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HomeMy WebLinkAbout1993-1834.DePratto.96-01-08 J :;;; .' . ~ - ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO l1li11 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT 'BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILElrELECOPIE (416) 326-1396 GSB :# 1834/93 OLBEU :# OLB144/93 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OLBEU (DePratto) Grievor - and - The Crown in Right of ontario (Liquor Control Board of ontario) Employer BEFORE R J Roberts Vice-Chairperson FOR THE M. McFadden GRIEVOR Counsel Koskie & Minsky Barristers & Solicitors FOR THE D. Barbini EMPLOYER Counsel Hicks, Morley, Hamilton, Stewart, storie Barristers & Solicitors HEARING September 22, 1995 December 13, 21, 1995 - - - - - ~ 1 AWARD In the present ca~e, the gnevor was dIscharged for theft. His termmatlOn was effected by letter from the L C B.O dated July 19, 1993 Pnor to tlus, on July 6, 1993, the gnevor had been arrested by officers of the Metropohtan Toronto Pohce Department and charged WIth theft under one thousand dollars. ThIS arrest was made upon the basIS of mformatlOn provId~d by the L C B o At the outset of the heanng~ both partIes agreed that the acts of theft for wluch the gnevor was termmated and arrested had occurred. They also agreed that such acts of theft constItuted grounds r for ImposItlOnof severe dIscIplme, mc1udmg dIscharge. The case proceeded. upon the understandmg that the gnevorhad the burden ofproducmg eVIdence to show that he deserved a second chance. It was also understood that the bulk of tlus eVIdence would relate to the rehabihtatlOri of the gnevor after lus termmatlOn. After the partIes completed makIng theu submISSIons on the last.day ofheanng, pecember 21, 1995, a conference was held between tlus V Ice-Chau and both counsel. In tlus conference, It was mdIcated to counsel that, consIdenng the eVIdence m hght of theu submIssIons, It appeared that the gnevor deserved to have a second chance An order was.Issueq dIrectmg that the gnevor be condItlOnally remstated to hIS former pOSItIon as of the first Monday mFebruary, 1996, WIth no compensatlOn and no accUmulatlOn of semonty for the penod oftIme betweenlus dIscharge and lus remstatement. The condltlOns of rem statement were to be agreed betweeri the partIes and ~ I . 2 were only to be establIshed by the Vice-ChaIr In the event that agreement could not be reached In a tImely manner It was Indicated that tlus award would follow The eVIdence In tlus case was entered by way of an agreed statement of facts and testImony from Mr R. Mitchell, the DistrIct Manager for DistrIct 17 of the LCBO, the gnevor; and, the ,gnevor's phYSICIan, Dr KevIn Luces. The agreed statement of facts read as follows AGREED STATEMENT OF FACTS 1. The grievor's date of birth is February 26, }961. He was hired as a casual clerk in September 1986 and subsequently as a permanent full-time clerk effective August 2, 1988. His duties and responsibilities included operating the cash register, tendering and recording sales and accepting payment for product 2. The grievor was transferred by the LCBO from its Bowmanville store #263 to the Pickering store #368 located at 1809 Liverpool Road, Ontario, effective May 31, 1993. While working at the Bowmanville store, the grievor had come under suspicion for thefts, however, due to the structUre and layout of that store, video camera surveillance could not be conducted. The grievor was accordingly I transferred to the Pickering store where video cameras could be installed for the purposes of surveillance. 3. The LCBO has standard cash procedures which each cashier is required to follow (Exhibit #1). It is also standard LCBO procedure to keep a record of all cashier shortages and overages on a daily basis. 4. Videotape surveillance was conducted with respect to the grievor's cashiering functions during the period June 22 through June 27, 1993. This period covered two of the grievor's working days, June 23 and June 24, 1993. This surveillance -- ---- -- ~ --- - ----- " .) disclosed that on both of these days, the grievor committed approximately 19 open drawer" transactions. An open drawer" transaction is one in which the cashier does not quite close his till from the previous customer this allows him to accept cash from the next customer and provide change witf!.out having to 'ring in" the transaction on the display portion of the register or having the sale recorded on the detail tape" (the paper roll which records all tr~nsactions). The grievor was also observed t?king money from 'the drawer of his cash register and puttiri~ same iI).~o liisapron pocket. The grievor through these irregular procedures, stole approximately $437.00. This was achieved in such a way as to ensure that his cash balanced at the epd of his. shift. Bur for .the video surveillance, these actions would have gone undetected. 5. The foregoing was brought to the attention of the Metropolitan Toronto 'Police Force. The grievor was arrested by officers of that Force on July 6, 1993 and charged with theft under Sl,OOO.OO. 6. Shortly after his arrest, thegrievor received a letter from the ,LeBO dated July 8, 1993 (Exhibit #2) wherein he was advised' that he was relieved froni-dutY with pay pending investigation and ,required to respond to the allegations within 'three calendar days of his receipt of the letter No response was r~ceivedby the ~CBO within three calendar days. The District Manager Ron Mitchell, accordingly contacted the union steward in an attempt to receive a response from the grievor No response was provided. The grievor's employment w~ terminated by letter dated July 19 1993 (Exhibit #3). 7 An unsigned letter dated July 9, 1993 was thereafter received by the LCBO from the grievor (Exhibit #4). 8. The grievor's criminal charge was heard on September 27, 1993: The grievor plead guilty to theft 'under $1,000.00. He was sentenced to five days in jail, 100 hours of community service and 18 months probation. He was also ordered' to make restitution to the LCBO in the amount of $437.00 by January 27, 1994 and in fact restitution was made. 9 The grievor's absenteeism record is as follows: 1989 - 2 days sick leave 1990 30.5 1992 - 20 1991 - 925 1993 14 4 Mr Mitchell testified that both the BowmanvIlle and Plckenng stores were m IDS DIStnCt. He scud that the Plckenng store was the largest m the Dlstnct, With at least 11 to 12 full-time employees and ten casual employees. Included m the full time employees were a manager, an asSiStant manager and several customer service representatives. The position of ~e gnevor was m the latter category Accordmg to Mr Mitchell, the customer service representatives performed a var~ety of tasks, mcludmg unloadmg trucks, venfymg mVOIces, shelvmg product, and responding to telephone and customer mqumes. They also rotated through the cashier posItIOns and were responsible for makmg returns to stock from customers With, e.g., special occaSion permits. It was also possible, Mr Mitchell SaId, for the most semor customer service representative m the store to act as manager m the event that both the manager and asSIStant manager were away due to Illness, vacatIOn or educatIOnal semmars. He left lIttle doubt that the position of customer servIce representative was a responsible one that was subject to a mmlmum of supervision and mvolved a great deal of trust. Turmng to lus letter of July 8, 1993 (exhibIt no 2 to the agreed statement of facts), m wluch he relIeved the gnevor from duty With pay effective July 6, 1993 pendmg mvestlgatlOn, Mr Mitchell testified that he duected the gnevor to submit a wntten statement Within three days of 5 receIpt In order to gIVe the gnevor anopportumty to respond. As far as he knew, however, the gnevor dId not respond WItlun the allotted three days and so he deCIded to t~rmmate the gnevor on the baSIS of the mformatIOn at hand. It was only after the termmatIOn that he receIved fr9m the I Human Rights Office of the L C BOthe unsIgned letter fromtl,1e,gnevor dateq July 9, 1993 (exhibIt no 4 to the agreed statement of facts) Upon cross-exammatIOn, Mr Mitchell agreed WIth a, suggestIon from counsel forthe UnIon that If he had receIved the gnevor's letter of July 9, 1993 WIthm the three-day ,penod, he mIght not have recommended dIscharge. He saId that q,e certaInly would'have looked at the gnevor's SItuatIOn before recommendmg dIscharge because, obVIOusly, tl],eman had a problem. It may have made a dIfference, he s8.ld. He added that he was prepared to see If sometlung could be done to help an employee WIth problems If he Qr she came to lnm. Tlns wa~ so, he s8.ld, even after -- as here -- reVIeWIng U!.pes showmg the employee conmllttmg acts of theft. Accordmg to Dr Luces, the gnevor came from a famIly WIth a lnstory of depressIOn and alcoholIsm. Dr Luces testIfied that the gnevoi's mother and SIster suffered from depI:ess~on; His father was an alcoholIc The gnevor was dla~hosed by Dr Luces as suffenng from an addICtIve personalIty, depreSSIOn and painc dIsorder It appeared from the eVIdence that Dr Luces was the famIly phYSICIan for the gnevor, hIS mother andlns SIster Dr Luces testIfied that wlnle he was not a psychIatrIst, he had a partIcular mterest In psychologIcal pro1;>lems and lus first degree was m tlns area. He mdIcated that about ,90 percent of lns practIce mvolved on-gOl:p.g psyclnatrIc care. I , " , 6 Dr Luces saId that as early as 1981, when the gnevor was 20 years old, he sought psychIatrIc help for psychoneurosIs and anxIety reactIOns WIth features of depressIOn. These were related to feelmgs of ambIvalence and fear of assummg mdependence, The psychIatrIst who treated hIm at the tIme prescribed an antIdepressant called SurmontI!. Both Dr Luces and the gnevor testIfied that the gnevor expenenced further problems WIth depreSSIOn -- tlns tIme combmed WIth alcoholIsm -- m June and July of 1990 In July of that year, Dr Luces dIagnosed the gnevor as moderately to severely depressed. TIns dIagnOSIS was based upon certam cntena for analyzmg depreSSIOn called the D S M. 3 cntena. Accordmg to Dr Luces, If a patIent scored greater than four on eIght basIc types of clInIcal mdIcators m these cntena, such as crying spells, mabilIty to expenence pleasure, feelmgsof helplessness or hopelessness, there was a SIgnIficant depreSSIOn. The gnevor scored greater than four and also exhibIted psychosomatIc symptoms of throat and head dIstress. Dr Luces prescribed an antIdepressant called Prozac. The gnevor, however, was not a cooperatIve patIent. He slapped IDS August appomtment WIth Dr Luces and m September, was admItted to a rehabIlItatIOn faCIlIty called the Renascent Center, where he exhibIted perSIstent symptoms of depreSSIOn compounded by panIC dIsorder The gnevor contmued to mISS appomtments WIth doctors to whom he was referred despIte worsenIng panIC attacks, agItatIon and depreSSIOn. TIns pattern contmued mto 1992. The gnevor testIfied that m the penod 1990-92, he was consIstently abusmg alcohol. His abuse 7 peaked m June or July of 1992, when ills average consumptIOn of beer per week amounted to J to 4 cases of 24 bottles, each, After a partIcularly severe rnght of dnnkmg m July, 1992, he deCIded that !lungs had to change. He went to a dry-out centre m Oshawa, called Parkwood. ,One or two days later, he was admItted to the Renascent Center's'28 day program, willch he completed on August 16, 1992. Smce then, he testlfied, he has only had one beer and that was on the day that ills.mother-m-Iaw dIed, Apn110, 1995 Miraculously, or so It seems, the gnevor dId not lose hIS employment With the L C B 0 dunng the penod 1990 to mld-1992, nor dId he lose hIS Wife or famIly His problems, however, were far from over His downward SpIral was, to continue., In September, 1992, the gnevor met a woman (heremafter referred t6 as "X") who, like hImself, suffered from depreSSIOn. At the bme, X was on welfare. She had ,a young daughter and the daughters of two frIends hvmg wlthl:1er The gnevor became mterested In X ahd m November, ~ 1992, left hIS Wife and faql1ly to hve With her By all accounts, thIS was a dIsastrous move. Apparently 'at the mSlstence of X, the gnevor \ severed vlrtualiy all tIes. With ills mother, ills Wife and hIS two children. Worse; through X the gnevor gamed seemmgly unhmlted access to two prescnptIOn drugs for depreSSIOn andanxlety, Prozac and RIVltrOl. He began to take daily unprescribed doses of eIther or both of these drugs. Accordmg to thegnevor, thIS turned illm mto a dIfferent person. He hved each day ma perceptUal fog, not really canng for anyone but hImself. I I 1 8 Dr Luces testIfied that the condItion that the gnevor described was consIstent WIth a depressIve state combIned WIth abuse of the two drugs Involved. He saId that even when such drugs were ImtIated by aphyslclan there could be cloudIness of thought and conSCIOusness. Also, he saId, If a person IS profoundly depressed there IS a clouding of conSCIOusness and the thought processes. As to the role played by the woman wIth whom the gnevor had formed a relatIOnshIp, Dr Luces saId that the gnevor, as an adult, was responsible for rus own actIons, however, "she may have been a catalyst, a convement substrate to act upon, act out, as he dId, wruch was qUIte atypIcal. ,i ThIngs went from bad to worse. On or about February 10, 1993, the gnevor had a fight WIth X In whIch she gave hIm a black eye, although he claImed that he dId not touch her Both partIes to the relatIOnsrup wound up In Oshawa General HOSpItal after tlus fight, pnmarily due to theIr agItated mental states. AccordIng to Dr Luces, the cnsls InterventIOn team at the hOSpItal adVIsed hIm that the gnevor was In a cnSlS. He had many symptoms of sIgmficant depressIOn i and had lost 46 pounds SInce the summer of 1992 Dr Luces saw the gnevor on, February 11, 1993 He had the gnevor moved to a dIfferent floor from X because theIr relatIOnshIp had gone qUIte sour and he thought that encountenng X would aggravate the gnevor's SItuatIOn. The gnevor remaIned hospItalIzed for nme days. From talkIng WIth the gnevor In the hOSpItal, Dr Luces understood that the gnevor had termInated rus relatIOnshIp WIth X. Soon after leaVIng the hOSpItal, however, the gnevor resumed the relatIOnsmp agaInst the adVIce of Dr Luces. Then, In Apnl, 1993, the gnevor sold the four <- 9 bedroom house m wluch he had lIved wIth lus famIly and bought a townhouse for lumself, X, her daughter, and the two young gIrlS who lIved WIth her The gnevor testified that by tIns tIme, X was not workmg and was not receIvmg welfare The gnevor's monthly take-home pay was roughly $1800 Out of thIS he had to pay $600 per month to lus eX-WIfe and $870 per inonth for the townhouse That left about $330 per month for' grocenes and other expenses for the five people hvmg In the townhouse Apparently, some relIef came at onepomt mtline when X receIved an emergency cheque for about $700 from socIal aSSIstance. Then, on June 23 and 24, 1993, the final dIsaster struck. The gnevor was caught on vIdeot~pe stealmg a total of approxImately $437 from the drawer ofms cash regIster He was arrested, cnmmally charged and termmated. He pleaded guIlty to thecnmmal charg~ and on September 24, 1993 he was sentenced to five days mJall, one hundred hours ofcommuruty servIce, and eIghteen months probatIOn. He also was ordered to make restItutIOn to the LCBOand prpmptly dId so It was all over At about the same time as the gnevor was arrested, Xleft lum. The gnevor telephoned lus mother and father and asked to lIve WIth them. They agreed. He then went to the bank that held the mortgage on the townhouse and gave them the key When all was saId and done, the gnevor dId not recover any eqUIty out of the townhouse. He filed for bankruptcy m September, 1993 and w~ declared a bankrupt m June, 1994 , ~ 'i , 10 # Some mIght say that the gnevor had struck bottom. They mIght also say that It would have been easy for lum to gIve up He dId not. In August, 1993, he sought treatment from Dr Luces. He contInued to see Dr Luces from 3 to 5 tImes per month untIl Apnl, 1994 In November, 1993, he began attemptIng to reconcIle WIth lus eX-Wife, and around ChrIstmas, 1993, they resumed lIvmg together The gnevor teStlfied that now they have a very good relatIOnshIp, better than they had before everytlung happened. He SaId that tlus resulted from a better appreCIatIOn that he had developed for hIS Wife and'lus cluldren. Fmally, In August, 1994, the gnevor began workmg for Kelly ServIces and later, Manpower \ ServIces, l.e., temporary servIces paymg mlmmum wage. They have gIven hIm relatIvely steady work smce he began. Accordmg to the eVIdence, tlus was due In no small part to the gnevor's ovm efforts. In a reference letter from Manpower dated May 10, 1995, the gnevor was described as r~celvmg " excellent feedback" from the supervIsors on each assIgnment. He also was described as "always on-tIme If not a bIt early, completes all Ius asSIgnments, and IS wonderful With the staff members In tlus office." In, a referen~e letter from Kelly dated May 9, 1995, the gnevor was described as havmg "proven hunselfto be relIable, trustworthy, punctual, and hard workmg. He has receIved very good comments from our clIents. and they would all def1ll1tely request lum back If the need arose." There seems to have been qwte a transformatIon. Dr Luces testIfied that tlus transformatIon was not easIly accomplIshed. When he imtlally saw the gnevor In August, 1993, the gnevor was In a profound depreSSIOn. He was dIfficult to treat I I --- ;;; " 11 because he had panIC dIsorder, depressIOn, and addictIve personalIty all combmed. ThIS made the chOIce of treatment dIfficult. On January 1, 1994, after the gnevor had reconclled With rus Wife, he referred them to a psychologIcal counsellor m hIS bUlldmg, Mr Lloyd Scott, for an I assessment. Mr Scott reported back that he dId not really hold out much hope. for the gnevor In the opmIOn of Dr Luces, what helped turn thmgs ,around for the gnevor was the partIcIpatIOn of hIs Wife m hIs therapy He described the gnevor's wIfe as very und,erstanding and very supportIve (It mIght be noted at tins pomt that the Renascent Center, where the gnevor was ~ assIsted m overcommg hIS addIctIOn to alcohol, was managed by hIs WIfe's father) The gnevor's mother and" father were also very SupportIve, and tins also contributed to the beneficIal o1,ltcome, When asked to describe the gnevor as of Septeniber, 1995, 1)r Luces stated that the gnevor seemed qUlte well adjusted and deVOId of stress. He added that the gnevor now has come to terms With hIs past, hIs Wife, 'hIS parents, all the sIgmficant people m hIs hfe Moreover, he- consIdered that the gnevor's support system was sufficIentto allow hIm to get the necessary care should the need anse For tins reason, he saId, It was not necessary to have the gnevor p;rrtIcIpate m anon-gomg program. The gnevor and hIS Wife had receIved suffiCIent educatIOnm'theIr counsehng seSSIOns to know what to look out for In well prepared and extenSIve submISSIOns at the end of tb.e eVIdence, counsel for tqe employer argued that the gnevor should not be gIven a second chance The followmg factors, inter alia, were CIted m support of tlus submISSIon. dunng the two-daypenod In. whIch l;1e was observed \ , 12 comIUlttmg acts of theft, the gnevor dId so on 19 separate occasIOns; the acts of theft were "open drawer transactIOns" reqUIrIng a degree of premedItatIOn, the acts of theft were not momentary aberratIOns m conduct commItted under the mfluence ofan mtoxIcant such as alcohol or a narcotIC drug; there was no remorse presented by the gnevor; the gnevor's eVIdence was not credible; m any event, the gnevor's eVIdence faIled to demonstrate any connectIOn between the acts of theft and lus abuse of prescnptIOn drugs, and, the eVIdence faIled to demonstrate anythmg close to a guarantee that the gnevor would not once agam succomb to the same temptatIOn. In short, counsel claImed, nothmg had changed. Counsel brought the followmg authontIes to my attentIOn. Re DeLaurentis and Liquor Control Board of Ontario (1995), G S B No 1016/93, Re Szunejko and Ministry of the Solicitor General (1993), G S B No 1947/92, Re Linton and Liquor Control Board of Ontario (1995), G S B No 1429/92, Re Reed and Liquor Control Board of Ontario (1992), G S B No 1165/91, Re Mahmeti and Liquor Control Board of Ontario (1989), G S B No 2197/87, Re Elliott and Liquor Control Board of Ontario (1984), GSB No 10/84, Re Blackmore and Liquor CQntrol Board of Ontario (1984), GSB No 3158/84, and, Re Wells and Liquor Control Board of Ontario (1982), GSB No 2/82. ! In equally ImpressIve submiSSIOns, counsel for the umon submItted that the gnevor deserved a second chance because, contrary to the submIssIOn of counsel for the employer, everythmg had changed. He emphasIzed the transformatIOn that had taken place m the grIevor smce the trme of lus arrest and termmatIOn. Be dIsputed the assertIOn of counsel for the employer that the gnevor had not shown any remorse for lus actIOns and also dIsputed the assertIOn that there was no guarantee that the grIevor would not commIt further SImilar acts m the future. Finally, counsel - - -- -- ~ " 13 claImed that contrary to the assertlon of counsel for the employer, the gnevor had been honest m hIS testImony, whIch was corroborated at sIgruficant pomts by the testImony of Dr L.uces, He revIewed several of the cases cIted by counsel for the employer alld brought to my attentIOn one addItIOnal case, Re Menzies and Ministry afTransportation (1991), GSB No 751/91 I WIll begmmy conSIderatIOn of these submISSIOns WIth the Issue of credibIlIty From my own observatIOn of the -responses and demeanor of the gnevor dunng dIrect and cross- examlhatIOn, I reached the -conclUSIOn that he was attemptmg to be pamfully honest. He accepted full responsibIlIty for hIs actIOns to the pomt of self-embarrassment and refused numerous mVItatIOns m cross- exammatIOn to blame other persons or causes for hIs acts of theft. Instead, he repeatedly confirmed that at the tIme of the thefts he knew that hIS acts were wrong and to thIs day he dId not understand why he commItted them. He also refused to take any refuge mthe reasons cIted In hIS unsIgned response to Mr Mitchell dated July 9, 1993 He indIcated that he wrote thiS letter WIth the aSSistance of a UnIon steward while he was still m the perceptual fog that Dr Luces confirmed was caused by hIS severe depreSSIOn and abuse of prescnptIOn drugs. At that tIme, he SaId, he was not fully aware of his condItIon. He candidly asserted that the alcoholIsm mentIOned 11). thIs letter could not have had any Impact upon hIs behaVIor because It had been conquered a year before the thefts took place. In all, the eVIdence of the gnevor appeared to be that of a mature person who had come to terms WIth hImself and was not about to evade any of the blame for hIs own mistakes. The gnevor Impressed me as a forthnght, honest andco;mpletely credible WItness. I - I ~ \ 14 - Furthermore, the eVIdence of the gnevor was, as counsel for the unIOn asserted, corroborated at sIgmficant pOints by the eVIdence of Dr Luces. In thIS regard, It IS noteworthy that the gnevor I testIfied before Dr Luces was called to testIfy and while Dr Luces was not present In the heanng I room. The extent of the corroboratIOn need not be-detaIled here. It IS indIcated In the recItatIOn I offacts set forth In thIS award. The eVIdence of Dr Luces and the gnevor corresponded so closely In terms of chronology and events that It seemed most convement In recIting the facts to refer to theIr eVIdence In a combined fasluon. The next Issue to be addressed IS whether a causal connectlon- has been estabhshed between the gnevor's acts oftheft and lus condItIon at the time of the thefts. On thIs Issue, counsel for the employer placed substarttull relIance upon Re DeLaurentis, supra. In that case, the gnevor claImed that lus premedItated thefts from a cash regIster were caused by a senous dnnkIng problem that he had Since overcome. The Board, however, refused to exerCIse Its dIscretIOn to reinstate lum. It SaId, "the onus must be upon the gnevor to establIsh that lus thefts were prompted by hIS alcoholIsm. In thIS case, there was no medIcal, psycluatrIc or other expert testImony produced to establIsh a connectIon between the gnevor's alcoholIsm and lus thefts. Therefore, our evaluatIon of the gnevor'scredibIlIty rests pnmanly upon our evaluatIon onus own eVIdence," Id at 15 Findmg that the gnevor's eVIdence -- In wluch he sought to transfer responsibIlIty for the thefts from lumself to hIS alcohol dependency -- was not credible, the Board concluded that the terminatIOn for theft should stand. Id at 16 In the present case, however, there seems to be lIttle doubt that but for the gnevor's condItIon at -- -- -- -- - - - - -- - ----- -- -- --- ---- - ---- -- I , I !;i: ~ 15 the tIme of the thefts, they would not have been conumtted. The eVIdence shows that at the tIme, the gnevor was In a perceptual fog Induced by severe depreSSIOn and abuse ofprescnptIOn drugs. The gnevor testIfied that when he was In tlus state he dId not care for anyone but mmself.. Dr Luces essentIally testIfied that tms' condItIOn was conSIstent WIth th~ effects to be expected from the depreSSIOn and drugs that were mfluencIng the gnevor It IS also to be noted that at the tIme the gnevor was nearmg the bottom ofms downward spIral, With Its accompanymg finanCIal and emotIOnal pressures WhIle the gnevor gamely refused to evade acceptIng responsibIlIty for hIS thefts, It seems much more probable than not that the thefts would not have been comIm~ed If he had not been In a depreSSIOn and drug-Induced fog. The final Issue to be addressed IS whether the condltJon of the gnevor has changed suffiCIently to permIt a conclUSIOn to be reached that he IS highly unlikely to engage ill acts of theft ill the foreseeable future. On tlus Issue, counsel for the employer str~ssed the eVldenceof Mr Mitchell that customer servIce representatIves like the gnevor occupIed a posItIOn of trilst In which they were left, to a great extent, to operate on theIr own. It also was stressed that It was UnaVOidable , that such employees would be reqUIred to rotate through the casp,Ier pOSItIOn and, as such, the temptatIon to wmch the gnevor succombed would always be there Counsel also pOInted out that Dr Luces testIfied on cross-exanunatIOn that because thegnevor had an addIctIve personalIty ms addIctIOns were more likely to resurface than In a person WIthout'tlustralt. In lIght of these conSIderatIOns, counsel submItted, It would-be unreasonable to reqwre the LCBO to subject Itselfto the nsk of a relapse In the gnevor's condItIOn. ThIs nsk seemed,mgh ~ -~ r \t J ~i ~' 16 because the gnevor was not now 10 any on-gomg treatment prqgram. In fact, counsel submItted, the CIrcumstances of the gnevor, 1. e , lIvmg With hIS Wife and chIlciren and With a good relatIOnslup With hIS parents and siblmgs, were no dIfferent than they were when he began the downward spIralleadmg to the acts of theft that preCIpItated hIS temunatIOn. In tlus sense, It was submItted, nothmg had changed. I do not agree In thIS respect, I find myself alIgned WIth the submISSIon of counsel for the unIOn that everytlung has changed. The eVIdence raIses a strong mference that from hIS expenence In .~ spIrallIng downward, strikmg bottom and stnvmg to recover, the gnevor gaIned matunty, substantIal mSIght mto lus psychologICal problems and how to hand~e them, arid for the first tIme, a deep appreCIatIOn of the Importance to lum.of a loymg and supp'Ortlve fanuly With the dedIcated asSIstance of lus Wife and family combIned With regular therapy from Dr Luces, the grievor managed to turn hImself around"and embark upon a productIve hfe. If the letters from Kelly ServIces and Mappower are any IndIcatIOn, he has been very successfu1. Dr Luces also testIfied to the succesS of the gnevot ThIS success should be recogmzed and encouraged. So long as the current stabIlIty ofthegnevor perSIsts, lam convmced that If remstated he would be lughly unlikely to commIt any acts of theft 10 the foreseeable future, Dr Luces testIfied that he was confident that-the gnevor could maIntam lus stabIlIty because,poth he andlus Wife learIl;ed 10 therapy the dan~er SIgns to look out for anq woul9 seek the necessary help before matters got out of contro1. As I mdIcated to counsel 10 our conference after the heanng, h.owever, I feel the force of the concerns of the L C B 0 regardmg the nsk to WhICh the employer mIght be l I \~ '. " II I 17 subjected if reqwred solely to rely upon self-imtiatiOn by the gnevor of corrective actiOn. For tins reason, it was agreed that any re10statement of the gnevor would be subJect to condillons and one of those conditiOns would be regular attendance 10 counsel1Og seSSiOns With Dr Luces for a sigmficant penod of time, giv10g the LeBO on-go1Og and unimpeded access to all notes, reports or other find1Ogs. Details regard10g other conditions of re10statement were set forth earlier 10 thiS award. Given the forego1Og.conclusiOn, it was decided that the gnevor deserved a second chance and, accord1Ogly, I exercised my discretiOn to condiuonally re10state the gnevor as of the first Monday 10 February, 1996- Dated at Toronto, Ontano, tlns8 day of January, 1996 " -