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HomeMy WebLinkAbout2009-1999.Carmichael.10-12-09 Decision Commission de Crown Employees Grievance UqJOHPHQWGHVJULHIV Settlement Board GHVHPSOR\pVGHOD Couronne Suite 600 Bureau 600 180 Dundas St. West 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 7pO   Fax (416) 326-1396 7pOpF   GSB#2009-1999 UNION#2009-0378-0070 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Carmichael) Union - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEFOREJanice Johnston Vice-Chair FOR THE UNIONAlick Ryder Ryder Wright Blair & Holmes LLP Barristers and Solicitors FOR THE EMPLOYERAdrienne Couto Liquor Control Board of Ontario Counsel HEARINGFebruary 2, April 12, July 20, November 12, November 15 and November 19, 2010. - 2 - Decision [1] On August 31, 2009, the grievor in this case, Mr. Gordon Carmichael, was caught stealing a bottle of Crown Royal liquor from his employer, the Liquor Control Board RI2QWDULR WKH³/&%2´ 0U&DUPLFKDHO was employed at the Durham Retail Service Centre, also referred to as the Durham warehouse. He was discharged for his conduct and it is that grievance which LVEHIRUHPH7KHJULHYDQFHUHDGV³, grieve I have been dismissed without just caXVH´DQGWKHUHPHG\VRXJKWLV³7REH made whole - reinstated to my position. Reimbursed retroactively for all lost wages, benefits and seniority with interest. Any other remedies deemed appropriate by the DUELWUDWRU´ [2] I heard from six witnesses in this case. Mr. Neil Lenihan, Human Resources Manager, and Mr. Vic Araujo, General Manager Operations, both of whom are employed at the Durham warehouse, testified on behalf of the employer. To preserve the privacy of some RIWKHXQLRQ¶VZLWQHVVHVLQWKis case I will refer to them by their initials. The union called: the grievor; Ms. M, his wife; WKHJULHYRU¶VIRUPHU spouse, Ms. W; and Mr. Odel Dignard, a former Drug and Alcohol Counsellor at the Renaissance Rehabilitation Centre in Brooklin, Ontario. [3] The warehouse is a huge building. It is 550,000 square feet in size. It receives product from all over the world and ships product to four other warehouses, 280 liquor stores and more than 200 beer stores. Fifty million cases of product are handled yearly. The production department receives the stock, assembles orders and ships them out to the stores. There are approximately 220 full-time and part- time or seasonal employees at the warehouse. Given how spread out the warehouse is, there is minimal supervision. It is difficult to track inventory that goes missing. Mr. Araujo indicated that if you see a case with a bottle missing, you would just assume it had been broken. When asked how easy/difficult it is to steal LCBO product from the warehouse, he replied that it would be very difficult for a worker to take a case of product as to leave the warehouse an employee has to go past security, who would see the case. However, it is easy to take a single bottle as it - 3 - FRXOGEHFRQFHDOHGLQWKHHPSOR\HH¶VFORWKLng. At the time of his discharge, Mr. Carmichael was a seasonal worker with eight years of service. He worked in the operations department and his work consisted typically of manually unloading containers, putting together cases of product for the store orders and placing them on pallets, driving a forklift or a transporter. [4] There are two issues that I must deal with in this case. The main issue is whether or not the penalty imposed by the employer, discharge, is appropriate in all the circumstances. The second issue is more technical in nature and was referred to by WKHSDUWLHVDVDQ³$UWLFOHLVVXH$Uticle 26.3 of the collective agreement reads: An employee who is required to attend a meeting for the purpose of discussing a matter which may result in disciplinary action being taken against the employee shall be made aware of the purpose of the meeting and his/her right to Union Representation in advance of the meeting. The employee shall be entitled to have a Union Representative at such meeting provided this does not result in undue delay. The union takes the position that the employer failed to comply with Article 26.3 and that therefore the discharge of the grievor is rendered null and void. [5] There is no dispute with regard to what occurred on August 31, 2010. The events on that day are relevant to both of the issues before me so I will set out these facts and then deal with the Article 26.3 objection. [6] The grievor works in an area called Manual Pallet Loading (MPL). That area is under video camera surveillance for safety reasons. Mr. Carmichael was caught on camera taking LCBO product, namely a 1.14-litre bottle of Crown Royal liquor, and concealing it in his clothing shortly before the end of his shift at approximately 3:40 SP0U&DUPLFKDHO¶VVKLIWHQGHGDW The camera showed him taking the bottle and shoving it into the waistband of his pants underneath his shirt. Not all areas in the warehouse have video surveillance. There are areas between where Mr. Carmichael works and the warehouse exit that are not covered. The warehouse security is located at the main entrance to/exit from the warehouse. - 4 - [7] Mr. Araujo received a call from security at 3:40 p.m. informing him that Mr. Carmichael had been observed on the video camera putting a bottle down the front of his pants. He contacted Mr. Lenihan and told him that he suspected that an employee, Gordon Carmichael, was attempting to leave the warehouse with LCBO product. Mr. Lenihan contacted Ms. Denise Davis and indicated to her that he would like her to go with him as management suspected an employee of attempting to leave the warehouse with LCBO product. Ms. Davis is a very knowledgeable union representative with more than WHQ\HDUV¶H[SHULHQFHZKRat the time these events were taking place was the local union president. While they were waiting for the others to arrive, Ms. Davis and Mr Lenihan had a conversation. Shortly after their discussion, Mr. Lenihan wrote out the following note, which details what they spoke of: Recap of Conversation with Denise Davis on Aug. 31/09 Re G. Carmichael I called Denise into my office and advised her that we needed her to represent an employee that we suspect is stealing SURGXFW6KHDVNHG³ZKHUHZDVWKHHH"´, advised her that the employee is coming out from warehouse and once past security gate will be asked to go to small boardroom. At that point you and I will be there. We then went and waited outside boardroom and I told Denise that the ee was Gord Carmichael. We had a brief convHUVDWLRQDERXWKRZZHFDQ¶WXQGHUVWDQG how someone would risk job for a bottle of alcohol. In the presence of Denise I told Vic Araujo that he should advise Gord that Union Rep is available in boardroom. I told Denise that no conversation would be held with Gord without her being present and reiterated that he would be asked to come directly to the boardroom. 6KHVDLG³,KDWHWKHIDFWWKDW\RXWHOOPHLQDGYDQFHOLNHWKLV´,DGYLVHGKHUWKDW ZHKDYHQRRSWLRQFDQ¶WUHO\RQVHQGLQJ a NOID (notice of intended discipline) in these situations - so out of courtesy we tell union what is going on so that they are aware. $WWKDWSRLQWWKHKDOOZD\GRRURSHQHGDQG,KHDUG9LF$UDXMRVD\³7KHUHLVD Union rep available DURXQGWKHFRUQHU´ Gord Carmichael turned the corner and both Denise and I entered the room with *RUGIROORZLQJ±9LFFDPHLQDQGFORVHGWKHGRRU - 5 - [8] At the end of his shift as he was exiting the warehouse, Mr. Carmichael was stopped by security and escorted down a hallway. $V0U/HQLKDQ¶VQRWHLQGLFDWHVWKH grievor met Mr. Araujo in the hall and then proceeded to go to a small boardroom. Mr. Carmichael testified that he knew he was in trouble when he was stopped by security and escorted to the boardroom.He knew why he was being asked to accompany Mr. Araujo. He also acknowledged that he knew at the time that when he took the bottle it was wrong to do so and that if he got caught, he could be terminated. [9] Mr. Carmichael met with Mr. Lenihan, Mr. Araujo and Ms. Davis. Mr. Lenihan took notes of the meeting. Mr. Carmichael agreed that they are accurate and they read as follows: VA (Vic Araujo): Gord, we have reason to believe that you are removing stock from the warehouse. GC (Gord Carmichael): I drinNDORW,¶YHGRQHLWEHIRUH VA: Do you have anything on you right now? GC: No. Can I speak with Denise? NL (Neil Lenihan): Yes, but want to FRQILUP\RXDUHQ¶WFDUU\LQJSURGXFWRQ\RX right now? GC: No ... Yes I am. (Removes bottle of Crown Royal from waistband). Can I talk to Denise? NL: Yes, absolutely (removes bottle and leaves). BREAK 9$:DQWWRFRQILUP\RXGRQ¶WKDYHDQ\other product on you or in your locker. GC: No, nothing. I have a problem. 1/:RQ¶WJHWLQWRWKDWULJKWQRZ VA: You are relieved from duty with pay. We will be in touch about next steps. NL: Will be either via letter or by phone but will likely have another meeting. - 6 - END [10] Therefore, when the grievor entered the boardroom, his union representative, Ms. Davis, was already present. At no time was Mr. Carmichael alone with the two managers or questioned in the absence of his union representative. As is noted above, Mr. Araujo spoke first and indicated that management had reason to believe that he was removing stock from the warehouse. He was then asked the question ³'R\RXKDYHDQ\WKLQJRQ\RXULJKWQRZ"´$OWKRXJKKHLQLWLDOO\VDLGQRKHWKHQ changed his answer to yes, leaned back in his chair and removed the bottle of Crown Royal from his pants, placing it on the table. This conversation lasted seconds. As soon as the grievor produced the bottle, the two managers removed the bottle and left him alone in the boardroom with Ms. Davis. At no time during this meeting did Ms. Davis suggest that Article 26.3 had not been complied with. [11] Mr. Lenihan indicated that he and Mr. Araujo did not want to leave the room until they had determined whether in fact Mr. Carmichael still had the product on him. He stated that his primary goal in bringing Mr. Carmichael into the small boardroom was to secure any LCBO property that Mr. Carmichael might be carrying. He was concerned that if he and Mr. Araujo left the room before determining if the grievor did have product and getting it back, they may never have retrieved it. As soon as the grievor admitted to the theft and produced the bottle, they left him to meet with his union representative. [12] When Mr. Araujo and Mr. Lenihan returned to the room, they confirmed that the grievor did not have any product in his locker. When Mr. Carmichael attempted to get into a discussion, Mr. Lenihan indicated that they did not want to get into a discussion at that time, relieved him of duty with pay and indicated that the LCBO would be in touch regarding the next steps. Mr. Araujo sent the grievor the following letter dated September 1, 2010: - 7 - September 1, 2009 Via Courier and Regular Mail Mr. Gordon Carmichael 328A Ash Street Whitby, ON L1N 4B3 Dear Mr Carmichael: This letter is to inform you that, effective immediately, you are relieved from duty pending an investigation into your alleged theft of product from the LCBO on August 31, 2009 at the Durham Retail Service Centre and that disciplinary action may be taken against you in respect of same. Specifically, it is alleged that on August 31, 2009, you attempted to remove LCBO product i.e. one bottle of Crown Royal Canadian Whisky (LCBO #010108) from the warehouse by concealing it in the waistband of your pants and under the shirt that you were wearing. I am currently reviewing/investigating this matter and will be making a determination as to whether disciplinary action will be taken against you as a result of the above. Please be advised that you are required to attend a meeting to discuss the above mentioned matter. In addition you are asked to provide a written statement explaining this matter at that time. This will confirm that a meeting has been scheduled for Friday, September 4, 2009 at 10:00 am at the Durham Retail Service Centre. Arrangements have been made for union representation to be provided on your behalf as outlined in Article 26.3 of the Collective Agreement. Your OPSEU Liquor Board Employees Division Local Vice President is Doug Parks and the Union can be reached at 1-800-268- 7376. I am addressing this matter with you in writing rather than in person to avoid an allegation that Article 26.3 of the Collective Agreement has been violated. Article 26.3 states: An employee who is required to attend a meeting for the purpose of discussing a matter which may result in disciplinary action being taken against the employee shall be made aware of the purpose of the meeting and his/her right to Union Representation in advance of the meeting. The employee shall he entitled to have a Union Representative at such meeting provided this does not result in undue delay Therefore, you are advised that you are not to contact me or another member of - 8 - Management to discuss this issue. Should you elect to do so, you will be deemed to have waived your right to union representation. If you choose not to provide the written statement and/or choose not to attend the above-mentioned meeting as requested, management may act on information that is available to it A decision concerning this matter will be made known to you in due course. Yours truly Vic Araujo General Manager, Operations Durham Retail Service Centre As per the letter, the parties did meet on September 4, 2010. The Article 26.3 Issue [13] Counsel for the the employer took the position that: the meeting on August 31 did not trigger Article 26.3; in the alternative, if the article was triggered, the employer complied in substance with the article, therefore no violation should be found; in the final alternative, should I conclude that the article has been breached, I should order damages as opposed to reinstatement as the employment relationship has been irreparably harmed by the conduct of the grievor; and should I find reinstatement or compensation to be appropriate, I should compensate the grievor only from July, 2010, onwards as that was the first time that the issue of non-compliance with Article 26.3 was raised. [14] Article 26.3 says in part that it applieVZKHQDQHPSOR\HHLVUHTXLUHGWR³DWWHQGD meetingpurposediscussing for the of a matter which may result in disciplinary DFWLRQ´7KHUHIRUHWKHGHWHUPLQDWLRQRIWhe purpose of the meeting, if it was a ³PHHWLQJ´RQ$XJXVWVWZDVFUXFLDOLQHPSOR\HUFRXQVHO¶VYLHZ6KHDUJXHGWKDW the purpose of the meeting was to prevent the theft of LCBO property. Management became aware of the suspected theft only ten minutes before the end of the shift. They had to act quickly to stop the grievor from removing the product from the - 9 - building. At the time he was stopped, no discipline was being contemplated as the employer did not know for sure whether he still was carrying the product. As there are gaps in the video camera coverage EHWZHHQWKHJULHYRU¶VZRUNDUHDDQGWKH warehouse exit, it was possible that he could have changed his mind and left the bottle behind. The purpose of asking him to step into the boardroom was to confirm that the grievor still had the LCBO product in his possession and was attempting to leave with it. [15] Employer counsel argued that the purpose of the meeting was to deal with a pressing and urgent matter, namely, to determine if the grievor was attempting to remove employer product at that moment. Once the bottle was secured, management did not attempt to engage in any further discussion and left the grievor alone with his union representative. Management was not attempting to get any admissions from the grievor but to secure its product. Employer counsel argued that management has the right to protect and secure its property from theft. In support of this assertion, she referred to the management rights clause, which reads: Article 1 Recognition 1.1 c) The Union acknowledges that it is the exclusive function of management to: . Maintain order, discipline and efficiency; . Hire, dismiss, transfer, classify, assign, appoint, promote, demote, layoff, recall, suspend or otherwise discipline employees subject to the right to grieve as provided for in this Agreement; . Manage the operation and without restricting the generality of the foregoing, the right to plan, direct and control operations, direct its employees, determine complement, methods and the number, location and class of employees as required from time to time, the scheduling and assignment of work, cessation of operations and all other rights and responsibilities not specifically modified elsewhere in this agreement. [16] Counsel for the employer suggested that surely management has the right to stop an employee who is trying to steal product and leave the property. Just as if the LCBO sees someone committing an unsafe act, they must be able to stop the person from engaging in such conduct. If two employees are fighting, management - 10 - must be allowed to stop the fight even though the employees may blurt something out. In all of these scenarios, a brief conversation may occur. Surely management must be able to react to a situation without being in violation of Article 26.3 of the collective agreement, even though discipline may at some point be possible. [17] Counsel for the employer provided me with copies of all of the decisions issued by the Grievance Settlement Board (the ³*6%´ UHJDUGLQJWKHLQWHUSUHWDWLRQDQG OPSEU application of Article 26.3 of the collective agreement. She relied on (Cahill) v. LCBO OLBEU (2006) O.G.S.B.A. No. 137 (Dissanayake) and (Pedneault) v. LCBO (2000) O.G.S.B.A. No. 86 (Briggs) as supportive of the position she has taken regarding the interpretation of Article 26.3. I will return to those two decisions shortly as I agree that the reasoning in them is helpful in the case before me. [18] Counsel also provided me with six other decisions in which a violation of Article 26.3 was found, but urged me to conclude that each of them was distinguishable on their OLBEU (LaHay) v. facts from the situation we are dealing with. The cases are: LCBOOLBEU (Franssen) v. LCBO (1995) GSB No. 809/94 (Gorsky); (1996) GSB OLBEU (Simpson) v. LCBO No. 1636/96 (Mikus); (2002) O.G.S.B.A. No. 43 OLBEU (Xantltopoulos) v. LCBO (Dissanayake); (2002) O.G.S.B.A. No. 29 OLBEU (Arthur) v. LCBO (Abramsky); (2006) O.G.S.B.A. No. 57 (Stephens) application for judicial review dismissed (2007) O.J. No. 952 (Ont. S.C.J.) and OPSEU (Gandhi) v. LCBO (2009) O.G.S.B.A. No. 2 (Abramsky). Counsel distinguished them for a variety of reasons and I agree with her analysis. None of these cases are similar to the one before me. [19] In the alternative, counsel for the LCBO argued that at the time when Mr. Carmichael was prevented from leaving the warehouse and escorted into the office area, the employer did not have grounds for discipline at that point. All they had was a suspicion that he had concealed product in his clothing and was attempting to remove it from the premises. He could have changed his mind and put it back and the purpose of the conversation with him was to determine if he still had the product - 11 - concealed in his clothing. If he did not, that would have been the end of the matter. Counsel suggested that suspicions alone cannot by themselves justify any disciplinary action by the employer. Suspicions do not constitute just cause and an employer cannot discharge an employee based on suspicions alone no matter how Riverdale Hospital v. Canadian Union of Public legitimate they might be. Employees, Local 43 (Suspension Grievance) (1977) 14 L.A.C. (2d) 334 (Brent) McMaster University v. Service Employees' International Union, Local 532 and (Sullivan Grievance) (2000), 86 L.A.C. (4th) 129 (Surdykowski) were relied upon by counsel in support of this analysis. st [20] Also in the alternative, if in fact the discussion with Mr. Carmichael on August 31 did trigger the application of Article 26.3, employer counsel urged me to conclude that there had been substantial compliance with it as Mr. Carmichael admitted he knew why he was being asked to go into the boardroom, prior to the start of the meeting Mr. Araujo told Mr. Carmichael on the way to the boardroom that there was a union representative waiting and Ms. Davis was aware of the reason for the meeting and was present to represent him the whole time. Article 26.3 does not specify how much notice is required and the notice can be given at the outset of the OLBEU (Xantltopoulos) v. LCBO meeting. See in this regard (2002) O.G.S.B.A. No. 29 (Abramsky). Counsel for the union argued that Article 26.3 applied to the meeting that took place st on August 31. He suggested that there were two main ingredients to Article 26.3. It applied where an employee is requiredto attend a meeting where the subject matter may result in discipline. There is no dispute that Mr. Carmichael was st required to attend the meeting on August 31. In this case, the subject matter was WKH/&%2¶VEHOLHIWKDWWKHgrievor had taken product. This allegation of theft could lead to discipline and in fact did so. The meeting on September 4, 2010, relied on the fact that theft had been proven. [21] Article 26.3 creates a fundamental and substantive right. Union counsel suggested that the employer is attempting to rely on a number of points to avoid the application of Article 26.3, but if she is right, then the purpose of the article is eliminated. It was - 12 - suggested that the purpose of the meeting was to prevent the theft of product, but the first question asked sought to establish the theft and it led to the disciplinary action that was taken. Counsel agreed with the assertion that management has certain rights and can exercise them but these rights must be exercised in a way that preserves Article 26.3.Management rights do not trump Article 26.3. It was suggested that management could have directed security to remove the bottle. They then could have told the grievor the purpose of the meeting, brought him into the meeting and given him the chance to talk to his union representative. They could have allowed him to speak to Ms. Davis, but they did not. [22] Union counsel disagreed with the position taken by management that they needed to determine if he had product on him prior to leaving him with Ms. Davis. He suggested that the grievor could not go anywhere or hand the bottle off. They could have given full scope to Article 26.3, but they did not. Mr. Carmichael was not made aware of the purpose of the meeting in advance and this constitutes a violation of Article 26.3. Management also breached Article 26.3 by not allowing Mr. Carmichael to speak to his union representative prior to obtaining an omission from him that he had taken product. Although Ms. Davis was present and did not assert herself or the JULHYRU¶VULJKWVXQGHU$UWLFOHWKHJULHvor did attempt to do so and was denied. [23] Management attempted to characterize the meeting as non-disciplinary in nature. Counsel for the union suggested that this was ridiculous as the grievor was st . suspended and later discharged based on the information obtained on August 31 Given the breach of Article 26.3, the discharge is rendered void ab initio and the grievor should be reinstated with full compensation from July, 2010, which counsel FRQFHGHGZDVZKHQWKHXQLRQ¶V allegation that Article 26.3 had been violated was Bombardier Aerospace first raised. In support of his argument, counsel relied on et al. v. National Automobile, Aerospace, Transportation and General Workers th Union of Canada, Local 673 Re London (2007) 166 L.A.C. (4) 193 (Div. Ct.), (King St.) Purchaseco Inc. andUnited Food and Commercial Workers, Local th 206Re Western Grocers and United (2007) 160 L.A.C. (4) 363 (Etherington) and th Food and Commercial Workers, Local 1400 (2004) 129 L.A.C. (4) 113 (Norman). - 13 - Decision on the Article 26.3 Issue [24] Article 26.3 is triggered in certain circumstances and sets out specific requirements that must be complied with. For ease of reference, I will set it out again. It says: An employee who is required to attend a meeting for the purpose of discussing a matter which may result in disciplinary action being taken against the employee shall be made aware of the purpose of the meeting and his/her right to Union Representation in advance of the meeting. The employee shall be entitled to have a Union Representative at such meeting provided this does not result in undue delay. There is no dispute that the rights conferred by this article are substantive and not merely procedural. As a result, should I conclude that the employer has not complied with Article 26.3, then the discharge of the grievor in this case is void ab initio.If an employee is required to attend a meeting that falls within the ambit of Article 26.3, there are three requirements that must be complied with. The employee is entitled to: be made aware of the purpose of the meeting in advance of the meeting; be made aware of his/her right to union representation in advance of the meeting; be accompanied at the meeting by a union representative provided that this does not result in undue delay. [25] The issue that I must decide is whether the discussion that took place in the ERDUGURRPRQ$XJXVWZDVD³PHHWLQJ´DVWKDW term is used in Article 26.3. Was st Article 26.3 triggered by the events that occurred on August 31? Was what KDSSHQHG³DPHHWLQJIRUWKHSXUSRVHRIGLVFXVVLQJDPDWWHUZKLFKPD\UHVXOWLQ GLVFLSOLQDU\DFWLRQEHLQJWDNHQDJDLQVWWKHHPSOR\HH´" Cahill Decision [26] In the referred to above, the issue was whether or not a telephone conversation constituted a meeting within the meaning of Article 26.3. In that case, the District Manager heard that a particular store was not open when it was supposed to be. She called the store and spoke to the grievor in that case. The call lasted 20 to 30 seconds and three questions were asked and answered as is indicated in this excerpt from the award: - 14 - 7KHILUVWTXHVWLRQZDV³+RZDUH\RX´"7KHJULHYRUUHSOLHG³,DPILQH7KDQN \RX´1H[W0V5LFKDUGVRQ1RUULVDVNHG³:KDWKDSSHQHGWKLVPRUQLQJ"´7KH grievor replied that it was too long to even begin to explain, but in short he had QRWKHDUGWKHDODUPDQGKDGVOHSWLQ7KHQ0V5LFKDUGVRQ1RUULVDVNHG³,VWKH VWRUHRSHQQRZ"´:KHQWKHJULHYRUUeplied that it was, she hung up. The Vice Chair in that case concluded that this conversation was not a meeting within the meaning of Article 26.3. In the course of coming to that conclusion, he made the following observations, which I find very helpful considering the factual context which I am dealing with: The critical evidence is that when she asked what happened, and the grievor explained that he had slept in, Ms. Richardson-Norris did not pursue that. If she had proceeded to question the grievor, for example, as to why he did not hear the alarm or why he had not called in, it could have been argued that at that point WKHFRQYHUVDWLRQKDGEHFRPHD³PHHWLQJIRr the purpose of discussing a matter ZKLFKPD\UHVXOWLQGLVFLSOLQDU\DFWLRQ´However, on the evidence in this case, as soon as the grievor mentioned his sleeping in, Ms. Richardson-Norris moved away from that subject and turned her concern at the time, that is, to ensure that the store is open. As soon as she got the assurance that the store had in fact opened, she ended the conversation. While Article 26.3 has been interpreted by the Board quite broadly, it must also be interpreted sensibly so as to not preclude normal interaction between managers and employees. If not, managers would not be able to manage the operations. It would do disservice to both managers and employees. The parties would not have intended such a result when they negotiated article 26.3. To illustrate, a manager hears a commotion and rushes to the scene. She observes an employee lying on the ground, apparentO\LQMXUHG6KHDVNV³ZKDW KDSSHQHG"´,WLVSRVVLEOHWKDWRQHRIWhe employees present at the scene may make a statement in response that may implicate himself. However, it would be absurd to hold that the manager was not entitled to ask what happened, without first complying with Article 26.3. [27] Near the end of the award, the Vice Chair reiterates that the fact that she ended the conversation once the grievor confirmed that the store was in fact open was a key factor in his decision. [28] In the Pedneault case, a manager asked the grievor to meet with him to discuss the conduct of another employee. However, they ended up discussing the conduct of - 15 - the grievor, who was ultimately discharged based on information that came out. The Vice Chair concluded that this meeting fell within the ambit of Article 26.3. In the course of doing so, she made the following observation: If it had happened at the October 27, 1998 meetiQJWKDWRQFHWKHJULHYRUVDLG³LW¶V DOOP\IDXOW´0U/LGGOHVWRSSHGWKHPHHWLng and informed the grievor of his right to union representation and the Union was now arguingWKDWWKH(PSOR\HU¶V failure to notify the grievor in advance of his right to representation then this might well have been a different matter. In this case, I do not fault the Employer for not telling the grievor in advance that he had the right to representation. However, this issue is not that narrow. In this case the grievor attended at a meeting that was not optional and the very instant that the grievor said the matter ZDV³DOOKLVIDXOW´WKHIRFXVRIWKHPHHWLQJDQGRI0U/LGGOH¶VDWWHQWLRQVKLIWHG from Mr. Rawn to Mr. Pedneault. This complete turning of events changed the meeting into one which triggered the rights found in article 26.3. Therefore, was what occurred on August 31st a meeting within the ambit of Article 26.3? In my view, it was not. I accept that Mr. Carmichael was asked to step into the office for the purpose of ascertaining whether or not he had LCBO property concealed on his person and if so, to retrieve that property. As noted earlier, due to JDSVLQWKHYLGHRFDPHUDFRYHUDJHEHWZHHQWKHJULHYRU¶VZRUNDUHDDQGWKH warehouse exit, it was possible that he could have changed his mind and put the bottle down. I think it was quite reasonable for management to retrieve the bottle directly from the grievor before leaving the room. Had they not done so, Mr. Carmichael could have removed the bottle from his person, put it in the garbage or some other spot in the boardroom and claimed that he had no idea how it got there. While this ruse would likely have not been successful, it would have muddied the waters somewhat. Catching Mr. Carmichael with the bottle on his person left no room for any doubt. [29] The notes taken by Mr. Lenihan are clear that the grievor was asked only one question. He had to be asked it twice before he gave an honest answer, but it was only one question. Once the grievor produced the bottle, management took it and left the meeting. The interchange lasted a few seconds. After management left the room, the grievor was given the opportunity to speak privately with his union - 16 - representative. When they returned to the room, Mr. Araujo asked the grievor if he had any product in his locker. Once again a question aimed at securing employer property. Mr. Carmichael said no. At that point, the grievor attempted to get into a discussion with them about why he had taken WKHERWWOHDQG0U/HQLKDQVDLG³:H ZRQ¶WJHWLQWRWKDWULJKWQRZ´DQGUHIXVHGWR get into any discussion with the grievor. In my view, this response is crucial and makes it very clear that the purpose of the meeting, if it can really even be called a meeting, was to determine if Mr. Carmichael had LCBO property concealed on his person and if so, to retrieve that property. The purpose was not to discuss a matter that may result in disciplinary action being taken against the grievor, which would have brought it within the ambit of Article ,QDQ\HYHQWWKHUHZDVQR³GLVFXVVLRQ´DVWKHJULHYRUZDVVLPSO\DVNHGLIKH had LCBO product concealed on his person or in his locker. [30] Clearly management has the right to confront an employee who it suspects is stealing. In this case, the confrontation took place privately with a union representative present. Would it have mattered if instead of privately asking Mr. Carmichael if he had product concealed on his person in a boardroom, management had approached him out in the warehouse, before he left the warehouse, and asked him in front of other employees if he had product concealed in his pants and under his shirt? I doubt that the union would argue that such an interaction was covered by Article 26.3. However, in essence that is what occurred in the office. It does not make labour relations sense to encourage management to confront employees publicly who it suspects are stealing.How can a public humiliation be found to be preferable to confronting an employee in private? [31] Counsel for the union suggested that the grievor should have been allowed to speak to his union representative before the meeting commenced. But Article 26.3 does not say that an employee has the right to speak to his/her union representative before the meeting. It merely provides the employee with the right to be told he/she has the right to union representation in advance of the meeting and that the employee is entitled to have the union representative present at the meeting as long as doing so does not result in undue delay. There is nothing in Article 26.3 - 17 - specifically providing an employee the right to have a private conversation with a union representative before the meeting commences. [32] Counsel for the union characterized the actions of management in requiring the grievor to produce the LCBO property that he had concealed on his person and was intending to remove from the premises, as obtaining an admission from the grievor that he was taking LCBO product, prior to allowing the grievor to have a conversation with his union representative. Although I do not believe that Article 26. 3 provides a right to such a conversation, strictly speaking what occurred could be characterized as management obtaining an admission. However, it can also be characterized as the employer simply recovering property that the grievor was intent on stealing. In any event, the act of confronting an employee who is in the process of attempting to steal from his employer is not the type of situation that Article 26.3 is intended to cover. As soon as the product was retrieved from the grievor, he was afforded the opportunity to speak privately with his union representative. [33] Ms. Davis is a very experienced union official. She was present throughout the entire conversation between management and the grievor. At no time did she object to the process or ask to speak privately with the grievor. She did not raise the suggestion that Article 26.3 had not been complied with. She did not object when the grievor was asked if he had product on his person or tell him not to answer. I do not know what she may have been thinking during the conversation, as she was not called as a witness in the proceedings before me. [34] Accordingly, for all of the reasons set out above, the motion made by counsel for the union that I should declare that the employer has violated Article 26.3 and find that WKHJULHYRU¶VGLVFKDUJHLVYRLGab initio is dismissed. The Merits [35] The remaining issue to be dealt with is whether the penalty of discharge in all of the circumstances is appropriate. I must now determine if I should exercise my - 18 - discretion and substitute a lesser penalty. st [36] As noted earlier, the actions of the grievor on August 31 are not in dispute. It is agreed that on that day the grievor attempted to steal a bottle of Crown Royal liquor and was caught. He was discharged for his actions. Therefore, I must determine if discharge was the appropriate penalty in all of the circumstances or if I should substitute a lesser penalty. Teamsters Local 419 v. Livingston Distribution Centres Inc. (Hurd [37] In th Grievance)) 129 (MacDowell), Arbitrator Rick MacDowell (1996) 58 L.A.C. (4 observed that although contemporary arbitral opinion does not support discharge in all theft cases, it does support the proposition that theft is a serious form of employee misconduct that will often warrant discharge unless there are strong mitigating circumstances. He stated that the arbitration cases make it perfectly clear that an employee who steals from his employer puts his job on the line and if he is caught will probably be discharged unless he can demonstrate compelling countervailing considerations. I agree with these conclusions. Arbitrator MacDowell Re Canada Post then referred to the following list of mitigating factors set out in Corporation (1983) 11 L.A.C. (3d) 368 (Arthurs): 1. Bona fide confusion or mistake by the grievor as to whether he was entitled to do the act complained of; 7KHJULHYRU¶VLQDELOLW\GXHWRGUunkenness or emotional problems, to appreciate the wrongfulness of his acts; 3. The impulsive or non-premeditated nature of the acts; 4. The relatively trivial nature of the harm done; 5. The frank acknowledgment of his misconduct by the grievor; 6. The existence of a sympathetic personal motive for dishonesty, such as family need rather than hardened criminality; 7. The past record of the grievor; 7KHJULHYRU¶VIXWXUHSURVSHFWVIRUOLNHO\JRRGEHKDYLRXUDQG 9. The economic impact of discharge in YLHZRIWKHJULHYRU¶VDJHSHUVRQDO circumstances, etc. I agree that these factors, if present in a particular case, are factors that would mitigate against the penalty of discharge. - 19 - [38] As noted earlier, the grievor at the time of his discharge had been employed for eight years as a seasonal employee. He is currently 35 years old. He is married to Ms. M and was previously in a relationship with Ms. W. He and Ms. W had two children a son and a daughter. Once again to preserve the privacy of the children I will refer to them by their initials. PC is Mr CarmicKDHO¶VVRQDQG.&LVKLs daughter. In 2003, Ms. W and the grievor separated. At that time, the children remained with their mother. On August 11, 2006, the grievor was given custody of his son and PC began living with him. This came about as Ms. W had difficulties handling PC as he was too aggressive. PC has been diagnosHGZLWK$VSHUJHU¶V6\QGURPHDQGDQ[LHW\ and shows symptoms of Oppositional Defiant Disorder and ADHD. Due to his medical condition, PC was a very challenging child to deal with. He was prone to angry outbursts and destructive behaviour. After a while Mr Carmichael started KDYLQJGLIILFXOWLHVGHDOLQJZLWK3&¶VEHKDYLRur. In 2007, Mr. Carmichael started taking Percocet and OxyContin as he was told that these drugs would calm him and ³PHOORZKLPRXW´DURXQG3&0U&DUPLchael indicated that he had an anger problem at the time. According to Mr. Carmichael, the drugs did have a calming effect on him. [39] In April and May, 2008, Mr. Carmichael received a written reprimand and a one-day suspension for failing to provide his emplR\HUZLWKDGRFWRU¶VQRWHZKHQUHTXHVWHG In April, 2008, he received a three-day suspension for failing to notify the employer prior to the start of his shift that he would be late or absent. In January, 2009, he received another three-day suspension, this time for failing to prRYLGHDGRFWRU¶VQRWH when requested. At some point, Mr. Lenihan met with Mr. Carmichael to discuss his attendance issues. Mr. Carmichael told him that his son had a medical condition that was causing the attendance issues. Mr. Lenihan made sure that the grievor ZDVDZDUHRIWKH/&%2¶V($3SURJUDP. Adjustments were made to Mr. &DUPLFKDHO¶VVFKHGXOHWRDFFRPPRGDWHWKHQHHGto care for his son. At this meeting, Mr. Carmichael did not mention to Mr. Lenihan that he was experiencing any problems with drugs or alcohol. [40] In July, 2008, the grievor began living with Ms. M. Mr. Carmichael was continuing to - 20 - take the drugs. During this time, he would hide the drugs in various places. In August, 2008, Ms. M caught him hiding them under a ceiling panel in the basement. Mr. Carmichael lied to her and attempted to convince her that they belonged to someone else. She did not believe him and asked him to move out, which he did. He and PC went and stayed with Ms. W for a few days. [41] Mr. Carmichael and Ms. M reconciled after he promised her that he would stop taking the drugs. He and PC moved back in. In February, 2009, they were married. Mr. Carmichael never stopped taking the OxyContin throughout the entire period of time between August, 2008, and August, 2009. The grievor was not honest with Ms. M. Ms. M admitted that Mr. Carmichael is good at deceiving people and that she did not suspect that he was continuing to take drugs. Even at the time of the hearing, Ms. M was not prepared to say for certain that the grievor was off drugs. Mr. Carmichael took the drugs almost every day during this period. He would wait for his wife to leave for work and then take them. The grievor got a ride to work as he felt that it was not safe for him to drive as his eyes could get blurry or sometimes cross. [42] Returning to the events in the workplace, as per the letter dated September 1, 2009, the parties met on September 4, 2010. The same people were present, the grievor, Ms. Denise Davis, Mr. Neil Lenihan and Mr. Vic Araujo. At the meeting, Mr. Carmichael admitted that he took the bottle of Crown Royal. He agreed that he knew at the time when he took the bottlHWKDWLWZDVZURQJDQGVDLG³,KDYHEHHQ NLFNLQJP\VHOILQWKHDVVVLQFH0RQGD\´He attempted to explain his conduct by stating that he was addicted to drugs. He indicated that he took the bottle because he had no money, was running out of drugs and was going to trade the bottle for drugs. He told Mr. Araujo and Mr. Lenihan that he had an addiction to prescription drugs. This came as a surprise to both managers as neither of them was aware that Mr. Carmichael had any addiction issues. In addition, neither of them thought that the grievor was under the influence of drugs at the meeting. [43] Although Mr. Carmichael ZDVDZDUHRIWKH/&%2¶V($3SURJUDPKHDJUHHGWKDWKH - 21 - had never called the EAP program or anyone else to seek assistance. He did indicate that after he was sent home on August 31st, he had attended at a walk-in clinic and that the physician he spoke to had referred him to a place called Pinewood. The grievor stated that he had contacted Pinewood a couple of times and left a message but had not heard back from them. He also told the two managers that he had tried to contact his family doctor but that she was not available as she had cancer. At the time of the meeting, Mr. Carmichael did not provide any documentation from a medical practitioner or other expert confirming that he had a drug problem, nor did he do so after the meeting. [44] Mr. Lenihan took notes at the meeting. The notes are clear that Mr. Carmichael apologized, indicated that he was willing to do anything to save his job and that he would never do it again. He stated that the job meant the world to him and that he has a wife and child. He promised to get the help he needed.Mr. Lenihan did not believe the grievor when he told them that he had a drug addiction because there were no other indications, other than the grievoU¶VFODLPWKDWWKLV was the case. Mr. Lenihan was concerned that the grievor did not provide any medical documentation to establish his assertion. Had the grievor brought in some supporting documentation with regard to his addiction, Mr. Lenihan said he would have considered it and it may have impacted on the decision that was made. [45] Mr. Araujo made the decisLRQWRWHUPLQDWHWKHJULHYRU¶s employment. He determined that discharge was appropriate because he felt that theft of company product was very serious and constituted a breach of trust. The warehouse work area has minimal supervision and management has to be able to trust employees to perform their work efficiently and honestly. In reaching the decision to terminate the grievor, 0U$UDXMRGLGFRQVLGHUWKHJULHYRU¶VFODLm that he was a drug addict but concluded that he did not accept this H[SODQDWLRQIRUWKHJULHYRU¶Vactions in stealing product. He did not believe the grievor. Mr. Araujo stated that he sees an addiction to drugs as being a very serious matter requiring professional help. At no time either before or after his discharge did the grievor provide any independent or medical/expert evidence to the LCBO to substantiate that he had an addiction and was receiving - 22 - help for it. By letter dated September WKHJULHYRU¶VHPSOR\PHQWZDV terminated. It reads: September 8, 2009 Via Courier and Regular Mail Mr. Gordon Carmichael 328A Ash Street Whitby, ON L1N 4B3 Dear Mr. Carmichael: This is further to our letter to you dated September 1, 2009 and our subsequent meeting with you and your union representative on September 4, 2009 with respect to your alleged theft of LCBO product on August 31, 2009. As you are aware, and as set out in our letter to you dated September 1, 2009, you were relieved from duty pending an investigation into your alleged theft of product from the Durham Retail Service Centre. Specifically, it was alleged that on August 31, 2009, you attempted to remove LCBO product from the warehouse. In particular, you concealed one bottle of Crown Royal Canadian Whisky (LCBO #0100108) in the waistband of your pants and under the shirt you were wearing at the time At our meeting with you and your union representative on September 4, 2009, you admitted to removing the product mentioned above from the MPL Deck in the warehouse at approximately 3.30 pm on August 31, 2009. You further admitted that you knew that what you were doing was wrong. It is noted that you told us that you did not provide a written statement as we requested in our September 1, 2009 letter because you found it very difficult to put it into writing. At our meeting, however, you attempted to explain your conduct by stating that you have been dealing with addiction to prescription drugs since you "got your son" in 2006. Prior to this incident, management was unaware of your stated addiction issues. You stated that your wife did not even know about your addiction and you thought you "could handle things". We note that, to date, you have not provided us with any confirmation from your doctor (or any physician) that you have an addiction to prescription drugs. However, you stated that since August 31, 2009 you had been to see a doctor at a local walk-in clinic and that you have been referred to Pinewood. You also mentioned that in the past you have mentioned your addiction to your family doctor. With respect to your conduct on August 31, 2009, you indicated that you took the LCBO product from the warehouse because you did not have any money to pay for drugs and needed the alcohol to trade for drugs. You indicated that you would - 23 - have traded the bottle after work and away from the facility. With respect to care or treatment for your reported addiction, you advised that you have called Pinewood a couple of times but have not heard back from them. You have not contacted EAP but state that you would be willing to do so. You further stated that you will do what the LCBO wants in order to keep your job. You went on to advise us that you were sorry for your actions and that your "job means the world" to you. Mr. Carmichael, notwithstanding your stated problems with prescription drugs, we consider your actions on August 31, 2009 to constitute theft and/or attempted theft of LCBO product. Such actions are a serious breach of the fundamental trust that is placed in you and to the ongoing employment relationship in a retail and warehouse setting. In light of all of the above we find that the employment relationship is irreparably damaged. As a result, your employment is terminated effective immediately for just cause. Yours truly Vic Araujo General Manager, Operations Durham Retail Service Centre st [46] Mr. Carmichael admitted that on August 31 during his lunch break, he contacted a friend who had OxyContin and arranged to meet him after work to exchange the bottle for drugs. He planned to take a bottle of Crown Royal specifically as he felt there was a better chance of trading it for drugs. Therefore, his actions in taking the bottle were premeditated and not an impulsive act. By noon on August 31, he had a plan to take a bottle and trade it after work for drugs. The grievor also indicated that st he had taken drugs in the morning and at lunch on August 31. He was therefore not acting out of desperation and being drLYHQE\DQHHGWRVHFXUHKLVQH[W³IL[´ when he took the bottle of Crown Royal. His actions were planned and calculated and he was not in a highly emotional, confused or agitated state . [47] This is not the first time that an employee of the LCBO has been terminated for theft - 24 - or attempted theft. Counsel for the employer referred me to five cases between the OLBEU (Hill) v. LCBO parties dealing with this issue. They are: (1987) GSB No. OLBEU (Linton) v. LCBO 0054/86 (Draper), (1995) GSB No. 1429/92 (Gray), OLBEU (DeLaurentis) v. LCBO OLBEU (1995), GSB No. 1016/93 (Marszewski), (Huvos) v. LCBO OLBEU (Devlin) v. (2003) 122 L.A.C. (4th) 238 (Abramsky) and LCBO (2004) 128 L.A.C. (4th) 129 (Watters). Counsel for the employer argued that these cases establish the following broad principles: i) Theft in the retail/warehouse environment, particularly in the context of the LCBO with its desirable product, is a serious offence and has been found to be a breach of the fundamental trust between an employer and employee. Such theft warrants discharge and the onus is on the union to establish why discharge is not the appropriate penalty. ii) Where addiction is pleaded in an effort to mitigate the penalty the onus is on the union to establish both the existence of the addiction and that there is a nexus between the addiction and the theft. If insufficient medical/expert evidence is called no nexus will be found. iii) If the grievor is claiming that the theft took place to finance the addiction this alone does not establish a nexus or causal connection such that the penalty should be mitigated. iv) Medical evidence is required to establish that the medical condition/addiction LPSDLUHGWKHHPSOR\HH¶VYROLWLRQDQGKHdid not know that what he was doing was wrong. v) Genuine remorse must be shown for the act which led to the discharge. Should there be any doubt as to the grLHYRU¶VKRQHVW\WKHGLVFKDUJHPXVWEH upheld. vi) Sufficient evidence including medical evidence must be called to show that the grievor has been rehabilitated and the problems that led to the discharge have been resolved and are under control. vii) The factor of deterrence is a legitimate concern and should be considered when determining if mitigation is appropriate. - 25 - [48] The final applicable broad principle suggested by employer counsel was that even the presence of an established addiction or illness does noWHOLPLQDWHWKHHPSOR\HU¶V authority to discipline or discharge an employee for misconduct. Support for this is Hamilton (City) v. Amalgamated Transit Union, Local 107 (Reader found in GrievanceCanada Post Corp. and ) (2006) 155 L.A.C. (4th) 337 (Knopf) and Canadian Union of Postal Workers (Zachar Grievance) (1998) C.L.A.D. No. 811 (Shime). [49] I have carefully read the cases referred to above and I agree with counsel for the employer that generally speaking the principles she has enunciated flow from the jurisprudence between the parties on the issue of employee discharge for theft. [50] Every discharge case is unique and as has been noted on many occasions, the ultimate result will depend on the specific facts and circumstances of the individual situation. I would now like to turn back to a review of the events that occurred VXEVHTXHQWWRWKHJULHYRU¶VGLVFKDUJH between September, 2009, and November, 2010, when the hearing concluded. [51] Some time after the meeting on August 31st and before the meeting on September 4th, the grievor told his wife what had happened. During this same period, he contacted Pinewood, which is a drug rehabilitation centre. He learned that the treatment program offered included a thirty-day residential program. Although he initially put himself on a waiting list, he later decided not to attempt to get into the program as he felt he could not leave his son PC in the care of his wife. He VXJJHVWHGWKDWWKH\³EXPSKHDGVDQGKHOLVWHQVWRPHPRUHWKDQKHU´+HGLGQRW enter into a residential program as he felt he could not leave his son for thirty days. However, he never made any inquiries as to whether some sort of accommodation could have been made for his need to care for his son. [52] When Ms. M found out about the grievor's drug use in August, 2008, and requested that he leave, she knew he went to stay with Ms. W. She called Ms. W as she was concerned for PC's well-being in light of the grievor's drug use. During the time he - 26 - was staying with her Ms W observed the grievor snorting OxyContin. She agreed ZLWK0V0¶VFRQFHUQVDQGFDOOHGWKH&KLOGUHQ¶V Aid Society (the "CAS"). After a brief investigation, the CAS determined that the grievor was in fact fit to care for PC. [53] Even though he had been found fit by the CAS, Ms. W testified that she had concerns regarding the grievor's ability to care for her son after she learned that he was using drugs. She spoke to Ms. M about it and satisfied herself that Ms. M would be a part of her son's life. She indicated that she felt it would be dangerous for Mr. Carmichael to care for PC on his own but that Ms. M was a responsible adult. She stated that if Ms. M was not in the home, she would have concerns about PC living with his father. [54] Mr. Carmichael was asked in cross-examination if during the period of time between August, 2008, and September, 2009, he was able to care for PC and he responded, ³:LWKP\ZLIH was safe and well cared for he answered, ³<HVVKHGLGDJRRGMRE´:KHQDVNHGQH[Wif his wife was the primary caregiver, he VDLG³<HVVKHGLGDORWRILW´,QUHVSRQVHWRWKHTXHVWLRQ³'R\RXVWLOOH[SHULHQFH VWUHVVLQFDULQJIRU\RXUVRQ"´0U&DUPLFKDHOUHVSRQGHG³<HVEXWZKHQ,GRP\ ZLIHWDNHVRYHUFDULQJIRU3&´ [55] As part of the treatment regime for his son, it was suggested to Mr. Carmichael that he attend parental support meetings with other parents who had children dealing with issues similar to those facing his son. Mr. Carmichael did attend a couple of meetings but eventually stopped as he found attending the meetings with his son too difficult. His son would frequently act out at the meetings. At the time of the hearing, Mr. Carmichael confirmed that he was not attending any parental support meetings but that his wife was doing so. [56] In September, 2009, with the assistance of his wife, Mr. Carmichael made contact with Odel Dignard. At the time, Mr. Dignard worked as a Drug and Alcohol Counsellor at the Renaissance Rehabilitation Centre located in Brooklin, Ontario. He was a friend of Ms. M's. Mr. Carmichael never enrolled at the Renaissance - 27 - Rehabilitation Centre or attended meetings there. However, he did start to accompany Mr. Dignard to Narcotics AnonymRXV ³1$´ PHHWLQJVKHOGLQ:KLWE\ Ontario. Mr. Dignard is himself a recovering alcoholic and drug addict. [57] Mr. Carmichael testified in chief that he went to meetings every Tuesday and Saturday with Mr. Dignard from September, 2009, until he moved to Bowmanville in May or June, 2010. In cross-examination, he again testified that he went to meetings every Tuesday and Saturday. When questioned if he went every Saturday, he modified his evidence to say,³:HOO,PLJKWKDYHPLVVHGD6DWXUGD\ EXW,ZHQWWRWKHPDMRULW\´ [58] In December, 2009, Mr. Carmichael applied for and was successful in obtaining Employment Insurance ("EI") sick benefits. Mr. Dignard wrote a letter to the Employment Insurance Commission in support RI0U&DUPLFKDHO¶VDSSOLFDWLRQ,W reads: Odel Dignard 18-1100 Oxford Street Oshawa, ON L1J 6G4 905-404-5241 SENT BY FAX: 705-670-6613 Service Canada Sudbury, ON Attention - Monique Truvel Dear Sir/Madame: RE: Gordon Carmichael, November 26, 1975, SIN 506972777 Please be advised that Gordon Carmichael contacted me September 22, 2009 to commence support and sponsorship for our Narcotics Anonymous (NA) meetings in Whitby, ON. At the time, I had been employed with Renaissance Rehabilitation Center in Brooklyn, Ontario, as a Drug and Alcohol Counsellor. - 28 - Although, there were no spots opened (sic) within the Rehab and a very large waiting list, I encouraged Gordon to attend meetings with us on an outpatient program. He attends the Tuesday night meetings and occasionally the Group session on Saturday evenings and he is doing very well with the program. He is in contact with me steadily and has been successful in staying away from the drug usage. Sincerely, Odel Dignard >@,ZRXOGQRWHWKDW0U'LJQDUGVD\VLQWKHOHWWHU³+HDWWHQGVWKH7XHVGD\QLJKW meetings and occasionally the Group session on Saturday evenings and he is doing YHU\ZHOOZLWKWKHSURJUDP´0U'LJQDUGGHVFULEHG0U&DUPLFKDHO¶VDWWHQGDQFHDW WKH6DWXUGD\VHVVLRQVDV³RFFDVLRQDO´7KLVLVLQVWDUNFRQWUDVWWR0U&DUPLFKDHO¶V FODLPLQFKLHIWKDWKHDWWHQGHG³HYHU\6DWXUGD\´DQGHYHQKLVPRGLILHGWHVWLPRQ\LQ cross that he attended the majority of meetings on Saturday. [60] The meetings which the grievor attended with Mr. Dignard were large open group meetings. There was no screening process to get into the meeting or registration for it. Anyone was free to attend. At no time after his discharge did Mr. Carmichael ever attend formal counselling for his drug problem. When the grievor moved to Bowmanville in May or June, 2010, he stopped attending meetings with Mr. Carmichael. At the time of the hearing, he was not attending any meetings or undergoing any treatment for his drug problem. [61] In support of his application for sick benefits, Mr. Carmichael also wrote a letter to the Employment Insurance Commission. In the last paragraph he states: Even though I did not actually take any products or items from my place of employment, my behaviour, attitude and decisions were not clear and I now realize the position I have place myself in. - 29 - [62] In examination in chief, he was asked about this last paragraph and he replied, ³7HFKQLFDOO\,GLGQ¶WDFWXDOO\WDNHDQ\SUoducts as they caught me before I could OHDYH´,QFURVVH[DPLQDWLon, counsel for the employer asked him what he meant by the last paragraph. She asked if he was saying that he did not steal LCBO product? 7KHJULHYRUUHVSRQGHG³,EHOLHYHLI\RXZDONRXWVLGHLWLVVWHDOLQJ´,WKHQDVNHGKLP ³:KDWZRXOGLWEHLI\RXWRRNDERWWOHLQWRWKHORFNHUURRPDQGGUDQNLW´"+HVDLG³, GRQ VWHDOLQJ"´KHUHSOLHG³3UREDEO\\HDK´ [63] It seems to me based on this series of questions and answers, that Mr. Carmichael does not view what occurred on August 31 as his being caught in an attempt to steal LCBO product. At the time when he was caught, he did admit that he was attempting to steal the bottle of Crown RoyaO,WDSSHDUVQRZWKDWLQWKHJULHYRU¶V mind it is only stealing if he is successful in his attempt. Needless to say, I have grave concerns about this evidence. Either he truly does not understand, or having been caught lying in his letter to the Employment Insurance Commission, is trying to get around it. >@0U&DUPLFKDHODOVRDWWDFKHGWKHIROORZLQJGRFWRU¶VQRWHGDWHG'HFHPEHU - 30 - [66] As noted, Mr. Ode I Dignard, was himself a recovering alcoholic and drug addict who was employed as a Drug and Alcohol Counsellor at the Renaissance Rehabilitation Centre located in Brooklin, Ontario, for approximately ten years. He was in this position at the time he was contacted by Mr. Carmichael but was laid off near the end of 2009. Mr. Dignard took the grievor to meetings he himself was attending and made himself available to assist and support Mr. Carmichael. Any time the grievor needed help, he could call Mr. Dignard, who would talk to him. They often went for coffee. [67] Mr. Dignard testified that individuals still using drugs did not like to attend the NA meetings as it was difficult to cope with the people who were there. He indicated that after Mr. Carmichael started attending the meetings with him that he would phone and say he couldn't make a meeting. Although he always had a good excuse, Mr. Dignard concluded that the grievor did not attend because he was using the drugs again. Mr. Dignard indicated that Mr. Carmichael "would last a long time and then he would phone me". Mr. Dignard last spoke to the grievor about two or two and a half months prior to November, 2010. He was asked for his assessment of the grievor's condition and responded, "I think he has been straight for at least two months from what I hear. If he has problems, he calls. It still haunts him." [68] Mr. Dignard was asked if when he met the grievor he observed him undergoing any withdrawal symptoms and he said, "Not at the beginning. I saw a guy who was using. It takes about a month for it to get out of your system. He is going to suffer a bad withdrawal." He indicated that the withdrawal would likely last for a month or so and during this period an individual would be in severe pain and feel like their body was on fire. He said your skin crawls and you are very sick. Mr. Carmichael testified that when he stopped taking the drugs in September, 2009 he suffered withdrawal symptoms including shaking, hot flashes and a red rash. The symptoms lasted four days. Ms M confirmed that he went through this withdrawal. [69] Mr. Dignard was asked if he had an opinion as to when Mr. Carmichael had stopped using drugs and he stated, "Probably two to three months ago". Upon being asked - 31 - why he would say that, he replied, "Because I was talking to him". When Ms. Wwas asked if she knew if Mr. Carmichael was still using drugs today (that being November 15, 2010), she responded, "I heard he is," and then quickly corrected herself, saying, "Sorry, was". [70] At the time, Mr. Oignard wrote the letter in support of the grievor's application for EI the grievor had told him that he had stopped using but after that, in Mr. Oignard's opinion, he went back to using. Mr. Oignard does not have any medical or other formal training. He agreed with counsel for the employer that he described Mr. Carmichael as a drug addict because Mr. Carmichael told him he was. Mr. Oignard did not diagnose him. Mr. Oignard was of the view that it was possible that Mr. Carmichael could suffer a relapse. He stressed the importance of attending NA meetings on an ongoing basis as doing so helps prevent relapses. Unfortunately, since his move to Bowmanville, Mr. Carmichael is no longer attending any meetings. [71] Counsel for the union argued that there were sufficient factors mitigating against discharge as the appropriate penalty in this case and urged me to reinstate the grievor. He argued that the grievor had eight years of seniority with a good employment record. The discipline on his record pertained to difficulties he was having with his son. [72] Union counsel suggested that the evidence was overwhelming that Mr. Carmichael was addicted to drugs in 2009. He suggested that although Ms. W, Ms. M and Mr. Oignard were not medically trained, they all had experience with people with addictions. He suggested that their evidence was more reliable than that of a doctor who sees a patient once or twice and forms an opinion based on the information given by the patient. It was suggested that Ms. W, Ms. M and Mr. Oignard have immediate and intimate knowledge of the grievor's addiction. Ms. W saw him sniffing the crushed up OxyContin. Ms. M lived with him and in her opinion he was an addict. The two of them together were so concerned about Mr. Carmichael's drug use that they reported him to the CAS. They are good people and would not have done so unless they believed the grievor was addicted to drugs. - 32 - [73] In the opinion of counsel for the union, Mr. Carmichael's drug use was not just that of a recreational drug user. He was a drug addict who spent ten months or so working with the Renaissance Centre. He stopped using drugs in September, 2009. Counsel suggested that Mr. Oignard has no way of knowing when the grievor stopped using drugs and that I should prefer the evidence given by the grievor and Ms. M. Mr. Carmichael admitted what he did and knew it was wrong. He was remorseful and said he would do anything to get his job back. Taking the bottle was an aberration as his mental state had been affected by the drugs. [74] Union counsel suggested that the grievor would be willing to submit to whatever drug testing regime the employer thought reasonable if he was reinstated. He suggested that the grievor had taken strong steps to take back control of his life. He has stopped taking the drugs and attended counselling. He has a strong supportive wife. In support of his arguments counsel referred to, International Nickle Co of Canada Ltd. and United Steelworkers 15 L.A.C. (2d) 225 ( Weatherill) and Richardson's Terminal's Ltd. and Transportation-Communications International Union, Lodge 650 85 L.A.C. (4th) 105 (Shime). Decision on the Merits [75] When an employee engages in theft from his employer, it is a fundamental repudiation of the trust that is essential to the relationship. Employers such as the LCBO must be able to trust the employees who work, to a large extent, in a vast unsupervised environment containing extremely tempting and desirable product. If I were to consider reinstating the grievor, I would have to be satisfied that the employer could trust him, that he was an honest hard-working individual who deserved a second chance. That he has done everything necessary to prove that he has been successfully rehabilitated and that the problems that led to his discharge have been resolved and are under control. Unfortunately, I am unable to come to these conclusions. [76] I do not find Mr. Carmichael to be a credible witness. In all areas where his evidence differs from that given by Odel Oignard, I prefer and accept Mr. Oignard's - 33 - evidence. Mr. Oignard was an extremely credible witness. He gave his evidence in a straightforward and forthright manner. He was very candid about his own past experiences with drug and alcohol addiction. He spent considerable time with Mr. Carmichael and had ample opportunity to form an opinion about him. While Mr. Oignard is not an expert and has no medical training, he does have a lot of experience dealing with people with drug addictions and drug problems. He had no reason to lie about his interactions with Mr. Carmichael. Therefore, when he says that Mr. Carmichael was using drugs as recently as two to three months ago, I believe him. I accept the evidence of Mr. Oignard that Mr. Carmichael continued to be on and off the drugs until very recently. I also accept his testimony with regard to how frequently Mr. Carmichael attended NA meetings and the importance of attending this type of meeting if a former drug user wants to remain off drugs. [77] Unlike Mr. Oignard, Mr. Carmichael had a reason to be dishonest about his drug use. He tried to convince me that he was no longer using drugs and in fact had stopped a long time ago. But Mr. Carmichael was not truthful when giving his evidence. He exaggerated the frequency of his attendance at the NA meetings. In his letter to the Employment Insurance Commission, he was not truthful about the fact that he had been caught stealing from his employer. He lied outright to me about when he stopped taking the drugs. Ms. M confirmed that the grievor is good at deceiving people. Unfortunately, I agree with this assessment. [78] The excuse given by Mr. Carm ichael for not entering into a treatment program immediately after his discharge, or at any time in the intervening year, that he could not leave his son in the care of his wife for the residential component, is simply not believable. Mr. Carmichael's explanation for not entering into any type of rehabilitation program with a residential component is unacceptable. The suggestion that his son would not be able to cope without him or that his wife would be unable to properly care for him is not consistent with either his testimony or the testimony of his wife or PC's mother. [79] I do not believe that Ms. M could not have provided adequate care for PC during the - 34 - brief period of time necessary for Mr Carmichael to attend a residential rehabilitation program. The evidence is clear that she is responsible, stable and consistent. She is the one attending a parent support group for children with conditions similar to PC's illness. It is also important to note the testimony of PC's mother who stated that she would not have left PC in the care of the grievor if Ms. M was not in the home. [80] In addition, Mr. Carmichael made absolutely no attempt to ascertain if some sort of accommodation could be made that would allow his son to have access to him while he was completing the program. He also made no effort to obtain rehabilitation assistance on an outpatient basis. No explanation was offered as to why he did not enroll in a rehabilitation program and attend counselling on an outpatient basis. [81] Mr. Carmichael has never received any professional medical assistance regarding his drug problem. I do not know why he chose not to enter into any type of rehabilitation program that could have assisted him, but it is a factor that I will take into account in determining whether or not he has demonstrated that the problems that led to his discharge have been resolved and are under control. Before I would consider reinstating the grievor, I must be satisfied that he has made efforts to deal with whatever issues led him to attempt to steal from his employer and that should I put him back to work, he will not do so again. [82] Counsel for the union in final argument indicated that the grievor had attended at the Renaissance Centre over a period of ten months. I have carefully reviewed my notes on this point and I do not agree. Mr. Carmichael did not attend at the Renaissance Centre. Although for part of the time Mr. Oignard was helping the grievor he worked at the Renaissance Centre, the grievor was not part of his work there. Mr. Oignard took Mr. Carmichael to NA meetings that he himself was participating in. These were not connected to his work at the Renaissance Centre. [83] The grievor claims that he was or is a drug addict. The only medical evidence I have before me is a two-sentence doctor's note that was obtained by Mr. Carmichael at a - 35 - walk-in clinic. He got this note to further his application for Employment Insurance medical benefits in Oecember, 2009. I have no idea how Or. Hsieh came to the conclusion he did when he wrote, "Mr. Carmichael has problem of drug addiction". It seems logical to conclude that he did so because that is what Mr. Carmichael told him, not because he knew so because had been the grievor's treating physician for a period of time. Or Hsieh also stated that the grievor attended the Renaissance Rehabilitation Centre in Brooklin, Ontario, for treatment, which was simply not true. It appears that Mr. Carmichael was less than honest in his dealings with the doctor. He never attended at the Renaissance Rehabilitation Centre in Brooklin, Ontario, for treatment. Again, it seems reasonable to assume that the doctor included this statement because that is what he was told by the grievor. Or. Hsieh was not called as a witness. This note was never given to the employer until after these proceedings commenced. I am not therefore prepared to give the note any weight. Accordingly, I have no substantial medical/expert evidence that objectively establishes Mr. Carmichael's claimed addiction. I have no independent medical evidence to establish that Mr. Carmichael's drug use contributed to or caused him to attempt to steal from his employer. [84] The only evidence I have in this case is the grievor's claim that he was a drug addict and the evidence of Mr. Oignard, Ms. Wand Ms. M on the issue. The evidence of Ms. Wand Ms. M certainly corroborates that Mr. Carmichael was a drug user and possibly even a drug abuser. But they are not medically trained and cannot diagnose an addiction. Mr. Oignard described Mr. Carmichael as an addict but did so because that is what he was told by Mr. Carmichael. None of these individuals are health professionals with training on diagnosing addiction. I am not prepared in the absence of any corroborating medical or expert testimony to come to the conclusion that the grievor was a diagnosed drug addict. [85] I have no doubt and no difficulty concluding that the grievor had and likely still has a drug-use problem. Clearly, at a minimum, he was misusing what would normally be prescription medication, Percocet and OxyContin. Given the evidence before me, I have no reason to believe that he has successfully rehabilitated himself and has - 36 - stopped using drugs. I accept that he has tried to quit and that when he did so he went through a brief period during which he suffered withdrawal symptoms. Although the grievor stated while giving his evidence that were he to be reinstated, he would be willing to submit to random drug testing at the employer's discretion I think that this is too little too late. It is not up to the employer to police his drug use, it is up to him to prove that he has been successfully rehabilitated. [86] However, in the alternative, even if his condition is that of an undiagnosed drug addict, the grievor has not convinced me that his discharge should be overturned and that he should be returned to work at the LCBO. In addition to not having any medical evidence to support a diagnosis of addiction, I have no medical evidence to support that the grievor has been rehabilitated and is fit to return to work. [87] He has never attended any formal rehabilitation therapy. He never undertook a residential program or received any type of counselling from a trained medical professional. At one point, he attended some NA meetings with Mr. Oignard but he is no longer doing so. I have absolutely no medical evidence before me to establish that the grievor has been rehabilitated and that the problems that led to his discharge have been resolved and are under control. It makes no sense to reinstate the grievor when he has not received any treatment for the condition that allegedly gave rise to the theft in the first place. Oespite the grievor's claim in the September 4th meeting that he would do anything to save his job and would get the help he needed, he did not do so. Given the grievor's lack of candour, his attempts to diminish the severity of his conduct when applying to the Employment Insurance Commission and again before me, his inability to resist the temptation to exaggerate, bend the truth and twist words when it serves his purposes and his dishonesty about when he stopped using drugs, I believe that the problems that led to his discharge have not been resolved. [88] The union did not seek to rely on the Human Rights Code in this case. The parties agreed that the grievor was guilty of culpable misconduct in that he committed theft of LCBO product. The essence of the union's case was that the penalty of - 37 - discharge should be reduced because of a lack of judgement or diminished responsibility on the part of the grievor caused by his drug problem. It was agreed that the grievor was aware at the time when he attempted to take the bottle of liquor that it was wrong to do so. There was no confusion on his part and he knew he was not entitled to steal or attempt to steal product from his employer. The grievor's drug problem is relied upon by the union to plead for mitigation not accommodation pursuant to the Human Rights Code. [89] Even if the union had invoked the Human Rights Code, the duty of an employer to accommodate an employee with a disability does not eliminate the employer's right to discipline or discharge an employee who commits a serious employment offence. The employee also bears an obligation to facilitate the accommodation process by getting the help which is needed from the appropriate medical facility or individual. There is no evidence of rehabilitation in this case. See in this regard Hamilton (City) v. Amalgamated Transit Union, Local 107 155 L.AC. (4th) 337 (Knopf) and Canada Post Corp. and Canadian Union of Postal Workers (Zachar Grievance) (1998) C.L.AO. No. 811 (Shime). [90] For all of the reasons set out, I am not satisfied that the employment relationship should be restored in the circumstances of this case. It is not appropriate for me to mitigate the penalty of discharge and the grievance is hereby dismissed. thi,~: 9th day of Oecember 2010.