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HomeMy WebLinkAbout1994-1178GROULX97_08_25 ( ( OIfTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREETWEST SUITE 600, TORONTO ON M5G 1Z8 TELEPHONErrELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 1Z6 FACS/MILErrELECOPIE (416) 326-13gc GSB # 1178/94 OPSEU # 94G084 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Groulx) Grievor - and - The Crown in Right of ontario (Ministry of Community & Social services) Employer BEFORE: S L Stewart Vice-Chair T Browes-Bugden Member M Milich Member FOR THE L Harmer GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE J smith EMPLOYER Counsel Legal Services Branch Ministry of Community & Social Services HEARING April 11, 1995 September 14, 1995 February 19, 1996 September 27, 1996 January 8, 9, 15, 27, 1997 February 20, 1997 April 25, 28, 1997 , DECISION The grievance before the Board relates to the discharge of Patricia Groulx Ms Groulx was employed by the Ministry of Community and Social Services in its Sudbury office as an Income Maintenance Program Support Clerk It is acknowledged by the Union that between January 24 and March 14, 1994, Ms Groulx fraudulently obtained funds in the amount of $15,075 00 from the Employer In such circumstances discharge is ordinarily the only appropriate disciplinary response The Union contends, however, that there are extraordinary mitigating factors in this case, specifically that Ms Groulx's fraudulent actions were rooted in a psychiatric condition which has now been identified, treated and resolved The Employer does not dispute that Ms Groulx was properly diagnosed as suffering from a psychiatric condition known as post-traumatic stress disorder The grievor's contention that she was a victim of childhood sexual abuse is also not challenged by the Employer However, the Employer questions whether the grievor's fraudulent actions were truly rooted in a psychiatric condition resulting from her childhood sexual abuse Prior to dealing with the facts relating to Ms Groulx's psychiatric diagnosis and the details of the fraud it is appropriate to set out some background facts Ms Groulx commenced her employment with the Ministry of Community and Social Services in the Sudbury office in 1990, on a contract . 2 basis She subsequently obtained a position as an Income Maintenance Program Support Clerk. The responsibilities of her position entailed performing clerical duties in relation to family benefits and general welfare by processing information to arrange for the issuance of payments to eligible applicants One of Ms Groulx's performance appraisals was filed with the Board Ms Harmer characterized the evaluation as "stellar", and in our view, this is a fair characterization The spring of 1993 was a time of considerable personal difficulty for Ms Groulx She experienced the death of her grandmother, a person with whom she had a close relationship, in April, 1993 In April, 1993, Ms Groulx was also diagnosed with a tumour of her thyroid, for which she underwent surgery The tumour was determined to be benign Ms Groulx was off work for two weeks recovering from the surgery She testified that shortly after she had returned to work she visited her mother Ms Groulx testified that her mother told her about a visit she had had from the son of Ms Groulx's great uncle Ms Groulx testified that her mother had told her that she had been told that her great uncle had sexually abused his own children and grandchildren Ms Groulx testified that she had spent a good deal of time with her great uncle when she was a child, a matter which her mother was aware of Her mother then asked her whether she had ever been sexually abused by her great uncle Ms Groulx testified that she did not remember specifically what she said ~ 3 but indicated that she did not respond directly to the question She testified that she immediately left her mother's house Ms Groulx was asked in the course of her testimony whether she recalled any abuse at that time and her response was "yes, I did, but I never thought of it, ever" She testified that after leaving her mother's house she did not think that she thought about it Ms Groulx testified that she subsequently began experiencing very unusual symptoms She testified that she commenced feeling uncomfortable and uneasy, and that these feelings intensified She began feeling unable to breathe and experienced trembling She testified that she felt that she would suffocate, at which point she called 911 and was taken to the hospital by ambulance Ms Groulx testified that no cause for her symptoms could be determined when she was at the hospital Ms Groulx testified that she subsequently began experiencing a lump in her throat She also continued to experience symptoms of inability to breathe and trembling Once again, an ambulance was called and she was taken to the hospital She was prescribed a tranquillizer Ms Groulx testified that she continued to feel uneasy, however, she made no connection between her ongoing symptoms and the conversation that she had had with her mother She testified that she had no further discussions about the matter The grievor's family doctor referred her to a surgeon because of the lump in her throat In . 4 November of 1993 a dilation of Ms Groulx's oesophageal sphincter was carried out to determine whether there was any physical reason for her continuing to experience a lump in her throat No physical reason for her condition was established Ms Groulx testified that following surgery she experienced excruciating physical pain and that the lump in her throat worsened She was off work on sick leave at this time and described herself as "barely managing to function" She was prescribed anti- depressants but she testified that she experienced side effects and that they "made things worse" Ms Groulx remained off work during November and December, 1993 Ms Groulx testified that on December 17, 1993 she received a telephone call from her brother who asked her directly if she had been abused by her great uncle Ms Groulx testified that she considered lying to him but that she decided that she "couldn't hide it anymore" The fact that her sister and her brother had also been sexually abused by the same man was also discussed Ms Groulx testified that making the admission to her brother was the first time that she had admitted to the sexual abuse to herself Ms Groulx testified that two days later she experienced a very severe panic attack in which she lost consciousness Again she was rushed to the hospital by ambulance and again no physical reason for her condition could be found She testified that she did not make a connection between these panic attacks and her past history of sexual abuse because she , 5 felt that she had acknowledged these events and they would no longer have an effect on her Ms Groulx testified that one of the doctors in attendance recommended that she speak with a counsellor at a crisis intervention centre Ms Groulx testified that she had not mentioned anything about the sexual abuse to the doctor, however, she suspected that her mother, who had accompanied her to the hospital, had told the doctor The following day Ms Groulx saw a counsellor She testified that speaking about the matter was "difficult and humiliating" The counsellor provided her with a book to read and some information about the flashbacks that she had been experiencing She was referred to the psychology department of the hospital and was put on a waiting list for therapy Ms Groulx returned to work in January of 1994 Ms Groulx testified that she told her team leader about her condition She testified that she knew that she might experience flashbacks at work and that she might have to leave work and go home During this time a co-worker made an offhand and disparaging comment about clients having flashbacks in her office Ms Groulx testified that she felt demeaned by the comment She testified that after this comment she felt very strongly that it was important to keep her past a secret On January 19, 1994 Ms Groulx saw a psychiatrist, Dr Lopez Ms Groulx testified that she was asked to describe in , 6 detail what had happened to her and that the experience was "humiliating and nauseating" She testified that she was extremely upset following this interview She saw the counsellor at the crisis centre again the next day, however, she testified that the counsellor told her that she would not be able to provide her with very much assistance and that Ms Groulx would receive treatment when her name was reached on the waiting list It is at this point that Ms Groulx took steps to have a number of cheques issued in the name of P Groulx On January 24, 1994, a client file in the name of Pat Groulx was established and documentation was prepared resulting in a cheque being issued The documentation authorizing the issuance of a cheque was signed by Ms Groulx Subsequent documentation was prepared and signed by Ms Groulx, authorizing additional payments Ultimately the client file was terminated on the basis that the recipient had moved from the municipality The client file name was changed from Pat Groulx to Michel P Groulx Ms Groulx testified that she does not recall very much of the period in issue She testified that she does remember "breaking down at work" and going to her supervisor to tell her that she had to get to the hospital This took place on March 11, 1994 She continued to take Advan and other tranquillizers She was off work for two weeks on sick leave Ms Groulx testified that during this period she contemplated suicide She , 7 saw her family doctor and reported this to him Her doctor contacted Dr Lopez who saw Ms Groulx again on an emergency basis Upon Dr Lopez's recommendation Ms Groulx was admitted as an inpatient to a psychiatric hospital Ms Groulx remained in the hospital for 17 days At the hospital Ms Groulx received various types of therapy After her discharge from the Hospital she remained off work on the instructions of Dr Crosbie, her treating psychiatrist She attended follow up sessions with Dr Crosbie and attended counselling sessions As well, Ms Groulx testified that she utilized the therapeutic approaches that she had learned on her own Ms Groulx also attended group therapy and, in a report dated October 2, 1995, Ms N Pilon, a social worker, indicated that Ms Groulx had been a leader in the group therapy and that she felt that no further therapy of the kind she provided was warranted Ms K Charuk indicated that Ms Groulx responded well to therapy and was managing well at the time that she was discharged from therapy on August 3, 1994 Ms Groulx testified that her memory about the fraud is vague She remembered sitting at her desk, typing a cheque, and experiencing a feeling of relief in doing so Ms Groulx's fraud was uncovered because of documents that she had left on her desk The extent of the fraud was not immediately apparent, however what Ms Groulx had done was uncovered on the basis of the documentation that she had prepared Ms Groulx has acknowledged her involvement in the fraud She has pled guilty to criminal &. 8 charges and a conditional discharge with three years probation was imposed At the Employer's request, Ms Groulx submitted to an psychiatric assessment by a psychiatrist of the Employer's choosing, Dr K S Adam Dr Adam is a professor of psychiatry at the University of Toronto and has a clinical practice He is the director of the trauma program at Mount Sinai Hospital and has published extensively Dr Adam has treated victims of childhood sexual abuse In a report dated October 19, 1995, after a review of the relevant events and Ms Groulx's clinical history, Dr Adam's report concludes as follows The clinical history and existing reports in her notes are all consistent with a diagnosis of delayed post-traumatic stress disorder secondary to recovery of memories of childhood sexual abuse The visits to the emergency room are documented in Ms Charuk's and Dr Crosbie's notes as are symptoms of anxiety, depression and somatic symptoms sufficient to warrant prescription of psychotropic medication and a brief psychiatric hospitalization However, the account given during my examination differs from that of previous reports in the extent of memory disturbance, described both for her childhood sexual abuse, and the period surrounding her embezzlement at work She told me she has great difficulty remembering much of her childhood before the ages of 11 or 12 and could not remember her first communion, confirmation or the birthdates of her siblings The vagueness of her memories of abuse [is] in contrast with Ms Charuk's note that she has "always remembered" the abuse Similarly, the extent of confusion , 9 and amnesia she reports during the first few months of 1994 suggest fairly gross impairment of cognitive functions, yet no reference to this is made in the reports of Dr Crosbie or Ms Charuk Indeed neither of those reports give any indication that she was amnesic for the stealing, but rather that it was a understandable response to her rage towards her uncle to quote "I can't explain it " It was like a compulsion" "I had thoughts of taking money" "I wanted revenge against my uncle but he was dead I was fearful It was something I had to do " Ms. Charuk's report states "She believed her anger towards her uncle was projected onto her work environment and taking the money was a way of expressing her rage" Massive amnesia for childhood abuse does occur particularly when it has been severe and prolonged, and subsequent difficulties with memory and cognition can occur where abuse has led a major dissociative disorder However, if this were the case then one would expect a long prior history of psychiatric and/or behaviourial disorder and one would expect a considerable degree of residual disturbance presently, none of which were apparent at interview or on the MMPI. If she indeed were suffering from a major dissociative disorder, her response to a relatively brief period of treatment has been remarkable Furthermore, if she has indeed recovered throuqh treatment to the extent that she indicates that she has, then one wonders why the amnesia for the events surrounding the period in question has not lifted as one would expect it would with successful treatment Finally, while anger at the perpetrator of abuse and some disorganization of behaviour around reactivation of memories of the abuse can occur, I see no clear link between the abuse and the nature of her criminal actions In summary, during a period of 12-15 months from April 1993 to June 1994 Ms Groulx went through a period of psychological stress with considerable turmoil and had symptoms of delayed PTSD However, inconsistencies in her story and the clinical course of her condition as described lead me to seriously question that childhood abuse and PTSD 6 -- 10 offer an explanation for her stealing She reports no history of previous difficulties with the law or criminal behaviour and denies previous shoplifting but I have no independent information with respect to her previous character or work record I cannot comment on the extent to which these might be considered as mitigating factors in her case Ms Groulx was assessed by another psychiatrist, Dr S R VanderBurgh, at the request of the Union Dr VanderBurgh has been a practicing psychiatrist since 1983 Dr VanderBurgh qualified as a psychiatrist after a number of years of general practice Dr VanderBurgh is a clinical psychiatrist who has experience in treating victims of childhood sexual abuse in the course of her practice In a report dated February 26, 1996, after a review of the relevant matters, Dr VanderBurgh expressed the following conclusions The events of 1993 in this woman's life constitute a constellation of major stressors Her Grandmother's death and her own thyroid surgery, with complications, were followed by the initial reminder of the Uncle's abuse, and her resulting struggle to avoid thinking about it During her struggle to "not think about it" she experienced panic attacks and the psychogenic swallowing difficulty Over a period of the next several months she also experienced the signs and symptoms of profound depression She experienced weight loss, insomnia, crying for no reason at all, with no energy or motivation to do anything The surgical intervention for the swallowing problem was, in my opinion, misguided, and became one more trauma in this woman's struggle to cope By December, 1994 she was still unable to work and was dependent on her family to help her cope with her life, and her family doctor diagnosed and treated her with anti-depressants The more open discussion of the sexual abuse did bring about another stage in her mental status and progress, but also with a delay in getting the kind of professional help she needed She and the psychiatrist had their first discussion about the details of the , 11 abuse on January 19th and the first cheque-writing incident was apparently on January 24th Shortly after this her short relationship with the first crisis counsellor ended in mid-February and she "felt like she had lost her life-line" Her symptoms now, were of the extreme anxiety and flashbacks, along with feelings of humiliation, guilt and rage The event in the workplace, of overhearing her colleague's criticism and disdain for a client with a sexual abuse history, contributed to her feeling of there being no safe place, and intensifying her shame and guilt Her description of corning up with the idea of "getting back" at her Uncle by stealing, has all the elements of a childlike, irrational thought, with magical elements of making everything better again She describes this period of time, like many others in her life, to be "like in a fog being outside looking in" She remembers the idea, and she remembers feeling compelled to act on it and then a feeling of relief afterwards She has a belief that she put the money into her bank and paid bills but no memory of particular spending or particular purchases In terms of her mental state at this time, she also describes wishing she had never talked about the abuse She felt her hatred for her Uncle to be unmanageable Her feelings were complicated by unacceptable and intolerable thoughts as to how her Mother could not have known what was happening, and failed to protect her She felt suicidal as she struggled with these awarenesses Conclusions and Opinion. Diagnosis The Post-Traumatic stress Disorder diagnosis made by others holds as a way of understanding the array of symptoms she experienced, escalating as she was forced to face undesired memories of the past abuse However, this woman has a character and personality that had its own uniqueness and vulnerabilities, and she had already been experiencing a series of major life events and stressors, in addition to and prior to the onslaught of the memories As her defences crumbled she initially experienced anxiety and then depression I believe she has struggled with serious depression, as well as the P T S D constellation of symptoms with regard to the question of her vague and inconsistent memories of the events, especially around the stealing, this is only a diagnostic issue in my mind if one were to believe that she was in a dissociative or fugue state at the time and that this was put forth as an explanation for the behaviour Much as Ms Groulx has a history of having , 12 "dissociated" at many times in her life, I see this as a defence in the face of intolerable or unacceptable feelings, and not as aDS M diagnosis Her spotty and inconsistent memory is, in my opinion quite consistent with P T S D , and with her prolonged state of anxiety and depression Depression is often associated with profound difficulties concentrating and attending to the environment, as well as the specific symptom of memory disturbance The meaning of the behaviour and its link to Mental state Many patients with this history, when first speaking of the details of the abuse, feel, and are, seriously suicidal We understand suicidal acts as both self-destructive, based often on an experience of self-loathing, and as acts having a goal of relieving the intolerable pain They may also often have the less conscious role of achieving something not imaginable in any other way, such as giving a message to another significant person In this case I think there are a number of ways in which the "irrational" act of stealing, done in a poorly thought out fashion by a person with no criminal history and no intent to enjoy or even use the money, can be understood as having a direct link to her psychological state and indeed, illness Her conscious thought was that she was acting out her rage at her Uncle for "stealing her childhood" This is perhaps a sufficient link to her situation, understood by many others - her family and her counsellors I would however add more She is a woman who had struggled prior to this period of time, with low self-esteem and a need to please others She was raised in a Roman Catholic home and knew right from wrong, but also knew that suicide was an unforgivable sin Stealing can be seen in her case as a self- destructive equivalent, and one that perhaps had other unconscious messages attached to it It did indeed bring down upon her a very real punishment - the law of the land and ostracism from the workplace On the positive side, as an unconscious message to her family and significant others about how she felt, it was received and responded to, in a compassionate and supportive fashion Prognosis The real issue for this woman continues to be a healing process She might well be encouraged to maintain a relationship with a counsellor, not because she continues to struggle with the unconscious generated symptoms (flash-backs, fear, and self- loathing) but because her way of being was for so many years molded by the huge family secret It is my view that this woman has come a long way in facing the , 13 reality of her life both past and present She is not a thief, and no longer has a need or vulnerability to acting out her inner psychological conflicts in this unfortunate and irrational way Dr Adam took issue with Dr VanderBurgh's conclusions in a further report dated June 10, 1996, in which he indicated that, in his view, "the severity of cognitive disturbance she reported in her interview with me is not consistent with the psychiatric reports of her mental state at the time" He also referred to "inconsistency between the extent of cognitive disturbance she claims at the time and the extent of planning necessary for the embezzlement". In Dr Adam's view, what he described as "the elaborate series of transactions", require "careful planning and co-ordination" Dr Adam was of the view that the grievor's inability to remember those events were more likely "a deliberate attempt to conceal the evidence" Dr Adam goes on to acknowledge that criminal actions do take place during a disturbed mental state but he indicated that they are "usually impulsive and unpremeditated" Dr Adam also questioned the grievor's lack of memory for the actions related to the theft in contrast to the clarity of her memory of motivation of wanting to obtain revenge He also questioned why Ms Groulx would have chosen to steal from her employer As well, Dr Adam questioned Dr VanderBurgh's theory that the grievor's actions were indicative of an inner need to be punished on the basis that the fraud was conducted in such a manner so as to conceal her theft At the time of his opinion, Dr Adam was not aware that Ms ,- 14 Groulx had used her own name in connection with the thefts, nor that the theft was discovered as a result of Ms Groulx leaving incriminating material on her desk We were referred to a number of awards which we have reviewed We will comment specifically on only two of those awards, Re Canada Post Corp. and Canadian Union of Postal Workers (1992) 29 LAC 4th 143 (Picher) and Re Municipalitv of Metropolitan Toronto and Canadian Union of Public Emplovees, Local 79 (1992) 31 LAC 4th 79 (Springate) These awards were reviewed in detail by both counsel and both referred to factual situations that are somewhat similar to the case at hand. As well, both decisions contain a thoughtful and thorough analysis In Re Canada Post, the grievor had stolen a number of credit cards from the mail and utilized them to purchase items and to obtain cash advances There were a number of transactions, for relatively small amounts, totalling about $1,200 00 The Union's position was that the grievor's actions had their roots in a post-traumatic stress disorder which stemmed from childhood sexual abuse as well as adult sexual harassment which she had experienced during an earlier period of employment with the same employer There was no dispute as to those events The Board heard and considered conflicting psychiatric opinions as to whether the grievor's actions were properly considered to have been rooted in her psychiatric condition The award in this case ~ 15 ultimately preferred the expert opinion advanced by the I psychiatrist called by the Union In Re Municipality of Metropolitan Toronto. supra, the grievor was a welfare visitor who had engaged in the theft of welfare cheques for a two year period in the amount of $44,000 00 The Union called evidence from a psychologist, who expressed the view that the grievor's actions had their roots in her childhood sexual abuse as well as other difficulties that she faced and characterized the grievor's thefts as "a cry for help" The Board noted that the grievor was experiencing financial difficulties and that also that certain of the stressors on the grievor that were claimed to have been the cause of her actions occurred after she had started to defraud the employer The award ultimately concluded that the evidence before it did not establish a proper basis for it to conclude that the penalty of discharge was inappropriate Counsel were in agreement that the fundamental task before the Board in this case is to make a determination in relation to the conflicting expert opinions advanced by Dr Adam and Dr VanderBurgh as to whether there is a connection between the grievor's psychiatric condition and her fraudulent actions We agree with Arbitrator Picher's view that this is a daunting task for a board of arbitration, particularly in a case like this where the conflicting opinions were those of eminently qualified & 16 experts who articulately defended their respective positions throughout extensive and rigorous cross-examinations We agree with Mr Smith that it is necessary to examine a defence such as that being put forward here with careful scrutiny, given that the obvious inference which arises when an employee has engaged in a fraud is one of dishonesty The Employer's vulnerability is such instances, particularly in this kind of workplace, is extreme In considering such a matter in light of the inherent difficulties associated with retrospectively determining the true motivation for a person's actions, it is our view that contextual corrobrating evidence is often of a good deal of assistance Indeed, it may be critical if a board of arbitration is to accept the validity of this kind of defence This is not a case where a defence based on a disturbed emotional condition has been raised after the fact without any objective corroborating evidence of its existence prior to the conduct in issue It is apparent from the undisputed evidence that in 1993, Ms Groulx experienced severe psychological distress arising from the confrontation of her past history of childhood sexual abuse This distress was of such significance that it manifested itself in severe physical symptoms There was no suggestion from the evidence that these physical symptoms were in any way contrived Indeed, Ms Groulx even underwent surgery ~ 17 for a condition which, in retrospect, appears to be psychogenic in origin For a period prior to her fraudulent activities, Ms Groulx was seeking medical attention and experiencing ongoing difficulties for which there is no evidence of any explanation other than emotional trauma associated with the confrontation of her past sexual abuse Just prior to her first act of fraud, Ms Groulx had met with a psychiatrist for the first time There is no evidence to contradict Ms Groulx's assertion that at this time she was experiencing profound psychological difficulties, to the extent that she was considering suicide The Board has reviewed some of the writing that Ms Groulx produced as part of her therapy This work was undertaken by Ms Groulx after the fraud and thus does not give us direct insight as to her psychological condition at the time of those events However, the poignancy of this work reinforces our view that Ms Groulx's experienced profound suffering in connection with her confrontation of her history of past sexual abuse Of course, post-traumatic stress disorder does not result in criminal activity in all cases Both Dr Adam and Dr VanderBurgh were in agreement, however, that in certain cases it can be concluded that a causal relationship exists As is indicated in his report and was expanded upon in his testimony, ~ 18 aspects of the fraud Ms Groulx engaged in caused Dr Adam to question whether such a relationship exists here In that regard, Dr Adam pointed to the ongoing nature and what he viewed as the complexity of the fraud, as opposed to an impulsive act. He also questioned the truthfulness of Ms Groulx's reporting of spotty and inconsistent memories about the matter, as well as her inability to be able to account for the money that had been taken As well, he questioned the choice of the Employer as the target Dr VanderBurgh did not view any of the matters referred to by Dr Adam as a basis for departing from her opinion In particular, she saw nothing surprising or troubling in connection with Ms Groulx's lack of clear memories about the matter and felt that given her condition and the medication that she was taking, Ms Groulx's inability to clearly remember the events is not at all surprising with respect to the concerns raised by Dr Adam as to the nature of the fraud, we note that at the time that he prepared his initial opinion, Dr Adam was unaware of the fact that Ms Groulx had used her own name in connection with the fraud Leaving information on her desk that disclosed the fraud at the time that she finally left work is more indicative of a confused mental state than of a careful criminal mind While a single impulsive act, such as striking someone, is perhaps easier to J 19 understand as being based in an emotional condition, it does not seem unlikely that such a condition could manifest itself in other ways, depending on the circumstances and the individual. There was no dispute that it was extremely easy for Ms Groulx to commit the fraud with respect to the choice of the Employer as the victim, the matter of the comment of the co-worker and the simple ease and opportunity for the fraud were matters which factored into Dr VanderBurgh having no difficulty in making a connection Most fundamentally, Dr Adam's views raise the issue of Ms Groulx's credibility It is significant, however, that in his initial report Dr. Adam adds the caveat that he is unaware of Ms Groulx's work history, her character and any criminal past The Board has had an opportunity to hear Ms Groulx testify and, as well, to review the material contained in her pre-sentence report All of the evidence indicates that these actions were a complete aberration in relation to Ms Groulx's past Moreover, while we think it most appropriate that an inability to remember events is a matter which must be carefully questioned in relation to credibility, we agree with Ms Harmer that it is significant that Ms Groulx does not deny that she engaged in the acts of fraud with which she is accused Indeed, she has indicated that she accepts responsibility for her actions both before this Board and in the criminal courts where she entered a plea of guilty Ms Groulx has also indicated a willingness to reimburse the . .- 20 Employer for the monies taken Notwithstanding her very difficult financial circumstances, Ms Groulx has made a token compensatory payment to the Employer Dr Adam's questioning of whether the grievor in fact experienced sexual abuse to the extent claimed is also a matter that relates to her credibility Prior to reaching his conclusions about this matter Dr Adam did not have the opportunity that the Board has had, of reviewing the writing that Ms Groulx carried out as part of her therapy He did review them subsequently, however, and testified that they did not alter his view of the matter Whatever the precise extent of Ms Groulx's sexual abuse, a matter Dr Adam acknowledged he did not explore, after having viewed this material, as previously noted, the Board is left with no doubt that Ms Groulx genuinely experienced real and significant suffering in connection with her past sexual abuse While the points raised by Dr Adam are of significance, they are somewhat overshadowed by the temporal link between the undisputed low point of Ms Groulx's condition, at the time she first saw a psychiatrist and was contemplating suicide, and the commencement of the fraud Indeed, Dr Adam was in agreement that the timing of the events was a matter of some significance, however he testified that he was not prepared to speculate that Ms Groulx would not have engaged in theft but for this matter , 21 The Board views this temporal link as an extremely significant matter and, notwithstanding the questions raised by Dr Adams as to the validity of the link, it is our ultimate assessment of the evidence that a clear link between the grievor's psychiatric condition and her involvement in the fraud has been established As Mr Smith emphasized, however, the establishment of a link between the grievor's condition and her actions is not sufficient to fully address the significant interest on the part of the Employer in connection with matters such as this As Mr Picher observed at p 159 of Re Canada Post, supra it is plainly not enough for an employee or a Union to establish that an act of fraud or theft was caused by an employee's disturbed emotional condition Before the employee can gain a right to reinstatement, the evidence must be such as to support a reasonable conclusion that the condition that gave rise to the employee and his social conduct is under control and will not manifest itself in the future In my view that factor is especially important as regards to the reinstatement of an employee in a position which is trust-sensitive, which would plainly include the position of an employee who handles the property of others in a largely unsupervised setting The foregoing comments are directly applicable to these circumstances, as the grievor is in a position of trust Based on their differing views of the matter, Dr VanderBurgh and Dr Adam had opposing views as to the possibility of recurrence While Dr VanderBurgh acknowledged that absolute certainty could not be guaranteed, nor could it be in any case, she was of the view that given the grievor's treatment, which in ~ 22 her view had allowed Ms Groulx to understand and deal with her past, a recurrence of such behaviour was extremely unlikely As previously noted, Dr Adam's view was based to some extent on matters of credibility, a matter on which we, as a Board, have reached a different conclusion based on all of the evidence before us As the foregoing would suggest, we have ultmately come to accept Dr VanderBurgh's conclusion as to the likelihood of recurrence which leads us to accept Ms Harmer's submission that reinstatement is viable in this instance However, we also agree with Mr Smith's alternative submission that Ms Groulx should not be reinstated without conditions, particularly that Ms Groulx be required to submit to a periodic assessment in order that the Employer may be assured that she has not experienced any kind of recurrence which might put its interests in jeopardy The Union was not opposed to a periodic review, however it was submitted by Ms Harmer that given the trust necessary in such a situation, it would be inappropriate for Ms Groulx to be required to submit to ongoing assessments by a person not of her choosing In our view, the interests identified by counsel are both important and they can be appropriately and properly balanced by a requirement that the assessor be mutually acceptable to the parties In the unlikely event that the parties experience any difficulties in this regard, the Board will remain seized to determine the matter In the result then, Ms Groulx's reinstatement is subject to the . 23 condition that she submit to an assessment by a person to be mutually agreed upon by the Union and the Employer and that she provide all relevant information to the assessor in order that this person may render an opinion to the Employer as to the grievor's status This review is to be conducted twice yearly, for a period of three years, as requested by the Employer In our view, it is appropriate that the grievor's reinstatement be entirely without compensation Ms Harmer, while recognizing the need for a significant penalty in a case such as this, argued that the grievor should not simply be reinstated as of the date of the award, since to do so would impose all of the delay associated with the hearing process on her In her submission, Ms Groulx should be compensated effective the date of Dr Adam's report to the Employer indicating that the results of the MMPI for Ms Groulx were essentially normal There is some force to the Union's argument, however we are of the view that this is not a case for any sort of compensation to be ordered The resulting penalty that is imposed is an extremely lengthy suspension and a significant burden on Ms Groulx, who has experienced a devastating financial setback However, while we have been persuaded that this is one of those extremely rare cases in which reinstatement is properly ordered, we are unable to accept that such reinstatement ought properly to be coupled with compensation , 24 As previously noted, Ms Groulx has indicated a willingness to compensate the Employer We require her to do so and her reinstatement to employment will give her the opportunity to do so We leave it to the parties to deal with this matter The grievance is allowed to the extent and in accordance with the foregoing The Board will remain seized to deal with any difficulties that the parties may experience in implementing this decision Dated at Toronto, this 25thday of August, 1997 ~~ - {i.JU~ Vice-Chair ,r; I concur I concur /LfJ:hliY M Milich '- Member ~.