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Home My WebLink About1986-0054.Hill.87-06-05IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Bef ae: OLBEU (Thomas Hill), and Grievor The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer P. M. Draper Vice-Chairman C. A. Nabi Member A. G. Stapleton iMember For the Grievor: 8. Fishbein counsel Koskie & Minsky Barristers & Solicitors For the Employer: W, Kenny Counsel Hicks Merely Hami~lton Stewart Storie Barristers EC Solicitors Hearing: February 25, 1987 . DECISION The Grievor, Thomas Hill, was dismissed as of January 28, 1986, for having misappropriated cash in the amount of $9,898.93 and for having temporarily retained possession of various amounts of cash, the property of the Employer. The parties are agreed on, the material -facts in the matter. The Grievor is 32 years old, is married $d has four children. He was first employed by !he LCBO in August, 1973, as a ~Clerk 2 and in December, 1983, he became the Manager of Store #352 in Elgin, the position he held at the time of his ~dismissal. His disciplintiy record ‘consists of a one-day suspension for the infraction of a personal appearance rule and a written reprimand for cashing an NSF cheque at the store where he was working at the time. In addition to the manager, the staff of Store 8352 consists of three to four part-time employees. Among the Grievor’s managerial duties was the daily prep\aration of bar&deposit slips representing the cash receipts of the store for the day, which were then checked and countersigned by another employee. The slips were made out in triplicate, one copy being retained at the store, one going to the Employer’s bank and one going to~its accounting department. On or about January 28, 1986, the Employer noticed a discrepancy between the amounts of. the deposits reported by the bank as having been received from Store #352 and the amounts which the .Employer’s records indicated should have been deposited. A telephone‘call was made to the bank which, in turn, telephoned the Grievor to inquire about the discrepancy. Later on the same day the Grievor admitted to -2- his supervisor that he had been stealing cash from the store by having a correct bank deposit slip countersigned by the other employee, forging a false slip for a smaller amount, depositing the smaller amount in the’ bank and keeping the difference. The dates and amounts of the defalcations are as follows: November 30, 1985 - $2,657.62 December 18, 1985 - $1,515.65 December 23, 1985 - $1,540.0!3 January 11, 1986 - $1,260.00 January 15, 1986 - $1,319.21 January 22, 1986 - $1,606.45 The Grievor also admitted and an audit confirmed that on numerous occasions during 1985 he had withheld a portion of the store’s cash receipts from the daily .. bank deposit and had made up, the resulting shortage by adding an equal amount to the bank deposit made a few days later. The Grievor was charged with six counts of theft, pleaded guilty, was convicted and served a sentence. He was also required to make restitution of the stolen funds which was done through a loan from his parents. The Grievor testified that he had formed the habit of visiting hotels “five nights a week” to dri,nk after taking part in hockey or baseball games, spending money that shouId have been used “to pay bills.” As the result of a conversation with an official of the Employer shortly after his dismissal, he came to believe that he is an alcoholic. He began to attend AA meetings and beginning in August ‘made an unsuccessful effort to follow a program of -3- . controlled drinking. He stopped drinking in October and entered the Residential Rehabilitation Unit of the Brockville Psychiatric Hospital where he completed a thirty-five day~treatment program in late November. Since his dismissal he has had three or four months of work in construction, the last in December, 1986, but has been unempIoyed since then. He knew what he was doing when he stole the money and that it was wrong, and he regrets his actions. He believes that he can resist the continuing temptation to drink. Dr. G. Woodfine is Director of the Residential Rehabilitation Program for Chemical Addiction at the .Brockville Psychiatric Hospital. He testified that applicants to the program are carefully screened, the rules for participants are 0. strict, and non-compliance results in discipline or expulsion from .the pr,ogram. After completion of the program participants are seen by staff members at intervals over the period of a year. The Grievor “did well” and “had a good attitude” but “there is no guarantee of success” and the prognosis for the future course of his alcoholism must be “guarded.” The Grievor is fit to work in the sense that he is not incapacitated by his alcoholism. He should not be given the responsibility of the position from which he was dismissed. Having a job would improve the Grievor’s chances of coping with his problem but being without a job should not have an adverse effect if he is “truly trying.” He must decide to remain sober in spite of any difficulties. An LCBO store would not be the best environment for the Grievor. Employment there would require a great effort on his par? and is a test he does not need to pass in dealing with his addiction. The Crie~vor would have known what he was doing in stealing the money but alcoholism would have caused a lowering of his moral standards and compromised -4- his integrity. Counsel to the Employer submits that considering the special pos~ition of trust. held by the Grievor, the lengthy period over which her falsified the store’s records, the substantial amount of money stolen and the particular need of the LCBO to react strongly as a deterrent to such misconduct, the dismissal ,is not excessive and the Board should not substitute a discipIina!y penalty. Counsel further submits that there is very real doubt that the acts of theft are attributable to the Grievor’s alcoholism. / Counsel to the Grievor argues that the dismissal is excessive in view of the Grievor’s alcoholism, his .seniority, his admission of culpability, his’family obligations, his inability to find ~steady employment and his efforts to rehabilitate himself. Coinsel proposes that the Board impose a suspension without pay and reinstate the Grievor to any position and under any conditions it deems appropriate. Initially we were sceptical that the thefts committed by the Grievor were induced by his alcohol dependency. We were troubled by the fact that alcoholism apparently manifested itself only in the dishonesty illustrated by the -thefts. There is no evidence before us ‘of the usual indicia of alcoholism: instances of intoxication; impairment of work performance; domestic problems: personal financial difficulties (other than the Grievor’s testimony that he’“got in too deep and couldn’t repay,” the stolen money). However, on further reflection we decided that we should accept the expert testimony of Dr. Woodfine to the i I ’ . -5- .* . effect that the thefts were alcohol related in that the Grievor’s moral values were “side-tracked” by his alcoholism., Nonetheless, we are of the opinion that the Grievor’s alcoholism, while it may explain his misconduct, does not exempt him from accountability for it. Alcoholism is now generally regarded as an incurable disease. But it is a condition for which the victim bears some measure of personal responsibility and so will ‘not necessarily be relieved of ‘fault fcr misconduct regardless of its nature. Put another way, not every~ kind of blameworthy behaviour by an alcoholic is excused by the fact of alcoholism. There is a limit to the obligation, of -an employer to retain an alcoholic employee who has committed an employment-related offence, especially on+ of a criminal nature, notwithstanding that it is attributable to alcoholism. The Grievor has abused the special trust reposed in him as a store manager with responsibility for the store’s receipts by engaging in a shrewd and systematic scheme of theft. On that account alone the limit of employer tolerance has surely been reached. Prima facie, dismissal is the appropriate employer response to theft of its property by an employee. The reason said to underlie this view is that the loss of trust that inevitably follows such an offence, particularly where there has been special reliance on the honesty of the employee, irreparably damages the employment ,relationship. Suspension and reinstatement is an alternative to be considered only if persuasive mitigating factors are present. In the case at hand that consideration is outweighed by the nature and ~circumstances of the Grievor’s,succession of offences. -6- . As regards the question of the Grievor’s potential for rehabilitation, we are satisfied, based on the opinion given by Dr. Woodfine, that the Grievor’s efforts to master his addiction would not, in any event, be assisted by a return to employment with the LCBO. In the result, we find that the Grievor was dismissed for just cause and that the dismissal was not excessive in t,he circumstances present> The grievance is dismissed. DATED in Consecon, Ontario this 5th. day of June 1987. m P. (M. Draper, Vice-Chairman --- /L&L &&* -- G. A. Nabi, Member --- _--- A. C. Stapleton, Member