HomeMy WebLinkAbout2003-0710.Huvos.03-10-31 Decision
Crown Employees Commission de ~~
Grievance Settlement reglement des griefs
Board des employes de la
Couronne
~-,...
Suite 600 Bureau 600 Ontario
180 Dundas Sl. West 180 rue Dundas Ouest
Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8
Tel. (416) 326-1388 Tel. (416) 326-1388
Fax (416) 326-1396 Telec. (416) 326-1396
GSB# 2003-0710
UNION#OLB214/03
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontano LIqUor Control Boards Employees' Umon
(Huvos) Grievor
- and -
The Crown In RIght of Ontano
(LIqUor Control Board of Ontano) Employer
BEFORE RandI H. Abramsky Vice-Chair
FOR THE UNION Larry SteInberg
Koskie Minsky
BarrIsters and SOlICItorS
FOR THE EMPLOYER AlIson Renton
Counsel
LIqUor Control Board of Ontano
HEARING September 30 2003
2
AWARD
In thIS case, there IS no dIspute that the gnevor Boyd Huvos, was dIscharged for Just
cause The only Issue IS whether a penalty other than dIscharge IS Just and reasonable under all
of the cIrcumstances, as set out In SectIOn 48(17) of the Labour Relations Act For qUIte a
number of reasons whIch are set forth below that determInatIOn IS a very dIfficult one to make
Facts
Counsel for the partIes presented the Board wIth an Agreed Statement of Facts Those
facts are as follows
1 The Gnevor commenced employment as a casual retaIl employee effectIve May 6 1998 In
MissIssauga and had a semonty date of May 6 1998
2 As a casual employee, he performed a number of functIOns IncludIng stock, customer servIce
and cash. At all relevant tImes he reported to the store manager
3 The Gnevor was a successful candIdate In a Job competItIOn held In 2002 In Central RegIOn.
As a result, he was promoted to a full tIme customer servIce representatIve ("CSR") effectIve
October 21 2002 as per a letter of appoIntment dated October 8 2002 Pursuant to artIcle
4 1 of the collectIve agreement, he was reqUIred to serve a SIX (6) month probatIOnary penod.
4 A copy of the collectIve agreement IS attached hereto as AppendIx "Boo
5 The Gnevor was assIgned to store 458 whIch IS an "A" store, and reported to the store
manager Enzo Boreanez. The store IS located at 25 Hillcrest Avenue, MissIssauga, Ontano
6 As a full tIme CSR, the Gnevor was scheduled to work 40 regular hours per week, from
Monday to and IncludIng Saturday As a full tIme CSR, he was reqUIred to perform cash and
perform stock dutIes He ran ShIftS, whIch reqUIred hIm to be the person In control of the
store, and whIch reqUIred hIm to hold keys to the store, keys to the cash regIster balance
deposIts and place deposIts Into the safe, and assIgmng work to and supervISIng other
employees dunng that shIft.
7 On February 11 2003 a covert CCTV camera system was placed above cash regIster #5 the
cash to whIch the Gnevor was assIgned. ThIS was Installed by members of the Employer's
Resource ProtectIOn department, Dave Hadlow manager and Ihor SalIJ InvestIgator wIth
the cooperatIOn of Mr Boreanez. The camera system records, onto VIdeotape, the actIOns of
the Gnevor whIle workIng on cash on February 14 and 15 2003
3
8 The vIdeotapes of the Gnevor's actIOns were revIewed by Mr Hadlow and Mr SalIJ on or
about February 18 2003 The vIdeotapes revealed a number of IncIdents on February 14 and
15 2003 as set out below and as demonstrated In the documentatIOn attached hereto as
AppendIx "C" and "D"
9 On February 14 at approxImately 2.20 pm. the Gnevor rang through and bagged 2 bottles
of brandy each valued at $20.25 for total transactIOn of $40 50 He accepted 2 bIlls and
some COIn from the customer No change or receIpt was gIven to the customer After the
customer left, the Gnevor pressed the "vOId" key and vOIded out one of the bottles thus
reducIng the total transactIOn to $20.25 The amount of loss to the LCBO was $20 25
10 On February 14 at approxImately 2 50 pm. the Gnevor rang through and bagged 3 bottles
of Emu 999 Red Port, at $8 15 per bottle for at total of $24 45 The customer proVIded an
AIr Miles card and a Visa credIt card for the purchase The Gnevor processed both cards and
the transactIOn was approved. After the customer sIgned the Visa slIp the Gnevor Inserted a
key Into hIS cash regIster and vOIded the transactIOn. The customer left wIth the bag of
product. The Gnevor assembled paperwork for the vOId and IndIcated that the reason for the
vOId was because the customer bought the wrong bottles Attached hereto as AppendIx "E"
IS a copy of the vOId explanatIOn slIp and transactIOn records The amount of loss to the
LCBO was $24 45
lIOn February 15 at approxImately 2 00 P m. the Gnevor scanned and bagged 4 bottles The
total transactIOn was $61.20 The customer placed some bIlls on the counter for payment and
the Gnevor pIcked up the bIlls The Gnevor then hIt the vOId key and vOIded out 3 of the 4
bottles The total for the transactIOn was reduced to $1530 The Gnevor placed some bIlls
on the cash tray and placed one bIll on the counter The customer placed some COInS on the
counter whIch the Gnevor pIcked up and placed Into the cash tray The customer left wIth
the product and no receIpt IS gIven to the customer The amount of the loss to the LCBO was
$45 90
12 On February 15 at approxImately 6 00 P m. the Gnevor scanned 2 bottles of SmIrnoffVodka
for a total of $60 80 The customer placed an AIr Miles card, 2 bIlls and some COIn on the
counter The Gnevor bagged both bottles, sWIped the AIr Miles card (whIch does not later
appear In the regIster) pIcked up the bIlls and then hIt the vOId key and vOIded out one bottle
reducIng the transactIOn to $30 40 The Gnevor handed the customer some change and
placed the bIlls Into the cash tray The customer then left wIth the products No receIpt IS
gIven to the customer The amount of the loss to the LCBO was $30 40
13 On February 15 at approxImately 6 50 P m. the Gnevor Inserted a form Into hIS cash regIster
and processed a return to stock ("RTS") form No customer IS seen and no product IS seen.
The Gnevor processed a RTS for two 750m. bottles of Moet Chandon champagne He
opened the cash drawer closed It and attached a receIpt to the RTS form An RTS form has 2
parts to It, one for the store and one for the customer The Gnevor removed the customer's
part, crumpled It and threw It Into the waste basket. The RTS form, whIch IS filled out by the
Gnevor IndIcates that the product was returned by a Stu Planter at 444 LeasIde Dnve,
EtobIcoke (416) 774-1204 There IS no Stu Planter at that address or telephone number and
In fact, that address does not eXISt. The amount of loss to the LCBO IS $103 70 Attached
hereto as AppendIx "F" IS a copy of the RTS form and transactIOn tapes
4
14 On February 15 at approxImately 700 p.m a customer placed on open case of beer on the
counter The Gnevor removed one bottle from the case scanned It, rang In 16 umts and
totaled the transactIOn to be $33 60 The Gnevor than pIcked upon another bottle, scanned It,
rang In 4 umts and totaled the entIre transactIOn to be $4200 The customer handed the
Gnevor some bIlls Then the Gnevor took another bottle scanned It, then hIt the vOId key
and vOIded out 19 bottles worth $39 90 thus reducIng the transactIOn to $2 10 The customer
placed a COIn on the counter and the Gnevor placed the COIn and bIlls In the cash tray The
customer left wIth all the product wIthout beIng handed a receIpt. The Gnevor took the
receIpt, npped It up and threw It Into the waste basket. The amount of loss to the LCBO IS
$39 90
15 On February 15 at approxImately 8 30 p.m the Gnevor completed a transactIOn of 4 bottles
for a total of $111 80 The Gnevor dId not provIde the customer wIth a receIpt. The Gnevor
completed 2 more transactIOns whIch are transactIOns #4601 and #4602 on the cash regIster
tapes After transactIOn #4602 IS completed, the Gnevor looked around, Inserted a key Into
hIS regIster and began to process a vOId. No customer IS present and no product IS seen. The
Gnevor vOIded the transactIOn of 4 bottles (transactIOn #4600 worth $111 80) He removed
the receIpt and the vOId slIp from the termInal, took the key left the cash area. He filled out
a vOId explanatIOn slIp and stated that the reason for the vOId IS "InSUfficIent cash (actually
no cash)" despIte the fact that on the vIdeotape the customer clearly hands the Gnevor cash
for the transactIOn. Attached hereto as AppendIx "G" IS a copy of the vOId slIp and tape
transactIOns The amount of loss to the LCBO IS $111 80
16 The results of the vIdeotape were revIewed by Mr Hadlow Mr SalIJ and the InfOrmatIOn IS
shared wIth Mr Boreanez and the DIstnct Manger Jeff Misener and the Peel polIce
17 On February 21 2003 the Gnevor was charged wIth 2 counts of theft under $5000 and 2
counts of fraud under $5 000 by the Peel PolIce
18 The Gnevor was Issued a NOID dated February 24 2003 attached hereto as AppendIx "H"
19 The Gnevor responded to the Naill by correspondence dated February 26 2003 attached
hereto as AppendIx "I" The letter states, In pertInent part "Please be advIsed that I have
contacted a lawyer who has Instructed me not to make any comments untIl cnmInal charges
have been dIsposed of "
20 The Gnevor was termInated by correspondence dated March 3 2003 attached hereto as
AppendIx "J"
21 The total amount of the momes and/or product Involved was $376 40
22 The Gnevor filed a gnevance, at Stage 3 dated May 7 2003 attached hereto as AppendIx
"K"
23 On May 26 2003 the Gnevor pleaded gUIlty to 2 counts of fraud under $5 000 He was
sentenced to 6 months probatIOn, ordered to pay fines totalIng $1 500 00 to be paid wIthIn 6
months, and ordered to pay restItutIOn In the amount of $516 00 to be paid wIthIn 6 months
as per the probatIOn order attached hereto as AppendIx "L" To date, the restItutIOn has been
paid.
5
24 SectIOn 48 1(1) attached as AppendIx "M" of the Crown Employees CollectIve BargaInIng
Act states
"If a Crown employee IS convIcted or dIscharged of an offence under the CnmInal Code
(Canada) In respect of an act or omISSIOn that results In dIscIplIne or dIsmIssal and the dIscIplIne
or dIsmIssal becomes the subJect matter of a gnevance before the Gnevance Settlement Board,
proof of the employee's convIctIOn or dIscharge shall, after the tIme for an appeal has expIred or
If an appeal was taken, It was dIsmIssed and no further appeal IS avaIlable, be taken by the
Gnevance Settlement Board as conclusIve eVIdence that the employee commItted the act or
omIssIOn."
25 On or about November 6 2002, the Gnevor started to see a psychIatnst, Dr M. Hoffer
Attached as AppendIx "N" IS a copy of the medIcal report prepared by Dr Hoffer for these
proceedIngs at the request of the Umon. The PartIes agree that thIS report IS properly
admItted Into eVIdence pursuant to the provIsIOns of the EVIdence Act and that the Employer
reserves ItS nght to argue as to the weIght that ought to be gIven to thIS report by the Board.
26 The Employer was provIded wIth Dr Hoffer's report on September 19 2003
27 The Gnevor who at the tIme of the events gIVIng nse to thIS proceedIng was 25 years old, IS
currently 25 years of age and sIngle
Dr Hoffer IS a psychIatnst, specIalIzIng In chIld and adolescent psychIatry wIth a sub-
specIalIzatIOn In the treatment of chIld and adult AttentIOn DeficIt DIsorder (ADD) His letter
was wntten, at the Umon's request, to support Mr Huvos' "effort to be reInstated to hIS prevIOus
posItIOn of employment wIth the LIqUor Control Board of Ontano (LCBO)" In the letter Dr
Hoffer states that he IS "In a umque posItIOn to comment on Mr Huvos" sInce he has known hIm
SInce the gnevor was a young boy and he would meet wIth hIm from tIme to tIme to "gauge hIS
ongoIng development Into young manhood." He dId so at the suggestIOn of the gnevor's mother
who was a patIent of hIS, partIcularly after the gnevor's parents separated and later dIvorced, and
hIS father ceased haVIng contact wIth the famIly
In early November 2002, the gnevor started seeIng Dr Hoffer professIOnally about hIS own
emotIOnal state "wIth respect to the ImpendIng break-up of hIS first senous romantIc relatIOnshIp
wIth hIS gIrlfnend "Dr Hoffer's letter states
6
When I met wIth Boyd on November 6 2002, he described hImself as beIng
"totally devastated" He dIsplayed a severely depressed mood and wept
frequently In the seSSIOn. He dIsplayed numerous endogenous vegetatIve sIgns of
depressIOn (dImImshed appetIte sleep dIsturbance, decreased energy level, and
anhedoma) I encouraged hIm to try to maIntaIn perspectIve and to also ImtIate
antIdepressant medIcatIOn (Effexor XR) and follow-up therapy seSSIOns
Dr Hoffer states that the gnevor started to show sIgns of mood Improvement but that the
gnevor and hIS gIrlfnend contInued a cycle of breakIng up and gettIng back together whIch
prevented hIm from fully recovenng from the depressIOn. He wrote "He was stIll vulnerable,
depressed, and fragIle dunng those subsequent months"
Dr Hoffer further states that "[t]here were three more complIcatIng factors dunng thIS
cntIcal tIme" FIrst, the gnevor started dnnkIng. The letter states "His abuse of alcohol In thIS
cntIcal penod contnbuted, I belIeve to the Impairment of Judgement that resulted In hIS takIng
money from work." Secondly accordIng to Dr Hoffer the gnevor has AttentIOn DeficIt
DIsorder whIch, combIned WIth "the abuse of alcohol contnbuted to a state of "dISInhIbItIOn'"
Dr Hoffer wrote
The adult ADD symptoms that Boyd was prone to Included not Just InattentIOn
but also ImpulsIvIty More specIfically hIS capacIty to make proper deCISIOns
and be fully aware of the consequences of hIS actIOns was In Jeopardy The
addItIOn of the dISInhIbItIng substance (alcohol) essentIally "greased the skids"
rendenng hIS normal compensatory InhIbItIOn relatIvely IneffectIve
ThIrdly the gnevor had moved out on hIS own Just a few weeks pnor to the onset of hIS
depressIOn. Dr Hopper wrote "With the threatened breakup of hIS first love relatIOnshIp the
relatIve absence of hIS mother's support and presence enhanced Boyd's feelIng of desperatIOn
and lonelIness"
7
Dr Hoffer's letter states as follows
These factors all mItIgated towards Boyd makIng the gnevous mIstake of stealIng
money from hIS work. The presence of these factors makes more explIcable hIS
uncharactenstIc actIOn but does not excuse hIm from the fact that he stole from
hIS employer and broke the law To hIS credIt, Boyd acknowledged hIS error and
pleaded gUIlty to the charge He felt deep shame and remorse, as was appropnate
He regretted not havIng told me about hIS actIOns at the tIme but he felt too
foolIsh and ashamed to speak wIth me (Of note after hIS arrest, he never once
demed hIS wrongdoIng to me)
The doctor wrote that SInce the gnevor's arrest, he "has taken a number of very posItIve
steps to commIt hImself to resumIng a lIfe of honour and Integnty" He attended several meetIng
of AlcoholIcs Anonymous "to galvamze hIS understandIng of the severe Impact alcohol abuse
could have on hIm." He accepted the endIng of hIS relatIOnshIp wIth thIS gIrlfnend. He attended
therapy seSSIOns and "IS no longer depressed." He has "scrambled hard to find even temporary
work" and IS "commItted to takIng medIcatIOn for hIS ADD symptoms, If reqUIred and
IndIcated." The doctor further notes that he had taken all of these steps "at a tIme when hIS day-
to-day lIfe has been dIfficult."
Dr Hoffer concluded WIth the folloWIng
I would lIke to summanze to thIS pOInt. Boyd IS a decent young man of good
character I would not request (and recommend) compaSSIOnate consIderatIOn for
hIm If I belIeved he was at any nsk for re-offendIng. But there are Important
aspects for those who make the final deCISIOn about Boyd to consIder His mother
struggled herOIcally WIth multIple Jobs to proVIde for her three chIldren as a sole
support mother He had no male role model In hIS lIfe after hIS father's desertIOn
of the famIly He struggled WIth ADD all hIS lIfe And yet he persevered. He
attended college He worked part-tIme Jobs to help hIS mother He was never
"gIven" anythIng - he never receIved a break. He found full-tIme work and
commItted hImself to maIntaInIng hIS employment. And, folloWIng hIS first
senous depreSSIOn, brought on by loss and hIS attendant deep feelIngs of reJ ectIOn
and abandonment, developed a problem dnnkIng pattern. Then, foolIsh, desperate
and depressed, he made a bad mIstake
Boyd deeply hopes that he wIll be gIven the opportumty to resume full-tIme
employment and to redeem hImself through hIS honest effort. I recommend hIm to
your compaSSIOn and WIsdom
8
The gnevor at the heanng, confirmed much of what was contaIned In Dr Hoffer's letter
He stated that he started to see Dr Hoffer In November 2002, because he was gOIng through a
"bad breakup" wIth hIS gIrlfnend, whIch was havIng a bad affect on hIm and he sought
counselIng. Although thIngs ImtIally Improved, In late December hIS gIrlfnend cut off all
contact wIth hIm. ThIS resulted In hIm dnnkIng more - at home In bars and at work. In terms of
hIS use of alcohol, the gnevor testIfied that he was dnnkIng "close to every day" and the number
of dnnks "vaned" from "two beers and up " He stated that he would dnnk at home, at work and
bars On cross-eXamInatIOn, he stated that hIS dnnkIng was "mostly at bars" He could not recall
If he drank before or at work on February 14 or February 15 He "probably" dId but It was
"pOSSIble" he dId not. Although he knew at the tIme that he was dnnkIng too much, he dId not
belIeve that he was an alcoholIc He testIfied that In February 2003 he was a "mess"
"confused" and "not thInkIng straight."
Mr Huvos admItted that he took all of the actIOns set out In the Agreed Statement of
Fact. Pnor to thIS, however he stated that he had never stolen money and had never been In
trouble WIth the law When asked to explaIn why he dId It, the gnevor provIded a number of
reasons It "had to do WIth the dnnkIng" hIS "mInd was not functIOmng" and he "dId stupId
thIngs whIch I regret" and It was "to compensate for the loss of my gIrlfnend." Later when
asked what he used the money for he stated that he used It to "buy alcohol" and In hIS "search
for a place to lIve, that was part of It." On cross-eXamInatIOn, he acknowledged that he stole the
money to help pay for a condo that he wanted to purchase
9
The gnevor testIfied that he felt "hornble" about hIS actIOns, and felt "remorseful" He
stated that he let a lot of people down by hIS actIOns - hIS fnends, hIS famIly and hIS employer
He testIfied that he was "very sorry for what I dId." When asked what he would say to the
DIstnct Manager to conVInce hIm that he could trust hIm agaIn, the gnevor responded that he
was very "sorry" for hIS actIOns, that he made a "bIg mIstake" that he was reCeIVIng counselIng
and had attended a few meetIngs of AlcoholIcs Anonymous whIch "scared hIm" He asked to go
back to a "normal lIfe" and have a "fresh start."
On cross-eXamInatIOn, the gnevor admItted that he knew at the tIme, that stealIng was
wrong. He knew It was wrong to Incorrectly complete a vOId and an RTS form. He knew he
was reqUIred to proVIde receIpts to customers He further understood that he was stIll on
probatIOn at that tIme He testIfied that he advIsed hIS manager that he was haVIng some
personal problems In late November and that hIS manager told hIm that If he needed to talk, he
could approach hIm The gnevor dId not follow-up or adVIse hIS manager of hIS alcohol
problem He stated, on re-eXamInatIOn, that he was embarrassed, he dId not want hIm smellIng
alcohol on hIS breath, and he dId not know how hIS manager would respond to what he was
dOIng. The gnevor acknowledged that he dId not take hIS ADD medIcatIOn even whIle employed
and he receIved prescnptIOn drug benefits, but explaIned, on re-eXamInatIOn, that he had earlIer
rebelled agaInst the drug. He now belIeved, after all that had happened, that the medIcatIOn
mIght help hIm be better at work and help WIth hIS deCISIOn-makIng. The gnevor
acknowledged, on cross-eXamInatIOn, that before thIS heanng he had not apologIzed to anyone at
the LCBO but explaIned that he was "told not to contact anyone"
10
In response to questIOns that I posed, the gnevor stated that he dId tell Dr Hoffer that the
money he stole, In part, was for a place to lIve, and that he had "totally cut down" hIS dnnkIng.
He was not In a formal rehabIlItatIOn program, but was workIng wIth Dr Hoffer on the Issue
Decision
There can be no questIOn, as the Umon concedes, that the Employer had Just cause to
dIscharge the gnevor As a CSR, the gnevor held a posItIOn of trust. He performed cash and
stockroom dutIes He ran shIfts, whIch placed hIm In control of the store wIth control of the keys
to the store and the keys to the cash regIster He was reqUIred to balance the deposIts and place
deposIts Into the safe The eVIdence IS undIsputed that the gnevor abused that posItIOn of trust.
Over a two-day penod, on seven separate occaSIOns, the gnevor vOIded actual transactIOns and
processed fictItIOuS "return to stock" forms, stealIng a total of $37640 for hIS own personal use
His actIOns were an abuse of trust of hIS posItIOn, the Employer and the publIc His actIOns
clearly constItuted cause for dIscharge
In OBLEU (Wells) and LeBO (1982), GSB No 2/82 (Venty), the Board stated as follows
In regard to theft at the LCBO at p 9-10
Theft or attempted theft In any form from any Employer by an Employee,
regardless of the value of the stolen goods, does constItute Just cause for the
ImpOSItIOn of dIsCIplIne by the Employer DIshonesty In any form IS completely
unacceptable to the Employer-Employee relatIOnshIp Theft or attempted theft of
the Employer's property by an Employee IS a fundamental breach of the trust
relatIOnshIp between the Employer and the Employer The LIqUor Control Board
of Ontano has the nght to antICIpate a hIgh degree of honesty from ItS Employees,
and a deViatIOn from that standard must be dealt wIth In keepIng wIth the graVIty
of the offence
The Issue to be deCIded IS whether there are compellIng mItIgatIng cIrcumstances such
that a penalty other than dIscharge IS Just and reasonable In all of the CIrcumstances As set out in
11
Re Canadian Broadcasting COlporation and Canadian Union of Public Employees (1979) 23
L.AC (2d) 227 (Arthurs) under a "correctIve dISCIplIne" approach, theft IS not always automatIc
grounds for dIscharge and vanous mItIgatIng factors may JustIfy the SubstItutIOn of a lesser
penalty The potentIal mItIgatIng factors "bear upon the employee's future prospects for
acceptable behavIOur " (23 L.AC (2d) at p 230)
In OBLEU (Reed) and LCBO (1992), GSB No 1165/91 (Watters) the Board stated as
follows In regard to a case of theft, at pp 9-10
[G]Iven the senousness of the offence of theft, we thInk that the penalty of
dIscharge IS, pnma facIe, an acceptable Employer response to such conduct. ThIS
IS not to suggest, however that It must be the automatIc response In every case
In determInIng the appropnateness of the response the Employer and Indeed thIS
Board, must have regard to any mItIgatIng cIrcumstances of a persuaSIve nature
ThIS Includes any eVIdence eXIstIng whIch would suggest that the employee may
be rehabIlItated through other forms of correctIve dIscIplIne less than dIscharge
In Re Canadian Broadcasting COlporation, supra, AbItrator Arthurs lIsted a number of
factors whIch bear upon an employee's future prospects for acceptable behavIOur They Included
the folloWIng
1 Bona fide confusIOn or mIstake by the gnevor as to whether he was entItled to do the act
complaIned of
2 The gnevor's InabIlIty due to drunkenness or emotIOnal problems, to apprecIate the
wrongfulness of hIS act.
3 The ImpulsIve or non-premedItated nature of the act.
4 The relatIvely tnvIal nature of the harm done
5 The frank acknowledgement of hIS mIsconduct by the gnevor
6 The eXIstence of a sympathetIC personal motIve for dIshonesty such as famIly need, rather
than hardened cnmInalIty
7 The past record of the gnevor
8 The gnevor's future prospects for lIkely good behavIOur and
12
9 The economIC Impact of dIscharge In VIew of the gnevor's age, personal cIrcumstances, etc
Counsel for the Umon candIdly acknowledged that some of the factors lIsted In the Re
Canadian Broadcasting Company supra, assIsted the gnevor and some dId not. I agree There
was no bona fide confusIOn or mIstake by the gnevor as to whether he was entItled to do the acts
complaIned of It was wrong, and the gnevor knew It was wrong. His actIOns were not
ImpulsIve They were clearly thought out and IntentIOnal The harm was not tnvIal There was
no sympathetIc personal motIve for the dIshonesty The motIve was to obtaIn extra money to
purchase lIquor and buy a condo
A key questIOn In thIS case IS the gnevor's "InabIlIty due to drunkenness or emotIOnal
problems, to apprecIate the wrongfulness of hIS act." In thIS regard, the eVIdence of Dr Hoffer IS
paramount. AccordIng to Dr Hoffer the gnevor's normal InhIbItorS were not functIOmng
properly due to an unfortunate cOmbInatIOn of factors - the gnevor's depressIOn over the loss of
hIS first senous gIrlfnend, hIS resultIng abuse of alcohol, hIS leavIng home and hIS ADD whIch
Involved ImpulsIvIty In the doctor's words "[H]IS capacIty to make proper decIsIOns and be
full y aware of the consequences of hI s actIOns was In Jeopardy The addItIOn of the dISInhIbItIng
substance (alcohol) essentIally 'greased the skids' rendenng hIS normal compensatory InhIbItIOn
relatIvely IneffectIve"
The Employer submIts that lIttle weIght should be gIven to Dr Hoffer's letter Counsel
contends that Dr Hoffer was motIvated by hIS personal relatIOnshIp wIth the gnevor and hIS
famIly and that the underlYIng events whIch are referred to In Dr Hoffer's analysIs occurred well
before hIS acts of theft. It further submIts that Dr Hoffer's letter falls to establIsh a causal
connectIOn or nexus between the gnevor's problems and the theft. The Employer notes that the
13
"tnggenng events" all occurred several months before the February thefts - the gnevor's
gIrlfnend cut-off all contact In December the gnevor started dnnkIng at that tIme, and he had
moved out of hIS mother's home some tIme In October In terms of the ADD the Employer
contends that whIle It may have lead to ImpulsIve behavIOur the thefts In thIS matter were not
ImpulsIve acts They were planned and thought out. The Employer also notes that even though
the gnevor was seeIng Dr Hoffer SInce November 2002, he dId not mentIOn the thefts to hIm
untIl he after he was arrested, whIch should be taken Into consIderatIOn when aSseSSIng Dr
Hoffer's letter In the Employer's submIssIOn, In February 2003 the gnevor was sImply an
employee wIth a number of personal problems, not medIcal problems whIch caused hIS acts of
theft.
The case law establIshes that there must be a causal connectIOn between the acts of theft and
the gnevor's condItIOn at the tIme In OP SEU (Menzies) and MinistlY of Transportation (1991),
GSB No 751/91 (WaIsglass) the Board determIned that the acts of theft (36 over a 12-month
penod) were related to an unusual accumulatIOn of emotIOnally stressful expenences In the
gnevor's famIly In OBLEU (DePratto) and LCBO (1996), GSB No 1834/95 (Roberts) the
Board determIned that the gnevor's acts of theft were due to hIS beIng In a "perpetual fog"
caused by abuse of prescnptIOn drugs and depressIOn. In contrast, In OBLEU (DeLaurentis) and
LCBO (1995) GSB No 1063/93 (MarszewskI), the Board dId not accept the gnevor's testImony
that the thefts were the result of hIS "alcoholIsm" and "there was no other eVIdence whIch
establIshed a connectIOn between the Gnevor's alcoholIsm and hIS thefts at the cash regIster"
In thIS case, after much consIderatIOn, I conclude that the letter provIded by Dr Hoffer falls
short of establIshIng a clear causal connectIOn between the gnevor's medIcal/emotIOnal sItuatIOn
and hIS thefts The letter from Dr Hoffer places a great deal of sIgmficance on the gnevor's
14
"abuse of alcohol" and "problem dnnkIng" whIch Dr Hoffer "belIeved" Impaired hIS
Judgement. The letter states that the gnevor's depreSSIOn about hIS gIrlfnend and ADD placed hIS
"capacIty to make proper decIsIOns and be fully aware of the consequences of hIS actIOns In
Jeopardy" The addItIOn of alcohol then "greased the skids" "rendenng hIS normal compensatory
InhIbItIOn relatIvely IneffectIve"
The gnevor's eVIdence regardIng hIS dnnkIng, however does not establIsh an abuse of
alcohol Although he was dnnkIng "close to every day" on both dIrect and cross-eXamInatIOn
he stated that he had "two plus" beers a day He drank "mostly at bars" although he dId dnnk at
home and at work. SIgmficantly he dId not recall If he had been dnnkIng on the two days In
questIOn when the seven acts of theft occurred.
The gnevor's eVIdence of hIS alcohol use stands In marked contrast to the eVIdence In Re
OBLEU (DeLaurentis) supra In that case, the gnevor testIfied that he drank one 26 ounce
bottle of whIskey or rye dally that he started dnnkIng In the mormng, contInued over lunch, then
agaIn on hIS way home from work. DespIte thIS eVIdence, the Board found that the gnevor faIled
to establIsh that hIS thefts were prompted by hIS alcoholIsm. The Board held at p 16
[W]e cannot accept the Gnevor's attempt to transfer the responSIbIlIty for the
thefts from hImself to hIS alcohol dependency It was also clear from the
Gnevor's own eVIdence that he was aware of the Board's polIcy WIth respect to
theft. We find that the Gnevor knew exactly what he was dOIng, namely that he
knew that he was knowIngly and delIberately stealIng from the employer
In thIS case, there was no eVIdence and no submISSIOn that the gnevor was an alcoholIc or
unaware of hIS actIOns due to the dnnkIng. ThIS IS a sIgmficant fact whIch dIstIngUIshes thIS
matter from other cases In OBLEU (Wells) supra, the Board concluded that the gnevor was an
alcoholIc and that hIS "chromc dnnkIng problem" led to erractIc behavIOur In OBLEU (Reed)
15
supra, the Board accepted the gnevor's drug addIctIOn as the cause for hIS thefts In OBLEU
(DePratto) and LCBO (1996) GSB No 1834/93 (Roberts) the Board determmed that the
gnevor's abuse of prescnptIOn drugs put hIm m a "perpetual fog" and that It was clear that "but
for the gnevor's condItIOn at the tIme the thefts would not have been commItted."
In thIS case, the contentIOn, mstead, was that the gnevor's normal mhIbItIOns were not
functIOmng properly due to hIS emotIOnal state and ADD combmed WIth hIS abuse of alcohol In
my VIew however one of the key factual predIcates of Dr Hoffer's analysIs - the gnevor's
abuse of alcohol - IS not sufficIently supported m the eVIdence When all of the eVIdence IS
consIdered as a whole the letter from Dr Hoffer does not establIsh a medIcal cause for the
gnevor's actIOns
The eVIdence also does not establIsh that the thefts were "ImpulsIve" The defimtIOn of
"ImpulsIvIty" provIded by Dr Hoffer based on the Utah Cntena for Adult ADD states
Minor mamfestatIOns mclude talkmg before thmkmg thmgs through, mterruptmg
other conversatIOns, ImpatIence (e g. whIle dnvmg) Impulse buymg. MaJ or
mamfestatIOns .mclude poor occupatIOnal performance abrupt ImtIatIOn or
termmatIOn of relatIOnshIps antIsocIal behaVIOr such as Joy-ndmg, shoplIftmg;
exceSSIve mvolvement m pleasurable actIvItIes WIthout recogmzmg nsks of
pamful consequences (e g. buymg sprees, foolIsh busmess mvestments, reckless
dnvmg.) SubJect makes deCISIOns qUIckly and easIly WIthout reflectIOn, often on
the baSIS of msufficIent mformatIOn to hIS own dIsadvantage mabIlIty to delay
actmg WIthout expenencmg dIscomfort.
None of these mamfestatIOns are eVIdent m the gnevor's thefts The seven mCIdents over two
days were not "shoplIftmg" but mtentIOnal acts The number of mCIdents and the vanety of
methods used - partIcularly the creatIOn of the fiCtItIOuS Stu Planter the return whIch stated that
the customer had "no cash" when he had paid m cash, and the tIme when the gnevor "looked
16
around" before msertmg hIS key mto the cash regIster and processmg a fictItIOUS VOId - do not
mdIcate that the thefts were ImpulsIve acts, as set out m the ADD cntena.
Further the explanatIOn provIded m Dr Hoffer's letter does not comport wIth the gnevor's
admIssIOn, on cross-exammatIOn, that he knew at the tIme, that what he was domg was wrong.
Dr Hoffer's belIef that the gnevor's Judgement was Impaired cannot ovemde the gnevor's
admIssIOn that he knew what he was domg. He may well not have been thmkmg about the
consequences If he got caught. As he testIfied, he "wasn't thmkmg" at the tIme But he stIll
knew he was engagmg m theft; he knew what he was domg was wrong.
Another factor whIch works strongly agamst the gnevor IS hIS probatIOnary status The
Employer relIes heavIly on the fact that the gnevor was on stIll on probatIOn at the tIme of hIS
termmatIOn. It asserts that the standard for Just cause for a probatIOnary employee IS a less
stnngent standard. In support, It cItes to OBLEU (Ramji) and LCBO (2002) GSB No 1604/00
(DIssanayake) and OBLEU (Filho) and LCBO (2003) GSB No 1728/01 (Abramsky) The
Umon, m contrast, asserts that the gnevor's probatIOnary status IS not relevant to the Issue of Just
cause - the Employer clearly had that. Instead, It asserts that It IS only relevant to establIsh that
he dId not have a lengthy record of employment, although It submIts that hIS penod as a casual
employee cannot be Ignored.
The gnevor at the tIme of hIS termmatIOn, had worked for the Employer for four years Most
of that penod was as a casual retaIl employee His testImony was uncontradIcted that he receIved
no dIscIplIne dunng that tIme, and no problems wIth hIS performance were brought to hIS
attentIOn. Nevertheless, the gnevor as a full-tIme CSR, was stIll on probatIOn at the tIme of hIS
termmatIOn. It IS a factor whIch must be conSIdered m determmmg whether a penalty other than
17
dIscharge IS Just and reasonable In all of the cIrcumstances, although hIS pnor servIce cannot be
completely Ignored
The eVIdence establIshes that the gnevor was aware, at the tIme of the thefts, that he was stIll
on probatIOn. His status as a probatIOnary employee IS sIgmficant for two reasons FIrst, the
gnevor's "past record" and "eqUIty" In hIS Job IS lImIted. He IS not a long-servIce employee
even If hIS casual servIce IS conSIdered. The second reason has to do wIth deterrence
In OBLEU (De Laurentis) supra, the Board cIted a decIsIOn of ArbItrator Burkett In Re
Goodyear Tire Inc and [JR. W Local 232 (1985) 18 L.A.C (3d) 65 at p 68
WhIle I accept the company submIssIOn that any theft of company product IS a
senous offence I do not accept that dIscharge should be the automatIc response In
every such case Indeed the recent Junsprudence holds that the seventy of the
penalty In a theft case should be determIned on a reVIew of a number of factors
IncludIng the servIce and record of the gnevor the value of the goods, the
contnteness of the gnevor the Impact of the penalty upon the gnevor havIng
regard to hIS age and skIll, and most Importantly the need for general deterrence
It IS umversally accepted that general deterrence IS a legItImate and necessary
conSIderatIOn In determInIng the seventy of the dIscIplIne In a theft case
As noted In Re OBLEU (Blackmore) and LeBO GSB No 315A/84 (Draper), quoted In Re
OBLEU (Reed) supra at p 12, "the LCBO IS especIally vulnerable to theft and attempted theft
of ItS property Its employees are IneVItably presented wIth temptIng opportumtIes for dIshonest
behavIOur and there are practIcal lImIts to the secunty measures that can be taken to guard
agaInst the mIsappropnatIOn of money or goods"
AccordIngly deterrence IS a very legItImate concern, and the gnevor's probatIOnary status IS
a sIgmficant conSIderatIOn In determInIng whether or not to SubstItute a penalty other than
18
dIscharge I am very concerned about sendIng a message that a probatIOnary employee who
engages In seven acts of IntentIOnal theft cannot properly be termInated for hIS conduct.
There are, however several factors In the gnevor's favour From the gnevor's testImony
at the heanng, It IS clear that he IS very remorseful for hIS actIOns He accepted full responsIbIlIty
for hIS conduct and acknowledged that It was wrong. WhIle the Employer qUIte correctly pOInts
out that the gnevor dId not admIt hIS theft at the tIme as dId the gnevors In some of the cases
cIted by the Umon, the gnevor's lack of a substantIve response to the NOill was based on the
InstructIOns of hIS cnmInal lawyer not to say anythIng untIl the cnmInal charges had been
resolved. Under these cIrcumstances, the gnevor's faIlure to dISCUSS hIS actIOns cannot be held
agaInst hIm. In OBLEU (Reed) supra, the gnevor ImtIally admItted to the theft when arrested,
then declIned to elaborate at a meetIng wIth management. The Board ruled that "[w]e do not
consIder hIS retIcence dunng the meetIng of June 13 1991 to be matenal as he was actIng
pursuant to the InstructIOns of the lawyer handlIng the cnmInal charge" The same applIes here
The gnevor testIfied that he realIzed that he had dIsappoInted a lot of people, IncludIng hIS
famIly hIS fnends and the employer He apologIzed to the DIstnct Manager at the heanng. The
Employer asserts that thIS apology dId not come untIl the heanng, whIch IS too late In the day to
be meamngful Normally In my VIew apologIes at an arbItratIOn heanng are of lImIted value,
but In thIS case, the gnevor explaIned that he had been told not to contact the employer There
were no follow-up questIOns to explore thIS InstructIOn, and the InstructIOn, on ItS face, IS not
unreasonable gIven the CIrcumstances of hIS termInatIOn and eXIstence of the gnevance
Consequently I conclude that the heanng may well have been the first opportumty that the
gnevor had to apologIze to the employer SInce hIS termInatIOn. I also conclude that the gnevor's
apology was SIncere
19
The Umon further asserts that the gnevor's breach of trust was an aberratIOn In hIS normal
conduct, although not a "momentary aberratIOn." It pOInts out that there IS no eVIdence or
suggestIOn that he had engaged In theft at any tIme before The Umon's posItIOn finds support IS
Dr Hoffer's letter where he states that "the CIrcumstances of [the gnevor's] takIng money was,
and IS, completely out of character for hIm" Dr Hoffer describes the gnevor as a "decent young
man of good character" who made a "bad mIstake"
The case law appears to take two approaches to "aberratIOn" as a mItIgatIng factor The first
VIew IS that the act must be a "momentary aberratIOn" as In a spur of the moment decIsIOn rather
than a pre-medItated act. The other approach looks at whether the conduct was an "aberratIOn"
from the gnevor's usual trustworthy behavIOur OPSEU (Menzies) supra
In OBLEU (Reed) supra, the gnevor a casual clerk stole money on "one or two" occaSIOns,
from the LCBO by "under-nngIng" customer purchases and pocketIng the dIfference He was
arrested and pleaded gUIlty to theft. The Board held at p 13 that "the theft was not a momentary
aberratIOn If defined In temporal terms" and that each theft was "delIberate and well planned."
But It contInued "Nevertheless, we thInk that the conduct may be VIewed as an aberratIOn In the
context of the gnevor's overall work record WIth the Employer" The gnevor had worked as a
casual clerk for 3 1Iz years and there was no eVIdence of any other work-related problems He
acknowledged that at the tIme he was abusIng drugs and engaged In the theft to support and fund
hIS drug use The Board concluded that hIS "normal Judgement and conduct were dIstorted
dunng thIS penod of heavy drug use" (DecIsIOn at p 13)
20
In thIS case, the gnevor's seven acts of theft clearly were not a "momentary aberratIOn." The
eVIdence suggests, however that they may have been an aberratIOn from the gnevor's usual
behavIOur There IS no eVIdence of any past work-related problems or pnor SuspICIOn about the
gnevor's cashIenng.
Further SInce the gnevor's termInatIOn, he has taken a number of actIOns whIch suggest that
hIS personal lIfe and employment may be rehabIlItated. As stated In Dr Hoffer's letter and
confirmed by the gnevor at the heanng
He attended some meetIngs of AlcoholIcs Anonymous to galvamze hIS
understandIng of the severe Impact alcohol abuse could have on hIm He
accepted the endIng of the relatIOnshIp wIth hIS gIrlfnend. He attended to therapy
seSSIOns wIth me to restore hIS mood and IS no longer depressed. He has
scrambled hard to find even temporary work. He has commItted to takIng
medIcatIOn for hIS ADD symptoms, If reqUIred and IndIcated.
These factors are sIgmficant and make thIS a truly dIfficult case to decIde I have also
consIdered Dr Hoffer's representatIOns about the dIfficultIes In the gnevor's early lIfe
Unfortunately these factors, wIthout more, do not establIsh "compellIng mItIgatIng
cIrcumstances" whIch demonstrate that a penalty other than dIscharge IS Just and
reasonable In all of the CIrcumstances The nature of the gnevor's thefts In thIS case IS
partIcularly egregIOus They Involved seven delIberate acts of theft In two days, and were
only caught because a hIdden camera was placed over the gnevor's cash regIster The
amount stolen, $37640 In two ShIftS, was also sIgmficant. There was no sympathetIC
personal motIve for the thefts He abused hIS posItIOn to obtaIn extra money His status
was that of a probatIOnary employee at the tIme He knew what he was dOIng at the tIme
was wrong.
21
Another final factor to consIder IS the economIC Impact of the dIscharge In VIew of the
gnevor's age and personal CIrcumstances The gnevor IS 25 years old and has, not surpnsIngly
been unable to find full-tIme work SInce hIS termInatIOn. He testIfied about the efforts he has
made to find work, and Dr Hoffer's letter addressed that pOInt as well
The Umon relIes on Re Carling 0 Keefe Breyt,eries of Canada Ltd and Canadian Union
of United Breyt,ery Workers Local 325 (1982) 6 LAC (3d) 412 (McLaren) In whIch the
arbItrator reInstated a 19-year old employee, wIth 1 1Iz years of servIce, who stole, on one
occaSIOn, two cases of beer from hIS employer He admItted to the theft folloWIng the gnevance
procedure and agaIn at the heanng. He wrote a note of apology to the employer and was "truly
contnte" The arbItrator found "the personal and economIC effect on the gnevor of a contInued
dIscharge to be too severe a penalty for hIm to bear for the rest of hIS lIfe" Although he knew
better than to engage In the conduct In whIch he dId, and It was not a "spur of the moment"
actIOn, the arbItrator ruled that "hIS youthfulness ought to be taken account of" He contInued at
pp 414-415
If I were not satIsfied that the trust could be retneved then I would not mItIgate
thIS dIscharge I do so In thIS case because I am Impressed that the gnevor IS a
young man of good character who has made one drastIc mIstake In hIS lIfe He
ought to be gIven another chance
The arbItrator Imposed a sIx-month suspensIOn to ensure deterrence, and reInstated the gnevor
although the company dId not have to return hIm to hIS former J ob If It felt It could not trust hIm.
In thIS case the gnevor IS 25 not 19 His actIOns do not appear to be In the nature of a
single "youthful IndIScretIOn." They were repeated, IntentIOnal acts of theft.
22
Nor am I convInced that the level of trust essentIal to the employment relatIOnshIp could be
retneved. The gnevor's posItIOn Involves substantIal cash responsIbIlItIes He ran ShIftS and
possessed keys to the store and keys to the cash regIster He was reqUIred to balance deposIts and
place deposIts Into the safe as well as assIgn and supervIse other employees Although counsel
for the Umon suggested that condItIOns could be attached to the gnevor's reInstatement,
IncludIng no cash responsIbIlItIes, there was no eVIdence on the feasibIlIty of that, nor of any
posItIOns on the retaIl sIde whIch do not Involve cash handlIng. For a CSR, cash handlIng and
trust are essentIal to the J ob
Consequently after consIdenng all of the eVIdence and the arguments of the partIes, I cannot
conclude that I ought to exerCIse my dIscretIOn to SubstItute another penalty In thIS matter The
gnevance IS therefore dIsmIssed.
Issued at Toronto thIS 31st day of October 2003
,hnnt61