HomeMy WebLinkAbout2002-0052.Devlin.04-05-13 Decision
Crown Employees Commission de ~~
Grievance Settlement reglement des griefs
Board des employes de la
Couronne
~-,...
Suite 600 Bureau 600 Ontario
180 Dundas Sl. West 180 rue Dundas Ouest
Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8
Tel. (416) 326-1388 Tel. (416) 326-1388
Fax (416) 326-1396 Telec. (416) 326-1396
GSB# 2002-0052
UNION# OLB087/02
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontano LIqUor Boards Employees' Umon
(DevlIn) Grievor
- and -
The Crown III RIght of Ontano
(LIqUor Control Board of Ontano) Employer
BEFORE M. V Watters Vice-Chair
FOR THE UNION JulIa Noble
Counsel
Ontano LIqUor Boards Employees' Umon
FOR THE EMPLOYER Gordon FItzgerald
Counsel
LIqUor Control Board of Ontano
HEARING January 6 Apnl 7 & 8 2004
2
DeCISIon
On the first day of heanng, held on January 6 2004 the partIes filed the folloWIng Agreed
Statement Of Facts
1 The Gnevor commenced employment as a casual employee In 1986 and
was promoted to a permanent part-tIme employee effectIve October 31 1988
and was promoted to a full-tIme customer servIce representatIve ("CSR")
effectIve November 21 1994
2 A copy of the collectIve agreement IS attached hereto as AppendIx "A"
3 EffectIve November 5 2000 the Gnevor was assIgned to Store 182, whIch IS
an "A" store located In Port CredIt. The Gnevor reported to the store
manager Heather Cameron.
4 As a full tIme CSR, the Gnevor was scheduled to work 40 regular hours per
week and was reqUIred to perform cash and stock dutIes He ran shIfts,
whIch reqUIred hIm to be the person In control of the store, whIch reqUIred
hIm to hold keys to the store, keys to the cash regIster balance deposIts and
place deposIts Into the safe, and assIgmng work to and supervISIng other
employees dunng that shIft.
5 The Gnevor was on duty on January 26 2002 At approxImately 2 31 p.m.,
the Gnevor attended the warehouse area of the store that IS located In the
basement. He selected one case of Remy MartIn VSOP Cognac, CSPC#4101
and placed It on a conveyor belt whIch delIvered It to the ground floor near
the door at the back area of the store He then returned to ground level and
took the case of lIquor out the back door wIthout paYIng for It. Shortly
thereafter he re-entered the bUIldIng wIthout the product. The case consIsted
of twelve 750-ml bottles and the amount ofloss to the LCBO was $904.20
6 On February 7 2002, the Peel PolIce charged the Gnevor wIth one count of
theft under $5 000
7 The Gnevor was Issued a NOm dated February 7 2002, attached hereto as
AppendIx "B"
8 The Gnevor responded to the NOm by correspondence dated February 11
2002, attached hereto as AppendIx "C"
9 The Gnevor's employment was termInated by correspondence dated
February 25 2002, attached hereto as AppendIx "D"
3
10 The Gnevor filed a gnevance, at Stage 3 dated February 28 2002, attached
hereto as AppendIx "E"
11 As part of the appeal process In the Gnevor's applIcatIOn for Employment
Insurance benefits, the Gnevor provIded a letter to Human Resources
Development Canada. The letter IS dated May 6 2002 and IS attached hereto
as AppendIx "F"
12 On September 12, 2003 the Gnevor pleaded guIlty to one count of theft
under $5 000 He was sentenced to 6 months probatIOn.
13 The Gnevor IS not seekIng any back pay from the Employer as part of a
remedy In thIS arbItratIOn.
14 The partIes agree that eIther party may supplement the above facts wIth
addItIOnal VIva voce eVIdence at the heanng of thIS matter
FolloWIng the filIng of the Agreed Statement Of Facts, counsel for the Umon advIsed that
the gnevor had Just Informed the Umon on January 6 2004 that he had a gamblIng problem at the
tIme matenal to thIS dIspute I was further Informed that, on the same date, the gnevor brought the
problem to hIS doctor's attentIOn for the first tIme and that he requested a referral from hIS doctor to
counsellIng for hIS gamblIng addIctIOn. In response to a questIOn from thIS Vice-Chairperson, It was
learned that the gnevor also faIled to tell hIS cnmInallawyer about thIS addIctIOn for purposes of the
cnmInal proceedIngs
As a consequence of the above revelatIOn, the Umon asked that the heanng be adjourned for
a penod of SIX (6) months so that the gnevor could commence a program of counsellIng. Counsel
for the Umon asserted that such an adjournment would be of benefit to thIS process as It would lead
to eVIdence from a counsellor relatIng to the gnevor's rehabIlItatIve potentIal It was argued that any
prejUdICe to the Employer from a grant of the order requested would be mImmal gIven that there
was no claim to back pay beIng advanced on behalf of the gnevor
The Employer opposed the request for an adJ ournment. Counsel for the Employer noted
that the Issue of gamblIng was beIng raised for the first tIme on the ImtIaI day of heanng and that It
had not been the subject of dIscussIOn In any pnor medIcal report. He argued that even If a
gamblIng problem eXIsted In January 2004 there was no way of establIshIng that such problem
eXIsted at the tIme of the theft In January 2002
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Mter consIdenng the respectIve submISSIOns, I IndIcated that I was prepared to adJourn the
case for a penod of two (2) months so as to permIt the gnevor to obtaIn the counsellIng he sought. I
observed that It would very lIkely enable the Umon to call a counsellor as a wItness to speak to the
gnevor's rehabIlItatIve potentIal The partIes were advIsed that any eVIdence forthcomIng as a result
of the adJournment would sImply form part of the mIX of eVIdence to be consIdered at the
conclusIOn of the case In the determInatIOn of whether a substItuted penalty should be Imposed. In
my Judgment, a short delay of thIS nature was unlIkely to preJudIce the Interests of the Employer
Mter delIvenng thIS rulIng, the partIes agreed to Apnl 7 2004 as the second day of heanng. In
substance, thIS amounted to an adJournment of three (3) months duratIOn.
At the heanng on the ments, the Employer dId not call any wItnesses Instead, It relIed on
the Agreed Statement Of Facts to support ItS case The gnevor and hIS sIster Ms Jenmfer Shannon
DevlIn, were the only wItnesses called by the Umon. The Employer elected not to present any
eVIdence In reply
The gnevor IS forty-two (42) years of age and has a Grade XII educatIOn. He has three (3)
teenage chIldren, all of whom are In school The gnevor separated from hIS wIfe In or about 1993
By all accounts, It was an acnmomous separatIOn. FolloWIng the separatIOn, the gnevor's eldest
chIld lIved wIth hIm, whIle the two (2) youngest chIldren resIded wIth theIr mother The gnevor
provIdes financIal support to the latter two (2) chIldren.
The mantal breakdown resulted In the gnevor expenenCIng stress, anger and emotIOnal
dIfficultIes DIfficultIes In secunng and enforcIng access nghts to the chIldren contributed to hIS
upset and depressIOn. UltImately these condItIOns caused hIm to consult hIS famIly physIcIan, Dr
LIng L Huang. The gnevor testIfied that Dr Huang then prescnbed antI-depressant medIcatIOn as
well as tIme away from the workplace He claimed that the aforementIOned medIcatIOn dId not
Improve hIS condItIOn.
As IndIcated In the Agreed Statement Of Facts, the gnevor was workIng as a full-tIme
customer servIce representatIve ("CSR") In Store #182, located In Port CredIt, at the tIme of the
IncIdent relevant to thIS dIspute Performance appraisals were filed In respect of the pen ods May
1995-May 1997 July 1997-February 1998 and March, 2000-March, 2001 The first two (2)
5
appraisals record that the gnevor met all of the reqUIrements of hIS posItIOn. He receIved an overall
performance ratIng of II SolId Performance II on the most recent appraisal I was Informed that, apart
from the IncIdent here In Issue, the gnevor had a clear dIscIplInary record. The Umon filed a letter
of commendatIOn forwarded to the gnevor In September 2001 by the MMC Group thankIng hIm
for hIS support and assIstance WIth Manne FestIval 2001 and the Offshore Grand Pnx of Canada.
It was the gnevor's eVIdence that he started gamblIng on a socIal basIs In 1985 wIth hIS In-
laws, whom he descnbed as "race-track fanatIcs" He testIfied that hIS gamblIng got progressIvely
worse after the breakdown of hIS mamage The gnevor stated that, whIle he gambled at several
racetracks, the bulk of hIS gamblIng was done at WoodbIne as that locatIOn was easIly accessible
from both home and work. The gnevor claimed that hIS gamblIng InItially focused on horses and
off-track bettIng. He advIsed, however that hIS focus changed to slot machInes folloWIng the
opemng of a caSInO at the WoodbIne locatIOn In or about 1993
The gnevor advIsed that from the mId-1990s untIl January 2002, he would gamble as often
as he could. He estImated that he gambled between four (4) and seven (7) days each week. The
gnevor described hIS behavIOr at the WoodbIne CasIno as "erratIc" In hIS words, he "always
wanted to be there" He stated that, on occaSIOn, he would stay at the caSInO tIll ItS cloSIng at 3 00
a.m The gnevor maIntaIned that he would spend between twenty dollars ($20 00) and one
thousand dollars ($1 000 00) per VISIt dependIng on what amount he had wIth hIm. He commented
as follows wIth respect to the extent of hIS gamblIng "If I had money I'd spend It; If I dIdn't, I'd
borrow It II The gnevor IndIcated that he borrowed from both hIS famIly and fnends to sustaIn hIS
habIt. He testIfied that he would mIslead hIS famIly as to the reason for hIS need for funds. He
stated that he dId, however tell hIS fnends that he reqUIred money In order to gamble The gnevor
stated that he borrowed money from between SIX (6) and ten (10) people and that three (3) or four
(4) of these IndIVIduals were never repaid the fifty dollars ($50 00) to two hundred dollars ($200 00)
whIch was OWIng to them. The gnevor explaIned that hIS fnends eventually stopped loamng hIm
money as he was not paYIng them back.
At the heanng, the gnevor acknowledged that hIS gamblIng behavIOr was a problem and that
It, ultImately led hIm to steal from the Employer The gnevor asserted that as of the tIme of the
6
IncIdent, he was barely keepIng hIS head above water financIally He stated In thIS regard that, "I
was In a down, I couldn't get money anymore II The gnevor claimed that he was gamblIng a lot In
January 2002 He descnbed hImself as then beIng under consIderable stress and unable to eIther
thInk straight or pnontIze hIS daily lIfe The gnevor maIntaIned, however that he stopped gamblIng
on February 7 2002, the day of hIS arrest, and that he has not gambled SInce
As mentIOned prevIOusly Ms. Jenmfer Shannon DevlIn, the gnevor's sIster gave eVIdence
In thIS proceedIng. Ms DevlIn works as a Legal AssIstant. She advIsed that she was aware of the
theft and her brother's convIctIOn In respect of the charges laid.
Ms DevlIn testIfied that pnor to 2001 she accompamed the gnevor to gamble
approxImately SIX (6) tImes per year She estImated that she saw hIm gamble about five (5) tImes In
the one (1) year penod precedIng the theft. It was her eVIdence that they went to WoodbIne CaSInO
and Niagara CasIno eIther spontaneously or on socIal occaSIOns She recalled that when they went
gamblIng together the gnevor would spend whatever money he had wIth hIm and, at tImes, would
access a back machIne to obtaIn more money Ms DevlIn stated that she was not aware her brother
had a gamblIng problem tIll mId-2002 She advIsed that the famIly then had a meetIng to dISCUSS
how they could assIst hIm financIally In her words, the famIly members present were II leanIng II on
the gnevor Ms. DevlIn testIfied her brother then Informed the famIly that he had spent all of hIS
money gamblIng and that gamblIng had led hIm to commIt the theft. In a response to a questIOn
from thIS Vice-Chairperson, Ms DevlIn IndIcated that she last saw the gnevor gamble at a famIly
bIrthday event In August, 2001
The IncIdent matenal to thIS case occurred on January 26 2002 whIle the gnevor was
workIng the day shIft at Store # 182 The gnevor testIfied that around the lunch hour a person he
knew from WoodbIne CaSInO entered the Store He stated that he knew thIS IndIVIdual as Jack. He
claimed that he dId not know Jack's surname The gnevor advIsed that he had seen Jack on about
SIX (6) occaSIOns at the caSInO He also belIeved he had seen Jack In Store #182 prevIOusly but was
unsure If Jack knew that was hIS workplace
7
It was the gnevor's eVIdence that he and Jack talked for a few mInutes and that they then
made "an arrangement II pursuant to whIch he would gIve Jack some of the LCBO's product In return
for four hundred dollars ($400 00) to be paid later that evemng at the caSInO The gnevor dId not
dIspute the descnptIOn of the transactIOn as contaIned In paragraph five (5) of the Agreed Statement
Of Facts He maIntaIned that he entered Into thIS scheme as he wanted to go to WoodbIne CaSInO
that day but dId not have funds avaIlable to do so The gnevor testIfied that Jack said he could do
the gnevor a favour If the gnevor would do hIm a favour In return. The gnevor acknowledged that
he qUIckly caught the gISt of Jack's suggestIOn. He claimed that he was "hesItant at first" but that he
decIded to partIcIpate In the plan as It would enable hIm to attend the caSInO later that day I
recorded the folloWIng comment relatIng to hIS motIvatIOn at the tIme II then It Just came InsIde of
me, I Just have to do thIS because I want to go" The gnevor asserted that Jack, contrary to theIr
arrangement, never showed up at the caSInO Indeed, he claimed that he never saw Jack agaIn. The
gnevor noted that he ultImately receIved nothIng for the case of lIquor whIch he gave to thIS
acquaIntance
The gnevor acknowledged that he stole to feed hIS own purposes Dunng hIS testImony he
expressed the folloWIng sentIments concernIng hIS conduct:
"I feel bad about It. I know It was a stupId thIng to do However I don't do It
anymore I don't gamble I have a ton of thIngs to occupy my tIme, my kids II
The gnevor demed that he ever engaged In sImIlar transactIOns wIth Jack or any other person. He
further demed commIttIng any other acts of theft from the LCBO or elsewhere to SUbsIdIze hIS
gamblIng.
FolloWIng the events of February 7 2002, the gnevor responded to the Employer by letter of
February 11 2002 The letter dIrected to Mr Gus Loukas, DIstnct 12 Manager reads
"I cannot express my apologIes enough to yourself or my fellow staff-
members My career wIth the L C.B 0 means very much to me and stIll offer my
servIces If so reqUIred. The L C.B 0 has treated me very well, and alleged IncIdent
I would lIke to dISCUSS further In detail wIth yourself and Board Members I
sIncerely apologIze agaIn for any embarrassment or dIStruSt that thIS problem has
caused by collegues (SIC) and fnends II
8
The gnevor's InItial applIcatIOn for Employment Insurance benefits was demed. As a
consequence, he wrote the folloWIng letter of May 6 2002 to Human Resources Development
Canada.
II AttentIOn. Appeals DIVISIOn
Dear SIr/Madam
In response to your letter dated Apnl 19 2002 denYIng me Unemployment
Insurance benefits I am appealIng thIS decIsIOn.
AccordIng to your agent, speaking wIth an employee of the L C.B 0 she was told I
lost my employment wIth them due to an alleged IncIdent, whereby they claim they
have a vIdeo of me stealIng product.
ThIS IS totally bIased InfOrmatIOn gIven by the company It would be more
appropnate to have said for "cause" There IS no eVIdence oftheft. What they have IS
a surveIllance vIdeo of myself takIng out garbage, as thIS IS normal for thIS
establIshment.
ThIS IncIdent IS currently In the courts and the company IS draggIng ItS heels In
provIdIng my lawyer access to pertInent InformatIOn.
It IS also In the hands of the Umon who IS fightIng thIS dIsmIssal on my behalf
The InfOrmatIOn the company IS proVIdIng IS preventIng me from benefits or any
other gaInful employment.
I understand It IS agaInst the law to label anyone wIth slanderous allegatIOns
Therefore, I belIeve there IS no basIs for beIng demed Unemployment Insurance
benefits
I look forward to heanng from you.
Yours truly
DavId B DevlIn
cc Nick FaIeta, LLB"
In cross-eXamInatIOn, the gnevor agreed that hIS reference In the letter to "takIng out garbage II was a
fabncatIOn. He further agreed that he accused the LCBO In hIS correspondence, oflYIng to Human
Resources Development Canada. By way of explanatIOn of the letter's content and tone, the gnevor
9
stated that he had receIved no money and there was no other way he could get any UltImately the
gnevor dId obtaIn Employment Insurance benefits In response to a questIOn from counsel for the
Employer he seemed to agree that he was not really entItled to the benefits The gnevor IndIcated
that he has not repaid the benefits to date but asserted he would do so If that was made a condItIOn
of reInstatement.
As noted In paragraph twelve (12) of the Agreed Statement Of Facts, the gnevor pleaded
guIlty on September 12, 2003 to one (1) count of theft under five thousand dollars ($5 000 00) and
was sentenced to a penod of SIX (6) months probatIOn. The ProbatIOn Order stated, Inter alIa, that
the gnevor was to "commence any counsellIng as recommended by your probatIOn officer wIth
relatIOn to depressIOn or otherwIse" The gnevor testIfied that hIS ProbatIOn Officer advIsed hIm to
contInue seeIng hIS famIly doctor The above-mentIOned penod of probatIOn was completed by the
gnevor
It IS clear that at the sentencIng, reference was made to the gnevor's mantal problems and to
hIS related depressIOn. The gnevor's problem wIth gamblIng was not the subJect of any comment as
the gnevor dId not Inform hIS cnmInal counsel of the problem. In cross-eXamInatIOn, the gnevor
acknowledged he understood that any explanatIOn he mIght provIde for hIS mIsconduct would be
helpful at the sentencIng stage of the process The gnevor offered a vanety of reasons for not tellIng
hIS counsel that he had a gamblIng problem. He asserted that he was under the assumptIOn he
would "WIn the cnmInal case" He then added that he thought he would only get probatIOn and for
that reason elected not to tell hIS lawyer Lastly the gnevor claimed he neglected to mentIOn the
problem because he was In demal
The gnevor was not ordered by the cnmInal court to make restItutIOn to the LCBO It was
hIS eVIdence that he IndIcated he was prepared to make restItutIOn and that hIS parents had a cheque
wIth them on the day of sentencIng. It IS clear however that the ProbatIOn Order dId not on ItS face
reqUIre hIm to make restItutIOn. The gnevor testIfied that he returned to the Court Office on several
occaSIOns to questIOn the omISSIOn. AddItIOnally he spoke to both hIS lawyer and ProbatIOn Officer
about the matter UltImately the gnevor on January 6 2004 thIS beIng the first day of heanng In
thIS proceedIng, provIded a senes of post-dated cheques to the Employer each In the amount of
10
twenty dollars ($20 00) payable on the fifteenth of each month commenCIng In January 2004 The
gnevor stated he would contInue to provIde cheques In thIS fashIOn untIl the debt IS paid off
The gnevor testIfied that the cnmInal convIctIOn had a "devastatIng effect" on he and hIS
famIly He stated that hIS parents and sIblIngs now look at hIm In a dIfferent lIght. He expressed
the OpInIOn that lilt wIll take a whIle to earn theIr trust back" The gnevor further asserted that he
has learned a lesson and that a sImIlar act IS "certaInly not gOIng to happen a second tIme"
Ms DevlIn stated that after lOSIng hIS Job at the LCBO the gnevor became depressed. It
was her assessment that he lost hIS pnde and self esteem. She noted that from a financIal
perspectIve, the loss of thIS Job "almost ruIned hIm" Ms. DevlIn testIfied that the gnevor womed
about lOSIng custody of hIS oldest chIld and access to the two (2) younger chIldren. She explaIned
that thIS concern was due, In part, to the gnevor's InabIlIty to make chIld support payments InMs
DevlIn's words, the gnevor "lost everythIng when he lost hIS Job" She further observed that after
the convIctIOn, her brother was extremely depressed and wIthdrawn to the extent that hIS famIly
became very concerned about hIS emotIOnal well beIng.
The gnevor testIfied that he secured two (2) Jobs In the Fall of 2003 Dunng the day he
welds electncal systems on motonzed vehIcles at a steel manufactunng company The gnevor
advIsed that he obtaIned thIS Job through a fnend who works for the company On two (2) to three
(3) evenIngs each week and on weekends, the gnevor works at a restaurant. It was hIS eVIdence that
the combIned Income from these two (2) Jobs does not match the salary he made when working for
the Employer He also noted that he now sees lIttle of the chIld who resIdes wIth hIm gIven hIS
work schedule
As prevIOusly mentIOned, the gnevor dId not dIsclose hIS gamblIng problem to the Umon
untIl the first day of heanng on January 6 2004 Thereafter he made arrangements to seek
assIstance through Gamblers Anonymous He stated that he now attends Gamblers Anonymous
meetIngs tWIce each week. The gnevor advIsed that theIr program IS geared towards havIng the
gambler recogmze theIr problem and aVOId demal AddItIOnally steps are offered to aVOId or
mInImIZe the Impulse to gamble All of thIS IS done In a group settIng. A seventeen (17) page
booklet was filed In thIS proceedIng outlInIng the hIStOry of Gamblers Anonymous, a descnptIOn of
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the orgamzatIOn, the Recovery Program, the Umty Program, compulsIve gamblIng and Gamblers
Anonymous and "Twenty QuestIOns" In cross-eXamInatIOn, the gnevor was asked why he sought
out Gamblers Anonymous gIven hIS eVIdence that he ImmedIately stopped gamblIng In February
2002 upon hIS arrest. He replIed that hIS counsel suggested lilt would be helpful" to hIm. The
gnevor repeated that he IS no longer IS demal and that he does not gamble any more He observed
that lito a certaIn degree II Gamblers Anonymous has helped hIm "recogmze It was a problem" Ms
DevlIn, In her eVIdence, expressed her understandIng that the gnevor attends two (2) meetIngs of
Gamblers Anonymous each week. She stated that to the best of her knowledge, her brother IS not
gamblIng. It IS her belIef that he "has been tryIng very hard to rebUIld hIS lIfe"
The sole medIcal report of any substance, whIch was filed In thIS case, IS a medIcal note of
Dr Huang dated August 13 2003 Her report reads
liRe: David Devlin
DOB: 14/0ct/1961
DavId came to see me on March 18th, 2002 wIth symptoms of depressIOn, Ie
Insomma, anhedoma, no motIvatIOn, poor concentratIOn, loss of appetIte, mIxed
feelIngs of helplessness, anger sadness, apathy and agItatIOn due to Issues WIth hIS
employer He was gIven Effexor (antIdepressant) but stopped It after two weeks
when he expenenced an Increase of feelIngs of anger towards the unfairness of hIS
cIrcumstances SInce then, he has seen me on several occaSIOns for SupportIve
psychotherapy tensIOn headaches, anxIety and depressIOn. He also has been
strugglIng financIally and workIng In whatever Job he can to survIve
From January 1994 to November 1997 he saw me regularly for SupportIve
therapy due to depressed and anxIOUS mood from mantal breakup He had to take
stress leave from work for two months In June, 1997 when the stress was
unbearable
I trust thIS InfOrmatIOn IS sufficIent for your needs II
The gnevor In hIS eVIdence, acknowledged that he dId not Inform Dr Huang of hIS
gamblIng problem or that he stole from hIS Employer untIl the first day of thIS heanng. The gnevor
testIfied that, whIle he could acknowledge weakness stemmIng from hIS famIly problems, he dId not
want to exhIbIt any weakness related to gamblIng. He made the folloWIng comment on thIS aspect
of the case "I dIdn't want to be labelled as weak lIke an alcoholIc or drug addIct" With respect to
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hIS act of theft, the gnevor advIsed that he dId not Inform Dr Huang of same as he was stIll In demal
as of March, 2002 He added that, lilt'S not somethIng you Just tell people"
Dunng the course of the heanng, the gnevor apologIzed for stealIng from the Employer He
descnbed hIS theft on January 26 2002 as "an act of stupIdIty and selfishness" The gnevor asked
for reInstatement and IndIcated he would do anythIng asked of hIm In order to get hIS Job back.
In cloSIng argument, counsel for the Employer revIewed the folloWIng authontIes OLBEU
(Huvos) and LCBO (2003), GSB No 0710/03 (Abramsky) OLBEU (LInton) and LCBO (1995),
GSB No 1429/92 (Gray) OLBEU (DeLaurentIs) and LCBO (1995), GSB No 10 16/93
(MarszewskI) OLBEU (Leon MenzIes) and LCBO (1983), GSB No 102, 126/83 (Weathenll)
OLBEU (Hill) and LCBO (1987), GSB No 0054/86 (Draper) Re Grober Inc. and Umted Food and
CommercIal Workers, Local 175 (2002), 109 L.AC (4th) 53 (WillIamson) Canada Post Corp. and
CanadIan Umon of Postal Workers (Zachar Gnevance), (1998) C.L.AD No 811 (ShIme) Re
Government of the ProVInce of BntIsh Columbia and BntIsh Columbia Government and ServIce
Employees' Umon (2001), 102 L.AC (4th) 289 (NordlInger) Re PublIc General HosPItal SocIety
Of Chatham and ServIce Employees' Umon, Local 210 (1991), 23 L.AC (4th) 35 (Hinnegan)
Durham CatholIc DIstnct School Board v. CanadIan Umon of PublIc Employees, Local 218
(Pantalleresco), (1998) O.L.AA No 664 (Roberts) Re LIVIngston DIstributIOn Centres Inc. and
Teamsters Umon, Local 419 (1996), 58 L.AC (4th) 129 (MacDowell) Re Molson Brewenes
(Toronto) And CanadIan Umon Of Brewery And General Workers, Component 325 (1994), 44
L.AC (4th) 398 (Mitchmck)
Counsel for the Employer argued that the above awards stand for the folloWIng proposItIOns
1 Theft IS a fundamental breach of the trust reqUIred In an employment
relatIOnshIp
2 DIscharge IS pnma facIe the appropnate response to an act of theft on the part of
an employee,
3 An onus eXIsts on the Umon to establIsh why the sanctIOn of dIscharge IS not
applIcable In the CIrcumstances of the case,
13
4 If any InCapacIty or addIctIOn IS pleaded In an effort to mItIgate the penalty on
the basIs the employee IS not wholly responsible for the act of theft, medIcal
eVIdence must be led to establIsh the eXIstence of the InCapacIty or addIctIOn and
to show a nexus between the problem and the theft. Further medIcal eVIdence
must be led to establIsh that the InCapacItatIOn no longer eXIsts,
5 If a medIcal problem IS asserted, there must be a prompt attempt to get
rehabIlI tatIOn,
6 GenuIne remorse must be shown for the act leadIng to the dIscIplIne
7 There must be a prompt admIssIOn of wrong dOIng;
8 If any doubts eXIst about the gnevor's Inherent honesty then the dIscharge must
be upheld, and,
9 The factor of deterrence IS a legItImate concern.
Counsel for the Employer argued that, In thIS case, the gnevor clearly arranged wIth a thIrd
party to commIt a theft of product from Store #182 He suggested that the theft was camed out In a
calculated fashIOn and was not a spur-of-the-moment decIsIOn. In thIS regard, I was asked to
conclude that the gnevor's descnptIOn of events InvolvIng Jack do not "nng true" Counsel noted
that the gnevor's conduct resulted In a cnmInal convIctIOn.
Counsel referenced paragraph four (4) of the Agreed Statement Of Facts whIch lIsts the
gnevor's dutIes, as follows
"He ran shIfts, whIch reqUIred hIm to be the person In control of the store, whIch
reqUIred hIm to hold keys to the store, keys to the cash regIster balance deposIts and
place deposIts Into the safe, and assIgmng work to and supervISIng other employees
dunng that ShIft."
On hIS analysIs, the gnevor occupIed a posItIOn of trust In the Store It was the Employer's
submIssIOn that the trust necessary to sustaIn the employment relatIOnshIp was shattered by the
events of January 26 2002 Counsel further suggested that the gnevor persIsted In hIS dIshonesty In
hIS subsequent dealIngs wIth Human Resources Development Canada around Employment
Insurance benefits From the perspectIve of the Employer the gnevor provIded a dIshonest
explanatIOn of the CIrcumstances In hIS letter of May 6 2002 to Human Resources Development
Canada. Counsel observed that the gnevor made no effort to repay the benefits to whIch he was not
stnctly entItled. He also stressed that, In the aforementIOned letter the gnevor accused the
14
Employer oflYIng and beIng bIased agaInst hIm. It was argued that thIS letter reflected the gnevor's
"true feelIngs II towards the LCBO In substance, counsel maIntaIned that the gnevor's act of theft,
In conJunctIOn wIth hIS subsequent conduct, calls Into questIOn the level of hIS Inherent honesty
On the Employer's assessment of events, the gnevor faIled to exhIbIt real remorse In the
aftermath of hIS cnme Counsel referred to the gnevor's letter of February 11 2002 to Mr Loukas
In whIch he spoke of the "alleged IncIdent" and "thIS problem" It was suggested that the apology
contaIned thereIn was "hazy at best" Counsel further referenced the May 6 2002 letter to Human
Resources Development Canada mentIOned In the paragraph ImmedIately above It was submItted
that these two (2) letters demonstrate that the gnevor faIled to acknowledge the gravIty of hIS
wrongdoIng. Counsel asserted that the gnevor's expreSSIOn of remorse at the heanng was not
genUIne He expressed the OpInIOn that lito the extent the gnevor IS sorry he IS sorry he got caught II
On thIS pOInt, counsel emphasIzed that the gnevor dId not attempt to make restItutIOn to the
Employer untIl after the first day of heanng, thIS beIng almost two (2) years after the IncIdent
resultIng In hIS dIscharge
Counsel next turned hIS attentIOn to the gnevor's assertIOn that he had a gamblIng problem
and that thIS problem caused hIm to steal from the Employer Counsel argued that the gnevor's
eVIdence connectIng the theft to a gamblIng problem IS "completely unrelIable" In the alternatIve,
he suggested that the gnevor advanced thIS explanatIOn as "an unJustIfiable crutch to aVOId taking
responsibIlIty for the theft" Counsel's arguments on thIS Issue may be summanzed, as follows
(i) counsel noted that the gnevor dId not tell Dr Huang he had a gamblIng
problem when he saw her In March, 2002 Rather he dId not Inform her of
the alleged problem untIl January 6 2004 the first day of heanng In thIS
case On counsel's analysIs, the gnevor provIded no satIsfactory explanatIOn
for why he chose not to tell hIS famIly doctor about the gamblIng problem,
and ItS effects on hIm, In a more tImely fashIOn. He suggested that the
gnevor dId not do so because he dId not, In fact, have a gamblIng problem,
(iI) counsel observed that no medIcal eVIdence was presented to substantIate the
eXIstence of a gamblIng problem or addIctIOn at the tIme of the theft or to
establIsh that there was a nexus between such a condItIOn and the
mIsconduct. He observed that thIS type of supportIng eVIdence was
forthcomIng In many of the authontIes relIed on by the Employer Counsel
argued that It IS not enough for people to self dIagnose theIr addIctIOns In hIS
15
VIew the fact that the gnevor enJoyed gamblIng does not mean he was
addIcted. He submItted, rather that the gnevor resorted to theft because he
was short of money and wanted to go to the caSInO on the mght of the
IncIdent. Counsel asserted that the need for money caused the gnevor to steal
from hIS Employer not a gamblIng problem. It was further noted that the
medIcal eVIdence filed related to depressIOn. Counsel stressed that neIther
the gnevor nor Dr Huang suggested that the theft was connected to
depressIOn,
(ill ) counsel submItted It IS sIgmficant that the gnevor made no effort to obtaIn
medIcal or other assIstance for the alleged gamblIng problem untIl the first
day of the heanng In thIS matter In hIS Judgment, the lack of a tImely effort
to address the problem suggests that It was not a legItImate problem but,
Instead, was one manufactured so as to provIde an explanatIOn for the
wrongful conduct. Counsel emphasIzed that the gnevor dId not start a
program wIth Gamblers Anonymous untIl after January 6 2004 and, then,
only at the suggestIOn of hIS counsel because It would be helpful to hIS
posItIOn. Counsel described thIS InItIatIve as a "strategIc" or "tactIcal move"
In any event, he argued that the eVIdence relatIng to the gnevor's attendance
at Gamblers Anonymous IS Irrelevant In the absence of any probatIve
medIcal eVIdence,
(iv) counsel focused on the gnevor's statement that he qUIt gamblIng In February
2002 and has not gambled SInce It was counsel's submIssIOn that thIS abrupt
stop demonstrates that there was not a senous problem In the first place
Counsel also referred to the eVIdence as to the gnevor's borrowIng from
fnends to support hIS gamblIng habIt. He noted that thIS eVIdence was
uncorroborated and asked that an adverse Inference be drawn gIven that no
Independent wItness was called by the Umon to testIfy about the gnevor's
II out of control behavIOr"
(v) counsel referenced the fact that the gnevor dId not raise the gamblIng
problem In the cnmInal proceedIngs whIle hIS other famIly and emotIOnal
problems were addressed. In counsel's VIew thIS faIlure casts "extraordInary
doubt" on the legItImacy of the claim as to the eXIstence of a gamblIng
problem, especIally gIven what the gnevor potentIally stood to lose from a
convIctIOn on the charge He also stated It was Important to recall Ms
DevlIn's eVIdence that her brother told hIS famIly about a gamblIng problem
In mId-2002 Counsel asserted that the gnevor therefore, could not have
been In demal, as claimed,
(VI) counsel noted that no medIcal eVIdence was presented In thIS Instance to
establIsh that any underlYIng condItIOn has been corrected. Put another way
there IS no medIcal or other expert eVIdence relatIng to the extent of the
gnevor's rehabIlItatIOn. Counsel argued that, as a consequence, It IS
Impossible to conclude that the gnevor's chances of reoffendIng In future are
remote
16
Counsel for the Employer submItted that the sanctIOn of dIscharge was II proportIOnal II to the
gnevor's level of mIsconduct In all of the CIrcumstances of thIS case He suggested that the fact the
gnevor IS a long servIce employee should work agaInst hIm In the sense that more trust IS reposed In
such an employee, such that they have a greater opportumty to commIt acts of theft. In a sImIlar
veIn, counsel argued that deterrence IS a legItImate consIderatIOn In a case such as thIS He
maIntaIned that a poor message would be sent to other employees If the gnevor was reInstated. In
hIS words, It would be "an encouragement, a vIrtual lIcence to steal" UltImately It was the
Employer's posItIOn that there IS no eVIdence to JUStIfy the gnevor's reInstatement and, accordIngly
the gnevance should be dIsmIssed.
The Umon, In response, acknowledged that the gnevor's act of theft amounted to senous
mIsconduct whIch warranted some form of dIscIplIne The Umon's counsel submItted, however
that In all of the CIrcumstances dIscharge IS not the appropnate penalty I was asked to exerCIse
dIscretIOn pursuant to sectIOn 48(17) of the Labour RelatIOns Act, 1995 and to SubstItute a
suspensIOn wIthout pay from the termInatIOn to the date of reInstatement, In place of the dIscharge
Counsel observed that thIS would equate wIth an unpaid suspenSIOn for a penod In excess of two (2)
years I was asked to consIder the gnevor's personal CIrcumstances and to balance hIS rehabIlItatIve
potentIal agaInst the Employer's Interests
Counsel for the Umon revIewed the folloWIng authontIes In cloSIng argument OLBEU
(Reed) and LCBO (1992), GSB No 1165/91 (Watters) OLBEU (CreIghton) and LCBO (1992),
GSB No 1908/89 (Keller) OPSEU (MenzIes) and Mimstry of TransportatIOn (1991), GSB No
751/91 (WaIsglass) OLBEU (Campanaro) and LCBO (1995), GSB No 2232/93 (Watters) Re
CanadIan BroadcastIng CorporatIOn And CanadIan Umon Of PublIc Employees (1979), 23 L.AC
(2d) 227 (Arthurs) It was counsel's submIssIOn that a readIng of these cases suggests arbItrators
have recogmzed that termInatIOn IS not the automatIc penalty whIch must result from an act of theft.
Counsel next revIewed, In general terms, the nature of the gnevor's personal
CIrcumstances at the tIme of the theft. In thIS regard, she focused on the folloWIng (i) the
gnevor's marnage had broken down caUSIng hIm to become depressed and creatIng a negatIve
17
effect on hIS relatIOnshIp wIth hIS three (3) chIldren, (iI) the gnevor was gamblIng excessIvely
and compulsIvely (ill) the gnevor was short of money due, In part, to hIS gamblIng losses and
(iv) the gnevor stole from hIS Employer to obtaIn funds wIth whIch to gamble Counsel
submItted that gIven these cIrcumstances, the gnevor was "not eXerCISIng sound Judgment at the
tIme"
Counsel for the Umon next addressed the mItIgatIng factors present In thIS case Her
argument on thIS aspect of the case maybe summanzed, as follows
(i) the gnevor made a frank acknowledgement of wrongdoIng at thIS heanng
and at hIS cnmInal tnal,
(iI) the gnevor IS contnte and remorseful,
(ill ) the gnevor IS In the process of making restItutIOn to the Employer by way of
affordable monthly Installments,
(iv) the gnevor has already paid a senous pnce for hIS actIOns gIven that he was
charged cnmInally and convIcted of the offence oftheft;
(v) the gnevor's mIsconduct was attnbutable to hIS famIly and emotIOnal
problems but most of all to hIS gamblIng problem Counsel submItted It IS
clear from the eVIdence of both the gnevor and hIS sIster that the former had
a gamblIng problem at the tIme matenal to thIS dIspute She referenced the
progressIOn In the gnevor's gamblIng from the mId-1980's to January 2002
What started as a socIal event wIth hIS In-laws at the racetrack progressed to
the level of exceSSIve and compulsIve gamblIng folloWIng the opemng of the
WoodbIne CasIno In or around 1993 Thereafter on her VIew of the
eVIdence, the gnevor gambled five (5) to SIX (6) mghts each week and was
compelled to borrow from famIly and fnends to support hIS habIt. Counsel
noted that the gnevor dIsclosed hIS problem to hIS famIly In mId-2002 She
suggested that he IS a "closed and pnvate person" and only told hIS
Immediate famIly when pressed and at a tIme when the consequences of
gamblIng had reached II dIsastrous proportIOns" Counsel submItted that thIS,
together wIth the fact he was ashamed, explaIns why he dId not Inform hIS
doctor of the problem pnor to January 2004 I was urged to find that there IS
"a nng of truth II to the gnevor's eVIdence about hIS gamblIng;
(VI) the gnevor has taken steps towards hIS rehabIlItatIOn. Counsel noted that the
gnevor attends Gamblers Anonymous meetIngs and contInues to receIve
counsellIng from Dr Huang. Counsel conceded that the gnevor's admIssIOn
of a gamblIng problem In January 2004 was "late In the day II She
18
referenced the gnevor's explanatIOn that he was In demal pnor to that tIme
and was not prepared to admIt to thIS weakness On her VIew thIS InSIght on
the part of the gnevor reflects the fact that he has "a chance at recovery II
Counsel also noted that the gnevor's late admIssIOn affected the amount of
rehabIlItatIOn he could obtam. She stated that further treatment or
counsellIng could be Included as a term of any reInstatement;
(Vll ) counsel argued that the lack of medIcal eVIdence IS understandable gIven that
doctors refer people wIth gamblIng problems to Gamblers Anonymous, and
not VIce versa. In any event, she submItted that medIcal eVIdence IS not a
precondItIOn to reInstatement. AgaIn, she suggested that any perceIved
deficIency could be dealt wIth by way of a condItIOn the gnevor complete a
program of rehabIlItatIOn through an accredIted counsellIng facIlIty
(V111 ) the gnevor IS a person who exercIsed bad Judgment, rather than beIng a
hardened cnmInal
(ix) the gnevor IS a long servIce employee havIng worked for the LCBO for
seventeen (17) years Counsel stressed that he was a good employee as
reflected In hIS performance appraisals and the commendatIOn from a
customer She further noted that, apart from thIS IncIdent, the gnevor has a
clear dIscIplInary record,
(x) counsel asked me to consIder the economIC Impact of dIscharge In VIew of
the gnevor's personal sItuatIOn. She referenced the fact he supports three (3)
chIldren, one (1) of whom resIdes wIth hIm, and that hIS post termInatIOn
Income IS less than before She observed that the gnevor now has less tIme to
spend wIth the chIld resIdIng wIth hIm as he must work at two (2) Jobs to
support hImself and hIS famIly Counsel added that the gnevor IS not
partIcularly qualIfied for another trade or career
(XI) lastly counsel argued that the gnevor IS unlIkely to engage In sImIlar
conduct, If reInstated. From her perspectIve, the gnevor has learned hIS
lesson and IS no longer gamblIng. AddItIOnally he now understands and
apprecIates the effect that hIS compulsIve behavIOr has had on hIS lIfe In the
final analysIs, I was urged to focus on the gnevor's rehabIlItatIve potentIal
rather than to adopt a pumtIve approach.
It was the posItIOn of the Umon that sufficIent mItIgatIng factors eXIst In thIS case to support
the SubstItutIOn of a lesser penalty For all of the above reasons, counsel asked that the gnevor be
reInstated wIth the folloWIng condItIOns (i) he contInue to make restItutIOn to the Employer (iI) he
contInue to seek assIstance from a rehabIlItatIve program for a penod deemed appropnate by thIS
Vice-Chairperson, (ill) any further act of theft would result In the gnevor's Immediate dIsmIssal
wIthout a nght to gneve other than to challenge the veracIty of the allegatIOns, (iv) the termInatIOn
19
would be replaced wIth a suspensIOn wIthout pay In respect of the tIme penod between the date of
termInatIOn and reInstatement; and (v) such further and other condItIOns as deemed Just and
appropnate
It IS apparent from a readIng of the awards filed In thIS proceedIng that the Gnevance
Settlement Board has consIstently vIewed acts of employee theft as a very senous offence In
OLBEU (Wells) and LCBO (1982), GSB No 2/82 (Venty), the Board stated as follows
"Theft or attempted theft In any form from any 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 completely
unacceptable to the Employer-Employee relatIOnshIp Theft or attempted theft of
the Employer's property by an Employee IS a fundamental breach of the trust
relatIOnshIp between the Employer and the Employee The LIqUor Control Board of
Ontano has the nght to antIcIpate a hIgh degree of honesty from ItS Employees, and
a deViatIOn from that standard must be dealt wIth In keepIng wIth the gravIty of the
offence II
(pages 9-10)
The expectatIOn that employees of the LCBO wIll conduct themselves In an honest and forthnght
fashIOn was the subJect of further comment In Re OLBEU (Blackmore) and LCBO, GSB No
315A/84 (Draper) The Board there observed.
"CertaInly the LCBO IS especIally vulnerable to theft and attempted theft of ItS
property Its employees are InevItably presented wIth temptIng opportumtIes for
dIshonest behavIOr and there are practIcal lImIts to the secunty measures that can be
taken to guard agaInst the mIsappropnatIOn 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 categones
of publIc servants We do nonetheless, recogmze that the nature of theIr
employment reqUIres that they conform to a hIgh standard of personal conduct. II
(page 5)
The reasomng expressed In the above two (2) excerpts has been prevIOusly accepted and
applIed by thIS Vice-Chairperson In both the Reed and Campanaro awards In the former decIsIOn,
the Board started ItS analysIs from lithe premIse that employee theft IS a senous matter as It
20
undermInes the element of trust whIch IS fundamental to a sound employer-employee relatIOnshIp II
(page 9)
The Junsprudence of the Gnevance Settlement Board also dIscloses that dIscharge IS
consIdered, pnma facIe, to be an appropnate dIscIplInary response to an act of theft on the part of an
employee workIng for the LCBO In the Hill award, the Board commented as follows on thIS pOInt
"Pnma faCIe, dIsmIssal IS the appropnate 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. II
(page 5)
ThIS approach was accepted by the panel In Reed. The relevant part of that award reads
"It IS apparent, from a readIng of the awards provIded to us, that each case IS
somewhat umque and that the ultImate result depends on the specIfic facts and
CIrcumstances as found therem. Nevertheless, gIven the senousness of the offence
of theft, we thInk that the penalty of dIscharge IS, pnma 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 appropnateness of the
response the Employer and Indeed thIS Board, must have regard to any mItIgatIng
cIrcumstances of a persuaSIve nature ThIS Includes any eVIdence eXIstIng whIch
would suggest that the employee may be rehabIlItated through other forms of
correctIve dIscIplIne less than dIscharge II
(pages 9-10)
In the recent decIsIOn In Huvos, the gnevor who was a probatIOnary full-tIme CSR, vOIded
actual transactIOns and processed fiCtItIOuS 'return to stock' forms over a two (2) day penod on seven
(7) separate occaSIOns and, In the process, stole $37640 from the Employer The Gnevance
Settlement Board, In that Instance, commented as follows VIS a VIS the status of a CSR.
liAs a CSR, the gnevor held a posItIOn of trust. He performed cash and stockroom
dutIes. He ran shIfts, whIch placed hIm In control of the store wIth control of the
keys to the store and the keys to the cash regIster He was reqUIred to balance the
deposIts and place deposIts Into the safe The eVIdence IS undIsputed that the gnevor
21
abused that posItIOn of trust. His actIOns were an abuse of trust of hIS posItIOn,
the Employer and the publIc His actIOns clearly constItuted cause for dIscharge II
(page 10)
It IS clear that the gnevor In thIS case performed almost IdentIcal dutIes at Store #182 I
have no hesItancy In concludIng that hIS theft of product on January 26 2002 sImIlarly reflected an
abuse of trust and that such mIsconduct provIded the Employer wIth cause to dIscharge hIm from
employment.
In Huvos, the threshold Issue was whether there were compellIng mItIgatIng factors such
that a penalty other than dIscharge would be Just and reasonable In all of the CIrcumstances That
same Issue IS now before me In thIS case The award In MenZIes provIdes some gUIdance as to how
thIS Issue should be addressed. The relevant excerpt reads
"In our VIew and In the VIew of arbItrators generally on the Issue of reInstatement
after dIscharge for theft or breach of trust, the cntIcal questIOns are 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 gnevor 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
appropnate 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 gnevor 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
rel atIOnshI p? II
(page 9)
The award of ArbItrator Arthurs In Re CanadIan BroadcastIng CorporatIOn also IdentIfies
vanous mItIgatIng factors whIch have been IdentIfied as JustIfYIng the SubstItutIOn of a lesser
penalty for dIscharge In cases InvolvIng theft or dIshonesty These factors Include
1 bona fide confusIOn or mIstake by the gnevor as to whether he was entItled to do
the act complaIned of;
2 the gnevor's InabIlIty due to drunkenness or emotIOnal problems, to apprecIate
the wrongfulness of hIS act;
22
3 the ImpulsIve or non-premedItated nature of the act;
4 the relatIvely tnvIaI nature of the harm done
5 the frank acknowledgement of hIS mIsconduct by the gnevor
6 the eXIstence of a sympathetIc, personal motIve for dIshonesty such as famIly
need, rather than hardened cnmInalIty.
7 the past record of the gnevor
8 the gnevor's future prospects for lIkely good behavIOr and
9 the economIC Impact of dIscharge In VIew of the gnevor's age, personal
cIrcumstances, etc
ArbItrator Arthurs observed that the above factors "whIle helpful, are not components of a
mathematIcal equatIOn whose computatIOn wIll YIeld an easy solutIOn. Rather they are but specIal
cIrcumstances of general consIderatIOns whIch bear upon the employee's future prospects for
acceptable behavIOur II (page 230) I note that these factors were assessed by the Vice-
Chairperson In Huvos In order to determIne whether It was appropnate to SubstItute a lesser penalty
for the dIscharge
I have carefully revIewed the awards In Huvos, LInton, DeLaurentIs, Hill, CreIghton,
Campanaro and Reed. These cases are relevant for three (3) reasons First, they all Involved
dIsputes between the partIes to thIS proceedIng. Second, In each of the cases, the gnevor was
termInated for theft or dIshonest conduct and then requested reInstatement at arbItratIOn on the basIs
that the mIsconduct was caused by an alcohol, drug or gamblIng problem, or some cOmbInatIOn of
the three (3) Lastly In all of the cases, wIth the exceptIOn of Reed, medIcal or other expert
eVIdence was tendered by the Umon In an effort to (i) establIsh the eXIstence of the condItIOn, (iI)
establIsh that such condItIOn contributed to, or caused, the wrongdoIng; and (ill) show a posItIve
prognosIs for rehabIlItatIOn.
The need to demonstrate that the condItIOn complaIned of contributed to or caused, the
wrongdoIng was addressed In both the Huvos and DeLaurentIs awards In the former the Vice-
Chairperson observed that lithe case law establIshes that there must be a causal connectIOn between
23
the acts of theft and the gnevor's condItIOn at the tIme" (page 13) In the latter the panel found that
there was an onus on the gnevor to demonstrate that hIS thefts were prompted by hIS alcoholIsm, see
page 15 The award In DeLaurentIs was applIed by the ArbItrator In Re Durham CatholIc DIstnct
School Board, see pages 4 and 5
The awards In Re Canada Post Corp., Re Government of the ProVInce of BntIsh Columbia
and Re LIVIngston DIstributIOn Centres Inc., all relIed on by the Employer speak to a related factor
that arbItrators consIder when adJudIcatIng cases of thIS nature More specIfically they seek to
determIne whether notwIthstandIng the addIctIOn or condItIOn, the employee retaIned volItIOnal
control and whether they contInued to know nght from wrong. In Re Canada Post Corp., ArbItrator
ShIme concluded, as follows
"WhIle hIS gamblIng addIctIOn IS a dIsease whIch contributed to hIS desperate
financIal condItIOn, and In turn caused hIm to engage In theft, I am satIsfied that he
had sufficIent volItIOnal control to make hIS conduct culpable In the cIvIl sense-hIs
Judgement was not sufficIently Impaired. WhIle Dr LIghtfoot and Dr Pohlman
suggest Impaired Judgement, I am satIsfied from the eVIdence, that the gnevor fully
and completely understood what he was dOIng and the consequences If he was to be
caught. WhIle hIS Judgement may have been Impaired to the extent that he could not
control hIS Impulse to gamble, I am satIsfied that he understood that he was stealIng
and the consequences. His Judgement concernIng the theft and the consequences
was not Impaired. I am not prepared to find, on all the eVIdence, that havIng a
gamblIng addIctIOn entItled the gnevor to steal from the mall II
(page 15)
SImIlarly In Re Government of the ProVInce ofBntIsh ColumbIa, the ArbItrator found that
liThe letter of Dr Shepherd, the psychologIst, does not lead me to conclude that the
Gnevor's addIctIOn led to compulsIve behavIOr that mIght be said to be Involuntary
and thus non-culpable None of the eVIdence led was of the nature that would lead
me to conclude that the Gnevor was so addIcted to gamblIng or alcohol that he was
compelled to do any partIcular act, let alone theft. I conclude that the Gnevor's acts
were voluntary deliberate and over a sIgmficant penod of tIme I also find that he
knew and understood the consequences of hIS actIOns. II
(page 6)
Lastly In Re LIVIngston DIstributIOn Centres Inc., the ArbItrator after assumIng that the gnevor was
an alcoholIc, commented as follows
24
"It IS perfectly clear that the gnevor knew what he was dOIng, knew that It was
wrong, but thought that he could get away wIth It. There IS no causal lInk
between the gnevor's dnnkIng and hIS scheme to steal and dIspose of some cases of
cIgarettes II
(page 6)
The Importance of medIcal or expert eVIdence In cases of thIS nature was the subJect of
comment In Reed. On thIS pOInt, the award reads
"Unfortunately medIcal or other 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 recogmze that It
may be dIfficult to precIsely define the extent of a person's addIctIOn or theIr future
prognosIs, such eVIdence would lIkely have been helpful At the very least, It would
have permItted us to compare the gnevor's perceptIOns agaInst those of the treatIng
professIOnals II
(page 15)
NotwIthstandIng the absence of such eVIdence, the gnevor In Reed was reInstated to employment,
subJ ect to certaIn condItIOns The panel, In that Instance, unammously decIded upon that resolutIOn
as It was confident, on the eVIdence, that the gnevor was a person whose personal lIfe and
employment could be rehabIlItated. I note that the lack of medIcal or expert eVIdence was the
subJ ect of some adverse comment In Re Grober Inc. and In Re PublIc General HosPItal SocIety Of
Chatham.
Dr Huang's report of August 13 2003 as mentIOned, IS the only substantIve medIcal report
filed In thIS proceedIng. GIven ItS date, I am InclIned to thInk that It was lIkely prepared for
purposes of the upcomIng cnmInal case The report records that Dr Huang saw the gnevor on a
regular basIs between January 1994 and November 1997 for problems floWIng from a mantal
breakup It also IndIcates that the gnevor consulted her In March, 2002 for symptoms of depressIOn
related to Issues WIth the Employer I note the gnevor's eVIdence that he saw Dr Huang on a
monthly basIs between November 1997 and March, 2002 There IS clearly no IndIcatIOn In the
report of the gnevor ever havIng dIsclosed to hIS physIcIan that he was expenenCIng problems wIth
exceSSIve gamblIng. As stated earlIer In thIS Award, the gnevor testIfied that he dId not tell Dr
25
Huang about the problem untIl January 6 2004 the first day of heanng In thIS matter The gnevor
explaIned that he dId not Inform her of the problem as he dId not want to admIt to thIS type of
weakness and that he was In demal I find thIS explanatIOn somewhat dIfficult to accept. The
gnevor acknowledged that he confided In Dr Huang about hIS mantal relatIOnshIp and hIS
depreSSIOn, both matters beIng of a hIghly personal nature In the cIrcumstances, I questIOn why he
would be reluctant to dISCUSS hIS gamblIng. AddItIOnally I find the assertIOn that he was In demal
untIl early 2004 to be puzzlIng In VIew of the eVIdence that he abruptly stopped gamblIng In
February 2002 and that he told hIS famIly of the gamblIng problem In mId-2002 I am left
wondenng why the gnevor If he had a senous problem, waited tIll January 2004 to Inform hIS
doctor about same
The gnevor also dId not tell hIS lawyer for the cnmInal proceedIngs about the gamblIng
problem. AgaIn, I have some dIfficulty comprehendIng thIS failure to dIsclose If gamblIng was,
Indeed, the real motIvatIOn for the theft. I thInk It reasonable to assume that the gnevor lIkely knew
that thIS InfOrmatIOn, If true, would be helpful to hIS defence and/or sentencIng. ThIS IS partIcularly
so as he understood that a convIctIOn would result In a cnmInal record whIch could adversely affect
hIS custody and access nghts If the gnevor had a gamblIng problem, of the extent described, one
would thInk that In the CIrcumstances he would have commumcated that InformatIOn to hIS lawyer
for purposes of the cnmInal case I note, In thIS regard, that the gnevor had a professIOnal
relatIOnshIp wIth thIS lawyer gOIng back to the onset of hIS mantal dIfficultIes In VIew of thIS
hIStOry I questIOn why he would have been reluctant to dIvulge the problem to hIS lawyer
especIally gIven that he was prepared to dIsclose hIS famIly and emotIOnal problems In the cnmInal
proceedIngs For the reasons set out above relatIng to Dr Huang, I am dIsInclIned to accept that the
failure to dIsclose the gamblIng problem In or about September 2003 was because he was then stIll
In demal
As stated prevIOusly the gnevor also faIled to tell the Umon about a gamblIng problem untIl
the first day of heanng. ThIS failure spanned a penod of almost two (2) years folloWIng hIS
dIscharge As a consequence, the Employer was also not made aware of the alleged problem over
thIS same penod.
26
FaIlure to dIsclose the alleged cause for theft was addressed In the LInton award. There,
neIther the gnevor nor anyone on hIS behalf told the Employer of hIS explanatIOn of drug addIctIOn
untIl the eve of the heanng at whIch he asked for reInstatement. The panel decIdIng that case
commented adversely on thIS faIlure On thIS pOInt, the award reads
"WhIle he clearly regrets the Impact hIS addIctIOn and hIS thefts have had on hIS own
lIfe, the gnevor has not expressed remorse for the Impact they had on the employer
He dId not admIt hIS mIsconduct to the employer at the earlIest opportumty The
alleged mItIgatIng cIrcumstances on whIch he relIed at heanng were not
commumcated to the employer at the earlIest opportumty nor were hIS efforts to
rehabIlItate hImself In short, he faIled to do what he could have done hImself In an
attempt to rehabIlItate hIS relatIOnshIp wIth the employer to demonstrate to It why It
should trust hIm agaIn despIte hIS past wrongdoIng. None of thIS bodes well for the
restoratIOn of that trust, and It IS InCOnsIstent WIth the claim that the gnevor was
remorseful II
(page 17)
I find It sIgmficant that a maJonty of the panel consIdered thIS faIlure to dIsclose drug addIctIOn In a
tImely fashIOn suggested a potentIal InabIlIty to restore the element of trust necessary for an
effectIve employment relatIOnshIp
The gnevor on the eVIdence, dId not seek any assIstance for a gamblIng problem untIl
January 6 2004 His doctor was first Informed of the problem on that date and the gnevor started to
attend meetIngs of Gamblers Anonymous shortly thereafter on the suggestIOn of hIS counsel I
questIOn why the gnevor was so tardy In seeking help If hIS gamblIng was as exceSSIve, as claimed.
I would have expected hIm to have sought assIstance after hIS termInatIOn and, certaInly after hIS
convIctIOn If he was really concerned about thIS problem. As noted, the gnevor testIfied that he
Immediately stopped gamblIng In February 2002, wIthout any recourse to professIOnal InterventIOn.
ThIS fact, If true, raises the dIStInCt possibIlIty that the problem was not as senous as made out.
Dr Huang was not called as a wItness In thIS case Further she dId not provIde a more
current medIcal report. WhIle the gamblIng problem was not dIsclosed to her untIl January 2004 I
thInk that the doctor mIght have been able to shed some lIght on the gnevor's prognosIs and
rehabIlItatIve potentIal I also consIder It matenal that no one was called from Gamblers
27
Anonymous to testIfy about the gnevor's Involvement In the program, hIS progress and hIS prospects
for rehabIlItatIOn. ThIS case, therefore, IS unlIke the sItuatIOn In most of the awards cIted by the
partIes In those cases, medIcal experts or counsellors were called upon to support a request for
reInstatement.
The gnevor testIfied about borrowIng money from hIS fnends to support hIS gamblIng habIt.
The gnevor stated he told them at the tIme that he needed the money to gamble The eVIdence was
that these fnends eventually stopped loamng hIm money because he faIled to repay them. One (1)
or more of these IndIVIduals could have been called as wItnesses to support the assertIOn the gnevor
was gamblIng excessIvely In the penod pnor to the theft. The faIlure to call such a wItness raises an
Inference that they mIght not have been SupportIve of the gnevor's claim.
I am not dIsposed to gIve much effect to the content of the gnevor's letter of February 11
2002 to Mr Loukas On ItS face, the letter IS somewhat vague However It was wntten shortly
after the gnevor's arrest and I can accept that, In the cIrcumstances, he mIght have been dIsInclIned
to be specIfic In hIS descnptIOn of the IncIdent. I do agree wIth the Employer's suggestIOn that the
gnevor's response to the NOm was less than a complete or frank admIssIOn of wrongdoIng.
It IS readIly apparent that the gnevor was untruthful In hIS letter of May 6 2002 to Human
Resources Development Canada. By way of example, he referred to an "alleged IncIdent" when In
fact he knew It was more than alleged gIven that he actually commItted the theft In Issue He also
referenced takIng out garbage, when he was fully aware that he actually removed a case of cognac
from the Store The gnevor further Improperly accused the Employer of provIdIng "totally bIased
InfOrmatIOn II I accept that these statements In the letter reflect dIshonesty and a propensIty to bend
the truth on the part of the gnevor
A sImIlar sItuatIOn occurred In Re LIVIngston DIstnbutIOn Centres Inc. In that case, the
ArbItrator found, Inter alIa, that the gnevor's conduct dId not satIsfy the standard of ngorous honesty
reqUIred of an employee In a dIspute of thIS nature On thIS pOInt, the award reads
"Perhaps most tellIng are the gnevor's subsequent dealIngs wIth the Unemployment
Insurance CommIssIOn where, the company pOInts out, he also refused to
28
acknowledge any wrongdoIng, and lIed In order to Improve hIS chances of gettIng
benefits
The gnevor acknowledges that (as wIth the polIce) he told the Unemployment
Insurance CommIssIOn that he had done nothIng wrong. He told the UIC that he dId
not steal anythIng, and that he dId not know how stolen cIgarettes came to be In hIS
car However In hIS testImony at the arbItratIOn heanng he admItted he was lYIng.
He conceded "I make no bones about It. I was tryIng to bullshIt the Unemployment
Insurance CommIssIOn to get some money II
The gnevor says that he was feelIng the pInch of unemployment and needed the UI
cheque So he lIed to the UIC It seemed to be the best way to handle hIS
predIcament. II
(page 7)
-and-
"When the gnevor was caught "red-handed" there was no frank admIssIOn of
mIsconduct or wIllIngness to take responsIbIlIty for hIS behavIOur On the contrary
The gnevor told a senes of lIes to the polIce and was not completely forthcomIng to
the company eIther No doubt he was actIng upon hIS lawyer's advIce But he has
nevertheless IndIcated a wIllIngness to bend the truth If It wIll promote hIS Interests
or help hIm aVOId personal responsIbIlIty--as In the case of hIS unemployment
Insurance claim some weeks later II
(page 11)
I am InclIned to agree wIth counsel for the Employer that the gnevor's descnptIOn of hIS
arrangement wIth Jack IS somewhat suspect. The gnevor stated that he had met Jack on about SIX
(6) occaSIOns, yet he dId not know hIS last name The gnevor suggested that Jack may not have
known that he worked at Store #182, but wIthIn a few mInutes of theIr meetIng on January 26 2002
they concluded an arrangement to steal from the Employer I am left wIth the ImpreSSIOn that Jack
may have gone to the Store wIth a firm purpose In mInd and that the plan may have been concocted
beforehand by the two (2) partIcIpants, rather than It Just occumng spontaneously I am also left
questIOnIng the veracIty of the gnevor's eVIdence that he never saw Jack agaIn after puttIng the case
of cognac In hIS trunk.
One (1) final factual matter remaInS relatIng to restItutIOn. It IS apparent that the gnevor
made no effort to make restItutIOn between February 2002 and the date of hIS cnmInal case In
September 2003 The gnevor testIfied that he was prepared to make restItutIOn at the sentencIng,
29
but that a term of restItutIOn was not Included In the probatIOn order It was hIS eVIdence that he
spoke to both hIS lawyer and the Court Office concernIng thIS omISSIOn. The fact IS, however that
despIte thIS concern, the gnevor made no actual effort to repay the Employer folloWIng hIS sentence
untIl the first day of thIS case ThIS delay causes me to questIOn how SIncere the gnevor really was
In wantIng to make thIngs nght wIth hIS Employer
In Reed, the gnevor alleged that hIS act of theft stemmed from an addIctIOn to drugs There
was eVIdence In that case that, between hIS arrest and a subsequent meetIng wIth hIS Employer on
June 13 1991 the gnevor contacted both the AddIctIOn Research FoundatIOn and Donwood
MedIcal Centre As there was a substantIal WaitIng lIst for programs at both facIlItIes, the gnevor
arranged for a referral to the North Western InstItute In Fort WashIngton, Pennsylvama for a penod
of rehabIlItatIOn. ThIS program was completed well In advance of the heanng. AddItIOnally the
gnevor commenced regular attendance at meetIngs of both AlcoholIcs Anonymous and NarcotIcs
Anonymous pnor to the arbItratIOn. In the present case, Mr DevlIn dId not seek any treatment for a
gamblIng problem pnor to the first day of heanng. Indeed, he dId not dIvulge the eXIstence of such
problem to the Umon, the Employer and hIS famIly doctor untIl that very day WhIle medIcal or
expert OpInIOn was not presented In Reed, the panel unammously found that there was a real
potentIal for the gnevor's rehabIlItatIOn and reInstated hIm to employment subJect to condItIOns On
the eVIdence before me In thIS case, I am unable to confidently reach the same conclusIOn.
In CreIghton, the gnevor alleged that hIS mIsappropnatIOn of LCBO funds, and hIS Issuance
of NSF cheques, was related to gamblIng and alcohol problems In that Instance, a substantIal
amount of expert eVIdence was presented through a certIfied addIctIOns counsellor and a
psychologIst In respect of the gnevor's problems The former concluded that the gnevor's prognosIs
was good, whIle the latter vIewed It as beIng relatIvely good. On the basIs of thIS expert eVIdence,
the gnevor was reInstated condItIOnally to a warehouse posItIOn. As stated earlIer CreIghton IS
dIstIngUIshable from thIS case as, here, the gnevor dId not tender any medIcal or expert eVIdence on
the relevant Issues The award In Campanaro IS dIstInguIshable on the same basIs In that matter
three (3) reports were filed from a psychotherapIst. These reports ultImately persuaded the panel
that the gnevor had recovered from hIS pnor addIctIOns and emotIOnal problems On thIS baSIS, the
30
panel unammously determIned that he was unlIkely to reoffend and reInstated hIm to hIS former
posItIOn.
The factual sItuatIOn In MenzIes was dIfferent from that present In thIS case In MenzIes, the
gnevor confessed to the thefts and brought eVIdence of same to her supervIsor before she was
actually accused of Improper conduct. In that Instance, the gnevor had been suffenng from extreme
stress as a result of a cOmbInatIOn of dIstreSSIng events In her famIly lIfe An Intern therapIst was
called as a wItness to gIve eVIdence on that gnevor's behalf The wItness assessed the gnevor's
prospects as very lIkely to be successful UltImately a maJonty of the panel concluded that the case
Involved "a set of CIrcumstances of a umque type, not lIkely to occur agaIn" The gnevor was
reInstated on the condItIOn she be examIned, dIagnosed and treated by a lIcensed specIalIst In
emotIOnal and behavIOral dIsorders To repeat, the gnevor In the present dIspute dId not adduce any
supportIng eVIdence, through a physIcIan or other expert, relatIng to the gamblIng problem and the
extent of any recovery from same
The award In Re CanadIan BroadcastIng CorporatIOn lIsts mne (9) mItIgatIng factors whIch
arbItrators have consIdered when called upon to SubstItute a lesser penalty than dIscharge In cases
InvolvIng theft or dIshonesty Mter assessIng these factors agaInst the CIrcumstances of thIS case, I
conclude as follows
I) the gnevor was not under a bona fide confusIOn or mIstake as to whether he was
entItled to remove the case of cognac from Store #182 on January 26 2002,
ll) the gnevor was not unable, due to a gamblIng problem, to apprecIate the
wrongfulness of the theft;
111) on my VIew of the eVIdence, the act was not ImpulsIve or non-premedItated. It IS
clear that the gnevor and Jack spoke about the arrangement for a penod of tIme,
albeIt a relatIvely short penod, and that It was thereafter executed In a deliberate
fashIOn. I am satIsfied that the gnevor made a conscIOUS decIsIOn to steal from
hIS Employer In order to secure funds wIth whIch to gamble later that day In my
Judgment, he possessed volItIOnal control and acted wIth a specIfic purpose In
mInd,
IV) the theft of a case of Remy MartIn VSOP Cognac, havIng a value of $904.20 IS
not a tnvIaI matter when consIdered obJectIvely.
v) I am not satIsfied that the gnevor made a frank and uneqUIvocal
acknowledgement of mIsconduct ImmedIately folloWIng the theft. I find,
however that he dId so at the heanng of hIS gnevance,
31
VI) I have not been persuaded that the gnevor's act of theft was premIsed on a
sympathetIc or personal motIve
Vll) I accept that the gnevor's past record IS a factor standIng to hIS credIt. He had no
pnor dIscIplIne on record over a lengthy penod of employment and had receIved
satIsfactory performance appraisals over the course of several years,
V111) I am unable to confidently assess the gnevor's future prospects for lIkely good
behavIOr As repeated throughout thIS Award, no medIcal or expert eVIdence was
presented to support a conclusIOn that the gnevor has been rehabIlItated, or at
least IS well on hIS way to beIng rehabIlItated, or that he could be returned to the
workplace wIth mImmal nsk to the Employer At best, I am left wIth the
eVIdence of the gnevor much of It self-servIng, on thIS questIOn. On balance,
thIS eVIdence alone has not persuaded me that reInstatement IS JustIfied or
appropnate In the cIrcumstances,
IX) Lastly I accept that the loss of hIS Job at the LCBO had a devastatIng effect on
the gnevor's financIal posItIOn. I do note, however that he has now secured two
(2) other Jobs, albeIt they produce lesser total Income I am unconvInced that the
gnevor's age precludes a sWItch to a dIfferent lIne of work or career
There IS some questIOn, In my mInd, as to whether the gnevor has establIshed that he
suffered from a gamblIng problem at or around the tIme of the theft. His faIlure to dIsclose the
problem to anyone, other than hIS sIster untIl the opemng day of thIS proceedIng, raises some doubt
as to the eXIstence of the problem. ThIS doubt IS reInforced by hIS failure to obtaIn assIstance for a
gamblIng problem untIl after January 6 2004 and by the lack of any medIcal or expert eVIdence to
substantIate ItS eXIstence I am, nevertheless, prepared to assume that he dId expenence such a
problem at the tIme matenal to thIS case
Clearly there IS absolutely no Independent eVIdence to establIsh that gamblIng contributed
to or caused, the theft on January 26 2002 SImIlarly and equally as Important, there IS no medIcal
or expert eVIdence to suggest a posItIve prognosIs for rehabIlItatIOn. Rather I am sImply left wIth
the gnevor's own eVIdence on these Issues After due consIderatIOn, I find thIS eVIdence to be
InSUfficIent to JustIfy resort to the dIscretIOn provIded for by sectIOn 48(17) of the Labour RelatIOns
Act, 1995 I have not been convInced that I can rely on the gnevor's eVIdence, wIth any degree of
confidence, on these matenalIssues As suggested above, hIS eVIdence, In many respects, leads to
more questIOns than answers For the record, I do find that Ms. DevlIn, the gnevor's sIster was a
credIble wItness Her eVIdence, however IS not all that helpful In respect of the core Issues anSIng
In thIS case
32
UltImately I am unable to conclude that sufficIent mItIgatIng factors have been establIshed,
through credIble and trustworthy eVIdence, to ment the reInstatement sought. The eVIdence
presented In support of the gnevor's posItIOn does not meet the tests enuncIated In MenzIes and In
Re CanadIan BroadcastIng CorporatIOn. In the language of the former award, I am not satIsfied that
the gnevor can be expected, wIth a hIgh degree of probabIlIty to respond to correctIve dIscIplIne
and rehabIlItate and repair the damage that was done to the trust that IS reqUIred In the employment
relatIOnshIp To use the language of the latter award, I thInk the eVIdence presented falls far short of
establIshIng that the gnevor wIll exhibIt acceptable behavIOr In future If reInstated.
There IS no doubt that the gnevor expenenced sIgmficant adverse consequences as a result
of hIS decIsIOn to engage In theft on January 26 2002 He lost hIS Job and suffered financIally He
was charged cnmInally and was subsequently convIcted and sentenced. AddItIOnally the IncIdent
and ItS aftermath led to further dIfficultIes wIthIn hIS famIly These consequences, whIle extremely
unfortunate, were entIrely aVOIdable The message from thIS case to employees InclIned to steal
from the LCBO IS that a great deal can be lost as a result of dIshonest and Illegal conduct.
I am Indebted to both counsel for the very able manner In whIch they presented theIr
respectIve cases
For all of the above reasons, the gnevance IS dIsmIssed.
Dated at Toronto Ontano thIS 13th day of May 2004
;:r. c;. ': :-:..-_:~; :~~ :iJ
.:l- -. ~i-IL...L..:._..J-"~-1_.''"''''''_
M.V Watters,Vice Chairperson