HomeMy WebLinkAbout1991-0509.Kenny.92-03-31 ON]"AR,~O EMPI..OY~-S DE LA COURQNNE
CROWN EMPL 0 YEE$ DE L 'ON TA RIO
GRIEVANCE CQMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST, SUITE2100, TORONTO, ONTARIO. MSG IZB TEL. EPHONE/TELEPHONE~ (4~5j 326-~358
150, ~UE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIOJ. MSG ~Z8 'cACSI~ILE/TEL~COPtE : (~ ~6l 326- ~395
509/91
~NTHEJ~TTER OFAN~ITI~TION
Onde~
THE CROWN EHPLOYEE8 COLLECTIVE B~GAINING ACT
Befo~e
T~ GRIEV~CE SETT~~ BO~
BE~EN
OPSEU (Eenny)
Grievor
-
The Cro~ in ~ight of Ontario
(Minist~ of Transpo~ation)
Employer
BEFOg: W. ~aplan Vice-Chai~erson
FOR THE H. Law
GR~EVOR Grievance Officer
Ontario Public Service Employees Union
FOR THE M. Failes
EMPLOYER Counsel
Winkler, Filion & Wakely
Barristers & Solicitors
HEARING September 5, 1991
March 16, 1992
Introduction
By a grievance dated Aprit 10, 1991, Scott Kenny, a Field Officer, Dual
CIerk, grieves that he has "been dismissed without just cause." The remedy
sought is "reinstatement with full retroactivity of Wages, benefits and
credits." A hearing was hetd in Toronto before a full panel of the Board. A
second day of hearing was required, and was scheduled. Unfortunately, it
became necessary to cancel that hearing date. An attempt was made to
reschedule another hearing date, but it became apparent that a delay of
approximately four months would ensue. Accordingly, and with the consent
of the parties, it was agreed that the chair of this panel would continue the
hearing, and that his decision would be t.he decision of the Board. The
hearing reconvened in London, at which time additional evidence was heard,
as were the arguments of the parties.
In brief, it was the employer's position that the grievor was dismissed for
cause in that he admitted to nineteen incidents of theft, and that this
dismissal should, in the circumstances of this case, be uphetd. There is no
dispute about whether the thefts took place. Tho'.union, however, took the
position that the grievor demonstrates rehabifitative potential, and that it
would be just in this case to substitute some lesser penalty for the
termination. Prior to the incidents giving rise to this grievance, the
grievor had never been disciplined and he had received satisfactory job
appraisals. At the time of his discharge, the grievOr had approximately five
years seniority in the unclassified and classified service.
The Evidence
Mr. Barry Reynolds testified on behalf of the employer. Mr. Reynolds holds
the position of District Examiner and has 12 years :seniority with the
Ministry. Mr. Reynolds told the Board that the grievor was one of eleven -
3
full-time and two regular part-time employees responsible for issuing
vehicle and driver licenses. The London office, where the grievor was
employed, collects approximately $5 million in fees each year.
On January 2, 1991, one of the grievor's co-workers came to see Mr.
Reynolds and reported a suspicion to him with respect to the grievor's
hanc~ling of money. Among the grievor's duties was issuing replacement
licenses, for example when a license was lost, and issuing renewals of
licenses. Occasionally, the grievor would be called upon to issue a
replacement and renewal license at the same time. The fee for a
replacement license was $10.00. The fee for a renewal was $30.00. The
employee in question had noticed that when the grievor handled a
replacement and renewal at the same time, he only indicated on the form
that $30.00 was collected, yet the customer still would receive a
replacement license. According to Ministry practice, the fee for the
replacement license should also have been collected. In fact, the grievor
had collected both the replacement and renewat fees, but had devised a
system whereby he only turned over the former to the Ministry at the end of
the day, and in that way he was able to keep the latter. The exact details of
how the grievor concealed the fact from the Ministry that he had collected
$40.00 need not be reviewed here, that not being an issue in dispute.
After receiving this information, Mr. Reynolds asked the employee to come
back if he could point to a specific case. Later that day, such a case arose
with another employee. This employee was on contract and his or her
contract was not renewed. In the meantime, Mr. Reynolds continued his
investigation and he found some evidence indicating that the grievor was
engaging in this practice. In particular, Mr. Reynolds found.a "
replacement/renewal transaction dated December 12, 1990. The forms
4
should have indicated that the grievor collected $40.00, but they indicated
that he only collected $30.00. Mr. Reynolds phoned the customer, who
advised him that he had paid $40.00. An internal audit was ordered.
In the meantime, members of management had a meeting with the grievor on
January 21,1991. In addition to Mr. Reynolds, Richard Kennedy, the head of
Human Resources for the South Western region, was there, as was Mr. David
Tait. The grievor was confronted with allegations of theft. Mr. Reynolds
testified that the grievor responded with shock, d!smay and denial. The
grievor suggested that it was all a mistake. Following this meeting, the
grievor was suspended with pay pending the completion of the internal
audit. Mr. Reynolds testified that at no time during the meeting of January
21, 1991 did the grievor admit his dishonesty or offer to assist with the
investigation.
Mr. Reynolds also testified that he had a meeting with the grievor in
December 1990 following a general staff meeting on the subject of
overages and shortages. The grievor suggested'to Mr. Reynolds that staff
turn over their wallets and purses at the start of their shifts, and collect
them at the end of the day. This suggestion was not, needless to say,
implemented.
In cross-examination, Mr. Reynolds agreed that the grievor had a good
working relationship with his co-workers. Mr. Reynolds testified that he
was involved only in the initial investigation of the'grievor's activities and
that in the month of December he found eleven irregularities. Mr. Reynolds
was not involved in setting up the January meeting with the grievor, and so
did not consider asking the grievor if he wanted union representation. Mr.
Reynolds advised the Board that following these events the grievor made
5
restitution.
The employer's second and final witness was Mr. Rick Kennedy. Mr. Kennedy
has been with the Ministry for several years and has extensive human
relations experience. Mr. Kennedy testified that he asked the grfevor on
January 21,1991 about pilfering, and advised him that the employer was
aware of eleven discrepancies. Mr. Kennedy also told the grievor that he
was innocent until proven guilty, and told him that there would be an
exhaustive audit. The grievor denied any knowledge of wrongdoing,
indicated that it must be a big mistake, and suggested that other employees
might have been using his clerk's number.
After the internal audit was conducted another meeting was held with the
grievor. Also present was Virgery Vanier, an OPSEU Staff Representative.
Although there was some conflicting evidence on this point, this meeting
appears to have been held on March 14th. However, whether the meeting
was held that day or the next is not material to this case or to my finding
with respect to it.
At this second meeting, Mr. Kennedy confronted the grievor with the audit
findings. The a~udi~ revealed fifty-four "discrepancies," of which nineteen
were confirmed; that is to say, they provided conclusive proof of
defalcation on the part of the grievor. That portion of the audit report
relating to these nineteen incidents was introduced into evidence. After
the grievor was confronted with the evidence, he and Ms. Vanier met'
privately. When the meeting reconvened, the grievor admitted to the
nineteen incidents.
6
Until this point he had not said anything. After he admitted to the theft, Ms.
Vanier advised the employer that there were some extenuating
circumstances and explained that the grievor had personal financial
problems, brought about in part by his responsibility for financially
assisting his mother and sisters. Either at this meeting or the next day, the
grievor signed a statement admitting responsibility for the nineteen
incidents. Mr. Kenny was subsequently discharged by letter of April 5,
199~.
tn cross-examination, Mr. Kennedy testified that he was responsible for
setting up the meeting of January 21 st. He was asked why he did not advise
the grievor of his right to union representation, and he testified that since
the meeting did not concern the imposition of discipline, he did not think
union representation was necessary. With respect to the mid-March
meeting, Mr. Kennedy testified that Ms. Vanier did the talking and that the
grievor appeared subdued. Mr. Kennedy agreed that it was possible that he
telephoned the grievor the day after the March meeting and invited him to
come to his office to sign the admission. If that happened, then Mr. Kennedy
would not have told the grievor that it was unnecessary for him to bring a
union representative.
The grievor testified on his own behalf. Mr. Kenny was twenty-three years
old at the time of his termination. He began work with the Ministry as a
contract employee in August 1986, and he joined the full-time classified
service in June 1987. Mr. Kenny is. a grade 12 graduate with some grade 13
credits.
Mr. Kenny testified about his family life in the years leading up to the
incident in question. Suffice it to say that the grievor had a very troubled
7
childhood and young adulthood resulting from an extremely abusive father
who beat his mother and himself. Mr. Kenny's father is now in prison after
setting the Kenny family home on fire when all the Kennys were inside. The
Kenny family consists of Mrs. Janet Kenny, an older brother and two younger
sisters. The grievor's father did not contribute financially to the support of
his family, and in the result, the grievor has from an early age assumed
significant financial responsibilities with respect to his mother and
siblings.
In the period prior to the grievor's termination, he suffered a spell of
extremely bad financial luck. In June or July 1988, the grievor borrowed
some money to contribute to a down payment for a new house for his mother
and sisters after his previous home burned down. The grievor was required
to make bi-weekly payments on this loan of .$150. The grievor's annual
salary was approximately $24,000. He was also required to give money to
his mother, and he generally gave her $200 a month. The grievor +lived in the
new house with the rest of his family until January 1989.
At that time, the grievor moved into a two-bedroom apartment with a
friend. The arrangement was to split the rent and the living expenses. As it
turned out, the grievor signed his name to the lease, cable agreements and
telephone contract, and soon enough the grievor's friend moved out without
taking responsibility for his share of the expenses. The grievor moved to
another apartment. Unfortunately, the arrangements with his new
roommates proved unsuccessful; one of the grievor's roommates robbed him,
and at the end of the day the grievor was left with some significant
financial liabilities. In the meantime, the grievor was continuing to offer
financial support to his mother. She required assistance to purchase food,
clothing and Christmas presents as the holiday season approached.
The grievor testified to remembering very clearly the first time he
committed an act of theft. It was around the end of July or beginning of
August 1990. At the end of a shift he noticed that he was $10.00 over, and
he went back through his day's work to figure out why. And in that review
he figured out how to keep to $10.00 for himself when processing
replacementYrenewals. The grievor testified that he was not sure how
many times he took money, but he testified that he did it because he needed
the money for himself, for his mother, for his family, for his overdraft and
for a number of other reasons as well.
The grievor testified that by the en'd of the year he had resolved to stop
stealing. Around Christmas, and then after New Year's, the grievor met
with his mother and told her that he would not be able to continue to
provide her with the same level of support. Mr. Kenny testified that he
stopped taking money soon after these conversations.
The grievor was asked about the January 21st meeting and testified that he
was scared. He testified that he was told that "just under $1000.00 had
been taken" and this put him in a state of shock because he did not believe
that he had taken this amount. With respect to the March 14th meeting, the,
grievor told the Board that he met with Ms. Vanier just prior to that
meeting, and she advised him to let her doing the talking. As a result he did
not say anything. On March 15th, Mr. Kenny testified that Mr. Kennedy
telephoned him and asked him to come in and sign an admission, which he
did. Restitution followed soon thereafter.
After the meeting of March 14th, the grievor went to see his family
physician, who recommended counselling. Similar recommendations had
9
been made to the grievor in the past but, believing that he could handle his
problems himself, he had never acted on them. This time was different and
the grievor went to see a counselor. A letter from the grievor's famify
Doctor, J. Biehn, was introduced into evidence and states, inter alia:
f have been' asked to write a letter in support of Mr.
Kenny's appeal regarding his recent dismissal from
employment.
His situation first came to my attention on March 14,
1991 when he called my office and spoke at some length
with the practice nurse. I saw him myself the following
day and spoke with him for somewhat over an hour.
At the time of my interview with Scott, I found him to be
extremely distraught and expressing feelings of guilt and
remorse and feeling that his life had collapsed around
him. He expressed a desire for long term counselling in
order to help him deal with the stress factors which, in
his opinion, had led to his problems at work.
I was certainly concerned with the potential for self
harm in this case because he did express feelings of
hopelessness and diminished self worth.
I arranged to have him seen as soon as possible by the
.Out Patient Psychotherapy Service at St. Joseph's
Hospital and he eventually was seen in the early part of
April and has been seen on a weekly ongoing basis by a
counselor named Peter Gray. i believe he is making some
- progress in dealing with the issues which I believe
contributed to the behaviour which led to his suspension
and dismissal.
In my opinion, I think it would be very unlikely if the
behaviour was repeated should he be reinstated. Scott
has demonstrated a resolve to deal with the
psychological factors and issues which have led to his
difficulty.
10
In addition, it is also my opinion that the pattern or theft
i.e., small amounts taken on r~umerous occasions is not
the behaviour one would expect from someone who has
criminal intent. Since he was bound to be discovered, the
behaviour seems more like a cry for help and this has
been forthcoming.
The grievor testified at the first day of hearing that he is still receiving
counselling, and on the second day of hearing his counselor, Mr. Peter Gray,
gave evidence.
After the grievor was terminated, he applied for unemployment insurance,
which required some months of waiting.-He also.received social assistance.
By the second date of hearing the grievor had found employment, but still
sought reinstatement. He is engaged to be married. In telephone
conversations with his former co-workers he has asked that his apologies
be extended to management. The grievor testified that he was sorry for
what happened, and that he feels very bad about: it. The grievor believes
that the job with the Ministry was the best thing that ever happened to .him,
and he testified that he wishes he had never abused the trust placed in him,
In cross-examination, the grievor was asked some questions about the new
house he provided the down payment for. The gdevor contributed $9000.
The house was sold i'n July 1990. At that time, the grievor received his
$9000 and he used it to pay off his loan. The grievor did not receive any of
the proceeds of the profit made on the house.
The grievor also testified that he became engaged around Christmas of
1990. The grievor purchased an engagement ring for his fiancee which cost
$1200. The grievor's mother has a new car, purchased in the summer of
1990, after the sale of the house. It is a Pontiac Sunbird. The grievor owns
11
986 Ford. He atso owns a motorcycle.
The grievor was asked, given ownership of these assets, whether it was
true to say that his family was, in the fall of 1990, in financial distress.
The grievor testified that his mother still needed money, and that he
continued to provide it. The grievor felt desperate for money, to meet his
own needs, and to meet those of his family.
The grievor testified that the last time he took money was in the first
week of January 1991, and that the first time he took money was in late
July or early August. In this regard, he was asked, for the purposes of
impugning his credibility, about an incident that took place in July 1990.
Some documents were introduced, but the grievor offered a plausible
.explanation for the apparent discrepancy.
Mrs. Kenny testified on .behalf of her son. Her evidence corroborated his
with respect to conditions at home. She also testified about.the grievor's
financial support to her and to the rest of her family. Mrs. Kenny works as a
secretary, and her annual salary was, at the time of the grievance, $23,000.
This was not enough money to make ends meet, and that is why she needed
regular contributions from her son. The frequency of these contributions
varied. Sometimes, the grievor would give her money twice a week, and
sometimes it would be two or three times a month. Sometimes he would
give her money for food, sometimes it would be to pay a bill, and sometimes
it would be for clothing for his younger sisters. The grievor's older brother
did not contribute to the family's financial support. Mrs. Kenny did not
know that he was taking money at work.
Mrs. Kenny testified that the grievor advised her around Christmas time -
12
that he would not be able to continue giving her ,money as in the past. He
advised her that he had a new girlfriend, and that this relationship was
becoming serious.
tn cross-examination, Mrs. Kenny was asked how much she sold her house
for and she testified that she sold it for approximately $130,000. She used
the profit to purchase a new car as her old car was no longer safe to drive.
Mrs. Kenny was asked about her financial situation in the fall of 1990, and
she testified that she had a number of bills she was trying to pay off, that
she needed money for her daughter, and that the money from the house
provided her with her one chance to purc_hase a decent car.
When the hearing resumed in London, Mr. Peter .Gray gave evidence on behalf
of the union. Mr. Gray is a Psychotherapist with the Outpatient Service of
the St. Joseph's Health Centre. He received his master's degree in Family
Studies and Marriage and Family. Therapy from the University of Guelph, and
he testified generally about the course of studies 'he followed, as well as
his background and experience. Union counsel moved for the recognition of
Mr. Gray as an expert witness. Counsel for the employer did not object to
this, but reserved the right to make representations with respect to the
evidence adduced.
Mr. Gray identified a letter he wrote with respect to the grievor's mental
state, and rehabilitative potential. This letter was:introduced into
evidence. He also testified about the treatment the grievor had received,
and more generally about a particular psychological model, called The
Shame Theory, which he concluded assists in explaining the grievor's
conduct. In brief, Mr. Gray began to see the grievor following Dr. Biehn's -
referral, and provided therapy to him over a period of approximately three -
13
months.
Mr. Gray concluded from his sessions with the grievor that the grievor was
ashamed about what he had done, and he came to this conclusion both by
what the grievor said and how he looked during their appointments together.
The grievor was' often teary, and could not, for the first sevei'al sessions,
look Mr. Gray in the eye. At these sessions, the grievor discussed his family
history and the financial situation in the months prior to his discharge. Mr.
Gray concluded that the grievor had become over-responsible and had
assumed a parental role, partly as a result of the gnevor s abusive
relationship with his father, and party because the grievor's father believed
that the family could not get along without him, and had said as much to the
grievor. Ensuring that the family could get. along without the father then
became one of the primary motivators in the grievor's life, and was
ultimately the cause of his downfall.
Mr. Gray explained all of this in the context of the psychological model
earlier referred to, and he illustrated how the grievor's behaviour reflected
that model. Simply put a sequence of activities was triggered which led
the grievor to act in a compulsive and destructive fashion, namely to engage
in the thefts that led to his dismissal. Mr. Gray was able to assist the
grievor by getting to the roots of his problems, including addressing his
beliefs that he was responsible for the support of his family. Moreover, the
financial circumstances of the grievor's family has now improved as a
result of the grievor's mother learning that she is eligible for social
assistance in an amount in excess of the amount formerly provided by the
grievor. Mr. Gray testified that he believes that if the grievor were
reinstated to his position, he would not be likely to abuse the trust placed
in him. In brief, it was Mr. Gray's view that this has been a very shameful -
14
experience for the grievor, and that he is unlikely to repeat it.
In cross-examination Mr. Gray was asked a number of questions about ThE:
Shame Theory. He was also asked about his treatment of the grievor, and he
agreed that he based his conclusions on the information provided to him by
the grievor. For instance, his conclusions with respect to the grievor's
financial situation were based entirely on the information provided to him
by the grievor, and this information was quite general in nature. He was
not, for example, aware of the grievor's spending habits, or those of his
family. He was not aware that t~e grievor purchased his fiancee a diamond
ring at around the same time he was having financial difficufties. He also
did not know about the grievor's other assets. Mr. Gray agreed that if there
were enough financial assets to go aroundl that might present some
difficulties insofar as using The Shame Theory toiexplain the grievor's
behaviour. Finally, Mr. Gray agreed that he could not guarantee that the
grievor would not repeat his conduct in the future.
The evidence having been completed, the matter turned to argument.
Employer Argument
Counsel for the employer urged that the grievance be dismissed, tn his
submission, three important factors needed to be addressed. First of all, it
',,
was important to look at the nature of the position,. It was a position of
trust, and a high degree of integrity was expected.. Second, it was
important to look at the mitigating factors. These ,factors included the
length of service, whether or'not the grievor readily admitted the theft and
assisted in the investigation, and the degree of conceafment involved in the
actual theft. In counsel's submission, it is very important to determine .._
whether the theft was a one time incident, or whether it was part of an -
ongoing sophisticated plan. If it is the latter, then that was an important
factor to keep in mind in assessing the penalty imposed. Andfinally,
counsel suggested that the evidence of Mr. Gray was not very useful to a
determination of this matter in that in making his assessment of the
grievor, Mr. Gray did not have all of the facts, and in particular, those
relating to the grievor's true financial state.
To illustrate these points, counsel turned to the case law and referred the
Board to a number of authorities including Canada Post (unreported decision
of Shime dated December 9, 1987), in which the arbitrator dismissed the
grievance of an employee who was disct~arged for theft, and who had a
lengthy ~'ecord of service. As in the instant case, medical evidence was
adduced indicating that the grievor was remorseful for his activities and
that it was unlikely that the situation would recur. In any event, the
arbitrator dismissed the grievance, and in that process made the following
finding:
While it is true that the grievor received psychiatric
treatment, I am not convinced that there is a causal
relationship between the grievor's illness and the
deliberate acts of theft. In my view, the theft of money
was more related to the grievor's financial situation
than to his psychiatric illness. The thefts were
committed for personal gain and I am not convinced on
the basis of the medical evidence that if the grievor
were to undergo financial reverses in the future that he
would not engage in similar conduct (at p. 4).
Counsel also referred to SpLonick 31/77 (Beatty), in which the Board
dismissed the grievance of an employee who had been discharged for the
theft of a case of liquor, in that case, the Board observed that "it is
precisely in those circumstances, when the act complained of can be
characterized as being in the nature of an isolated act of indiscretion or an
16
anomalous example of poor judgement that the corrective and rehabilitative
approach to disciplinary sanctions that has been espoused by this Board has
its most obvious and tenable apPlication" (at 3). The Board in the Splonick
case upheld the discharge of the grievor, and employer counsel urged, for
similar reasons, that this Board do so as well.
Counsel also referred to two GSB decisions involving facts not dissimilar
to the instant case. In Rice 754/85 (Samuels), the Board decided against
reinstating a grievor who occupied the same sort of position as the grievor
in the instant case and who stole almost $1300 in some fifteen different
incidents. In Menzies 751/91 (Waisglass), the Board reinstated a grievor
-who was caught stealing in exactly the same way as the grievor in the
instant case. Employer counsel argued that there were a number of
distinguishing factors arguably supporting a reinstatement order in Menzies
which did not exist in the instant case including some seventeen years of
seniority, and the fact that Menzies admitted the theft before it was
actually discovered (although an audit had commenced), and also actively
assisted the employer in conducting the investigation.
Moreover, other important distinguishing factors included the fact that
Menzies, like the grievor in this case, was under considerable emotional
stress during the period in which the thefts took ptace as a result of the
illnesses and deaths of her brother and sister, and because of learning that
she too was susceptible to the disease that claimed them. There were
other aggravating emotional factors as well. In Menzies the Board reviewed
the legal principles in issue and also made a finding that the grievorl who
had a previousiy unblemished record, was a credible witness with strong
rehabilitative potential, and for these and other reasons reinstated the
grievor.to employment following a lengthy suspension. Counsel for the -
employer argued that while Menzies might fit at the reinstatement end of a
spectrum, the instant grievance was, because of its facts, at the other end,
and that the Menzies award, a~cordingly, should not govern.
Counsel argued, very simply, that the mitigating factors in this case were
not strong. There was no immediate confession. There was no assistance
to the employer as it carried out its investigation. There was a short
service record. The grievor was only an acceptable employee. Moreover,
counsel argued that the thefts were part of a pattern of dishonest conduct,
and.so should be distinguished from one-of-a-kind incidents. Counsel .also
argued that, carefully examined, the grievor's financial circumstances were
hardly as bad as the grievor made out, and that he had a number of
alternatives to theft. With respect to the evidence of Mr. Gray, counsel
pointed out that Mr. Gray was no.t a psychiatrist or psychologist, and that he
based his conclusions on what the griever told him. One of those
.conclusions was that the grievor was in bad financial shape. Counsel
submitted that the evidence indicated otherwise. In conclusion, counsel
submitted that there was a need for deterrence, and that it was important
that this deterrence message be sent out. Accordingly, counsel urged the
Board to dismiss the grievance.
Union Arqument
In the union's view, this case presents two important issues: first,
whether the grievor's conduct was the product of a rational person who
made a calculated decision to steal, or whether it was the result of a
transitory period of extreme financial stress exacerbated by his personal
history and immediate circumstances, and second, whether the grievor
could be rehabilitated.
18
Counsel pointed out that the grievor stole ten dollars on nineteen separate
occasions over a period of three months while experiencing tremendous
personal stress. He did not confess when initially confronted because he
was scared and shocked by the figure of $1000 said to be missing. The next
time he met with the employer he did not say anything because he was
advised not to. Counsel submitted that these factors should be kept in
mind, and he also pointed out that the grievor was never asked to assist in
the investigation, and that he did sign a statement admitting to the thefts,
and atso made restitution.
In counsel's view, this case turns on the mitigating factors and on a finding
of the grievor's rehabilitative potential. Counsel pointed to the medical
evidence, including the doctor's report, and Mr. Gray's testimony, and argued
that this evidence strongly supports reinstatement, and was also
consistent with the grievor's own account of his experience. He was
remorseful, and he has learned from his lesson. Counsel also submitted
that while the grievor may have had financial opti"ons available to him, and
in this regard counsel emphasized that theft from: an employer is never a
viable option, the point to be kept in mind was that the grievor, in his
mental state at that time, did not think he had any options available.
Counsel referred to two cases, Menzies and Thomson 1794190 (Kaplan), and
argued that both were applicable in this case. In counsel's view, the
evidence was absolute and convincing that the g.rievor's remorse and
contrition were genuine, and this was germane to his rehabilitative
potential. Counsel also pointed out that the grievOr made this mistake as a
young man with an unfortunate family history in the throes of a personal
crisis, and who, accordingly, did not demonstrate very good judgement. '-
Counsel suggested that the grievor has a good record, and that his five
19
years of seniority should not be lightly dismissed. And finally, counsel
pointed out that the grievor sought therapy on his own initiative, and that
the evidence was uncontradicted that this therapy had helped him, with the
result of little likelihood of any repetition of this behaviour. Counsel asked
for an order reinstating the grievor with no back pay and with no foss of
continuous service.
Decision
Having carefully considered the evidence and arguments of the parties, I
have reached the conclusion that the grievance in this case should be
upheld.
tn Menzies the Board identified a number of critical questions which must
be considered in determining the issue of reinstatement after discharge for
theft or breach of trust:
Is the theft or breach of trust an aberration? Except for
the aberration, except for the unusual and exceptional
behaviour in an otherwise unblemished record, is the
grievor credible and trustworthy? Does she acknowledge
and accept full responsibility for her wrong-doing and for
the repair of the damage done by her aberrant behaviour?
Can she be reformed or rehabilitated by any discipline
less than discharge? What is the appropriate level of the
discipline that is required in order to send a sufficiently
strong message to all employees on the importance of
trust and honesty in the employment relationship? Can
the grievor be expected, with a high degree of probability,
to respond to corrective discipline and rehabilitate and
repair the damage that was done (by the aberration) to
the trust that is required in the employment
relationship? (at 9)
Obviously these questions are not exhaustive, nor is it necessary to
affirmatively answer all of them in order to make a determination on --
whether or not a particular grievance will succeed. Instead, what is
required is for the Board to make a determination, having heard the
evidence, particularly that Of the grievor, whether each particular case is
an appropriate one for the exercise of the statutory discretion to mitigate
the discharge penatty. This is such a case.
Employer counsel cited a number of cases relevant to the determination of
this matter, although ultimately each such case must be decided on its own
facts. With respect to the Splonick decision, it should be noted that there
are a number of distinguishing factors between that case and this one,
including the general circumstances leading to the theft, the absence in
one, and the presence in 'the other, of medical eVidence regarding the
emotional state of the grievor, and the findings of the Board in Splonick
about the credibility and the demeanor of the grievor. The Canada Post case
is also distinguishable from the instant one. in Canada Post the arbitrator
reached the conclusion that there was no connection between the decision
to steal and the grievor's state of mind. In the instant case, I reach the
opposite conclusion, and am satisfied in any event that there is a good
prospect for rehabilitation supporting a reinstatement order.
As in Menzies I would ordinarily adopt the general arbitral approach that in
theft cases one material factor to be considered is whether the grievor was
discharged for a single and aberrant act of theft, or for a pattern of
activities extending over a prolonged period. In this case, however, the
evidence indicates that it was the pattern itself that is aberrant, the result
of the grievor's charged emotional state. Obviously, it would have been
better for the grievor to immediately confess when the thefts were brought
to his attention. The grievor offered a partial explanation when he
testified that the figure of $1000 induced him to panic, and that he was
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· subsequently advised by his union representative not to say anything. This
explanation is not wholly satisfying. However, I cannot accept as a general
principle that an immediate confession of wrongdoing is a mandatory
prerequisite to reinstatement in a theft case. While it may be persuasive in
terms of indicating rehabilitation potential, as is the case when an
employee assists an employer in the subsequent investigation, its absence
is not necessarily fatal and should not serve as an absolute barrier to
reinstatement, particularly where there are other strong mitigating
factors.
Obviously, breaches of trust must be taken very seriously. There are,
however, compeffing mitigating factors in this case, including the grievor's
youth, his demonstrated interest in rehabilitation through regular
attendance at counselling, the unique financial circumstances, his
acceptable work record and lack of a disciplinary record, and the promise of
his rendering future valuable service to the ministry. It was clear from the
grievor's evidence that he appreciates that what he did was wrong, and that
he is genuinely sorry.
There is no excuse, and the union did not advance one, for the grievor
choosing to steal rather than handling his financial affairs in a more
responsible and appropriate manner, such as by selling, for example, some
of his capital assets, or by not purchasing new ones. In this case, however,
there was very little that was rational 'about the grievor's behaviour, and so
it is hardly surprising that he did not act rationally with respect to an
orderly handling of his financial problems. What is clear is that he has
taken real steps to put his life back in order, and from both his evidence and
that of Mr. Gray, the indications are that these steps will be successful. ._.
There is no way to conclude with absolute certainty that this grievor will --.
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not breach the employer's trust on another occasion. However, I am
persuaded that the chances of this re-occurring are remote, and that this is,
an appropriate case to take another chance on someone who made a very big
mistake in very unfortunate circumstances.
In ordering the grievor's reinstatement, I am providing him with an
opportunity to regain the trust of his employer. It will not be easy, for the
employer has every reason not to trust this person. The grievor can regain
this trust by demonstrating to the employer that he has learned from his
mistake, and theft he is determined to make good. In that way, he will
regain his employer's trust, and that of his co-workers.
In my view, based on the evidence and arguments of the parties, dischargE;
in this case is excessive. An appropriate penalty is a twenty-day
suspension, and the employer is directed to remove the discharge letter and
replace it with one to this effect. The employer is directed to reinstate the
grievor within two weeks of this award or at such time as is mutually
agreed upon by the parties. In the circumstances of this case, it is not
appropriate to make any order with respect to back-pay, and I note that the
union did not request' that ldo so. The grievor is.~.reinstated with fulf
service credits.
I remain seized with respect to the implementation of this award.
DATED at Ottawa this 3 z day of March 1992.
am Kaplan
Vice-Chairperson