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HomeMy WebLinkAboutRaymond 07-07-03 IN THE MATTER OF AN ARBITRATION brought pursuant to the Ontario Labour Relations Act, 1995 (Grievance ofM. Raymond) BETWEEN: NORTHEAST MENTAL HEALTH CENTRE (the "employer") - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION (the "union") AWARD Arbitrator: Marilyn A. Nairn Hearing held: May 10 and 11,2007 North Bay, Ontario APPEARANCES For the union: Kirsten Agrell For the employer: Geoff Jeffery AWARD This grievance challenges the employer's decision to terminate the employment of Mr. M. Raymond (the "grievor") from his position as a Registered Nurse at the Northeast Mental Health Centre (the "employer" or the "hospital"). The parties agree that I have the jurisdiction to hear and determine the matter. The union concedes that there was cause to discipline the grievor. The parties agree that the only issue between them is the appropriateness of the penalty imposed by the employer and that further, I have the discretion to substitute such penalty as seems just and reasonable in all of the circumstances. The parties referred me to and I have reviewed the following awards: Re United Steelworkers of America, Local 3257 and the Steel Equipment Co. Ltd., (1964) 14 L.AC. 356 (Reville); Re Scarborough General Hospital and Ontario Nurses' Association, (1993) 35 L.AC. (4th) 119 (Petryshen); Re Regional Health Authority 2 and Canadian Union of Public Employees, (2004) 132 L.AC. (4th) 160 (Bruce); Re Winners Merchants IntI. LP and UNIT.E. H.E.RE. Ontario Council, Local 152, (2006) 151 L.AC. (4th) 420 (Levinson); Re Victoria Hospital Corp. and Ontario Nurses' Association, (1989) 3 L.AC. (4th) 403 (Bryant); Re Canpar and Transportation Communications Union, (1997) 66 L.AC. (4th) 1 (M. Picher); Re Richardson Terminals Ltd. and Transportation-Communications International Union, Lodge 650, (1998) 85 L.AC. (4th) 104 (Shime); Re Atlas Cold Storage and Retail Wholesale Canada - CA. W Division, Local 1015, (2001) 98 L.AC. (4th) 248 (North). There is no dispute as to the factors that arbitrators generally take into account in assessing whether the penalty of discharge is appropriate in the circumstances (See Steel Equipment Co. Ltd., supra.). Nor is there any dispute that the onus of establishing mitigating factors lies with the union. The dispute centres on the application of those factors to the facts of this case. The parties filed a Statement of Agreed Facts, which provides as follows (the exhibits have not been reproduced): 1. The parties agree that there are no objections to the jurisdiction of the arbitrator to hear the matter, that there are no objections to the form or timeliness of the grievance, that the following facts are agreed to be accurate for the purpose of this hearing, and can be relied upon by the arbitrator in making her determination on this matter. 2 2. As a result of a Memorandum of Agreement dated 2 September, 2005 between the Crown and the Employer (the "Agreement"), the Employer took over operation of the North Bay Psychiatric Hospital on 21 November, 2005. A copy of the Agreement is attached as Exhibit "A". The facility is now known as the North Bay Campus of the Northeast Mental Health Centre. The facility employs approximately six hundred and fifty people and provides in-patient care for approximately two hundred patients with serious mental illness. 3. While there is no collective agreement currently in place, the parties agree that the terms and conditions of employment are governed by the Agreement and the Voluntary Recognition Agreement between the parties dated 27 September, 2005 (the "VRA"). A copy of the VRA is attached as "Exhibit "B". 4. Most employees, including the Grievor, were offered positions of employment by the Employer commencing 21 November, 2005 (Agreement, Article 3.01). A copy of the letter of offer from the Employer to the Grievor, including the Grievor's acceptance of the offer is attached as "Exhibit "C". 5. In accordance with the Agreement, the Grievor commenced his employment with the Employer and maintained his position as a Registered Nurse, including his seniority and service, after the transfer. The Grievor was hired by the predecessor employer on 12 October, 1993. Accordingly, the Grievor had approximately thirteen years of combined seniority with the Employer and its predecessor at the time of his discharge. The Grievor's most recent assignment was to provide professional nursing services to patients on the minimum secure ward of the Forensic Program, Ward 4B. These patients are designated by the Ontario Review Board to reside at the Northeast Mental Health Centre, North Bay Campus, on the minimum secure unit. There is a mix of male and female patients on the unit, with a variety of psychiatric diagnoses and functioning levels. 6. On 24 December, 2006, at approximately 11:00 p.m., the Grievor entered a locked multi-purpose room and took at least two gift cards, one for Galaxy Movie Theatres and one for Tim Horton's, with a combined value of $20.00. These certificates were among the items purchased by the Leisure Life Skills Instructor with money donated by the 3 Volunteer Association affiliated with the Employer and intended to be given to the patients of the hospital as Christmas gifts. 7. The room was monitored by a video surveillance camera installed for security and safety purposes with the knowledge of the union and of the staff of the facility, including the Grievor. 8. On 19 January, 2007, the Employer met with the Grievor and his union representative. The Grievor initially stated that he did not know what the allegations against him could be, but when informed that gifts had been stolen, he admitted to taking two gift certificates. He claimed that they had been taken after Christmas and that he considered them to be "extra". He acknowledged that it had been a mistake to take the items and offered to return the Galaxy Cinemas gift card. The Grievor was informed that he would be placed on administrative suspension with pay pending the Employer's determination of a disciplinary sanction. A letter confirming the admission and scheduling a further meeting was provided to the Grievor on 19 January, 2007. A copy of this letter is attached as "Exhibit D". 9. On 23 January, 2007, the Employer met with the Grievor and his union representative and terminated his employment. A copy of the termination letter dated 23 January, 2007 is attached as "Exhibit E". As indicated in the letter, the matter was reported to the College of Nurses. 10. The Union and the Grievor do not dispute the theft of the items as described above nor that the theft constituted misconduct which justified the imposition of discipline by the Employer. The parties disagree as to whether discharge was the appropriate disciplinary response. 11. The parties reserve the right to call additional evidence of mitigating or aggravating circumstances. Mr. James Jelly, the Nurse Manager on Unit 4B, testified about the investigation he conducted concerning this incident. On or about January 17, 2007 the ward clerk who had worked with the Leisure Life Skills Instructor in arranging for patient gifts reported to Mr. Jelly that a 4 patient had not received a Wal-Mart gift card as expected and that there appeared to be some other gift cards missing from the gifts that patients had received at Christmas. The gift cards are purchased based on patient and/or family requests, having regard to the particular patient's ability to be in the community. The gifts were being kept in a locked multi-purpose room on the ward. Each was in a gift bag that included items in addition to the gift cards. The room was equipped with a surveillance camera in order to record patient interviews that were sometimes conducted there. Mr. Jelly had been reviewing the tape about ten days before in an attempt to determine how much the room was being used. Having received this report from the ward clerk, he reflected on activity that he had noticed in passing and which now struck him as peculiar. As a result, he again reviewed the tape and observed three persons entering the room during the period from when the gifts were placed in the room until they were distributed. One person brought another gift to the room and left it with the others. A second person entered the room and reorganized the gifts. Mr. Jelly did not observe anything being removed on that occasion. Mr. Jelly also observed the grievor entering the room just after 11 p.rn. on Christmas Eve. He observed that the grievor went to the gifts, and on four occasions took an envelope out of the gift bags and reviewed its contents. Mr. Jelly observed that on at least two occasions the grievor put those contents in his back pocket. The grievor did not turn the light on as he entered the room and he was in the room for approximately two minutes. Still photos from the tape were entered as exhibits. Mr. Jelly reported his findings to his supervIsor and spoke with Ehren Baldauf, the hospital's Human Resources Consultant. Following his advice, Mr. Jelly obtained a list of patient gift purchases and on January 18, 2007 Mr. Jelly interviewed some of the patients by engaging them in conversation about their Christmas celebrations and asking after their gifts. Mr. Jelly recognized that some patients did not function at a level to enable them to respond to this kind of approach and Mr. Jelly recognized that certain others might provide responses that were unreliable. He was, in his view, reliably able to determine that four gift cards were missing. As a result, a meeting was arranged with the grievor and his union representative for the next day. The essentials of that meeting are captured in paragraph 8 of the Statement of Agreed Facts. Following that meeting and notwithstanding that the tape recorded the date and time, Mr. Jelly reviewed the tape again as a result of the grievor's assertion that he had taken the gift cards after Christmas. The grievor did not enter the room again until after 11 p.m. on January 2, 2007 by 5 which time all the gifts had been removed. Pop and chips for the patients were in the room. Mr. Jelly did observe the grievor eating chips, taking a full bag of chips, and leaving the room with it. Mr. Jelly reported these findings. The Executive Director of Clinical Programming also asked him for detailed information about the grievor's employment history and work performance. At a second meeting on January 23, 2007, the grievor's employment was terminated. At that meeting the union representative raised the possibility that the grievor's judgement at the time may have been affected as a result of medication that the grievor had been taking. Mr. Jelly agreed in cross-examination that lying or stealing by patients was sometimes an issue on the ward. He agreed that the grievor acknowledged taking the two gift cards in the January 19,2007 meeting when first told that gifts had gone missing and that the grievor stated at that time that he realized it was wrong to have done so. He was not cross-examined about that meeting in any other respect. It is clear from the evidence that Mr. Jelly conducted a careful investigation, giving the grievor the benefit of any doubt. The surveillance tape operated on a loop, that is, it continuously recorded over earlier activity, resulting, it appears, in about a month of activity available for review. The camera was not connected to a monitor at the nursing station so activity could not be observed without actually reviewing the tape. There appears to have been no regular schedule for any such review. The grievor testified that he did not know if the tapes were reviewed at all and that he was aware that the multi-purpose room was used only infrequently. The grievor has thirteen years of service and has been employed at the hospital since his graduation as a Registered Nurse. He is 51 years old. Although the employer indicated that it was not relying on any disciplinary record to support its decision to terminate the grievor's employment, the union led evidence to seek to establish the grievor's good employment history. As a result, the employer led evidence to counter that assertion. The grievor's employment history contains both positive and negative aspects. He was commended by the local police in 2000 for his assistance in dealing with a standoff involving a mentally disordered citizen. He received a non-disciplinary letter of counsel in 2000 for failing to follow hospital policy by failing to notify the supervisor in a timely manner and for failing to notify the fire department following a fire on his ward while working as the Charge Nurse. He was also criticized by the predecessor employer in 2004 for misrepresenting to local businesses that a staff golf tournament that he attempted to organize was sanctioned by the 6 hospital. This occurred in circumstances where he solicited donations from local businesses for prizes using hospital letterhead without permission. The grievor described his personal circumstances at the time of the incident. He was scheduled to work nights through most of the Christmas week. His wife was leaving for the holidays to be with her parents. His oldest daughter had just announced that she was moving to Edmonton and he was upset at the prospect of not being able to see her on a regular basis. On December 22, 2006, the grievor was prescribed and apparently began taking blood pressure medication. He described himself as very light-headed and uneasy. Also on December 22, 2006, the grievor started to develop an ulcer on his buttock that became very uncomfortable and painful. He took percocet, pain medication prescribed for him for a back injury he had suffered at work a few years earlier. The grievor also testified that at the time of the incident he did not believe himself to be impaired by medication. However, in hindsight he testified, perhaps he had been. No medical evidence was tendered in support of his assertion. By December 27, 2007, the ulcer required emergency drainage and packing which required cleaning and re-packing for three weeks thereafter while it healed. In response to an employer objection during the grievor's evidence, the union confirmed that it was not relying on any assertion that the grievor's actions had been caused by any diminished or impaired mental state arising from medication. The evidence was being led, the union asserted, to show the "kind of week he was having". In chief, the grievor testified that, in addition to acknowledging the theft and that it was wrong at the first meeting with the employer, he had offered to give one gift card back and that he believed he had offered to pay for the other. The grievor described the impact of the events as devastating to him and his family. He testified that the termination had caused financial difficulties. He testified that the employer could trust him because of the extenuating circumstances, the fact he had a clean record and had never done anything like this in the past, and recognizing that his state of mind at the time had not been good, but that things were better now. The grievor's evidence in cross-examination painted quite a different picture. His answers were unresponsive on a number of occasions. Repeatedly the grievor deflected or downplayed the 7 circumstances, the hospital's concerns, and his role and responsibility in events. The following are examples. The grievor was asked about the fact that he had solicited donations for tournament prizes from local businesses on hospital letterhead without obtaining permission for its use. His response, when asked if the hospital was upset about the issue was, "I can't say, we met about it". He subsequently agreed that the hospital was not pleased. Late in his cross-examination, he was asked how he thought the patients felt when they did not receive their expected Christmas gift. He answered, "I don't know". When asked if he thought they were happy, he responded, "I can't say what they were thinking, I wasn't there". Not only is the response somewhat argumentative, it seems trite to point out that the grievor's work, requiring him to continually assess mentally ill patients' well-being, would make him well placed to offer an opinion as to the likely effect of not receiving an expected gift. More to the point, in both situations the answers demonstrate an unwillingness to acknowledge the impact of his actions on others. In chief: the grievor testified that performance appraisals usually occur every year and that his recent performance appraisals were positive. In cross-examination, it was suggested to him that his last performance appraisal occurred in February 2004. While the grievor agreed that such was possible, he went on to assert that he had completed one more recently. He then clarified that he was referring to having completed his portion of the appraisal and that, according to the grievor, he was "waiting for the hospital's response". When it was put to him that no complete appraisal had been done since 2004 the grievor replied, "I can't disagree with that". The grievor understood that his performance appraisals were potentially important as a reflection of the employer's views. Rather than simply acknowledging from the outset that his performance appraisals were not up to date, the grievor exhibited a willingness to manipulate the information in a more favourable light and when challenged, to attempt to deflect attention back to the employer. Similarly, in chief: the grievor testified that he "believed" he had offered to pay for the Tim Horton's gift certificate at the first meeting with the employer. The making of this offer of restitution was not put to Mr. Jelly and is not reflected in the Statement of Agreed Facts. Through these examples, the grievor showed that he was willing to attempt to mislead this process. I am persuaded that the following exchange reflects an attempt by the grievor to distance himself from the account of the incident he provided to the employer at the meeting on January 19, 2007. Notwithstanding that the union had advised that it was not asserting that the grievor's actions 8 had been caused by any diminished or impaired mental state arising from medication, the grievor did attempt to relate the taking of medication to his reaction at the meeting on January 19, 2007. The grievor testified in chief that he realized he should not have taken the items and seemed to suggest that because of the medication he could not remember who he had been working with that night or the date the incident had happened. In cross-examination, the grievor agreed that Mr. Jelly's account of the January 19, 2007 meeting was 'pretty accurate'. The grievor was asked to confirm that he had told the employer at that meeting that he had taken the gift cards after Christmas. The grievor responded (apparently in reference to his evidence in chief and the allusion to medication effects), "as I said, I couldn't remember". He went on to say that it was what he believed. This suggests that his assertion at the meeting reflected a failure of memory and a mistake, rather than a lie given to excuse or minimize his actions. Later in his cross-examination, the grievor was asked whether he remembered telling the employer that he took the gift cards after Christmas. He testified that he had said he did not recall exactly when it happened. When challenged he amended his response. He testified that he believed that he had told the employer that he had taken the gift cards after Christmas but that at the time of speaking with the employer he did not recall when the incident occurred. This evidence begs the question of why, if the grievor was being truthful, he would have told the employer on January 19, 2007 that it was after Christmas ifhe could not remember. Further, the grievor's obfuscation in his evidence directly contradicts the Statement of Agreed Facts, which states that at the January 19, 2007 meeting the grievor claimed that he had taken the gift cards after Christmas and that he thought they were extras. Finally on this point, the grievor was asked, having heard that Mr. Jelly had reviewed the tape again as a result of the grievor's claim as to the timing of the incident, did he agree that the video contradicted his statement regarding the date of the incident. The grievor's response was "I have to take his word for it". When offered the opportunity to review the tape, the grievor declined and accepted Mr. Jelly's evidence. I am satisfied on the evidence that the grievor lied about the date of the incident when first confronted by the employer in an effort to seek to minimi:;:e his misconduct. Moreover, I am persuaded that this evidence reflects not only an unwillingness on the grievor's part to acknowledge that he lied to the employer on January 19, 2007, but also an active and ongoing attempt by the grievor to seek to minimize his responsibility for his actions. 9 In chief, the grievor testified that he went into the multi-purpose room looking for snacks for the patients. He found none but noticed the gift bags. He testified that he did not recall seeing labels on the gift bags, as it was dark in the room. In cross-examination, it was suggested to the grievor that he knew that the gift cards were not extras and that his assertion to that effect to the employer on January 19,2007 had also been a lie. The grievor acknowledged that he took the gift cards from the gift bags but asserted that there was no way of knowing who or what they were for. The grievor denied knowing that the gifts were designated for patients and asserted that there was no way of knowing. I have no clear evidence that the gift bags had nametags attached. When asked however if he was guessing that the gift cards found in the gift bags were extras, the grievor answered that he "could have guessed they were designated for staff", that one "can't assume they were designated for patients". He reiterated that he did not know that the gift cards were designated for patients on the ward. The grievor's evidence inferred that a theft from staff was a lesser offence than a theft from patients. More importantly, these responses beg the question of how the grievor reached the conclusion that the gift cards were extras when he found them in gift bags with other items and if he did not know who or what they were for. Such a conclusion requires a leap in logic that strains credibility. The grievor was aware that gifts were given to patients at Christmas. He was aware that the Volunteer Association contributed money towards those gifts. I find it is more probable that the grievor knew that the gift cards were not extras but again was unwilling to acknowledge that he had lied to the employer on January 19, 2007 in an attempt to mitigate his conduct. In cross-examination, the gnevor was asked if he agreed with the statement that misappropriation of any kind undermined the trust placed in him. This question was put to him in conjunction with an excerpt from a College of Nurses of Ontario Reference Document regarding professional misconduct. He responded that he believed the reference specified theft from clients. That document speaks to trust as a cornerstone of the nurse-client relationship and also expressly states that nurses are in a position of trust with their employer. It speaks to misappropriating property from "a client or workplace". The grievor was asked to read the excerpt and was then asked again ifhe agreed that his actions had undermined the trust placed in him by the employer. He expressly did not agree. He went on to state that he did not agree because he did not realize who he was taking from, although he acknowledged that he knew that he was taking something he shouldn't have. 10 In reply, in response to an invitation from his counsel to agree that this matter was important, the grievor responded that he took something that was not his, it was a serious error of judgment, and that if he had known specifically that the gift cards were destined for patients, he would not have done it. The grievor apparently believes that it would not have been particularly important had he stolen gift cards from his colleagues or the hospital. While patients are the most vulnerable of this group, the response summarizes the unwillingness on the grievor's part to accept appropriate responsibility for his actions and, more importantly, to provide reassurance to the employer that he is able to be trusted in the future. The grievor's wife and a co-worker testified in support of the grievor and spoke to his character and to his good work with mental health patients. The grievor's clinical nursing skills are not, strictly speaking, in issue. I have placed no weight on the character evidence as I find that it is not confirmed by the grievor's own evidence concerning the circumstances surrounding the incident and the grievor's response to his own actions. Theft and other forms of dishonesty are among the most senous breaches of the employment relationship. The patients on Unit 4B are of the most vulnerable nature. They are remanded from the criminal court into psychiatric care by reason of the court's finding that they are not criminally responsible for the illegal conduct that they have engaged in. Mr. Jelly acknowledged that lying and stealing by patients was sometimes a problem. The grievor acknowledged that as a Charge Nurse he played a leadership role and that his conduct did not reflect a good example. In addition, the nature of the theft reflects a particular callousness; stealing gifts on Christmas Eve. It should come as no surprise that the hospital viewed this conduct as particularly troubling coming from one of its registered staff. The union relied on the grievor's thirteen years of service and discipline free record to argue that discharge was too severe a penalty. It argued that the theft was an isolated incident and was committed on the spur of the moment. I find that the employer has not established to the standard required that the theft of the gift cards was premeditated. Deliberate action may not always be premeditated action. I am, in this finding, giving the grievor the benefit of all reasonable doubt. The fact that the grievor was aware of a surveillance camera in the room does not support a finding of momentary aberration on the grievor's part. He had no expectation that the tape would ever be reviewed. Mr. Jelly did question why the grievor would be entering the room at 11 p.m. to obtain snacks for patients. Given the grievor's own evidence, it is possible that he entered the room in 11 order to obtain a snack for himself, a matter that would have likely attracted a different kind of attention from the employer. The grievor's evidence that this sometimes occurred on the unit and was known to the employer went unchallenged by the employer. The grievor testified that he could not assist his daughter with her student loan and that he had to use some of his savings as a result oflosing his employment. The grievor apparently received Employment Insurance. These consequences are expected and usual and are not representative of special economic hardship so as to warrant weight as a mitigating factor. In theft cases, one of the most important considerations is whether the employment relationship continues to be viable. In Re Scarborough General Hospital, supra, the issue is described as follows at page 127: In our view an important question for an arbitrator in a [theft case] is to ask whether the employee can still be trusted by the employer. Another way of asking the same question is to ask whether the employment relationship has been so damaged that it cannot be salvaged. If the facts suggested to us that [the grievor] could not be trusted we would find it inappropriate to reinstate her. . . . . The hospital is entitled to expect a high degree of trust from its professional employees. .. ... The message to other employees is only when mitigating circumstances are present will theft result in a penalty other than discharge. In that case, a registered nurse was reinstated to employment without compensation as the arbitration board concluded that she had recognized that her actions were wrong and that her evidence to that effect was given "not out of mere convenience". Similarly, in Re Can par, supra, the grievor, a long service employee, had taken a wallet from the ground near the door to a customer's home. The arbitrator noted that the grievor could simply have discarded the wallet and denied any knowledge of it. Instead, the grievor had returned the wallet with an apology, admitted what he had done and in a written statement to the employer and at the hearing, expressed sincere remorse for his mistake. A case somewhat similar to the one at hand is Re Winners Merchants IntI LP, supra. The employee was discharged for theft of hand lotion. She had unlocked the pump to dispense lotion from an otherwise unopened bottle in a distribution centre where she worked. As a result of using some lotion, the bottle could not be sent to a retail store. The retail value of the lotion was $5.99. Although the arbitrator in that case concluded that the theft was premeditated, it appears to have 12 been no more so than the grievor's actions here although both acts had a deliberate quality to them. In dismissing the grievance, the arbitrator commented at pages 423-24: In short, the evidence demonstrates that the grievor has not squarely come to grips with the concerns that her actual misconduct raises. She has not shown genuine contrition for her actual misconduct..... The effect of this is to heighten rather than ameliorate the self- evident concerns the grievor's actual misconduct raises pertaining to her trustworthiness and current rehabilitative prospects. I consider this factor to be a more reliable indicator of the grievor's lack of reasonable prospects for rehabilitation, than any positive inferences that objectively can be drawn about her rehabilitative prospects from her seniority and her discipline-free record. In brief, the grievor's actual conduct together with her evidence at the hearing shatter the basic foundation of trust necessary to potentially restore a viable employment relationship with her Employer. When an employee is confronted by an employer with their misconduct, an employee's remorse may be coloured by the anticipation of disciplinary consequences. There is the potential for "I'm sorry I got caught" rather than "I'm sorry for what I did". However, as set out in Re Richardson Terminals, supra, at page 120, arbitrators recognize: ... .where the employer confronts the employee, remorse and contrition are bound-up with an anticipation of the disciplinary consequences of the conduct. What is clear in these situations, however, is that a prompt and frank or honest acknowledgment of wrongful conduct by the employee suggests that the employee has rehabilitative potential and that a corrective disciplinary approach, rather than discharge may be the more appropriate sanction. Those cases where there is a prompt and frank acknowledgement may usefully be compared to cases where the employees fail to acknowledge their wrongdoing, persist in lying, or suggest that other persons have stolen the employer's property. In those cases, arbitrators have not reinstated. The union relied on the grievor's personal circumstances that week to mitigate his conduct. Had the grievor 'come clean' with the employer or at the hearing, one might be persuaded to conclude that those circumstances had had an impact on the impugned behaviour and that, as those circumstances had passed, the grievor would be able to return to employment having otherwise shown that he accepted responsibility for his misconduct and was genuinely remorseful. However, such was not the case here. Notwithstanding his initial admission to the employer, the grievor refused to acknowledge that he had also lied to the employer on January 19,2007. He continued to attempt to minimize the theft by asserting that he did not know who the gift cards were destined for. He does not appear willing to recognize the impact of his actions on others. He expressly disagreed that his actions had undermined the trust placed in him by his employer. The fact that he was acting as Charge Nurse at the time only heightens one's concern about the grievor's lack of insight as to his professional responsibilities to this employer. 13 The grievor has shown that he is unwilling to take appropriate responsibility for his actions by continuing to obfuscate. He has failed to reassure the employer or this arbitrator that he has the rehabilitative potential to enable him to regain the employer's trust should he return to work. His length of service, lack of a disciplinary record, and the fact that the goods were of small value do not overcome these concerns. I find no basis upon which it would be appropriate to interfere with the penalty imposed by the employer. Having regard to all of the above, this grievance is hereby dismissed. Dated at Toronto, Ontario this 3rd day of July, 2007. M~~~