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Home My WebLink About1993-1016.DeLaurentis.95-12-04 ('~ :'l~ ~--i> To! ~~. ~ ~~,/ ~ ONTARIO EMPLOYES DE LA COURONNE J};~ CROWN EMPLOYEES DEL 'ONTARIO GRIEVANCE CpMMISSIONDE i.OuJ1kfl f)..; '.::, 1111 SETTLEMENT REGLEMENT ~~~ ~O I r~ v'JJ BOARD DES GRIEFS '- \ ~ 180 DUNDAS STREET WEST SUITE 2100 TORONTO, ONTARIO, M5G IZ8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU,2100, TORONTO (ONTARIO) MSG lZ8 FACSIMILE /TELECOPIE (416) 326-1396 I GSB # 1016/93 __""_-::1 OLBEU # OLB127/93 fiE C[2J'Vf,~ D IN THE MATTER OF AN ARBITRATION Under DEe 0 5 1995' THE CRt>WN EMPLOYEES COLLECTIVE BARGAINING ACT P' .....,.. ..^ ~~.~:' tr- ,)...... ",1 t"".,I '\.t) :l...... \. ~ t:..;~.. Before If"""" " "~,~.~ ,,"\ A ~:~1' 'it.:,\ F !J ,:~,}~. ~ O. }.~< ~ j ~ __"\.s t "...,,' :.... ~.:_:~,.;,~,..~..;.. ( THE GRIEVANCE SETTLEMENT BOARD BETWEEN OLBEU (DeLaurentis) Grievor - and- 4 The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEFORE E Marszewski Vice-Chairperson J Carruthers Member - 0 Montrose Member FOR THE L St~inberg I GRIEVOR Counsel Koskie & Minsky Barristers & solicitors ! FOR THE 0 Mombourquette EMPLOYER Counsel Liquor Control Board of ontario HEARING November 23, 1994 - \ > ..... L -,-;\~ is: c.: {. ( ( r..'" ....-~ r 't..!. C' { --:. --- ,. ......' .... ,.I '':.a.~ This matter arises out the grievance of J DeLaurentis f-. ~- I.J /.- r i r with respect to~the-,terminati:on of his' employment by the employer, .* f .~ .the> Liquor Control ,Board, iof ontario J ("the Baard) , by letter "\ t"~ addressed to the Grievor and dated June 14, 1993. The grounds for ..... '"'4 .! i.,.,: " ..;.! termihatiOrf:- 'were spec.if,iedas -the",.. 'Grievor' sfa.ilure to follow "- A-..... "'; 0('- prqper cashiering p:t:"dced1ires -and the Gri'evor..:.' s -subsequent. arrest on ~.;f' --"r ... .... .~ ~ June' 7; 1993, Ol1."cnarges of .thef,t. 'There'.',was.-no. issue before this _ t.;-~ ", _~_.. _...._..l , .;.J.... "- board that the Grievor had committed theft- The sole issue - ~ ::tnvolved the' ,circumstances unde_r .which the thefts had occurred and v r - "- f.\ the, a-ppr6priate penalty;- ",.- .J. b ~~':..' ....1 ':: r .....~_ - .... ~I"' , The parties riled ;an agreed statement of facts, which .... . - - - r '~set out the- 'f.allowing facts <- The Parties agree to the following facts in this - .Arbi tration :.::, -- _ ~ -r _ ." ~ l'" I..... _.:.'... .... --\-, - .,. -i.-The Grievor., Joseph. DeLauren~~s; was born on June 27, 1935 and currently resides"in Toronto, Ontario. -- ~. ~ 2. Tlle. Gr-ievor was appointed by the LCBO to the ~ posieion'of Temporar~store-Clerk 'in~ecember 1981. The , -- Grievor was appointed to a permanent full-time position -as a Liquor store Clerk Grade 2 ,..,on ;June 17, 1985, at store #10,. Toronto. 'This' date represents his seniority date with the LCBO. . , 3 ~ Tne Grievor was appoint~d to the, position of Liquor 'store Clerk Grade 3 at- store #10 in July, 1987 and held that position until his employment was terminated in 1993 copies of the Grievor's "last four performance appraisals are attached as Exhibits #2 to 5 4 The Mana'ger at :store #10 ,Ray -Gaudaur , received information which indicated that the Grievor had engaged in improper cashiering procedures while on duty at store #10; The Manager relayed tl1is, information to the 'Distr'ict "Manager, Doug GOlding, who in turn requested ~.,; ""1,. . I~ . ~ ~.. ~ ( \ 2 I that LCBO loss Prevention and Security conduct an investigation into the Grievor's activities. - , & 5 On April 7, 1993, investigators from the LCBO Loss j ,prevention and security Department installe.c;l '~ ,bidden video surveillance camera in Store #10 The camera recorded the Grievor-'s cashiering_act.ivitd.es QJ1 April 13, 14, 15, 16, 20, 22, 23 and May 1, 1993. J~'" 'j.- ....- J. ~ 6. The video tape recordings reveal that the Grievor had used/improper cashiertng proced~~es to commi~_ theft on 1 occurrence on April 13; 0 occurrences on April 14; 1 occurrence on Apri<l 1'~'; 3 ocourrenCf?$ OI) April 16; 2 occurrences on April 20; 1 occurrence on April 22; 2 occurrences on ApriJ,.23'; Q oCc:J"lrr~pcee; QIl May J." 1993. The total amount of money taken by the Grievor in the 10 ~ occurrences was $187. 00 ~ - r. 7. The' video tape evidence.....,was 'burped ov~r t:o the Metropolitan Toronto Police and on June 7, 1993, the Grievor was arrested at store #10 an~~ I,c:;::narged wJth 10 counts of th~ft under $1,000.60. ; 8. By Notice of Intended Discipline dated June 8, 1994, the LCBO suspended the Grievor with ,pay effective June 7, 1993, pending further investigation of this matter. A copy of the June 8, 19~4 Not~ce o~ Intendeq Discipline, is attached as Exhibit #6. ' '( (~ .,.. -" --.... '!'" "'.;;.:.. ..;- 9. By handwritten letter dated. .:rune 9, 1993, ithe - - Grievor responded to the Notice of Intended Discipline. A ~opy ,of the Grie:v..or'sJune 9, 19'93 letter is attached as Exhibit #7 i 1", ~ ,_ 10. BY letter ,date.d June .1:4., 19,93, the LCBO terminated the Grievor's_employment for the reasqns set out therein. A copy- of the LCBO',s June 1.4, 199.3 letter is ?lttached as Exhibit #8. The LCBO has a consistent policy of discharging employees-, who are _, fc;>und to have committed theft. c.. , .11. On September 15,. ,19,93, the G!;'ievor plead guilty in Provincial court to four counts'of theft under $1,000.00. r- - 12. On September 28, 1993., the Grievor tendered $187 00 to the LCBO as restitution for the ten counts of theft. ~ . - . This payment was accepted by the LCBO without prejudice to the LeBO's position ~oncerning this grievance. ~ 13. On October 20, 1993, the Grievor was sentenced in Provincial Court to h.i,s SeptemQer 15" ~993 guilty plea. The Grievor. received -a suspended ~entence, 6 months ~ ~.4 l ___ I ~1 \ 3 I":" ..JI..... 7 .. -probation- and:t ~IaS. ord~!5e~ t;o undergp therapy r ...... f ,- ..... .. "'" , - ~ ~,pe "par~ies ,ag:l;e~",)tha.t ~~~b~r party may supplement the above fapts with -additional viva voce, evidence at the hearing'oftl1is matter. The partiesfurth~r agree that th-i.s 'sta,.tem~nt o'!t, facts j"s w.i,tn,out prejudice to the .pof;i,~'E:io<n o~ t:h~ parties in. any} ,other, proceeding and tha,t ~ny admi$s'i;onor ~t.atement:"made, ~y tl1eGrievor herein is s~bj ept to tl1ep;r:oteqtion. of sectio,n 5 of the Canada i- Evidence Act. R.S.O. 1985, c.t-5, as amended I I ) ,..fw}..-c :> ALL~ OF -~ICH IS, ~~BEED ~O ,this '23.;rd day of November, .. 1994-. ,':J ~\-,.) .,..:< t ' _ 1....:. -- ,-"" -::. ... j' - ~ .~. Exhibits .#2 to #5, the Grievor's last four performance -, it-. ~!I ~ ~,..... :-... appraisals,conS!istently rated the Grievor with, a score of " 2 : Always meets job requirements, frequently exceeds t;helll". ~ .L. ..,., .... The re~~Yant po.+tiQV~ of -th~ Emp~oy.e~~s ~otice of Intended Discipline (Exhibit # 6) which was sent to the Grievor was dateq:, .:rune 8, 1993: [. f ;'" .... "'J; } ,r ~ ~ - 'rhe.' p~'r-p,ose'of this; ,.let::~er~ is to advise you that you are $ l1erel>Y r.eLi,:~:veg., ~:r;gmq\r~:Yf'w4..t,h pay effective June 7, 1993 pe.nqipg an i;llves.tigati,onfor tailing to follow proper . cP,shi,er.,ing, 'P,J;oced~~~s ,while Qp'erating a cash register at store #10. The~e ~ction~ resulted" in your arrest by the Metropolitan Toronto Police on charges of theft on June . --( J 7,., ,1993. "<" _ ';, 6:,. -. A~L a result oJ th_e~e~ events, disc;iplinary action may be r .taken~gain.st you. Withi!} three (3) calendar days of your receipt of this ~~tte~~ you are girected to submit a written statement, to my attention, in which you are to exp~ain the, circumstances giving rise to this situation. ~ (- ':- The Grievor ,res;ponded to the Board's lett;er with the following handwritten letter (Exhibit # 7). ... .. -+--- _'~_c__~____ ~~-~ -- ___ (; 4 In response to your letter dated June 8, 1993 regarding , my relief' from duty as of' June 7, '199,3 for failing to follow proper cashiering procedures, I am acknowledging I have a serious drinking 'prob'Iem whieh ,causes me to do " things out of my-c::::haracter which I do not recall. .f... I in good faith called Clyde Bennett 2 years ago and went to see:him. He at that, [sic] recommended A.A & gave me a list of meetings in my area which I did not follow - through. I thought that I could-do itr myself - ... .....~ It is now obvious I cannot do it alone and on June 9, 1993 I called and ,spoke to Clyde Bennett and again for some help including i needed treatment which I am willing to go for. I I am hopeful with the proper treatment it will rectify my drinkinq problem and will make me a better employee. If I have done any wrong doings I apologize for my act~~. ' By letter dated June 14, 1993, (Exhibit # 8) the Board terminated the Grievor's employment as follows: , .. . This is in response to the Notice of Intended Discipline ~ issued to you by Mr. D. Golding, Distr~ct 13 Manager on June 8, 1993 relieving you from duty with pay effective June 7, 1993 -pending an investigation for failing to follow 'proper cashiering procedures while operating a cash register at S'tore #10. These, actions resulted in your arrest by the Metropolitan Toronto Police on charges of theft on June 7, 1993. . After reviewing all of the information available to me, including your response and the seriousness of the offence, I have concluded .that your services are no longer required and you are hereby terminated from the LCBOeffective immediately. . Counsel for the Grievor filed a copy of a report from the "Just for Today" Alcohol and Drug Awareness Centre prepared by ) Vernon Langley and Jeffrey L stein. Exce'rpt's from this report read as follows: . I .~ ~, (.. / \ 5 -4 ~ ~. - r~".": ,( 4 a lo Thel -apQ;ve:,-noted in(Hvidual~attended. at our office June 30th, 1993 for' an addic'tion assessment and'treatment plan .; "..! f.or ,che~ii\carl,; dependel)~y .Mr DeLaurentis .w,as ref~I:red to our off1ce by Mr Clyde Band, LCBO, E A.P. .... J Cj:.. ... -..1 q SOURCES, OF INFORMATION: - ~. ~ ~ 1 r ~ Client~ THIRTEEN HOURS (12 SESSION) ; '. .J ..t.. z~:; ,fh .r~..~ ,^,-. ATTENDING STAFF: ~'l, Vernon .L~ngley., d~ddiction Counsel;J;oI: - ~- i ..._ ~."" ...,.,- ~..... ~;j._. ... REVIEWING STAFF: VERNON LANGLEY , F:B.A.r C..; ;D~C ; J~r.FREY~ ~,,:1 STE;LN" B A., Ll.B., (Member of the Addiction'. Intervention Association). .~OBJECT.IVES . ";~' c '1:) T,O DETERMINE t'rHE OLIE;ijT' S. DE~tR~ AND~,CHO~C~ ,OF pRUG INDICATING DEPENDENCY -- 2) TO lI'NDICATE WHETHER A .oORR,ELATION EXISTS,. BETWEEN THE . '.. 'J' CLIENT'S DEPENDENCY AND THE 'PRESENT MATTER. ,~ ~ 3) - ~.o <.,DETERMLNE ,,;'THE C~IEl:f~' S REQU.IREMENTS FOR SUCCESSFUL MOTIVATION TO CHANGE THE PRESENT COURSE OF --' co~buc[':. A COMPREHENSINE ,AS,$E$SME,NT 1. ~"'- VSED TO; - ~ _" ,c f ,A);; ES,TABLISH:JA.s..UFF~ICI'ENT ;BAS~S J:O~ INFORMATION TO ASSIST THE CLIENT AND FAMILY TO FORMULATE A PLAN OF ,ACIl'ION,; %.; - ~ '?S~ ~ -' B) FOR THE CLIENT TO REVIEW HIS/HER COURSE OF BEHAVIOUR .. -. '~. ! AS, ,A DIRECT, RESULT OF, CHEMICAL A;BUSE AND;: i, C) TO ESTABLISH A CONTINUUM OF CARE EMPHASIZING RELAPSE ,PREVE~TI:ON't 'f --- - ;WE:J ATTEMBT. TO" MATCH CBIEN,TSTO OPTIMAL ~TREATMENT PLANS THEREBY INCREASING TREATMENT EFFECTIVENESS AND :- l i. ERFICI'ENCY':." ~,.;'3r . - ,. '" '--OVERVIEW Our client is fifty-~ight years of age, married with four children. Based upon his own self admission his last use" ~. ot-a ,'mood altering ~ubstance , being more particularly alcohol, was June 7th 1993 He has always attended at these 'offices clean and sober and we have found him to be a most co-operative client in respects. - We also believe in the sinceri"ty of thi,s man in terms of the successful outcome he has had in turning. his life around, accepting respo'nsibili ty for his actions, and F.. .... . ') . " ~ 7 In cross-examination, Langley testified that the Grievor had told him that he had experienced black:-:outs. From that . 'r statement, if it was indeed true, Lang~eY deduc.ed~ that the Grievor j r must have had an extreme problem wi th alcohc;>l. He agreed that .t-~t.i~ ... although one of the traits of alcohol dependency was poor ~ .: attendance at work, the Grievor did not miss much work time and his r -~ appraisals were vei5y good in .that ,respect. 'However, Langley pointed out that when the Grievor had been an alcoholic, he 'f .... -;.., ., nev~rtheiess did not 'miss any time at :work. ~ '; -'i, ~. r-. r 1;0. ~.... , r f - The Grievor testified that during the month of June, 1993, '- he' drank one 26 oz. bot'tle"';;6f Jryei or whisky daily. He ,~ '. - '- . start'tid drinking i,n the morning, generally. or often in his car, I continued over lunch, then again on his way home from work, again , . .- " in his car. Re -also testified that he rarely went to bars. He asserted that he had had .an alcohoT problem over the years, that .' # several years before the events in issue ,in this case, following discussions with his employer, he had gone ,to' get help with his ... '-, ... \ , alcohol addiction but did not follow through with the counsellor's ( advice i~ the-belief that he could handle, his problems on his own. ~ ~ 'L The evidence did not disclose the reasons for:, or' the nature of the Grievor's discussions with the Employer. ~ The Grievor also asserted ,that he was unable "te reo?ll the speedf ic instances, of theft., During theGr ievor' s cross- examination, when he was referred to his admission, as set out in , ., > ~ "'" I t; ':'! J ~ \ ! 6 t~~ -."!~, ~.' ~. + , ~ ,~ believe that he deserves another chance as a clean and isober' indi-v,idual~.1'f';.If, n~cess'ary bloo.d testing, hc;l:$been suggested to this gentleman and he is not opposed to the same. _t 0t~ ,( - ~, 'I L To date t'i i t'8.'has_ 'been ,r:emarkab Ie in ,that-. ve has maintained total abstinence from mood altering )~ r< . substances;~~, ~: Elease 'note -that ::: tJ'le ae::t.!la,l cycle of . , physical addiction, whether it be psychological or psychosocial, may still be;,"impaet;ing, "on this i;nd.t~idual thereby making subsequent relapse a real consideration [sic] however we also feel that sho\lld heco.ntinue a process of relapse prevention and continue with Twelve , x '--: .step: a.ttendance..the,'prognos:is for posit.:iye unco.m:plicated change is very good for both himself and any employer. f',;!;" '- '" - .I ~:; I' 1! Please note that this agency and its staff are not .. psychologists'~'rior do. ,we hold ours:el ves out to be' ,as such 'Many of our observations are based upon our combined - ,iE'" experience iil u this; ,field;-.- Our ,staff ape t;:plined to iden~ify not diagnose behaviours -~, -tY r .~ --! =) .. ~ .,. :5 :i~ - - Langley's evidence established that the Grievor ~bllowed the required programme and managed to stay sober until the hearing J-.; .3 ~, .' i.;:. day. Langley did not think that it was necessary to refer the - , f'" '~:d -' - .. - ~J , - Grievor to a psychotherapist or psychologist. Rather, he was of . ~f .....,\ - the view that it would be more appropriate for the Grievor to attend A A. meetings. Overall, Langley was of the view that the /":- 't -,' '1 ~ -, Grievor had done better than Langley had hoped for in the _f' ~,('- f)::: - - - ca,teqories of open-mindedness, honesty, hard work and perseverance -l. - ......~. He concluded that if the Grievor continued to do what he had done '. ~ .; ,'- up until that point in time, the Grievor's chances for remaining ~, :~ r sober were excellent. However, Langley stated that the Grievor had not been able to discuss his theft in the A A group sessions. t ,~ ..... J " , t , "-.-: '"I- '.' ( \ ( 8 \ I the agreed statement of facts, that he had taken money from the i" ~ r .' cash register without authorizati'on,. he replied as follows: " I - .... \ ~ don't recall put.. I guess if I was on the camera I have to admit that..". However; he maintained that! he did not take any money - .(..... .~ from the Employer other .than asrecorded'i',by. the Jcamera. When asked ~ f' ~ " rl '-- -' whether it 'was poss,ible" that he had taken;cmoney other times, he ~ ,.., r;' -, '. <::: first responded II no" and thei't added: .111 don'.t recall in a,clear J r:-. -.... ~: ~:, "::' k sense". He was the'naskegwhether.:there w~re)prior incidents and , ..1~ .r. ~"'" ~ he answered "I don't know". He admitteg that when he stole the ''1' -' ,- \ ~ money,. he knew it'was unlawful. Moreov@r., wheniasked whether he -' k took precautions to conceal..:the tak:i:ng:of,the..:mQnies, he answered ~ i , S ~, "Yes" and agreed that he used a certain technique to ,effect the taking of the money. - - ".. -, ~ \ - ....--. ....., ~ , -, 1 The Grievor had worked at the cash register about 80% of ., ~ ~ ~ his time and agreed that it he were to be re-instated he would ~ - ~ ' - .' . ' .1;. , again be assigned cashier duties. '" ~ ~ -- ! 1"1"': ~.; .!T ~- L Counsel for the Employer submitted that there was no real {- ,,_:... dispute with the evidence adduced by the Grievor or Langley with " ......";;..0 - ,~ - respect to the Grievor's attempts at rehabilitation of his alc;ohol - . probiem. However, it was submitted that the rehabilitation issue .J: ~ was only relevant to the extent that there was a direct causal ~ 'i....... ._. _ ~ connection between the alcohol problem and the illegal conduct. It .~- ... ~, was pointed out that in this - case, the real problem was the Grievor's desire or need for money, regardless of whether or not it L ~ ".. .,. ( , 9 , ,---, ~as prompted by his ~lcohol problem There was no 9,uarantee that I ~ . . ,,'~'" ..::.. ~J _..........;.... t -. in the future the Grievor would not take money for alcohol-related .l:.. it ~. or pther reasons Coun~el concluded ~hat there was no basis upon which thi~ board co~19 exerqis~ its di?c:retion in favour of the ~ ' ( , -j Grievor. Coun~el ~efer~ed to, and relied upon t~e following caselaw -, --' in support 9f pJs supmissions ~n this case: Re P.. C. Drop Fora inas _ . r . -:- . " Ltd., and U.S. W-.A.. Local 8190, ( 19 9 0 ), 11, LAC (4th) 279, ( R L. ,- 7-.- -!.. ' :;; Verity); Re The Crown in Right of ontario (Liquor Control Board of r ....' co ;..'-r.~ ~--~.- .,'~'. .'.. , " ~.....;. -4 ,.. ontario} and OLBEU (Leon Menzies}, Unreported decision dated 20th ,..: ...._;-.:.- ... - _....:.._'" , . J day of June, 1983., (J.. F. W. weathrill>.; ~e The Crown in Right of , . . .- -_..- ' , -- ontario (Liauor Control Board of ontario) and OPSEU (G. Elliott), _.' ,;;. ; r.:..._. - ;. u~r~pofteg decisio!'1 dated 5th day of December, 1984, (I.C. -, ." ,- Springate); Re The Crown in Riqht of ontario (Liauor Control Board , . .' . : ~ , ,- ,-. . ..s of Ontario) and OLBEU (Thomas Hill), Unreported decision dated 5th day of June, 1987, (P. M. Draper) , ~'T " counsel-for the Union subm,itted that this board should > ~ ~. ~ '. sub~titu~e the Grievor's discharge with a lengthy suspension with nocompensatiop along with conditions attached to an eventual re- , ,1 .J.. ~T ..., instatement. Counsel pointed to the Grievor's frank ack:powledgemento~,his_alcoholism problem and to all of his efforts \ - ~ to deClt with it as well as his suc<;:ess in dealing with his ~ - alcoholism. It was argued that if the alcoholism was under . ,. r;: \ cont~ol, the thefts wo~ld then also cease. Counsel relied upon the following caselaw in support of his submissions on behalf of the " Grievor: Re The Ministry of Government Services and Mr. R. E. , . \ .- '. i ( "' 10 Haiaht, Unreported decision dated 23rd day of April, 1976, (D M Beatty), Re Cook and the Crown in Right of ~Ontario, (1979), 22 7 (, r L A.C (2nd) 1, (K. Swinton), Re The Crown tn Ridht bfOntario .. --: "" - (The Liauor Control Board) and OLBEU (E. Hill), Unreported decision dated 27th day of May, i982, (P G. Barton), 'Re The Crown 'in Right of ontario (Liquor Control Board of Ontario) and OLBEU (Kenneth , ~ James Wells), Unreported dec:lsion dated 18.th ctay" 'of March-, 1982, (R. L. Verity), Re The Crown in Right'. of Oritario-' (Liquor ,Control - .::"'; l I'-'- Board of Ontario) ahcf'OLBEU (Creighton), Uhreported decisIon dated ':-"_~ ... J: . i . . . . 7th day of May, 1992, (B. Keller), Re The Crown 1n R1qht ofOntar1o I 4 (Ministrv of Transportation) and OPSEU (Menzies). Unreported decision dated 18th -aay of October, -'1991, (H. WaisglasS') and Re The 'Crown in Riqht of Ontario (Liquor Control-Board of On~ario) a~d otBEU (Reed), Unreported decisioh dated 10th day of~August, 1992, (Watters) . ~ c ) The parties were in agreement that the Board was fully justified in imposing some form of discipline upon the grievor. , The only question was what type of discipline ought to be imposed upon a nine year, sixty-year old employee such as the Grievor? - ..; Discharges wer~ upheld in each of the following cases. In the Drop Forqings case, the Board upheld the discharge of a 10- year empioyee with no prior record of discipline for on~ instance of theft. In the Menz ies case, there were no substance abuse issues. The issue was dne act of theft by a six-year employee who .~ #-1 ~ J i " I \ 11 , was then acquitted of criminal charges. The discharge was upheld. ;.. --..... "1 ,5!.,.;."f I.. In the Ellioet case, although there was a drug use issue, the Board found that there, was no causal connection between the drugs and the wrongdoing ahd, 'the discharge was ;upheld' on the, 'ba'sis 9f th~ ~oard' s r 'f'irid-ihg that the grievor's ,conduct;- "c~u:mot possi-~~iYbe characte~,ized 'a~ -impulsive or a''''momentary 'Clber:r,ati.on". -- ;;.""{ .;I.... , - d j ~ r: ". X" ...... "'..... ":......,t.. ~ t<...... 'In the fo,l~lowing, cases .involving alc;:olJ.olism and/or theft, ..t ., ,- _l discharges were ,repl'aqeqwi;t;h~)less onerou.s disciplinary mea13ures. The Haiaht case involved a grievor who appreciated the gravity of ,c" his, :-effence and-was the:refore,givel1 a'""t;iv~ month suspension. In ... l '"'1 1 ):.., ~ l r *"" I the Cook case, the grievor was~an alcolJ.pl~c,; in the Hill case, the ~t~";.. < Grievor was discharged.,sby her EIitploy.~r fOl; ;theft. Expert med;ical t ...nI:-" e,?idence ca,l~led on her 'beha.lf suggested, that the Grievor's thefts .1-.... ,--....-:' ..r- might have been caus'~d- b!_,a 'compulsion to _steal wpich accompanied '.. .t .;;i-:4- 'endog~nous depression,. The-Grievoli was ~reinstat,ed. The Wells Jr., ~ ~ caseinyo-lved asing:l:e -occurrence,., -Th:e'-r(Grievor had pocketed a -,.;. c. "mickey"/'. of cher.ry brahdy-; 'The Board found that the Grievor' p , , r . , remorse' ,was sincere ,tha:t ehe-~ incident was, an isoilated one, being C '-V:, f' a monetary aberration In t;lre Creiqht6ncase, ttlere was a single '-.--.. ~:?:!i incident of- theft by the Gr tevor who 'was, an addicted gambler. c .4 'j. rF f!.......f"': However i the Grievor inu:nediat'Er1y ;acknowledged his wrongdoing In ':""'1 .J the Menzies case, the Grievor admit-ted his. dishonesty prior to its J; -<(, discovery by the Employer. '-':The, Reedcase( set out some of the principles applicable' ,in ,these types 'of cases .' ...4 ~f1 J q , "',- " 12 In the P. C. Drop Forqings decision the Board set out an ~. - J, arbitrator's obligation to balance the partfes interests as follows: 1(" ...The real issue is whether~or not .the .grie~o~ wi;hsome 19 years of service should have been terminated. That issue invoives a JUdicious ba~ancing ,of the competing interests of the pq~t~~s. The earlier arbitral cases generally hel~ th~t th~ft of company property is just cause for dismissing an employee regardless of seniority and good work rec9rd. However, in recent case-law that approach appears to have sof.tened, t'o.-some extent, in-. ',ClPpropr iat.e circumstances. The current approach is accurately set forth in Brown and 'Beatty's text, Canadian Labour Arbitration, 3rd ed. (1988), para.7:3314, pp. 7-65 and 7-66: ~ ' ... . . it is now widely accepted by a majority of arbitrators ~hat a per.son cannot autom~tically be terminated frpm his employment because he had engaged in one or more acts of theft. 1.~The ,faqtors which have inclined arbitrators to reject the ~ conclus'ion that an act of theft, by ~tself and without more, justifies the discharge of an employee, are numerous. and vari,~d. For example, arbitrators have modified the termination of a person found to have engaged in an Clct of ,theft and substituted some period of suspension: -where the - stolen property was of no~ina,l value; where the gr ievor has sucp. a long and exemplary record of '.' - employment that the misconduct before the board could be perceived as an isolated incident; where the grievorl's actions were irrat-ional and/or undertaken on the spu"r of the moment; where the ~grievor had shown remorse and/or had admitted to his misconduct, and where the employer had not ~ consistently applied its rules against theft in the past. In th~se circumstances, it has been expressly or. implicitly assume~ that such ameliorating factors negated or raised doubt as to the conclusion that the grievor had, by his misconduct, conclusively shown that he was so untrustworthy- that the. employer could no longer rely upon him The need to focus on~ the rehabilitative potential of the grievor seems particularly compelling in those instances where the arbitrator -is satisfied th,at the employer's interest in protectinq the integrity of its service can be accommodated by a sanction other than the \ ~ "1.. ~. :.: \ 13 ; l, :f ~ ~ - termination of the grievor from hi.s ~mploy -j,: 'I ~~-; j:~... !.... r Jj 1 Ar~,itrator Burkett followed the current trend in Re . .' Goodyear Tire' Inc'.and Br.R.W. I Loc. 232 ( 198:5'), 18C'L A C . (3d) 6~ at p68~ ...J - ~ ._" Wl1ile I ac<;::ept the company submission that any -. theft 6f~company pr'oduct isC a serious. offence, I do not accept that discharge should be the automatic response in' every- such, case. Indeed tne recent jurisprudence holds that the severity of the -'- penal ty in' a:-. 'thef.t case sholIld beL determined on a review of a number of factors including the service , -i . ~ -f'. ,1'" .....~.- . 'f': -'-~and'record <of the grievor; the 'value of the. goods, the contriteness of the grievor, the impact of the - penalty upon the grievor having regard to his age and skill, and, most importantly, the need for general deterrence. It is universally accepted that general deterrence is a legitimate and necessar,y conS'id~ratlon in 'determining- the severity ~ of the discipline in a th~ft case... J .;:.. ~j: I- :.'-~ ... Cle~~ly, theft by employees from the Port Colborne plant -. ~'has Been a cQntinuing'problem' for the. employer at least in recent y~ars. The employer has a legitimate interest to prob3ct hi - tlie general" 'deterrence 'of theft of its property by its own employees. ;"J'-: ')- '- __ The union placed considerable emphasis on the grievor's ,~ "honesty';' - in returning-: the stolen. :property./ wi th respect, I am unable to agree with that contention. The griE:~vor',i,s --"'ret1;irn, -of!tne -brass 'bushings is not a mitigating factor in light of the del~berate concealment --' - of his 'aqt Indeed-, he- would have advanced 'his cause to a considerabl~ d~gree had he been candid with the employer and voiuntarily ~admitted his misconduct. _ Unfortunately, he did not do s9. ;i ._ ~.. .J .~ - ';YO ,. 'Let us 'f irst consia~rthe' evidence -which has been adduced +- " : ....,- -.. . _ 1 . and the facts wh~chhave been establ~shed ~n th~s case. ... ./ The strongest eviden'ce in tlieGrievor' sF favour comes from the stein/Langl~y Report and- from Langley himself. Careful scrutiny of the November 21, 1994 stein/Langley report as well as ~ '. ~ 14 Langley's oral evidence shows that from Langley's point of view the I , , central matter in issue was the Grievor's alcoholism and not his 1 dishonesty or theft Langl~y ass~m~d throughout that the root .- cause of the Grievor's problems was an addiction to alcohol. The report w~s premised upon the a~~~mption that the Grievor's repeated ~ "',,-' acts of theft we+e prompted by his ,alqoholism. The report noted -- p~' ~. that it was "reril~rkable that, be has m<\lint~lined total abstinence" "' and that the. Grievor "des~rves another chapce as a clean and sober ,- -' "~'r ~ -- " individual" .. - ~ " , ". .- (;' Whil.~ we (ind th?t Lal'\,9;:t~y was a totally credible witness, we find that his evidence was given as an expert witness v~~ specifically with respect to tl1e!~rfevorrs alcol)olism We accept Langley's evidence ~hat the Grievor ~id,~ake ,a concerted effort to f come to terms with his alcoholism and as of the time of this hearing appeared tope successfui in abstaining from alcohol. ~ However, Langley remarked that prior to the hearing, although the Grievor had fully discussed his difficulties with a~cohol, he had peen totally un~ble to discuss his theft, ~$pecially in the context I of the A.A group sessions Langley also made no comment with respect to the Grievor's truthfulness or honesty. We recognize , that Langley was not in a position to confirm or deny the Grievor's motives in taking the money from the cash register and moreover, that Langley had relied entirely upon the Grievor, believing that the Grievor's thefts were related to his alcoholism. This does not mean to suggest we do not recognize t~at there are those p~ople who rL. } l ---- . , ..-.- ) ~ 15 - ~ do steal because they need to feed their addiction, alcoholism being but one example However, the onus must be upon the Grievor t ;,..,~ J to establish that his thefts were prompted by his alcoholism. In j this case, there was no medical, psychiatric or other expert ,~ testimony adduced to establish a connection between the Grievor's - ~ ""- alcoholism and his thefts Therefore, our evaluation of the l ,_ \ Grievor's credibility rests primarily upon but evaluation of his ~ .~ own evidence. " ~ 7..- The Grievor's evidence on the whole suggests that he had come to terms with his alcoholism. - He had -acknowledged the ~ I ~ ~ problem, he was apologetic and he tried to do something about it. He stopped drinking. However, in stark contrast, the Grievor did not acknowledge his theft problem, he was not directly apologetic ~ - . - , - ~ .- for the thefts and he made no attempts to seek help or counselling I; .,.... .... 1..... wi th respect to his repeated acts of theft. He was not;: prepared to talk about ~he theft in his group counseliing sessions. He was not -. 1 _ .i- prepared to openly acknowledge ,his thefts at this hearing He was not pre~ared to even admit that he had a problem ih that regard as ..- t> L ._1 oJ _. ... ~ he maintained that he only sto'le money on the p~~cise occasions that he was recorded by the camera and at no other times, this even though he also testified that he actually was not sure that he even ~ .;1 remembered having taken any money because of his blackouts If he was not sure that he remembered having taken any money because of his blackouts then surely ~e was not in any position to assert that he took money from the cash register only on the occasions when it ) > ~- _ . _ l~. - - ''i! ~i -:;." 16 was recorded by the camera, an assertion which undermines his credibility al~ogether We have thus carefully considered all of "- the Grievor's evidence, both in terms of its internal consistency, as well as in terms of his demeanour in giving his testimony. We are unable to find his evidence credible and more particularly, we cannot accept the Grievor's attempt to transfer the responsibility for the thefts from himself to his alcohol dependency. It was ,) ..; also clear from the G~ievor's own evidence that he was aware of the " Board's policy with respect to theft. We find th~t the Grievor knew exactly what he was doing, namely, that he knew that he was k~owingly and deliberately stealing from the employer. We find l that the Grievor's evidence with respect to the material questions - before ~s is simply not believable. \ We therefore find that the employer had just cause to discharge the Grievor. The question which remains to be determined is whether the Board should exercise its discretion to substitute a lesser penalty We have attempted to balance the interests of the parties in this case, the employer's need for general deterrence and the various specific facts and circumstances of each and every case, accepting the premise that discharge should not be - the employer's invariable response to an employee's theft Various cases were cited by Union counsel in support of the Union's \, contention that the Grievor's specific case was an appropriate one f or the exercise of this Board's discretion in his favour by a sUbptitution of his penalty of dismissal to a lesser penalty 1 , '., ~ t_1 I., ;.t ,.c.. ! 17 ,;. .."" 4- _ .~ t t t ~. t-~ \ First, Unlike the Menzies case where the Grievor admitted his dishonesty before ,he was discovered, here the Grievor ~quivoc~ted even with the thefts recorded on camera, suggesting on "' ..... ~..... ..;:.-... the one hand" that he was not sure that he remembered the ~ "~ ~ - -r ~ f~ ~ ~_' -' indi y.idu~l ~,cts o~ th.eft but ~incethey were recorded by camera .' ~ , ... _ l r ~ then they_ prol::!~bly hqppened and c on t,he other hand that ~e only took ,-, --. - ... .... --- ~~ money when the c~mera r~cQrded it .Whi Ie the Gr ievor made , 'L ,- resti~ut~on t:or the money that he had stolen as recorded by the qqme~~, ~e never apologized for the thefts We find that even i - -..,. _f ~uring his ~iva yo?e test~~on~ before this board, th~ Grievor was . .i'- . ~..... (,~- -- pot ~orthr~gh~ and he did. not show any sense of remorse or ~ 4~ ~ contr i tenes~ .,_ " ~ -.j . l.~, Second, unlike each of the Elliott, Wells and Creighton ,.) _~ -!;..' .... Or. ca~~s, _ the ipstant case is not a "momentary aberration" or an "isolated incident" type of case. with respect to the criterion of ..... .- .,.. '.... ...- "momentary aberratdon", had there been one or two incidents of , t~ef~~_~~ert som~~Qw ~t might_b~ ~~ssible ~o construe that the few _ times that it h9Ppened wer~ b~t momentary aberrations. The L... '" numerous, incidents also cannot be seen_as "isolated incidents". .i.. ~ven i~ tne me~n~ng of these two phrases was stretched to suggest that the unlawful behaviour was seen as behaviour which is . ." -l.,.... M \ . - J compl~tely at Qdds with prior performance, then on the evidence it ... "':- ~. qannot be said that the !ncidents of theft were 'co~pletelY' at odds with prior performance or b~haviour if one considers that ,..... "'L. .----- -- -~~ ~ ~ ~ .. 18 there were questions raised in the past with respect to the Grievor's cashiering procedures. . , - e Third, in the Cook or Hill cases, the incidents which gave rise to the discharges were connected ,to alcoholism and depression, respectively However, in the instant case, we do not accept the Grievor's submissio~s that the thefts wer~ the result of his "alcoholism" which caused him to do things "that'" he did not recall". Apart ~rom the Grieyor's own evidence, which we did not find credible, there was no other evidence which established a connection between the Grievor's alcoholism and his thefts at the cash register. This does not mean that it would have been necessary for the Grievor to establish that he was actually drunk when he worked at the cash register when he took the monies. Rather, we find that on the specific facts of this case, the Grievor was unsuccessful in persuading us that the thefts were - caused by his alcoholc tendencies. ~ ~. ~ ~ Finally, on the basis of the Grievor's testimony at this ,. hearing, we find that the Grievor neither expressed remorse nor r indicated that he would use his best efforts to come to terms with his theft He also gave no'indication that he would even attempt to ensure that the theft would not recur in the future~ Applying the principles which have been stated in various arbitral awards, .. there can be little or no possibility of reconciliation between a ~ " I 0::" :~ ~, ~ .' '" "- 19 dishonest employee and his or her employer where there is no full '~ ..., _. and complete admission of wrongdoing and in the absence of an undertakin9 by the employee in question to use his or, her best '- , ...; " i efforts to ensure that the dishonest behaviour does not recur in ~the fut~r~. If ~such principles are generally applicable in - -- discipline caSes ,- they are particularly applicable where the :> - discipline has arisen as a result of criminal conduct. - , _. .- ,-- -...."" - ') " A, carefuL. review of the evidence at this hearing demonstrates that the Grievor's situation lacks the essential character~stics set ~~~ i? the caselaw, Given the very specific ......~......- -- .. facts and circumstances of this case, the Grievor's unwillingness J '~ ./ to confront his thefts and to admit them and their extent, to show remorse and to apologize for the thefts, to demonstrate his resolve to use his best efforts never to steal from his employer again; all of these factors make it impossible for this Board to exercise its discretion in his. favour by setting aside the discharge and replacing it with a lesser penalty. These factors outweigh qny questions ,invol ving the impact of the penalty upon the grievor, having regard to his age and skill level In our view, having heard all of the evidence adduced in this case, havin~ reviewed the exhibits filed and having heard the most able submissions of Counsel, we find that the grievance must I " ,,' ~ -C:;~, I ~, 1....- ,_ 20 , 'fail The Grievance is hereby dismissed ! < ~ Dated at Toronto this 4th day. of December 1995. - , .. < .< ~q ~- ?;~~l ~ Eva. EM~~sze~ski Vic'e-Cha i.rperson '\ '.. ~..... >,. ~ t. ) I concur\~ ~~ . Carruthers - t.. - Union Nominee I '~oncur\M""eBtL C' \~ r~~ ~ ~ r D'. Mont~, .se Employer Nominee I .:..i... t - ~. ~ ..... .,;- , .I ~ .' ~ I