 submit that the gr ievor did notadmi t to his wrongdoing. the first day, which would have been the most appropriate time, because he was at this very time admitting to his cocaine addiction to himself. Once ) he realized the addtction there was no delay, and he sought help from the Employee Assistance Program, which referred him tQ the .) "Just For Today" Furthermore, believe it to agency. I wrong conclude that the gr ievoron1y admitted wrongdoing after he had \ viewed the videotape of the thefts. Rat,her, the admission had \ taken place at the criminal tr ial" which was well before the viewinC) of the videotape or knowledge of the existence of the c. videotapes. \ ___._n_ - -, ~; ~ \ I I ;. Page 3 - In addition, I believe the <grievor in his testimony; while not one hundred percent consistent was honest and, therefore, do not doubt his predisposition to honest conduct when free of the cocaine Influence. I f~rther do not doubt the grievor's ability that he '"'- can avoid succunlbinq to a similar influence in the future, even if ~ he is placed in a cash handling position. However, the majority is left in doubt on these issues. In these kinds of cases, the arbitrated result will depend on the specific facts and circumstances. Again, in crelghtonthe board concludes at page 16: i 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,. , i The grievor's actions resulted from :his ~ddictIon. 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 circumstances of this case show, the grievor was a good employee with a good work record prior to his discharge, he sought treatment immedia~ely upon realizing he had an [addiction, he has remained clean and sober ~ince treatment began, and he has made the necessary steps and appropriate lifestyle changes. Finally, the grievor has successfully dealt with his addiction as is shown in the evidence by his continued sobriety. , " l ~ ,~ \ i .,... Page 4 - In conclusion, I am persuaded in this case a lesser discipline response was warranted.,. and this was an appropriate ~ituation to reinstate the grievor to his former position with conditions. Therefore, for all of th~ stated reasons, I would have allowed the grlevance. , Respectfully, I I I - ,. 'T. Browes-Bugden r Union Nominee ) I