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HomeMy WebLinkAbout1991-1165.Reed.92-08-10 .,.;-, : ONTARIO FMPL OYE$ DE. ~.A COUBONNE ~, " · CROWN EMPL 0 YEES DE L 'ON TARtO GRIEVANCE C,OMMISSlON DE ( SETTLEMENT REGLEMENT BOARD DES GRIEFS ~80 DUNDAS. S.TREET WEST, S.UtTE 2100~ TORONTO, ONTAR/O. MSG ~ZB. TELEPHOI'~E/TELEP~O~E: ¢4161 326-1381~ ~80, RUE DIJNDA$ OUEST, ~UREALI 2100, TORONTO IONTARIOI. MSG IZ8 FACStMILE.'TELECOP~E . I~ ~6) 326-K~6 1165/91 Under THE CROWN E~PLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEFANCE SETTLEMENT BOARD BETWEEN OLBEU (Reed) Grievor The Crown in Right of Ontario. (Liquor Control Board of Ontario). Employer B~FORE: . M. Watters Vice-Chairperson I. Thomson Member D. Clark Member FO~ ~ S. Philpot~' GRZ~VOR Counsel Koskie & Minsky Barristers & Solicitors FOR THE R. Drmaj EMPLOYER Counsel Hicks, Morley, Hamilton,.Stewart, Storie Barrister~ & Solicitors HEARING June 8, 1992 The griever was dismissed by the Employer for theft. The theft was acknowledged by the griever at the hearing. The Union, on his behalf, asked for reinstatement given the exi. stence of certain mitigating circumstances, including the fact the griever was subject to a drug addiction at the time'mater~a] to this dispute. The griever and Mr. H. Nielsen, Business Agent, gave evidence for the Union. The Employer elected against the calling of any evidence. It.took %he position that the dismissal.should be sustained given the seriousness of the offence and the ]ack of any compelling circumstances in the g~ievor's favour. The griever is twenty-seven (27) years old. He has worked for the Employer for approximately three and one-half (3 1/2) years At the'time ol~'the inciden'~s in question', he was a casual Clerk in Store #12 in Toronto, Ontario. His responsibi]ities included cash, stock, inv. entory and cleaning, The evidence disclosed that 'the griever frecluent]y served as a cashier without any immediate supervision, The griever testified that he worked between thirty (30) and thirty-five (35) hours per week. This inc]uded time he was called in to replace sick employees and time spent "free-lancing" at other stores. The griever stated that, for the most part, he was schedu]ed.to work between four (4) and five (5) days each week. As stated, the griever did not dispute the allege'Lion of theft. He advised that the theft was completed through a process 1 described as "under-ring More specifically, he rang in an amount on the cash re~ister which was less than the cost of the item sold. A receipt was withhJld from the customer, The grievgr would ~hen pocket the difference in the till at the end of the day, In response to a question from the panel, the grievor stated that he stole just one (1) or two (2) times. actions were ultimately discovered through an investigation which included integrity shopping and video'tape. The grievor was 'subsequently arrested on Nay 15, 1991 and charged with theft over one thousand dollars ($1,000.00). He' confessed ~o the ~heft on %hat date. No reference was [hen made [o the existence of a drug problem. At a later meeting with LCBO persOnne~ on June 13, 1991, the grievor declined to elaborate on the theft, He sta~ed ·-"'~"~.'i'. that he was advised to adopt this posture by his counsel on the criminal charge. Again, the grievor d~d not mention a drug problem. Further, he did not refer to certain steps he had taken in an effort to confront his addiction. The grievor's termination led directly to the instant proceedings. On September 25, 1991, the grievor entered a plea of guilty to theft under one thousand dollars ($1,000.00). He received a suspended sentence and two (2) years probation. He was also required to continue his attendance at Alcoholics and'Narcotics Anonymous meetings, We were informed that "most" of the money taken has been repaid pursuant to an order for restitution. The grievor testified at some length as to his problems with drugs. He stated that in December, 1'990, he broke-up with his girl friend after a three (3) year' r~lationship. The grievor indicated that this development in his personal life caused-him to be depressed. As a consequence, he resorted to drugs including heroin, morphine, marijuana, dilaudids and alcohol to "ease. the pain". The grievor stated that this drug taking became a daily need "very quickly". He informed the Board that he could not then function without the drugs and that he frequently went into work "high". It was the grievor"s evidence that the' theft occurred during the'"wors~part of his addiction." which fell within the February to Nay, 1991 period. He were told that his drug habit was costing between one hundred and fi?ty dollars ($150.00) and two hundred do]lars ($200.00) per day and that he engaged in the theft to support and fund this drug use, The grievor conceded that he took drugs on a "recreational" basis prior to the breakup with his girl friend. He stated that he took marijuana, morphine and alcohol at parties and at home after work, on occasion. The incidence of such use was described as being less than a daily occurrence. The grievor testified that this "recreational" use spanned his period o~ employment with the Emp]oyer. He maintained, however, that his addiction commenced in or about December, 1990. The grievor indicated that his,drug use created punctuality problems in that he was often late in the mornings or on his 3 ~ return from lunch. He stated that, as a consequence, he lost two (2) weeks of hours in January, 1991. The griever apProached his manager at the time to discuss t~e cut back in hours. During their exchange, he promised not to be late in future. The' grieVer advised us that .he "rectified" the problem by leaving the house earlier in the morning. It is clear that the griever did not then disclose his drug problem to the Employer. He testified that he was afraid of the repercussions which might follow such'a disclosure, simPly put, he was concerned for his job. It was the. griever's further evidence that h~ was not a~are Of. the existence of the Employee Assistance Program until "after the fact", which we took to mean after.his discharge. He also ' testified that he did not observe any postings in respect Of .. same. Mr. Nielsen expressed' the opinion that the program was not "well communicated". The griever advised the Board that, at some '"'~ .juncture during the depths o¢ his addiction, he asked not to be placed on cash. We were not told o¢ all of the circumstande~ '! surrounding this request including how the Employer may have responded to it. But for the punctuality prob]em noted above, the griever had 'a clear work record with this Employer. It was the grievo-r's evidence that he unsuccessfully attempted to stop taking drugs prior to his arrest in May, 1991. Between his arrest and the June 13, 1991 meeting, the griever contacted 'the Addiction Research Foundation. He was told that there was a substantial waiting period for the methadone program, The griever stated that he received similar information from the .{ Donwood Medica] Centre vis a vis its treatment programs. As a consequence, he sought a referral through a group called Health Care Resources, Ultimately, he w~s sent to the North Western Institute in Fort Washington, Pennsylvania for a period of rehabilitation, The program, which ran between Augus5 9 and September 6, 1991, attempted to "w~an'.' the griever off drugs. Additionally, it taught defensive and coping mechanisms. Emphasis was, apparently, placed on self-help meetings. The griever testified that he believed he'was "killing himself" prior to his entry into this program. Reference was made to a drastic weight ]ess occasioned by the drug use. The griever testified that he has.regularly attended ..~ meetings o~ Alcoholics Anonymous and Narcotics Anonymous subsequent to his. discharge from the North Western Institute. He stated that he attends such sessions four (4) to five (5) times .. per week. He indicated further that he might attend two (2) sessions in a sing3e day if he felt "a sense of urgency", The griever advised that he will continue to attend these meetings in the future as he "needs them to remain stable". He has also attempted to stay clear of his former "user-friends". ~he griever conceded, in a candid fashion, that he has relapsed 'twice.' Both incidents apparently occurred on the same day. It was the griever's opinion that ~is addiction is no longer in place. During the course of his testimony, he stated: "I am not 5 going to take drugs, I don't have to any more". The g~ievor expressed remorse for his actions and acknowledged the impropriety of his conduct. He stated that he had never stolen from the Employer prior to his addiction, He suggested that, at the time, the thefts appeared to him to be a "question of survival" as he needed funds to support his drug habit, We were told that he would never steal again given the improvement in his condition and outlook. Ir'was the grievor's assertion that he would never have engaged in theft-but for his drug addiction. The Union requested that the grievor be reinstated without " loss of seniority. Retroactive compensation was not claimed. We ~. were asked to order the removal of the. discharge from'the grieVor's record. Counsel for the Union described the theft as a "momentary aber.ration" in the context of the grievor's overall employment with'the Liquor Control Board of Ontario. She ~ referred to a number of mitigating circumstances including the following: .(i) the grievor fully and frankly admitted his wrong-doing from his arrest onwards; (ii) the grievor candidly acknowledged his drug addiction and relapse; (iii).the gri~vor is both contrite and remorseful about his actions; (iv) the grievor has made restitution and has paid a sufficient price for his wrongful conduct given the imposition of a criminal record; (v) the theft, which served to blemish the grievor's prior record, was 6 attributable to drug addiction, and (vi) the grievor on his own initiative took Steps to rehabilitate himself. For all of these reasons, it was submitted that t~e grievor should be accorded" second chanCe".~ Counsel referred to an emerging trend in the case law which recognizes that employees are not automatically discharged for theft. She emphasized that a grievor's rehabilitative potential must also be assessed in determining the outcome of a given case. It was argued that the existence of an Employee Assistance Program demonstrates a recognition on the part of the Employer t~at employees 'c~n be rehab'ilitated from the type of problem experienced here by the present grievor. The Board was provided with the following authorities in support of %he Union's posi~i°n: Re Boise Cascade C~n~da L~d. {Fort Franc~s Paoer Division) and Canadian Pao~orkers Union. Local 306 (1989), 8 L.A,C. (4th) 55 (Haefling); Re Sh~ll Canada Prgducts Co. And Enerqv And Chemical'Workers Union. ~ocal 848'(1988), 28' L,A.C. (3d) 27i (Barrett); Ke_.~_B~, 509/91 (Kaplan); Menzies, '-- 751/91 (WaiSglass); Wells, 2/82 (Verity); Blackmore, 315A/84 (Draper); Penner, 307/80 (Barton). In response, it was the position of the Employer that it was incumbent on the Union to provide an excuse for the-theft. From the perspective of the Employer, theft is prima facie a "dismissable offence". In this regard, counsel argued that drug or alcohol addiction could not a~solve the grievor of responsibility for the theft. Simply stated, it was submitted 7 ~ that the grievor remained responsible for his actions notwithstanding his addiction. Additionally, it was asserted that the Union had failed to establish a causative relationship between the addiction and the theft, Counsel further submitted that the Union had not proven the-existence of the' addiction or. the extent of rehabilitation on clear and convincing evidence. It was argued that more than "self admission" was required to' demonstrate th~s potentially mitigating circumstance. Reference was made to the need for medical and expert opinion on these issues. Counsel asked us to conclude' that the g~ievor required more time in rehabilitation befor6~ his trustworthiness could be established,. In'this regard, it' was argued that reinstatement · ..... was not "a ?undamenta] aspect"'o¢ the'grievor's rehabilitation, ,' In'summary, it was the position of the. Employer. that the' -. .. mitigating factors relied on were insufficient to justify a .':? reduction or modification .in the penalty, Counsel submitted that the existence of the Employee Assistance p~ogram could not serve as the basis for a reduction of the penalty as the .problems experienced by the .grievor were not "visible" to the Employer. Ultimately, it was argued that dismissal was an appropriate response in the context of ~heft by a casual employee in a position of trust. The Board was provided with the following authorities in support of these submissions: Hi?_._l, 005~/86 (Draper); Menzies, 102,126/83 (Weatherill); McWil]iams, 860/87 (Fisher); Elliot, 10/84 (Springa%e). I'- This Board starts from the premise that employee theft is a , serious matter as it undermines the element of trust which is fundamental to a sound employer-employee relationship. Thi's principle has been recognized in numerous awards of the...Grievance Settlement Board. By way of example, the Board in ~ stated: " In assessing the evidence, the Board is aware that the Grievor's offence and subsequent conviction is a serious matter which cannot and should not be condoned. Theft or attempted theft in any form from an Employer by an Employee, regardless of the value of the stolen goods, does constitute just cause for the imposition of discipline by the Employer. Dishonesty in any form is comp]ete]y unacceptable to an Employer- Employee relationship, Theft or attempted theft of the Employer's property by an Employee is a " fundamenta] breach of the trust relationship ~ between the Employer and the Employee. The Liquor Control Board of Ontario has the 'right to anticipate a high degree of honesty from its ~' Employees, and a deviation f'rom that standard mu~t be dealt with in keeping with the gravity of the..: ~" offence." ' - ~ (page 9-10) This panel of'the Board fully accepts the approach reflected in the above excerpt. .. It is .apparent, from a reading of the awards provided to us, that each case is somewhat unique and that the ultimate result depends on the specific facts and circumstances as found therein, Nevertheless, 9ivan the seriousness of the offence.of theft, we think that the penalty of discharge is, prima facie, an acceptable Employer response to such conduct. This is not to suggest, however, that it must be .the automatic response in every case. In determining the appropriateness of the response t~e ~ Employer, and indeed this Board, must have regard to any mitigating circumstances of a persuasive nature. This includes any evidence existing which wouid suggest that the employee may be rehabilitated through other forms of-corrective discipline less than discharge. This is particularly important in ceses involving alcohol or drug addiction. Generally, we agree with the Employer that addiction to alcohol or drugs does not operate as a complete excuse for the improper or illegal conduct ~ complained of. The addiction may, however, explain and set the context for aberrant behavior which d~parts from' the 'employee's normal standard. In this sense, the addiction may be a iI~ mitigating factor to be considered in assessing the propriety of ~ the disciplinary response. We do not think that'this ..'L-;..~....~.consideration shou'ld be restricted to those cases in which a grievor's level o~ work performance suffers as a consequence o~ ~ alcohol or drug use. Rather, the Board is satisfied that these forms of addictfon may be considered, along with other factors, .~ in instances involving theft. We have, accordingly, not been persuaded much turns on the fact that the grievor's act of theft was "once removed" from the aOdiction as claimed by the Employer. In Menz~es (Waisglass), the Board l~sted the critical questions which must be addressed on the issue of reinstatement after a discharge for theft. The'se were summarized as follows: " Is the theft or breach'of trust an aberration? Except for the aberration, except for the unusual and exceptional behaviour tn an otherwise unblemished record, is the grievor credible 'and 10 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 discipline that is required in order to send a sufficiently strong message to all employees on'the importance of trust and honesty in th~ employment relationship?'Oan 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 r~lationship? " (page 9) Additionally, in Blackmore the panel stated that in this type of case, the Board must take "a judicial,.as contra~ted to.a punitive, approach". The Board there continued-as follows: We are required to strike a balance between the interests of the Grievor and those of the · ~'~ Employer, which is to say, between the Grievor's · 'interests in protecting his equity in his job and his continuing livelihood,'and the Employer's interests in maintaining the confidence of the public and the integrity of its operations." ' (pages 4~5) -, We accept the above excerpts as correct statements of the process to be applied in cases involving theft. Turning to the Facts oF the case now before us, it is clear that this grievor engaged in theft from his Employer. Theft by employees is a very serious matter and ~ustifies a substantial disciplinary response. We note in this regard that the grievor, while on cash, was in a position of trust. He was required to honestly account for all transactions with the consuming public. Instead, the grievor utilized a deliberate scheme to defraud the 11 Employer, It is likely that such deceit would be difficult to detect, By his actions, the grievor significantly impaired the relationship of trust that.must ~xist between employer and employee. ~ndeed~ his conduct'stands in stark contrast to that which the Employer may legitimately expect from its staff. We agree completely with the view expressed in ~lackm9r~ as to the level of such expectation and the reasons.for same. The Board there stated: " Certain]y, the LC'BO is especially vulnerable to theft and attempted theft of its property. Its employees are inevitably p'r~sented with tempting opportunities for dishonest behaviour and there are'practical limits to the security measures that .:, can be taken to guard against the misappropriation of money or goods. We do.not go so far as to say that employees, by reason merely of their employment by the LCBO, are any more to be ]...['~. considered as occupying positions of trust than .." are other categOriesrOf public Servants. we do.' < nonetheless, recoqnize'that the nature of their emo-loyment reauires that they conform to a hiqh standard of personal conduct". (emphasis ours) (page 5) .j~ This Board accepts the grievor's evidence that he engaged in excessive drug taking during the period material to this dispute. Insufficient reason was given to us to doubt that aspect o¢ his evidence. As noted earlier, the grievor'was slow in admitting to the problem. He testified, however, that he was afraid for his job and that he was not aware of the Employee Assistance Program. Ultimately, we cannot find sufficient grounds to reject his assertion of a drug addiction. The grievor acknowledged that he ('- used drugs and alcohol on a recreational basis prior to December, \ 1990, It would seem that t'his use spiralled out of control after the break-up with ½is girlfriend. This increased drug use adversely impacted his employment in at least two [2)-respects. · .~ Firstly,'it resulted in .a punctuality problem as previously described. Secondly, according to the grievor it led him to steal from the cash register so that he could fund his drug habit. The Employer contested the nexus between the drug use and the theft. After fully considering the argument, we elect to accept the grievor's evidence as to 'the motivation for the theft. In this regard, we note. the per diem cost o~ the. drug use and the ~:~ grievor's misconceived belief that it was a matter of "survival." It is readily apParent, that. the.t, heft was not a momentary aberration if defined in temporal terms. It is likely' that at least two (2) acts of theft occurred, each being deliberate and well planned. Nevertheless, we think that the'conduct may be viewed as an aberration in the context of the grievor's overall work record with the Employer. Apart from the pgnctuality issue, this was the first disciplinary matter involving the grievor in his three and one-half (3 1/2) years of employment. We were not advised of any other work related problems with this employee. On the evidence before us, it is a reasonable conclusion that the grievor~s normal judgment and conduct were distorted during this period of heavy drug use, 'While,his conduct can in no way be condoned, it is at least somewhat understandable when seen in this context. t3 The grievor admitted to his wrong-doing when first confronted with the allegations against him. An inculpatory statement war given to the police on the day of his arrest. Subsequently, a plea of guilty was entered before the Oourt and an order ?or restitution was substantially complied with. Before this Board, the grievor did not advance an elaborate or unmeritorious defence. Rather, he was quick to acknowledge the improper and illegal conduct. We do not consider his reticence during the meeting of June 13, 1991 to be material as he was actingpursuant to. the instructions 'o~ the lawye~ handling the criminal charge, ,In our judgment, the grievor's, conduct post arrest is consistent with a sincere recognition on his part of wrong-doing, All of this suggests to us that the grievor is a person whose personal life and employment may be rehabilitated. This suggestion is reinforced by'the steps taken to combat the addict'ion. As stated in the evidence, the grievor contacted the Addiction Research Foundation and Donwood Medical Centre in search of treatment. When confronted with a substantial waiting period, he pursued other avenues that led, ultimately, to his placement at the North Western Institute. Since his return, the grievor has been in regular attendance at Narcotics Anonymous and Alcoholics Anonymous meetings, Further, he has attempted to avoid his former friends and haunts. Additionally, the grievor was candid with this Board about his relapse. We conclude, in the final analysis, that al] of this evidence supports a finding o~ rea] potential for rehabilitation. 14 Unfortunately, medical or ocher expert evidence of. an independent nature was not presented to us on the extent of the addiction or the prognosis for recovery. In our view, such evidence should be advanced, if available, While we recognize that it may be difficult to precisely define the extent of a person'$addiction or their future prognosis, such evidence would ]ikely have been helpful. At the very least, it wou]d have permitted us to compare the griever's perceptions against those of the treatfng professionals, Nevertheless,' the Board has determined that the griever's effor['s' are reflective of. rehabilitative potentia3. The Board concludes, after a consideration of all of the circumstances in this case, that-the griever may be able to reestablish an appropriate working relationship with the Employer. In our ~udgment, the objective of corrective discipline can be achieved short of discharge. We have, therefore, decided to reinstate the griever to his former position subject to a number o~ conditions, as outlined be]ow. These conditions wi]] hope~u]]y ~aci]itate the rehabilitation of the emD]oyment re3ati0nship which was so seriously undermined by the .griever's actions. The existence of the Employee Assistance Program demonstrates the Employer has acknowledged that "employees with substance abuse problems may well become ful3y productive again i~ they admit to ~heir problem or dependency and are willing to activel~ engage in a rehabilitation program": see Re Shell C~nad~ Products Co, at page 2??. 15 The decision in this case is tantamount to a suspension for a period in excess of one (1) year. By any standard,'this is a substantial penalty. Nonethelees, it is one that is required so as to demonstrate to the grievor and others that theft is a completely inappropriate and unacceptable form of conduct on the part of LiQuor Control Board employees. The grievor shouYd be made aware it is unlikely that this form of discretion wou]d be again exercised in his favour. In summary, the grievor is rein's%ated~ without lo~s of earned seniority, subject to the following condi%ions: ~ 1. The grievor shall not receive any compensation or benefits from the date of his dismissal to the date of reinstatement, ?~r'.'.--' 2., The grievor' shall maintain regular attendance at meetings of .... ": Narcotics Anonymous and/or 'Alcoholics Anonymous for a period of twelve (12) months from the date of this Award. The grievor shall be responsible for providing the Employer with satisfactory'proof, on a .quarterly basis, of such attendance. 3, The grievor, the Union and the Employer sha) l meet forthwith .. upon the receipt of this Award to determine an appropriate ~ course of treatment for the grievor's addiction consistent with the terms and spirit of the Emp]oyee Assistance Program, In the event that the parties are unable to agree on such a program of treatment within sixty (60) days of the receipt of this Award, this Board shall be reconvened at the request of either of the parties to determine the issue. 4. In the event that the grievor successfully completes the conditions of this Award, any reference to the discharge shall be removed from his personnel file two (2) years after the date of this Award. For all of the above reasons, the grievance is allowed, in part'. ./. The Board retains jurisdiction in order to deal with· any matters arising from the implementation of the Award, Da%ed at Toronto ,'Ontario this lOth day of August, 1992. M.V ~atters[ Vice-Chairperson / omson Member D. Clark, Membe~