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HomeMy WebLinkAbout1982-0002.Wells.82-03-16 Decision• ONTARIO CROWN EMPLOYEES GRIEVANCE SETTLEMENT BOARD 180 DUNDAS STREET WEST. TORONTO, ONTARIO. M5G 1Z8 -SUITE 2100 TELEPHONE , 416/598- 0688 2/82 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OLBEU (Kenneth James Wells) Grievor - And - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer Before: Mr. R.L. Verity,Q.C.Vice Chairman Prof. P. Craven Member Mr. A. G. Stapleton Member For the Grievor: Mr. A. Milliken Heisey, Counsel Blake, Cassels & Graydon For the Employer: Mr. D. K. Gray, Counsel Hicks, Morley, Hamilton, Stewart & Stone Hearing: March 11, 1982 AWARD The Grievor, Kenneth Wells, alleges that he was unustly _ismissed on November 29th, 1981, from his position as Clerk the Liquor Control Board of Ontario Store 4163 in Scarborough. The sole issue in this Grievance is the appropriateness of the penalty imposed. The Grievor is 29 years of age, and has been in the full time employment of the Liquor Control Board of Ontario since August of 1979. His first job was as a Clerk at Store #195, and he was subsequently transferred at his own request, to Store #163 approximately three months before his dismissal. In the classification of Clerk 3, the Grievor's responsibilities would essentially be to replenish liquor stocks on the shelves, assist customers in selection, and -ng in cash sales at the counter. Store #163 is a self-serve store where the Employees work on either a day shift (8:30 a.m. to 5:30 p.m.) or an evening shift (3:00 p.m. to 10:00 p.m.). On October 28th, 1981, the Grievor worked the evening shift and at approximately 9:00 p.m. was advised by the Assistant Manager, Gordon Berger, that he was free to leave work. In the normal fashion, the Grievor then proceeded to the rear of the store to obtain his ;**G*.io Another store Employee, Randy Smith who was manning the cash counter, observed the Grievor take a "mickey" of cherry brandy (value $4.90) from the liqueur island, and deposit the bottle in his right hand jacket pocket. Mr. Smith immediately notified the Assistant Manager, Gordon Berger, by activating a buzzer at the cash counter. Mr. 3erger immediately came to the counter. Smith continued his surveillance of the Grievor, and observed the Grievor pick up a six pack of beer and proceed to the check out counter. Wells thereupon paid $3.60 in cash for the beer. Smith then noticed the "mickey" in the Grievor's hip pocket and asked the Grievor for payment. The Grievor feigned surprise at this request, and stated that he had already paid for the "mickey". Smith removed the bottle of cherry brandy from the Grievor's hip pocket. The Grievor was then taken to the Manager's office for a brief meeting with the Assistant Manager. Wells then left the store and returned within minutes to the manager's office. Mr. Berger's recollection of the two meetings in the Manager's office were vague to say the 'east, but it was established that the Grievor was reprimanded for his actions and was suspended for one day. The Grievor's explanation was that he was obtaining the bottle of cherry brandy for his wife. On leaving the Manager's office for the second time, the Grievor attempted unsuccessfully to strike Randy Smith with the beer, swore at him, and threatened to "get even". The incident proved somewhat unnerving for Randy Smith, and Smith subsequently reported the attempted assault to the Police. As mentioned previously, the Grievor's employment was terminated on November 29th, 1981. The Grievor was subsequently charged with theft under $200.00 under the Criminal Code of Canada, 4 and on January 14th, 1982 he pleaded guilty to the charge. - Provincial Court (Criminal Division) suspended sentence and placed the Grievor on probation for a two year period, on condition that he maintain his membership in Alcoholics Anonymous. The day after the incident at the Licuor Store, the Grievor wrote to Mr. J. E. Jennings, Director of Store Operations of the L.C.B.O., which was the usual procedure, and in so doing attempted to explain the incident (Exhibit 3B). Part of that explanation was as follows: "For the last five to six months leading up to this, I have been plagued with financial and marital problems. For relief I turned to drinking and taking drugs to over come these pressures. On the date in question all these troubles were just too much for my mind to handle. All I could think of was in drowning my troubles. Without even realizing what I was doing I took a bottle through the cash and was caught. I've now been in touch with the union and have asked for assistance to get into their re-Hab program." Shortly after the first letter to Mr. Jennings, the Grievcr wrote a second letter, apologizing for his actions and expressing regret over the incident. - 3 - On December 14th, 1981, the Griever again wrote to 1.:r. lennings (with the assistance of his Counsel) explaining that cn the day in question he was "extremely intoxicated", that he now recognized that he was an "alcoholic", that he had joined Alcoholics Anonymous, and that he was now aware of the joint Board-Union "Employees' Assistance Program" and would enroll in that program in the event he was rehired. The Employer's case was based on the fact that the crime of attempted theft had been committed, that the Employee knew that his actions were improper and dishonest, and accordingly that the traditional penalty of discharge was the only appropriate penalty. Mr. Gray, on behalf of the Employer, argued that the Grievor's lultiplicity of explanations were not credible, and in particular that alcoholism had not been raised as an explanation until the Grievor's letter to Mr. Jennings of December 14th. In essence, it was the Employer's position that in this fact situation, alcoholism could not be advanced as a reason for the attempted theft, and therefore alcoholism should not be considered as a mitigating factor. In support of the Employer's contention, Randy Smith and Gordon Berger testified that the Grievor's general demeanor at work on October 28th appeared no different than on any other occasion. 6 Mr. Heisey, on behalf of the Grievor, argued that the evidence established that the Grievor was an alcoholic. Further, it was argued that the Grievor had a satisfactory employment record, with the exception of attendance on duty which was "below average", and that the incident in question, although serious, was an isolated event. In addition, the Grievor had admitted his wrongdoing the day after the event, and had actively embarked upon a program of rehabilitation -- all factors which should be considered by the Board in mitigation of the penalty. In assessing the evidence, this Board was impressed with the testimony of Randy Smith. He took the appropriate action on the day in question in reporting the activities of the Grievor to jordon Berger. His initiative in reporting the Grievor's conduct to the Assistant Manager was commendable, and he demonstrated maturity in maintaining his self-control when faced with the Grievor's insulting gestures. Without doubt, Randy Smith ,is honest and credible as a witness. We are of the opinion that the incident that occurred on October 27th involving the Grievor and Randy Smith concerning a conversation of "overages" in the day's cash was also handled adm'r='-'y by Randy Smith. In our view, that incident is totally unrelated to the attempted theft incident of October 28th. We are also of the opinion that Randy Smith's initial assessment of this discussion "that it was a joke", is an intelligent assessment of that incident. The Grievor testified that he recognized for the first cime that he was alcoholic the day after the incident of October 28th. His evidence was that on the evening of October 27th he had consumed approximately eight beers at his home after finishing work. He stated that he started drinking the next morning at approximately 9:00 a.m. and consumed seven ounces of vodka in the form of "screwdrivers". Prior to the commencement of his shift on October 28th at 3:00 p.m., he had three to five beers with his lunch and several valium pills. At the supper break, his evidence was that he consumed more beer (five to six beers). The Grievor stated that this quantity of beer and liquor was his normal daily pattern. He also stated that he was on valium as prescribed by his personal physician (Exhibit ,7). The Board accepts the Grievor's evidence as to the quantity of liquor and beer consumed on both the evening of October 27th and during the day of October 28th. Mr. Wells testified that he had been alcoholic since approximately age 14, and that he was aware that it had caused problems in his family relationship. His evidence was that he recalled with some clarity the events of October 28th, up to the time of his second office interview with Gordon Berger, and that subsequent events were totally "blacked-out" from his memory, The Grievor was candid in admitting his error and described his actions as "totally selfish and unjustifiable". He alleged that he held no grudge against either Messrs. Smith or Serger, and .hat he was appreciative of the fact that the discharge incident had forced him to re-assess and change his lifestyle. The evidence is uncontradicted that Kenneth Wells has joined Alcoholics Anonymous and is attending A.A. meetings regularly, approximately four times a week (many times in the company of his wife). The Grievor candidly admitted that he has slipped twice since joining A.A., but on each occasion rehabilitated himself with the assistance of a fellow L.C.B.O. Employee, Mr. Leo Kerr. Mr. Kerr testified that he had been an active member of N.A. since 1958, and that he was an alcoholic who had abstained from the use of liquor since that date, and was successfully employed by the L.C.B.O. for the past 15 years in the same classification of Clerk 3. He gave evidence that he was the "sponsor" ,of the Grievor in the A.A. organization, and that the Grievor did in fact attend regularly each week and was active in the organization. Mr. Kerr stated that Kenneth Wells "has all the traits of an alcoholic". He also stated from his experience that it was not unusual for a man to have "slips" during the first year of rehabilitation. Mr. Kerr vividly described his own lifestyle as an alcoholic prior to rehabilitation, which is characteristic of many alcoholics: "I wasn't drunk, I wasn't sober - I had a good quantity in me each day." and further that "It would surprise people who didn't know me how much I drank each day." 9 The Board was impressed by the maturity and candidness of this witness. Mr., Kerr's tenure of employment with the L.C.B.O. is a tribute to his strength of character. Lorenne Wells, the Grievor's wife, testified of her husband's "chronic drinking" that had continued unabated for 12 years during their relationship. The Board was impressed with this witness' objectivity, and her active encouragement and support of her husband's rehabilitation. She corroborated the drinking patterns and drug usages of the Grievor, and in particular the quantities of beer and liquor consumed the evening of October 27th and the morning of October 28th. Mrs. Wells testified that in her opinion, her husband is an alcoholic and that his attendance at A.A. meetings has brought about "amazing" changes in his communica- tion within the marriage and his re-establishment of self control. In assessing the evidence, the Board is aware that the Grievor's offence and subsequent conviction is a serious matter which cannot and should not be condoned. Theft or attempted theft in any form from an Employer by an Employee, regardless of the value of the stolen goods, does constitute just cause for the imposition of dis- cipline by the Employer. Dishonesty in any form is completely unacceptable to an 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 Employee. The Liquor Control Board of Ontario has the right - 10 - 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. Having considered the evidence carefully, the Board finds in the circumstances of this case, that the penalty of discharge is excessive, and accordingly pursuant to Section 19(3) of the Crown Employees Collective Bargaining Act a lesser penalty should be imposed upon the Grievor. Clearly, there are compelling mitigating factors in this instance. Dr. Bahmann's letter of November 29th, 1981 (Exhibit 8) stops short of describing the Grievor as an alcoholic. It does however, refer to his "craving for alcohol" his "excessive drinking on occasion" and his own admission that he "drinks too much". Dr. Bahmann does state that the Grievor "has an enlarged liver this is reversible". The Doctor concludes his report as follows: "With encouragement from his wife and his own desire to avoid alcohol, Mr. Wells has a good chance of going straight and he should be given every opportunity to succeed in his endeavours. I think Mr. Wells is basically an honest man and doubtlessly acted while under the influence of alcohol." Whether or not the Grievor is an alcoholic is essentially a medical opinion. The Grievor's evidence is that he has been advised by Dr. Bahmann that he is an alcoholic, and we accept his evidence in this regard. There is no doubt in the mind of either the Grievor or his wife that he is alcoholic. Mr. Kerr testified that the Grievor has all of the traits of an alcoholic. Nevertheless, the evidence is overwhelming that the Grievor has a chronic drinking problem which in turn creates tension, frustration and erratic behaviour when he uses alcohol. In the fact situation at hand, there is no doubt that the incident of October 28th is an isolated incident in his career, characterized in Grievance Settlement Board Awards as a "momentary aberration" in what has otherwise been a satisfactory employment relationship. In our view, the evidence indicates that the Grievor's remorse is sincere, and that he has been actively engaged in A.A. activities since the incident in October in an attempt to change his lifestyle. We are also of the opinion that the Grievor's wife is sincerely concerned about her husband's rehabilitation, and has been and is prepared to continue to be supportive. This Board considered. the following Grievance Settlement Board precedents on the issue of mitigating circumstances: Cranley and Staunton -- 48/76 & 49/76 (3eatty) Bernardi and the L.C.3.0 -- 102/79 (Pritchard) Pfeffer and the L.C.B.O. -- 148/79 (Swinton) Splonick and the L.C.B.O. -- 31/77 (Beatty) Cook and the Ministry of Labour -- 115/78 (Swinton) Penner and the L.C.B.O. -- 307/80 (Barton) MacLean and the L.C.B.O. -- 556/80 (Pritchard) Accordingly, it is our award that the Grievor shall be reinstated to his position as Clerk 3 as of Monday, March 29th, 1982, to the following conditions: (1)The Grievor shall not receive any compensation or benefits from the date of his dismissal on November 29th, 1981 to and including the date of his reinstatement on March 29th, 1982. (2)The Grievor shall forthwith write a letter of apology to Randy Smith for his unwarranted conduct of assault and threatening Randy Smith on the evening of October 28th, 1981, and further the Grievor shall undertake to co-operate with Randy Smith in any future working relationship. A copy of that correspondence shall be forwarded to Mr. J. E. Jennings, Director of Store Operations, L.C.B.O., 55 Lakeshore Boulevard East, Toronto, Ontario. That copy shall be placed in the Grievcr's personnel records. (3)The Grievor shall maintain his membership in Alcoholics Anonymous in accordance with the terms of the Provincial Court (Criminal Division) Probation Order dated January 14th, 1982. - 13 - (4)The Grievor, the Union and the Employer shall meet forthwith upon the receipt of this Award to determine an appropriate treatment course for the Grievor's drinking problem consistent with the terms and spirit of the"Employee AssistanceProgram". In the event that the Parties are unable to agree on such a program of treatment within thirty days of the receipt of this Award, this Board shall be reconvened at the request of either of the Parties to determine the issue. (5)In the event that the Grievor successfully completes the conditions of this Award, any reference to the incident of October 28th, 1981 shall be removed from his personnel file two years after the date of this Award. It is recommended that the Grievor's performance be closely supervised by the Employer during his two years while on probation pursuant to the Provincial Court conviction. In the event that there is any noticable deterioration in the Grievor's performance relating to alcohol abuse during this two year period, then his continued employment should be reviewed. During this period, the Grievor will need the encouragement, co-operation and understanding of his fellow Employees. The ultimate responsibility of resolving the issue of alcohol abuse rests squarely on the shoulders of the Grievor. His success or failure at rehabilitation will depend solely upon his courage and strength of conviction. This Board shall remain seized of the issue in the event of any - 14 - difficulty between the Parties in the interpretation, implementation or administration of this Award. DATED at Brantford, Ontario this 16th day of March, 1982. 511:011:71.11,.. 400114t:.4.- . . L. Verity Vice &airman Prof. . Craven Member Mr. A. G. Stapleton Member